' The appellant, who claims to have been employed as a Weaver in a permanent capacity in the respondent mills, filed a grievance petition, on 6th October, 1980, against his alleged illegal and oral termination from service by the respondent mills. The grievance petition was resisted by the respondent mills on the ground that the appellant was not their employee but the employee of their Contractor Boota Khan. In fact, in their reply, dated 18th September, 1980 to the grievance notice, received from the appellant, the respondent mills had clearly stated that the appellant was not their employee but the employee of Boota Khan. The learned Labour Court has taken the view that the appellant was the employee of Boota Khan and not the respondent mills and accordingly dismissed the appellant's grievance petition. This view is founded on 2 separate grounds, firstly, that the appellant had failed to produce any tangible evidence to establish that he was the employee of the respondent mills, and secondly, that the evidence of Boota Khan, and the documents produced by him, according to the learned Labour Court, indicated that the appellant was the employee of Boota Khan, who had in fact terminated his services, by order, dated 11th July, 1980, which order is said to bear the signatures of the appellant in token of having received the order of Lamination of service.
2. Mr. Choudhry M. Maarif, the learned representative for the appellant, has assailed the impugned decision of the learned Labour Court mainly on the ground that as the evidence of Boota Khan was recorded behind the back of the appellant and his representative, no opportunity of cross- examination was afforded to them and, therefore, his evidence should not have been relied upon by the learned Labour Court. He has further contended that he had submitted 2 applications to the learned Labour Court for recalling Boota Khan for cross-examination, but the prayer for the recall of the witness was turned down by the learned Labour Court. An examination of the record of the learned Labour Court shows that on 17th February, 1981, in the presence of the appellant and his learned representative, Mr. Kohistani, the cross examination of the appellant and his witness, Muhammad Sharif was conducted by the learned representative of respondent mills, and thereafter the matter was adjourned to 3rd March, 1981 for the evidence of Contractor Boota Khan, who had been summoned as a Court Witness on the application of the learned representative of the respondent mills and was required to attend with the relevant record. The said order was passed after considering the objections filed by the appellant to the summoning of the said witness as Court Witness. On 3rd March, 1981 neither the appellant nor his learned representative, Mr. Kohistani, was present and accordingly the learned Labour Court examined Boota Khan in their absence. Boota Khan produced before the learned Labour Court, (1) the order, dated 11th July, 1980, of termination of services of the appellant, which order, as already stated is said to bear the signatures of the appellant in token of receipt of the said order, (2) the attendance register of his employees, (3) the wages and allowances register of the employees of Boota Khan, (4) various bills which the Contractor had submitted to the respondent mills for payment for the work done by him and his employees, and (5) a photo copy of an agreement said to have been entered into by him with the respondent mills on 24th November, 1974, by which Boota Khan had undertaken to carry out certain works in the mills including weaving of cloth of the mills through his own employees, for which work he was to be paid specified amounts.
3. On 1st April, 1980, i. e. Some 27 days after the evidence of Boota Khan was recorded; Mr. Kohistani the learned representative for the appellant submitted an application accompanied by his own affidavit for re-calling witness Boota Khan for cross-examination. In that affidavit, it was claimed by Mr. Kohistani that on 17th February, 1981, after the evidence on behalf of the applicant (now appellant) was closed, the case was adjourned for defence to 3rd March, 1981, that on the latter date, he had sent his Munshi to collect the affidavit of the defence witnesses but he was informed that no such affidavits had been filed and that again on 10th March, 1981 and 11th March, 1981, he had tried to collect the affidavits of the defence witnesses but had found that no such affidavits had been filed. The learned Labour Court, by its order, dated 7th May, 1981, dismissed the application of Mr. Kohistani for the re-call of Boota Khan on the ground that the application for summoning of Contractor Boota Khan was allowed on 17th December, 1980, after considering the objections of the appellant and hearing both the sides ; that the contention of Mr. Kohistani regarding the filing of the affidavit of defence witnesses is misconceived as witness Boota Khan was examined by the Court on 3rd March, 1981 and that the next date of hearing after the hearing on 3rd March, 1981, was fixed for 10th March, 1981, but on this date also, neither the appellant nor his learned representative, Mr. Kohistani, was present. The learned Labour Court thus took the view that there was absolutely no illegality or irregularity in the proceedings taken by the Labour Court on 3rd March, 1981, regarding recording of evidence of Boota Khan and there was no justification made out for re-calling the witness. I am inclined to agree with the view taken by the learned Labour Court. There was no justification for the assumption on the part of Mr. Kohistani that affidavit of Boota Khan would be filed on 3rd March, 1981. Since the witness had been summoned, it was appropriate for the Labour Court to record his evidence and this is precisely what the learned Labour Court had done.
4. Another application, dated 7th May, 1981, was filed by Mr. Choudhry M. Maarif who by then had been replaced Mr. Kohistani, for the recall of witness Boota Khan for the purposes of cross- examination. The said application was dismissed on 17th May, 1981 on the basis of the previous order passed by the learned Labour Court. The above recital of the facts of the case shows that no illegality or irregularity had been committed by the learned Labour Court regarding the recording of the evidence of Boota Khan on 3rd March, 1981. The evidence of this witness was important, as it was the stand of the respondent mills right from the beginning, even in their reply to the grievance notice, dated 18th September, 1980, that the appellant was employed not by the respondent mills, but by Contractor Boota Khan.
5. I am, however, not inclined to place reliance on the alleged letter of termination of services, dated 11th July, 1980, or the wage sheets allegedly bearing the signatures of the appellant in token of having received payment from contractor Boota Khan. As they do not appear to have been put to the appellant nor is there any tangible evidence that the signatures on these documents are of the appellant. The exclusion of this evidence, however, does not affect the decision given by the learned Labour Court. Even, if I were to exclude wholly the evidence of Contractor Boota Khan there also, in my view, the grievance petition of the appellant would fail on the important ground that the burden' of establishing that the appellant was an employee of the respondent, mills was on the appellant specially as right from the beginning the stand of the respondent mills was that he was not their employee, which burden the appellant has failed to discharge.
6. The only evidence which the appellant was able to lead in support of his contention that he was the employee of the respondent mills was his oral testimony and that of one Muhammad Sharif, who like the appellant claimed that he was the employee of the respondent mills and had similarly filed a grievance petition against the respondent mills. Neither the appellant nor Muhammad Sharif produced their letter of appointment, their tickets, admission cards to the mills or any other documentary or tangible evidence to show that they had been in receipt of wages from the respondent mills or were their employees. Neither of them even produced any leave pass from the respondent mills. The Standing Orders require that a workman has to be furnished with a ticket, an order of appointment, stating the terms and conditions of his services and if he proceeds on leave, a leave pass. It was contended by Mr. Choudhry M. Maarif that the respondent mills had not issued these documents. If this were so, the appellant and Muhammad Sharif should have complained to the authorities against this illegality and breach of law committed by the respondent mills. The appellant claimed that he had made oral complaints to the Director of Labour Welfare, but there is no evidence to show that any such complaints were made by him. If the appellant and Muhammad Sharif had been the employees of the respondent mills, they must have received their wages from the respondent mills and the record of that payment could easily have been summoned by the appellant through the management of the mills. No such record, whoever, was produced or summoned. On the contrary, it was admitted by the appellant that he had been receiving his wages from Boota Khan. This admission of his supports the stand of the responder mills that the appellant was not the employee of the mills but of Boot Khan. In any case, there is no tangible evidence to show that the appellant was the employee of the respondent mills.
7. For the reasons discussed by me above, I find no merit in this appeal and would dismiss the same in limine.