1. DECISION ' ALI MUHAMMAD BALOCH (MEMBER).--- The above mentioned appeal was filed by the appellant Messrs Textile Services against Syed Faisal Aziz, respondent No,1 under section 47(3) of the Industrial Relations Ordinance, 2002 (repealed) and the same was received from the High Court of Sindh after coming into existence of this Tribunal: This appeal has been filed by the appellant, named above, against the order dated 30th March, 2004 passed by the learned Presiding Officer, Sindh Labour Court No,III, Karachi, in Grievance Application No,122 of 2002 under section 25-A of the Industrial Relations Ordinance, 1969.
2. 'Brief facts of the case are that the appellant management is a proprietorship concern and engaged in the sales of textile spare parts and its accessories and according to the appellant respondent No,1 was appointed as Store Incharge on 15th July, 1996 and confirmed on 151h February, 1997. As against the respondent No,1 claimed that he was employed as Sales Coordinator and further claimed that he was performing duties of Manual and clerical nature under the supervision of Sales Manager. It is alleged by the appellant that during audit conducted by the Audit Department it is observed that an amount of 2.3, Million (approximate) has been misappropriated and were either nor booked or was used for private purpose. Ultimately responsibility was rested upon the Sales Manager Syed Ahmed Nadeem, Accounts Officer Muhammad Umer Alam and respondent No,1 Syed Faisal Aziz. As per the appellant, management has taken serious note of the same and were determined to call police for the same, but due to verbal assurance and understanding between the management and the above three referred persons, whereby they agreed to recover the said amount and the same shall be shared proportionately by them. So accordingly services of the respondent No,1 were terminated and the same fact was mentioned in the termination letter dated 6-7-2002. Respondent No,1 being aggrieved sent grievance notice and then filed grievance petition before learned Labour Court No,III, Karachi, where the appellant after service of notice filed written statement and raised various objections including the legal one i,e, grievance of the respondent No,1 was not in consequence of industrial dispute nor his termination led to such dispute. He was not a workman under I.R.O. Labour laws are not applicable, Labour Court had no jurisdiction. Establishment of the appellant at Karachi having employed only 15 persons, as such, provisions of Standing Orders Ordinance, 1968 were not applicable.
3. ' Respondent worker filed his affidavit in evidence and he was cross-examined at length and whereas on behalf of the appellant Mr. Inam Ghous, Senior Sales Executive filed his affidavit in evidence and examined in the witness box.
4. ' After conclusion of evidence, learned Labour Court gave its findings by considering all aspects of the matter on the following issues:---
(1) Whether this Court has no jurisdiction to try grievance application?
(2) Whether applicant was workman under definition of Standing Orders Ordinance, 1968?
(3) Whether applicant's services were rightly terminated?
(4) What should the order be?
5. I have gone through the findings of the learned Labour Court, pleadings before the Labour Court and the arguments advanced before me orally and written and I am of the view that the learned Labour Court has wrongly assumed the jurisdiction by considering the applicability of Standing Orders Ordinance, 1968. It is a fact that once a worker claims right under any Ordinance, the burden lies on him to prove that such Ordinance is applicable over the establishment of the respondents presently appellant in this matter.
6. ' For this purpose to decide the above question I have gone through the paras 6 and 7 of the grievance petition and for ready reference the same is reproduced hereunder- "6. That photocopy of the termination letter dated 8-7-2002 was delivered to the applicant personally on dated 6-8- 2002. It is submitted that in spite of request of applicant to supply the original copy of the said termination letter. Photocopy of the termination letter was supplied to the applicant instead of original, which amounts to denial of issuance of terminated order in writing as required under the provisions of Standing Orders Ordinance, 1968.
7. That the said action is clear violation of Standing Orders Ordinance, 1968, which is applicable to the establishment of respondent and the applicant is also jobless from the date of illegal termination of the service?"
7. ' Appellant establishment in preliminary legal objections before learned Labour Court has taken specific objection regarding applicability of Standing Orders Ordinance,' 1968 vide, para-IV of the preliminary legal objections, which is reproduced hereunder:--- "IV. Respondent's establishment at Karachi, where the applicant was employed at the material time there were 15 persons employed. That the establishment of the respondent at Karachi is a separate and distinct and it has its separate premises and separate staff. Provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 are not applicable to the respondent's Karachi establishment."
8. ' The respondent worker in his affidavit in evidence has given name of some workers and further stated in para-10 of his affidavit in evidence that besides named workers, 6 Drivers, 2 Chowkidars, 2 Sweepers and 7 Computer Operators were working. In cross-examination the respondent worker has admitted that he has mentioned some names of employees and not mentioned some name of other employees, as he is not aware the name of employees. Respondent worker also admitted that Shaukat was resigned and Miss. Raazia was appointed as Telephone Operator in his place.
9. ' On the other hand on behalf of the appellant establishment Mr. Inam Ghouse filed his affidavit in evidence along with copy of attendance register and he was cross-examined by the learned Counsel for the respondent worker. Only one question has been put to him 'regarding seal and signature of the company over the attendance sheets, but no question has been put to the witness regarding the signatures/ initials of the respondent worker, as such, the same document has gone unrebutted to the extent of number of workers mentioned in the attendance register/sheets.
10. As respondent worker has initially asserted that provisions of Standing Orders Ordinance, 1968 are applicable to the establishment of the appellant management, as such, burden heavily lies upon him, but he has not fully discharged his burden by not producing the complete list of workers employed with the establishment of the appellant, though he has given some names, but on the other hand he has not given the names of complete work force or at least 20 workers, which is the mandatory requirement of law. More particularly, that the attendance register as produced has not been questioned properly and no application has been filed for production of other documents, as the learned Labour Court has declined to accept the said attendance register in absence of salary register, Social Security register or any other such document. I am sorry to say that the learned Labour Court has failed to consider the above aspect of the matter, as respondent worker has failed to lead any proper evidence or any application for summoning such documents before the learned Labour Court and if the position is so, the learned Labour Court itself has authorized to call such documents, hence the findings of the learned Presiding Officer of the Labour Court is not sustainable as the initial burden to prove the number of workers on the respondent worker, but he failed to discharge the same, therefore, the question whether provisions of. Standing Order Ordinance, 1968 are applicable is established against the respondent worker, as the evidence of the appellant management is more reliable than the worker.
11. ' In view of the above discussions, it is proved that the establishment of the appellant is not covered by the Standing Orders Ordinance, 1968 hence the grievance petition against the appellant establishment was not maintainable and the learned Labour Court had no jurisdiction to proceed the same.
12. ' As the learned Labour Court had no jurisdiction to try the grievance petition, therefore, findings on the other issues are not relevant, hence the impugned order passed by the learned Labour Court is declared to be without jurisdiction and lawful authority, hence the appeal is allowed and the impugned order dated 30-3-2004 passed by the learned. Presiding Officer, Sindh Labour Court No,III, Karachi, is set aside. The payments of back-benefits and salary deposited with the High Court may be returned to the appellant.