1992 PLP 678 (PLC(CS))

Gohar Iqbal, Representative for Respondent. Date of hearing: 26th March, 1991. DECISION This is an appeal against the order, dated 3-12-1990, passed by the learned Presiding Officer, Sindh Labour Court No. I at Karachi; whereby the grievance petition of the respondent was allowed and he was ordered to be reinstated in service with full back benefits.

2. I have heard Mr. Khurshid Ahmed Siddiqi, the learned Advocate for the appellants and the respondent in person and have also gone through the record and proceedings of the case.

3. The brief facts of the case are that the respondent claims to have been employed as a Weaver in the appellants' factory when his services were terminated orally on 1-10-1989, because he demanded the bonus, leave and overtime wages etc. After serving grievance notice upon the appellants, the respondent riled grievance petition before the learned Labour Court which was resisted by the appellants on the ground that there was no relationship of employer and employee between the parties and further the West Pakistan Industrial and Commercial Employment (Standing -Orders) Ordinance, 1968 (hereinafter called as the Ordinance) was not applicable to the appellants' establishment.

4. The respondent in his affidavit-in-evidence has stated that he was employed as a weaver by the appellants since last one year. He has further stated that the appellants are not in the habit of issuing appointment orders to any worker. The appellants witness, Shakeel Ahmad has of course denied the assertion of the respondent that he was the workman of the appellants' establishment but, has not denied the averment that they do not issue appointment orders to the workmen. This averment of the respondent has not been challenged in his cross-examination also. The appellants have also not produced any appointment order of any other workman to show that they do issue the appointment orders. Thus, the oral evidence of the respondent against the oral evidence of the appellants' witness on the point of relationship between the parties. If, the evidence of both the parties, is kept in juxta-, position the evidence of the respondent would look more probable and believable. I, therefore, see no reason to disagree with the findings of the learned Labour Court on this issue.

5. The respondent alleges that he was removed by oral orders. The appellants do not claim to have issued any order, in writing, showing any explicit reason for removal of the respondent as required under Standing Order 12(3) of the Ordinance. However, the question for determination is whether the Standing Orders Ordinance is applicable to the establishment of the appellants. On this issue also, there is oral evidence of the respondent as against the oral evidence of the appellants' witness. The respondent has asserted in his evidence that the provisions of the Standing Orders Ordinance, 1968 and Industrial Relations Ordinance, 1969; are applicable to the appellants' establishment. In the cross-examination he has denied, the suggestion that the appellants employed only 4 workers, but, he has asserted that about 22/23 workers used to work in the appellants' establishment. In the cross-examination of the appellants' witness, it has come on record that there were 2 shifts in the appellants' factory. The witness has denied the suggestion that 2 pirn winders, 2 jobbers, 2 saringiwalas; 2 sweepers; 1 electrician and 2 workers used to work in each shift. Thus, in the cross-examination of the appellants' witness, the respondent has suggested the number and job description of the workers working in each shift of the appellants' factory. According to this suggestion, 11 workers work in each shift which brings total number to 22 worker. In such case mere denial of the appellants' witness cannot be considered sufficient rebuttal of the evidence of the respondent that more than 20 workers work in the appellants' establishment.

6. No doubt, ordinarily the burden of proof that the Ordinance was applicable to the appellants' factory was upon the respondent. But, in this case, in my opinion, by oral evidence and the detailed suggestions in the cross-examination of the appellants' witness, the respondent has discharged his burden of proof and the burden of proving that there were less than 20 workers working in appellants' establishment was shifted upon the appellants. The mere fact that it is registered under the Shops and Establishment Act; would not necessarily make the Ordinance inapplicable to the appellants' establishment. The witness of appellants had admitted that they do maintain the record. In such case, the best evidence in rebuttal would have been the production of the record to show as to how many workers they employed. Non-production of such record would raise presumption against the appellants.

7. In -view of the above discussion, I rind no merit in this appeal. Admittedly the respondent was not removed by an order, in writing, as envisaged under Standing Order 12(3). His removal was, therefore, illegal. The appeal is accordingly dismissed. M.Y.H./1890/Lb.S Appeal dismissed.