' MUHAMMAD MOOSA K. LAGHARI, J.-This appeal is directed against the order dated 31-3-2004 passed by the Sindh Labour Court No,l, Karachi whereby the Grievance Petition filed by the appellant was dismissed.
2. Brief facts, as per memo of appeal, are, that the Appellant was a permanent employee in Respondent-Establishment since 1-6-1983 and was an active trade unionist. The Respondent- Establishment was consisting of two hotels namely Hotel Al-Khaleej and Hotel Al-Emirates (Pvt)
Limited. The Respondent used to utilize the services of the workers including the Appellant in both the hotels at monthly wages of Rs,1000 only. In both the hotels in all, there were more than fifty workers. Besides the meager monthly wages of Rs, 1000 being paid to the workers, their were also being deprived of the basic facilities as provided under the existing Labour Laws. In the circumstances, the Appellant requested the Respondent for the provision of minimum legal rights to the workers, whereupon the Respondent became annoyed and orally terminated his services on 8-5-2003 in unlawful manner. Such action of the Respondent was challenged by the Appellant through Grievance petition after serving a grievance notice upon the Respondent praying therein for reinstatement and back-benefits.
3. The Respond filed written statement where in they took a plea that Appellants service were not terminated but he himself abscented from his duty without intimation and that Respondent has employed only 4/5 workers, as such Standing Orders Ordinance and I.R.O. Were not applicable to the Respondent Establishment.
4. Evidence was led by both the parties and written arguments were filed by the parties. Ultimately, the Labour Court dismissed the grievance petition holding that the same was not maintainable as the provisions of Standing Orders Ordinance and I.R.O. Were not applicable to the Respondent Establishment, hence this appeal.
5. The contentions raised have been considered and the material placed on record has been perused.
6. The main points to be resolved in this appeal are whether the provisions of Labour Laws, more particularly, the I.R.O. 2002 and West Pakistan (Standing Orders) Ordinance, 1968 were applicable to the Respondent Establishment so as to entitle the Applicant to maintain his grievance petition, and whether the employment of the Appellant was terminated by the Respondent or he himself absented from duty without intimation.
7. As regards first point, the employment of the Appellant with the Respondent is not denied. The Appellant in his evidence categor;zally deposed that Respondent Establishment runs two hotels, namely Hotel Al-Khaleej and Hotel Al-Emirates (Pvt.) Limited and that more than 50 workers were employed in the Establishment. He produced Identity Cards of both the hotels in support of his plea that he was working in both the hotels. He also produced original Directory for the years 20002001 issued by Pakistan Tourism before the trial Court wherein same person namely, Sardar Abdul Aziz has been shown to be the owner of both the hotels which supports the assertion of the Appellant that both the hotles are single Establishment and the total number workers of both the hotels comes to be more than 50. The Respondent could not succeed to shake the evidence of the Appellant in his cross-examination. In the cross-examination the Appellant re-asserted that owner of both the hotels is Mr. Abdul Aziz, and that more than 50/60 workers are employed there. Along with his affidavit in evidence, the Appellant annexed a list of 35 persons, stating in para 16 of his affidavit, that the said list A contained the names of the worker's. In cross-examination, the genuineness of the list or the names of workers mentioned therein were not challenged, but a suggestion was put to the Appellant, whether he was able to produce the listed persons for evidence.
' In such circumstances, the appellant seems to have initially discharged the burden to prove applicability of West Pakistan (Standing Orders) Ordinance, so far as number of workmen is concerned. The written statement on behalf of the Respondent was filed, signed and verified by one Abdul Latif Baloch. The said Abdul Latif Baloch appeared as Respondent's witness. Neither in the written statement nor in his affidavit in evidence he disclosed as to what was his position with the Respondents, except that in his affidavit in evidence he stated that he was running the hotel, namely Ali-Khaleej Hotel. He candidly stated in his affidavit in evidence that he was working in Muslim Commercial Bank Ltd. And in proof thereof enclosed a letter dated May 2, 2003 showing that his application for voluntary Golden Hand Shake Scheme was accepted from the said date.
Though the Appellant claimed that he was serving with the Respondent since 1983, however in the written statement filed on 12-8-2003 the Respondent admitted that the Appellant was working there since last three years. Admittedly at the relevant time Respondent's witness was in the service of Bank, and could not be in personal knowledge of the facts. He has at no time claimed to be the owner of the hotel. The Respondent's witness has admitted in cross that he has not filed any document regarding ownership of the Hotels. When the Appellant has filed a document to show that both the Hotel were owned by Sardar Abdul Aziz, and nothing was produced in rebuttal, the document placed on record would be deemed to have been proved. The Respondent also failed to prove by any documentary evidence that they were employing 4/5 persons. The Respondents did not produce any record of attendance or payment of wages to the workers to fortify their pleadings as the burden to disprove was shifted upon them.
' In view of above discussion, the Appellant has proved that West Pakistan (Standing Orders)
Ordinance 1968 was applicable to the Respondents. Accordingly it is held that the provisions of said Ordinance, are applicable to the Respondent establishment.
8. So far as the point as to whether services of the Appellant were terminated by the Respondent or he himself deserted is concerned, the Appellant in para.7 of his affidavit in evidence has deposed that he was an active trade unionist and was struggling hard for achievement of the legal rights of the workers of the establishment, therefore to avenge his services were verbally terminated, whereas the representative of the Respondent namely, Abdul Latif Baloch in his affidavit in evidence deposed that Respondent has not terminated services of the Appellant but he himself absented from duty without any intimation. Assuming that if the appellant himself absented from the duty without intimation, then as to why no show-cause notice etc. Was issued to him calling upon him to explain the reasons for remaining absent without initiation. In his cross-examination, representative of the Respondent has tried to improve his case by saying that the Appellant himself left the employment, therefore, they felt no need to call him by sending letters, although prior to that and even in his affidavit in evidence he has stated that the Appellant absented himself from duty. In the circumstances, it is clear that the Appellant did not absent himself or left the employment but the Respondent verbally terminated his services which is violative of the law. The action is thus violative of law and unsustainable. It warrants interference.
9. In view of above discussion, the order passed by the Labour Court is set aside. The appeal is accepted and grievance petition stands allowed.
' So far as the back-benefits are concerned, the Appellant has pleaded in the petition that he was jobless. In the written statement the Respondents evasively denied the pleadings. Again in para 19 of the affidavit in evidence, the Appellant re-asserted that since the date of removal he was unemployed. Nothing was suggested to the contrary in the cross-examination, thus the assertion that the Appellant remained unemployed went unrebutted. The appellant is accordingly entitled to back-benefits.
' Resultantly, the appellant is reinstated in service with back-benefits. Above are the reasons for short order passed on 1-2-2006.