1991 PLP 518 (PLC(CS))

(c) Industrial Relations Ordinance (XXIII of 1969)‑‑‑ ‑‑‑‑S. 25‑A‑‑‑Termination of service‑‑‑Grievance petition‑‑‑Jurisdiction of Labour Court‑‑‑Employers who terminated services of appellants contended that they did not employ more than twenty workers and that they were governed by the Shops and Establishments Ordinance and, therefore. Labour Court had no jurisdiction‑‑‑Appellants filed affidavits in evidence but on date fixed for hearing they failed to appear and tender themselves for cross‑examination‑‑‑Labour Court, consequently without proceeding further or recording evidence of employers found that burden of proof was upon appellants to prove that Labour Court had jurisdiction and they having failed to prove same, their application 'stood dismissed‑‑‑Held, looking to circumstances of case it would be fair and proper that both parties were given a chance to prove their respective claims and assertions‑‑‑Order of Labour Court was set aside and case was remanded for decision afresh on merits after giving parties opportunity to lead evidence. Shamsher Khan, Representative for Appellants. Nemo for Respondent. Date of hearing: 8th October, 1989. I intend to dispose of these 5 appeals by this single decision as the respondent in all the appeals is the same and the points of law and facts are also similar.

2. In all the 5 appeals, the appellants claim to be the workmen of the respondents and claim that their services were terminated without any order in writing, as they demanded certain legal benefits. After serving the grievance notices upon the respondent, the appellants filed individual grievance petitions. The respondent resisted the applications mainly on the ground that they do not employ more than 20 workers and that they are governed under the Shops and Establishments Ordinance, therefore, the Labour Court had no jurisdiction.

3. The appellants filed affidavits‑in‑evidence, but on the date fixed for hearing, they failed to appear and tender themselves for cross‑examination. Consequently the learned Labour Court without proceeding further or recording evidence of the respondents held that the burden of proof was upon the appellants to prove that the Labour Court had jurisdiction and they having failed to prove the same, their applications were dismissed. Against the said orders, the present appeals have been filed.

4. The respondents have refused to accept the service of the Notice of this appeal and as such the service against them is held to be good. In the memo of appeal, it is stated, that the brother of the learned Representative of the appellants had died and consequently, he had 'gone to India, therefore, the appellants failed to appear and tender themselves for cross‑examination expecting that the matters would be adjourned. When asked as to why an application for setting aside the ex parte order was not moved before the learned Labour Court; Mr. Shamsher Khan, the learned Representative for the appellants submitted that the Labour Court was lying vacant.

5. The applications of the appellants had been admitted by learned Labour Court. The burden of proving ouster of jurisdiction of Labour Court is always upon the party which pleads ouster. The learned Presiding Officer has recorded his findings that the respondents employed less than 20 workers on the basis of written statement, which was neither on oath nor it was proved through the examination of any witness. Such a written statement cannot be considered as an-evidence in view of the decision of their Lordships of the Supreme Court reported in PLD1972SC25.

6. Looking to the circumstances of the case and the above discussion, in my opinion, it would be fair and proper that both the parties should be given a chance to prove their respective claims and assertions. I, therefore, set aside the impugned orders and remand all the 5 cases to the learned Labour Court for deciding the cases afresh on merits after giving opportunity to both the parties to lead evidence. M.Y.H./1569/Lb.S ????????????????????????????????????????????????????????????????????????????? Case remanded.