' This appeal is directed against a decision of the learned IIIrd Labour Court, given on 4th December, 1980, dismissing the grievance petition filed by the appellant workman challenging his alleged oral and unauthorized termination of service by Messrs Omersons the respondent establishment.
2. The circumstances which have given rise to this appeal shortly stated, are that on 22nd March, 1980, a grievance petition under section 25-A, I.R.O., was filed before the learned IIIrd Labour Court by the appellant workman, claiming that he was a permanent workman of the respondent establishment, that the provisions of the labour Laws were being flagrantly violated by the said establishment, that by various devices the Management of the respondent establishment was depriving the workmen of their legal rights, benefits and facilities, that against the high-handed actions of the Management, the appellant submitted an application to the Management on 9th February, 1980, but instead of the Management redressing the grievance of the workmen, it terminated his services unauthorized and orally on 12th February, 1980. The respondent establishment resisted the appellant's grievance petition on the two main grounds, firstly, that the appellant was not its employee but the employees of its sister concern, Messrs S.H. Enterprizes, and that secondly, the Standing Orders are not applicable to the respondent establishment and consequently the grievance petition of the appellant was not maintainable. Both these grounds found favour with the learned Labour Court and accordingly it has dismissed the appellant's grievance petition. The appellant has now come up in appeal to this Tribunal.
3. I have heard the appellant who appeared in person and Mr. Izhar Ahmad who represented the respondent establishment.
4. The first issue which falls to be considered in this case is whether the appellant was the employee of the respondent establishment or of the S. H. Enterprizes. On the one hand, the appellant has testified before the learned Labour Court that he was employed by the respondent establishment, and on the other hand, the evidence of Mohammad Farooq, the Proprietor of the respondent establishment, is that the appellant was employed by S. H. Enterprizes, a sister establishment. According to the witness, Aril Mohammad, both Messrs Omersons and S. H.
Enterprizes were working, though independently, its only on the same plot in the SITE area, but in the same shed, No,
13. In support of his contention that these were 2 separate establishments he has produced photostat copies of the licences from the Central Excise authorities authorizing the manufactures, storage and disposal of goods liable to central excise duty. Not only separate licence has been issued in respect of the respondent establishment and S.H. Enterprizes but the licences appear to have been renewed from time to time. The view taken by the learned Labour Court that there were 2 separate establishments, the respondent establishment and S.H.
Enterprizes, thus appears to be well-founded. This, however, does' not mean that the appellant was an employee of S. H. Enterprizes, as claimed by witness Arif Mohammad, who is supported by another workman, Ahmad Khan. The evidence of these 2 witnesses cannot be relied upon for a number of reasons. In the first place, although it was admitted that the 2 establishments are sister concerns and have common proprietor, no order of appointment of the appellant or the terms and conditions of his services were produced, which would have clearly shown in which establishment the appellant was employed. In the absence of any such letter of appointment, since the proprietorship of the 2 establishments was common, it was open to the Management to employ the workman in either establishment or partly in one establishment and partly in the other establishment. There is, however, tangible evidence to show that the appellant was in fact employed in the respondent establishment and not in S. H. Enterprizes, as falsely asserted by witness Arif Mohammad. Witness Badrul Hag Solongi, the Labour Officer and Inspector of factories had admittedly visited the respondent establishment on 13th January, 1980. According to his evidence the Management of the respondent establishment was found not to be maintaining any record which it was bound to do under the law, and accordingly he had prosecuted the respondent establishment before the Deputy Commissioner, Karachi, where the Management pleaded guilty and was convicted. The documents which the respondent establishment have not maintained at least had failed to produce before Mr. Solongi included the attendance register of the workman.
Perhaps the non-maintenance of the attendance register was deliberate as in its absence it was easy for the Management to employ any workman in either establishment on their choice. Mr. Solongi further testified that at the time of his visit to the respondent establishment he found 14 workmen employed therein. He has prepared a list of their names and has got the list signed by one of the workers, Tahir. The name of the appellant appears in that list at serial No,
12. No question was suggested to Mr. Solongi either that he had included in the said list names of the workers of the sister establishment, S.H. Enterprizes, or that the appellant was not employed in the respondent establishment. As his evidence has gone unchallenged, there is no reason to doubt his testimony that the appellant was one of the workmen employed in the respondent establishment. The appellant also sought to rely on the evidence of witness Sikandar Ali who claims to have been the Weaving Master in the respondent establishment but as his name does not find place in the list of the workmen prepared by Mr. Solongi and further the appointment of Sikandar has been denied by witness Arif, it is not possible to place reliance on the testimony of Sikandar.
5. The next point which falls to be considered in this appeal is whether the Standing Orders are applicable to the respondent establishment. Mr. Izhar Ahmad sought to argue that as the total number of workmen in the respondent establishment was less than 20, the Standing Orders are inapplicable to it and hence the appellant was not entitled to file a grievance petition under clause
(3) of Standing Order 12, read with section 25-A, I.R.O. He sought support for his contention from the evidence of Labour Officer, Mr. Solongi, who has testified that he found 14 workmen working in the respondent establishment. Mr. Solongi however, testified about the number of workmen whom he actually found working in the respondent establishment at the time when he visited the same.
There is evidence on record, particularly that of the appellant, to show that 2 and sometimes 3 shifts were working in the respondent establishment. Even if there were only 2 shifts working in the respondent establishment, the number of workmen in the respondent establishment would be about 28. As such, the Standing Orders would be applicable to it.
6. As the services of the appellant were terminated orally and in contravention of the provisions of clauses (1) and (3) of Standing Order 12, the orders of termination from services are clearly invalid and contrary to law. I would accordingly set aside the same as also the impugned decision of the learned Labour Court which is based on misconception of the evidence led in the case.
7. There remains the question whether the appellant is entitled to any back benefits. Apart from the fact that there is no evidence on record to show that the appellant was not gainfully employed after his unauthorized dismissal from the respondent establishment, no specific prayer for the award of back benefits has been made by him in his grievance petition. All that he has claimed in his grievance petition is that the respondent be directed to allow the appellant to resume his duties and to give full wages and other benefits. The reference to full wages and other benefits, is clearly related to the allegation that the respondent establishment was depriving the workman, including the, appellant, of their legal rights, benefits, and facilities as asserted is paragraph 4 of the grievance petition. Consequently, no back benefits can be awarded to the appellant in these proceedings.
8. For the reasons discussed by me above, I would allow the appeal to the extent indicated in the preceding paragraphs.