1970 PLP 801 (PLC)

The second party submitted that the first party was employed under them since 1966 and as such the case that he was employed since 1963 was not correct. The business of the second party had become dull and hence they had to do away with his services. The second party wanted to give him, retrenchment benefits as permissible under section 12 of the Act holding that he was employed under the second party for only 3 years. Now on this issue witnesses were examined from both sides. P. W. 1, Rahmatullah was examined. He said that he was employed since 1963 by a relative of the second party and since then he was employed in the Laboratory at Tejgaon. He did not go to Gandaria. He was maintaining the garden. D. W. 1, Syed Md. Mumtaz who was the Manager of the second party joined the firm in July 1966. He said that he saw the first party after 2/3 months of his joining. But in cross‑examination he said that actually when he joined there, he found the garden at Tejgaon. Before him Dr. Giasuddin was the Manager and before Dr. Giasuddin, Mr. Kamal was the factory‑in‑charge, So he was not competent 19 tell when the first party was employed under the second party. It appears that existence of the first party in the service of the second party was connected with the existence of the garden. The first party stated that the second party had a factory at Gandaria. D. W. 1 did not work at Gandaria factory. So it appears that strictly speaking P. W. 1, Rahmatullah came to the establishment of the second party before D. W.

1. Further, the Attendance Register was not brought. On the other hand, the Representative of the second party admitted that no Attendance Register was maintained before 1966. This is suspicious and in this particular case the provision of section 114, Example G of the Evidence Act is applicable in the case of the second party and as the second party failed to produce the legal evidence in Court, an adverse inference shall be drawn against the second party and a favourable inference shall have to be drawn in favour of the first party. So my finding is that the first party had been employed under the second party since 3rd June 1963. As the business of the second party had admittedly slackened they had to do away with the decorations and fineries, such as the maintenance of the garden and so the applicant being the only worker of his category had to be retrenched. It is, accordingly ordered that the first party be given an award on contest as follows: (1) One month's notice pay at the rate of Rs. 125.00 per month. (2) Arrear wages for 30 days of January 1970. (3) Compensation for 7 completed years at the rate of 14 days' wages for‑ every completed year of service that is compensation for 98 days. (4) Unavailed of annual leave salary if due, to be reported by the second party. (5) Other legal dues if not paid, to be calculated by the second party. The second party is directed to calculate the entire amount and deposit the same in Court to the credit of the first party within thirty days from ‑the date of passing this orders. Member s oil consultation expressed their opinion agreeing with my above decision.