1. This is an application under Section 46 of Industrial Relations Ordinance, 2002 filed by the applicant against respondents establishment on the following facts:-- The applicant was a permanent worker as prescribed under Standing Orders Ordinance, 1968 as well as defined in Industrial Relations Ordinance, 2002 as a weaver, joined in the month of May 2001 in the respondents. The entire record of service was fully neat, clean and spotless without any complaint, show-cause or memo whatsoever was ever issued. The respondents not issued any appointment letter to any worker including the applicant which is sheer violation of labour laws.
2. The respondents employed more than 25 workers through out the year, respondents also does not pay the EOBI and Social Security, hence he is not insured/secured. On 11.7.2004 services of applicant were abruptly terminated without assigning any reason as required under Standing Order 12(3) of Standing Orders Ordinance, 1968. Feeling aggrieved he sent grievance notice on 20.7.2004, through registered post, but respondents failed to respond the same. The applicant has also filed complaint before Labour Directorate, West Division, Karachi, but the respondents failed to appear before them. Right from illegal, unlawful and unwarranted dismissal from service applicant is still jobless. Hence the application with prayer to reinstatement him in service with all back benefits.
3. The respondents have failed their written statement wherein they stated that they had taken a shed on rent and started work in the year 2000, where other similar small units are functioning. The respondents have 15 looms and in total less than 15 workers in two shifts have been and are being employed by them and they are dependent and take work from others and do the same on agreed rates, The weavers are paid wages on fortnightly basis. The provisions of Standing Orders Ordinance, 1968 does not apply to the small establishment of respondents. It is admitted that applicant worked as weaver with respondents from 2002 for different periods. The weavers come and go without formally resigning. The applicant worked with the respondent till 10.7.2004 and he did not turn up for duty. It is totally false that the services of applicant were ever terminated, but he himself stopped coming on duty, the applicant is still welcome and free to join his duty forthwith and respondents would not take disciplinary action against him for his absence. The applicant made a false complaint to Labour Department, where respondents explained the correct position.
4. Respondents prayed that in view of above, grievance application shall be dismissed. From the pleadings of the parties, following issues were framed:--
1. Whether applicant was permanent employee of respondents and was verbally terminated from his service without assigning any reason?
2. What should the order be?
5. Applicant has filed his affidavit in evidence and he was cross-examined by the learned Counsel for the respondent. While respondents have filed affidavit in evidence of Abu Bakr, Proprietor and he was also cross-examined by the learned Representative of the applicant.
6. Mr. Muhammad Khursheed, learned Representative for the applicant and Mr. S.M. Iqbal, learned Counsel for the respondents have submitted their arguments in writing.
7. After perusal of record and proceedings of the case as well as arguments of the parties, my findings on the above issues with reasons are as under:-- ISSUES Nos, 1 & 2.
8. The only point in dispute between the parties is in regard to applicability of Industrial Relations Ordinance, 2002 as the respondents claims that the number of employees in the establishment are less than 15. However, the respondents have failed to produce, any evidence in this behalf despite the fact that respondents are custodian of entire record in respect of number of workers as such it was the duty of respondents to produce the evidentiary documents to corroborate its claim. In absence of production of record, mere statement of respondents that there is less than 15 workers is not sufficient to shift his onus. Apart from above the respondents have further contended that it was applicant who himself did not attend the factory as respondents still ready to accept the services of applicant. In this connection it may be pointed out that when applicant failed to join the duty of respondents then point arises as to which thing prevented the respondents from not issuing any show-cause notice and conducting the domestic enquiry against applicant. Non- observance of legal formalities would on the contrary prove that the applicant was verbally terminated by the respondents. For these reasons, I have come to the conclusion that applicant has made out his case for reinstatement, but due to strained relations between applicant and respondents I do not want to pass reinstatement order, but it is ordered that respondents shall pay compensation equivalent to twelve (12) months pay last drawn by the applicant in lieu of reinstatement, besides back benefits from the date of termination viz. 11.7.2004 till today i,e, 25.3.2006. The respondents are directed to comply with the order of this Court within thirty days from the date of this Judgment. Above issues are, therefore, decided in favour of applicant.