' These 2 appeals are directed against a common decision given by the learned 1st Labour Court on 30th December, 1981, allowing the grievance petitions of the 2 respondents workmen against their alleged termination of services and directing the appellant company to reinstate them in service with full back benefits.
2. The sole point on which the aforesaid decision of the learned Labour Court has been assailed before me by Mr. Abdul Qadir, learned cousel for the appellant company, is that the relationship of employer and workman has not been established between the appellant company and the respondents and that the learned Labour Court has misread the evidence and misdirected itself on this point. It may be pointed out that in their reply, dated 14th November, 1980, to the grievance notices of the respondents, the appellants have clearly taken the position that the respondents were never their employees and their services had not been terminated by them. In view of this stand by the appellant company, the respondents, should have been vigilant enough to lead tangible evidence to establish their claim that they were employees of the appellant company and their services had been terminated by it. However, the only evidence led by them in this behalf is their own oral testimony and the evidence of Mr. Shakir Hussain, Assistant Director, Labour. No doubt, both the respondents in their evidence before the learned Labour Court have claimed that they were employed by the appellant company and their services terminated by the appellant company, but they were not able to produce their letters of appointment or orders terminating their services attendance cards, permanent or temporary tickets or any other document indicating their employment by the appellant company. As regards the evidence of Mr. Shakir Hussain, Assistant Director, Labour, although his examination-in-chief suggests that not only the respondents were the employees of the appellant company, but the said company had undertaken to re-employ them he gave a completly different picture in his cross-examination. He admitted that in the very first meeting held by him in connection with the complaint of the respondents against the appellant company, Mr. Shawkat, who represented the appellant company, stated that the respondents were never in their employment and that they were actually the employees of contractor Muneer Ahmad and Javed Akhtar. He further admitted that in the second meeting it was Muneer Ahmad who claimed that he was contractor of Kahkashan Textile Mills and had informed him that as he had no vacancy, hence he was unable to reinstate the respondents. The Assistant Director also produced a written statement made by Jameel Ahmed, Director of the appellant company, stating that the factory was on contract with Muneer Ahmad and Saved Akhtar since 5th July, 1980. The assertion of the witness that both Jameel Ahmed (Director of the Appellant Company) and contractor Saved Akhtar had agreed to re-employ the 2 respondents cannot be given serious weight in view of the application made by contractor Saved Akhtar to the witness in the second meeting, in which he stated that he had agreed to the direction given by the Assistant Director to him on 28th September, 1980, that he would re-employ the 2 respondents and a third worker by name, Mohammad 'Reiman, on 29th September, 1980, that in accordance with that arrangement, on 29th September, 1980, the 3 workers had reported to him in the evening, but as he had some work, he asked them to wait for some time but they left before he returned, that the 3 workers were supposed to come again on 30th September, 1980, but they had not reported to him since then. This admission seems to suggest that it was only contractor Muneer Ahmad who had agreed to re-employ the respondents and not the appellant company.
3. As against the unreliable and insufficient evidence adduced by the respondents and in support of their claim that they were employees of the appellant company and their services were terminated by the company, there is strong evidence to suggest that they were employees of contractors Muneer Ahmed and Javed Akhtar. t have already referred to the reply of the appellant company to the grievance notice served by the respondents in which reply the appellant company has taken the firm stand that the respondents were never the employees of the appellant company. This position has been reiterated by the appellant company in, its written statement where it has been clarified that the respondents were employees of contractors, Muneer Ahmad and laved Akhtar. An agreement has been produced by Shawkat Ali, the Manager of the appellant company, showing that the Weaving Department of the appellant company, where the 2 respondents were admittedly employed, has been given on contract to Muneer Ahrnad and Saved Akhtar. Saved Akhtatar was examined before the learned Labour Court and he supported the stand of the appellant company that the Weaving Department, where -the respondents were employed has been taken on contract by him from the appellant company and that he had offered re- employment to the respondents. In support of his testimony that he had taken the Weaving Department on contract, he produced bills and payments vouchers which appear at pages 87 to 103 of the record of application No, 197/80. His evidence clearly suggests the respondents were employed by him.
4. The learned Labour Court has relied upon 2 pieces of evidence in support of its finding that the respondents were the employees of the appellant company. The first piece of evidence is the testimony of Assistant Director, Mr. Shakir Hussain. I have already discussed the evidence of this witness and have shown that it does not support the claim of the respondents that they are the employees of the appellant company or that the appellant company had agreed to re-employ them. The second piece of evidence upon which the learned Labour Court has founded its decision, is that the respondents were employed as far back as on 4th September, 1979, when Muneer Ahmed and Saved Akhtar were not the contractors of the appellant company. There is, however, no tangible evidence to establish that the respondents were in fact employed with effect from 4th September, 1979. Although respondent Muhammad Rainzan has claimed that he and Shamsul Islam were both appointed in the appellant company with effect from 4th September, 1979, he is contradicted by Shamsul Islam, who stated that he was appointed much later. As neither Muhammad Ram= nor Shamsul Islam were able to produce their letters of appointment or any other document indicating their employment, it cannot be said with any degree of certainty as to when they started working in the appellant company, whether as the employees of the appellant company or the employees of a contractor. Even if Muhammad Ramzan was appointed from a date earlier than the one on which contractor of the Weaving Department was given to Muneer Ahmed and laved Akhtar, it will make little difference for it appears that there was another contractor by name, Suleman. It further appears that Suleman had terminated the services of several workmen and applications under section 25-A, I.R.O., were filed in respect of those terminations.
5. For the reasons discussed by me above, / am of the view that the respondents have failed to establish that they were the employee of the appellant company or that their services were terminated by t appellant company. I would accordingly accept both the appeals and would set aside the impugned decision. The amount of back benefit deposited by the appellant company is ordered to be refunded.