' MUHAMMAD MOOSA K. LEGHARI, J.--- Through this appeal the appellant worker has assailed the order, dated 11-7-2002 passed by Sindh Labour Court No,1, Karachi, whereby the grievance petition of the appellant was dismissed.
2. The relevant facts, as contained in the, memo of appeal, are that the appellant was employed on permanent baiss as waiter in the respondent-Cafe wherein 30 workers were employed. A trade union headed by appellant- was formed and efforts were being made by appellant for getting the same registered. This annoyed respondent-Management, as such appellant's services were terminated and he was gate-stopped on 12-10-2000. Appellant sent a grievance notice to respondent-Management which was not replied, as such he filed a grievance petition before the Labour Court praying therein for reinstatement in service with back-benefits.
' Respondent-Management contested the petition by filing a reply statement wherein they took the plea that appellant was never employed in the respondent-Cafe, that the respondents had only 4 permanent employees. They denied that appellants services were terminated due to his active role in the formation of trade union. According to them, appellant had worked with them in the year 1999 on daily commission basis and thereafter he himself discontinued from July, 2000.
' Appellant led evidence and was cross-examined. However, respondent-Management did not opt to adduce evidence and closed their side. After hearing the parties, learned Labour Court dismissed the grievance petition of the appellant. Hence this appeal.
2. The arguments addressed by the learned counsel for the parties have been considered and the evidence adduced and the material placed on record has been examined.
3. It must be stated at the outset that a written statement cannot be considered as evidence unless the maker of the Written statement appears in the witness-box to testify.
' In the present case, nobody appeared on behalf of the respondent to testify, hence the pleas raised in the written statement were liable to be excluded from consideration. Nevertheless the case of the appellant/applicant has to be examined, as the burden is upon the applicant to establish his case.
4. From the contentions raised on behalf of the parties, the points having emerged for determination are, firstly whether the appellant was permanently employed workman of the respondents, secondly, whether B the number of permanent employees was such as to attract the applicability of Standing Orders Ordinance, and thirdly, that whether the appellant was gate- stopped.
5. So far as first point is concerned, the appellant worker in his affidavit-in-evidence deposed that he was working in the respondent-Cafe as Waiter on permanent basis since 1992. He produced Service Identity Card containing the seal of respondent-Management. Though the said Card did not contain signature of any official of the respondent-Management, yet according to the appellant, the respondents just C affix their seal only on the card. However, neither any suggestion was put on behalf of the respondents that the said seal of the 'respondents, appearing on the service card was fake/fabricated and that the same did not belong to respondent-Management, nor respondent-Management chose to adduce any evidence in rebuttal. Consequently, it has to be held that the appellant worker was a permanent worker of the respondents.
6. The Labour Court committed an error to observe that for claiming the status of a permanent workman the appellant workman should have produced the service card for each year. Suffice to say that neither it is the requirement of law, nor does it appeal to reason. Furthermore, the burden has shifted to the respondents more particularly D because the service record is maintained by the Employer. Certainly the initial burden of showing the relationship lies upon the worker, but once it has been discharged, the same shifts to the Employer. The Labour Court wrongly disbelieved the service card to be valid document, though it was never alleged that it was forged or fabricated one.
7. So far as the issue regarding number of permanent employees working in the respondent-Cafe is concerned, appellant worker in his affidavit in evidence stated that respondent-Cafe was employing more than 30 employees. In cross-examination he stated,, "in the year 1992 30/32 persons had worked in the respondent's Cafe. I had worked with the respondent upto 4-10-2000. At that time the workers were 28 or 29 because three or four workers were on leave". No suggestion was made to the effect that appellant's above mentioned assertion was incurred or false. In reply to a suggestion, he stated, "it is not a fact that in .The respondent-Cafe only 3 or 4 employees works but they are more than 20. He further stated, "I had called the meeting forming the union in our office at Drig Colony in the evening at about 8-00 p.m. It was attended by 20 workers".
' The abovesaid stand taken by the appellant worker went unrebutted/unchallenged as the respondent-Management did not examine any witness to controvert such plea of the appellant or to substantiate their own stand regarding number of employees in the Cafe. In this view of the matter, contention of the respondents that the provisions of West Pakistan Standing Orders Ordinance are not applicable is devoid of force.
8. Conclusion arrived at by the Labour Court with regard to number of workmen employed by the respondents is equally erroneous and based on misappreciation of evidence, as discussed in the preceding paragraphs, as it was not expected from a worker to recollect the name of each and every worker after the lapse of 2 years, though a list of 30 workers was placed on record, and in cross-examination the worker was able to name 7 persons, and his assertion with regard to 30 workers was not rebutted.
9. In the pleadings, appellant worker has stated in specific terms that due to his activities in formation of trade union, the respondent-Management got annoyed and as a result of this, he was gate stopped and not taken on duty. He categorically stated this fact in his grievance petition as well as affidavit-in-evidence. While the appellant was cross-examined, he stated that "on 12-10- 2000 the gate of the Cafe was not closed, but I was gate-stopped I alone was gate-stopped".
Neither any suggestion was made that the assertion was incorrect nor any evidence was produced to the contrary. Resultantly the assertion has to be accepted.
10. Regarding the grant of back-benefits it must be observed that the appellant worker throughout pleaded with consistency that since the day of removal he was jobless, which assertion went totally unrebutted. Thus, entitling the appellant worker to back-benefits.
11. As an upshot of above discussion, the appeal is allowed and the order passed by Labour Court is set. Aside. Consequently, the grievance petition filed by the appellant worker stands allowed.
Resultantly he is directed to be reinstated in service with back-benefits. Reinstatement should take effect immediately, however, the back-benefits be paid within sixty days if not earlier.