' RAHMAT HUSSAIN JAFFERI, J. This is an appeal under section 48 of I.R.O. 2002 to challenge the decision, dated 16-2-2004 given by the Labour Court No, V, Karachi by which the learned Presiding Officer of the Court reinstated the respondent with all back-benefits.
2: Brief facts of the case are that the respondent was working with the appellants as a carpet weaver from 27-7-1983. It was alleged that the appellants had more than 27 workers but they had shown only seven workers is SESSI and EOBI for contribution purpose. It was further alleged that the services of the respondent were terminated verbally, therefore, he served a grievance notice upon the appellants through registered post letter but they did not reply the said letter, therefore, he filed the application before the Labour Court.
3. The appellants were served, they challenged the jurisdiction of the Court on the ground that there were only seven workers working in the establishment of the appellant therefore, the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was not applicable.
They took the plea that the respondent on his own accord left the service after taking full dues and that the grievance notice was not served upon them, therefore, they prayed for the dismissal of the application.
4. Out of the pleadings of the parties the Labour Court framed the following four issues:--
(1) Whether grievance application is maintainable?
(2) Whether no grievance notice was served by the applicant upon respondent?
(3) Whether Standing Orders Ordinance, 1968 are applicable to the respondent-establishment?
(4) Whether the termination of the applicant is illegal?
(5) What should the order be?
5. The learned Presiding Officer decided all the issues in favour of the respondent, consequently, delivered the impugned decision on 16-2-2004.
6. I have heard the Advocate for the appellants, respondent and his Advocate was absent.
However, I have gone through the evidence and material available on the record very carefully.
7. The main point for consideration is about the number of workers working in the establishment of the respondents. According to respondent, the workers were more than 27 in number whereas the case of the appellants is that there were only seven workers working in their establishment. The learned Presiding Officer formed opinion that the respondent had shown the number of workers as 33 in his affidavit; that the said statement of the respondent was not challenged, therefore, he took the number of workers as 33.
8. I have examined the evidence available on the record and found that in para.6 of the affidavit the respondent gave the names and designations of 33 persons working with the appellants. They challenged the said statement by putting to the respondent that there were only seven workers in the shop but the respondent denied the same. As such, the statement of the respondent was confronted, therefore, the Labour Court was not right in holding that the said statement of the respondent went unchallenged. When such statement came on the record in the cross- examination then it was incumbent upon the respondent to have produced any other oral or documentary evidence to establish his assertion because he alleged that the workers were more than 20, working in the establishment of the appellants that is the requirement of section 1(4) of The Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. In order to prove his case the respondent did not produce any documentary evidence or examined any of the persons mentioned in the list of 33 workers to substantiate his stand. As such, there is solitary statement of the respondent on the said point without any supporting or corroborative piece of evidence. As against this evidence the appellants produced attendance register and salary register of their workers before the trial Court which show that from 1999 up to 2003 there were only seven workers working in the establishment. The respondent in the cross-examination has not challenged the salary register. As regards the attendance register, a question was asked from the appellants witness that they used to maintain three attendance registers but the witness denied the said suggestion. When both the parties led evidence on the subject then it is the function of the Court to scrutinize the entire evidence for arriving at a conclusion as to which evidence is believable and reliable. The statement of the respondent is neither supported nor corroborated by any documentary or oral evidence. Under the law, the respondent is required to prove such fact and after proving such fact then the burden shifts upon the other side to disprove the said fact. As the respondent failed to prove the said fact, therefore, the burden had not yet shifted upon the appellants to disprove any fact. However, I have examined both the sets of evidence and found that the statement of appellants witness is supported and corroborated by documentary evidence; as such, it is more reliable than the solitary statement of the respondent.
9. After considering the material available on the record I am of the considered view that there were less than 20 workers working in the establishment of the appellants. As such, the Industrial and Commercial Employment (Standing Orders), Ordinance, 1968 was not applicable to the facts and circumstances of the present case, therefore, the Labour Court had no jurisdiction to entertain the grievance petition of the respondent.
10. In the light of what has been discussed above the impugned judgment suffers from inherent jurisdiction therefore, it is set aside. Consequently, the appeal is allowed.