' This appeal is directed against a decision of the learned 1st Labour Court, given on 22-2-1979, directing the appellant establishment to re-instate the 3 respondents work men in its service and awarding them full back benefits.
2. The 3 respondents filed a joint grievance petition under section 25-A, Industrial Relations Ordinance, before the learned 1st Labour Court, on 25-1-1979, alleging that their services were verbally terminated by the appellant establishment on 16-12-1978, when they demanded service benefits and compliance of the Standing Orders, whereupon they sent a grievance notice, on 19- 12-1978, to the appellant establishment but in order to cover up its patent irregular action, the said establishment issued orders in writing, dated 4-1-1979, terminating their services with immediate effect. The appellant establishment resisted the joint grievance petition on the grounds firstly, that the said application was not maintainable and it was employing less than 20 workmen and hence the Standing Orders were not applicable to it, and secondly, that no grievance notice was given by the respondents after their termination of services vide the letter, dated 4-1-1979. The learned Labour Court repelled both these contentions. It repelled the first contention on the twin grounds that though admittedly the respondent establishment was maintaining Attendance and Wages Registers, it had failed to produce the same before the Labour Court, and consequently it raised a presumption that these registers, if produced, would have gone against the appellant establishment and that further though admittedly there had been conciliation proceedings between the appellant establishment and its workmen and the Conciliator and visited the factory premises, he was not examined by the appellant establishment, which omission also raised presumption that if he had been examined, he would not have supported the contentions of the appellant establishment. In regard to the non-service of the grievance notice on the appellant establishment after the issuance of the order, dated 4-1-1979, terminating the services of the respondent, the view taken by the learned Labour Court was that it was inclined to accept the assertion of the respondents that their services had been orally terminated on 16-12-1978, and that the subsequent letter of 4-1-1979, was simply a device to cover up an irregular action on the part of the appellant establishment.
3. I have heard Mr. Izhar Ahmad who appeared on behalf of the appellant establishment and Mr. Abul Kalam, who represented the 3 respondent workmen. The sole ground on which Mr. Izhar Ahmad assailed the impugned order of the learned Labour Court was that the grievance petition of the respondents was not maintainable as at no time it was employing more than 19 workmen. In support of his contention, the learned counsel submitted that there was nothing either in the grievance petition or in the affidavits of the respondents on the basis of which it could be held that there were 20 or more workmen employed in the appellant establishment. He pointed out that on the other hand, the Manager of the appellant establishment had been examined, who had categorically asserted that the number of workmen employed in the appellant establishment had never exceeded 10. The learned counsel further submitted that since it appeared from the admissions made by the respondent Muhammad Rafiq that the number of workmen in the appellant establishment was definitely less than 20, the appellant establishment did not consider it necessary to either produce Attendance or Wages Registers pertaining to the workmen or to examine the Conciliator.
4. 'Mr. Abul Kalam, the learned Representative for the respondents, on the other hand submitted that the burden of proving or establishing whether a particular establishment was employing 20 or more workmen, should not be placed upon a workman, since generally the workmen are illiterate and not in a position to produce tangible evidence in this behalf and that further the record pertaining to the strength of the workers is required to be maintained by the Management. He pleaded that if at all it was considered that the burden lay on the workman to establish that an establishment was employing 20 or more workmen, the burden on the workmen should be a light one and heavier burden should be placed on the establishment to disprove the assertion that it was employing 20 or more workmen.
5. It has repeatedly been held by this Tribunal that where it is denied by an establishment that it was employing 20 or more workmen, the burden of controverting this fact and proving that the Standing Orders were applicable to it, lay on the workmen or the other person making such claim.
This view was taken by this Tribunal in the recent cases of Muhammad Ryas v. Madina Woollen Mills, decided on 28-10-1979, and Azmat Silk Factory v. Muhammad Hashim, decided on 10-3-80. It may, however, be pointed out that where both parties lead evidence on this issue, the question on which party the burden of proof lies become academic, as held by their Lordships of the Supreme Court. In the instant case, I find that nothing has been stated in the grievance petition of the respondents as to the number of the workmen employed in the appellant establishment. Even, in their affidavits, the respondents have not given the number of workmen employed in the appellant establishment. However, respondent Muhammad Rafiq, in his cross-examination has stated that "in the appellant establishment there were 6 Weavers, 2 Pirn winders, 1 Jobber, 1 Chowkidar and 2 Saringwalas." This makes a total of 12 workmen only. No doubt, he has gone on to state that there were some more persons, but he has neither given their names nor stated on what work they were employed. It is quite apparent from his evidence that the number of workmen employed in the appellant-establishment was only 12. It may be pointed out that though there is a Union of workmen in the appellant establishment, neither an office-bearer of the Union was examined nor the record of the Union was summoned to establish the number of workmen in the appellant establishment. Furthermore the respondents did not examine any other worker to show what was the strength of workmen employed in the appellant establishment. No doubt, the appellant establishment has not produced the attendance or wages registers or examined the Conciliator, who had visited the premises of the appellant establishment, as pointed out by the learned Labour Court, but it was not necessary for the appellant establishment to do so, since from the evidence of Muhammad Rafiq itself it was apparent that the appellant establishment was not employing more than 12 workmen. In any case, if the respondents wanted to rely on this evidence, it was not difficult for them to require the appellant establishment to produce the same before the Court. The fact that they did not do so suggests that they were perhaps aware that these registers would not support their contentions. I am, therefore, of the opinion that not only the respondents have failed to establish that there were 20 or more workmen employed in the appellant establishment, but on the contrary, the evidence of Muhammad Rafiq itself suggests that there were only about 12 workmen in the appellant establishment, and in any case, less than 20.
6. Since the number of workmen employed in the appellant establishment at the relevant time appears to have been less than 20 the Standing Orders could not be applicable to it. As such, the grievance petition filed by the respondents against the termination of their services would not be maintainable. I would accordingly allow the appeal and set aside the impugned decision of the learned Labour Court.