' This appeal is directed against the order, dated 29th July, 1983 passed by Sind Labour Court No, III, Karachi, ordering re-instatement of the respondent with back benefits.
2. The facts leading up to the appeal briefly stated are that the respondent allegedly was a permanent worker of the appellant establishment having served with them as a Maintenance Fitter for a considerable period of time. The respondent alleged that suddenly the appellant establishment terminated his services on 28th August, 1982 by a verbal order without assigning any reason. The respondent, therefore, served a grievance notice, dated 30th August, 1982 on the appellant, establishment who sent a reply to it. The respondent finding that his grievance was not redressed, filed an application under section 25-A, I.R.O., 1969, in the learned Labour Court. The learned Labour Court, vide its order, dated 29th January, 1983 ordered reinstatement of the respondent with back benefits. The appellant establishment aggriefed by the said order has come in this appeal.
3. The appellant establishment mainly contended that the respondent was in the first instance appointed as Badli worker with effect from 12th December, 1981 to 12th January, 1982 for a period of one month in place of workman, Nooran Shah, who had proceeded on leave. Thereafter his badli appointment, on expiry of one month automatically came to an end. Subsequently he was offered temporary employment with effect from 31st January, 1982 for a period of one month. His temporary employment was terminated on 1st February, 1982 when he had hardly worked in that position for only 2 days as his work was found not upto the requirements of the appellant. The appellant further contended that the grievance notice, dated 30th August, 1982 having been served after a period of about 7 months, in the circumstances was hopelessly time-barred. It is also contended that it was wrong that the service of the respondent was terminated by a verbal order, dated 28th August, 1982 as he was no longer in service after his services were terminated on 1st February, 1982 and that he had qualified to no right secured or guaranteed for a legal protection, and that his application under section 25-A, I. R.
0., 1969, was not maintainable.
4. The parties led evidence in the learned Labour Court. The respondent, Muhammad Fayyaz, examined himself and his co-worker Bakhtiar and S. Abdul Kalam the then Manager, Administration whereas the appellant examined Mubeen Ansari, Maintenance Manager of the establishment, in support of their respective contentions. At the appellate stage, Shamsuddin, the Managing Director of the appellant, Muhammad Hanif, their Manager Accounts and S. Abdul Kalam were examined. I have carefully perused the evidence recorded both in the learned Labour Court as at the appellate stage. I have also heard the learned counsel for the parties, Messrs Samullah Khan for the appellant establishment and Ali Ahmed for respondent.
5. Mr. Samiullah Khan for the appellant establishment has mainly contended that the respondent was not a _permanent workman within the meaning of Standing Order 1 (iXb) of the Standing Orders Ordinance, 1968 working with the appellant establishment at any time, and that he being the temporary workman appointed for a period of only one month, his services were terminated on 1st February, 1982 as his work was not found upto the requirements of the appellant establishment.
He has, therefore, further contended that the grievance application filed by the respondent was hopelessly time-barred. Scrutinising the evidence on record, I find that the respondent was appointed in the first instance as Badli worker in pursuance of his application, vide Exh. A-1, with effect from 12th December, 1981 to 12th January, 1982 in Maintenance Section in place of Nooran Shah, a permanent employee, who proceeded on leave upto 12th January, 1982. His order of appointment is on the record of the learned Labour Court, vide Exh. A. The respondent has admittedly signed it in token of having accepted the terms and conditions mentioned in the order.
His services automatically came to an end on 12th January, 1982. What I further find that he was subsequently offered a temporary appointment for a period of one month as a Mechanic in Maintenance Section with effect from 31st January, 1982, in pursuance of his application, dated 28th January, 1982, vide Exh. 2/1 of the appellate record. His appointment order as a temporary workman for a period of one month with effect from 31st January, 1982 is on the Labour Court's record at Exh.
B. It was admittedly signed by S. Abdul Kalam, Manager, Administration, as well as the respondent in token of having accepted the terms and conditions of the service shown in the order. The respondent has also not disputed the two applications above-mentioned from him, one for the appointment as a badli worker and the other for a temporary appointment for a period of one month. The respondent has not produced any documentary evidence controverting the above- mentioned documents produced on behalf of the appellant. In his cross-examination he has deposed that Mr. Poonwala and Mr. Rehmat were his Supervisors. During day time, Mr. Pervaiz was his Supervisor. Mr. Mubeen Ansari was Maintenance Engineer and supervised his work. Mr. Mubeen Ansari examined on behalf of the appellant establishment has supported the above-mentioned service position of the respondent, apart from a slight typing mistake in his affidavit in evidence.
The respondent has failed to examine Messrs Poonwala, Rehmat and Pervaiz who used to be his Supervisors in support of the contention that his service position was otherwise than disclosed by the above-mentioned documentary evidence. He has neither been able to challenge the application submitted by him nor the orders passed in pursuance of such applications which admittedly have been signed by him in token of terms and conditions having been accepted by him as such Badli worker and a temporary workman. The case of the respondent mainly is that he served in the establishment with effect from 20th August, 1981 to 28th August, 1982 for about a period of 12 months. He has admitted that there is no documentary evidence in support of his plea either by way of an appointment order or by way of an order of termination. It was his duty to call for documentary evidence available with the appellant if at all it was in his favour, but he has failed to do so. The contention is that though the termination order, dated 1st February, 1982 vide Exh. C on the Labour Court file, and in original at Exh. 2/2 on the appellate record, was issued, it was not served on the respondent and he continued to work as Mr. Ibrahim Habib Rehmatullah who was the Chairman of the Directors of the appellant establishment had recommended that the respondent should be allowed to continue in the job and that the termination order though issued was confined to the file of respondent in the establishment. Mr. S. Abdul Kalam has stated that such a direction was communicated to him by Mr. Shamsuddin, the Managing Director through Mr. Muhammad Hanif, the Manager Accounts and he had complied with it. Messrs Shamsuddin and Muhammad Hanif have been examined at the appellate stage and they completely belied his version. In the circumstances, it was the duty of the respondent to have called and examined Mr. Ibrahim Habib Rehmatullah in support of his contention that though the order of termination of his services, dated 1st February, 1982 was issued but it was not served on him and he continued in the employment. Had Mr. Ibrahim Habib Rehmatullah recommended the case of the respondent there is nothing available in the evidence on the record as to why subsequently the services of the respondent was terminated soon after by a verbal order as alleged by him. In any case the respondent has neither examined any documentary evidence from the appellant establishment or examined Ibrahim Habib Rehmatullah in support of his contention that he served with effect from 20th August, 1981 much before he was appointed as a badli worker and a temporary worker as stated above and even after his termination of service with effect from 1st February, 1982 to 20th August, 1982 Mr. S. Abdul Kalam is no more in the service of the appellant establishment having resigned allegedly his work had not been found upto expectations. His another witness Bakhtiar a co worker is also no more in the service of the appellant establishment, his services having been terminated before 5th May, 1982. Their solitary versions, therefore, in the face of the documentary evidence available in favour of the appellant establishment would not help the case of the respondent in as much as it is an admitted position that the burden of proof heavily lay on the respondent to establish the assertion made by him that he was a permanent workman right up from 20th August, 1981 to 28th August, 1982. For the first time he disclosed in his affidavit in evidence that he was appointed as a Mainte- A nance Fitter on 20th August, 1981 and his services were terminated on 28th August, 1982. He did not say so either in his grievance notice or in the grievance application. In his grievance notice or grievance application he simply said that he is a permanent worker of the appellants serving as Maintenance Fitter for a considerable period of time. His case, therefore, is obviously based on conjectures and surmises rather than on cogent and reliable evidence. In my view he has clearly failed to discharge his burden of proof in that respect. What I further find that no attempt has been made on his part at all to show that he was engaged on a work of a permanent nature likely to last more than 9 months and had satisfactorily completed a probationary period of 3 months. In the fact of the evidence as discussed above, he had hardly worked for 2 days when his temporary service which was only for a period of one month was terminated, his work not having been found upto the requirements of the appellant establishment.
Therefore, by no stretch of imagination, it would be possible to conclude that he was a permanent workman within the meaning of Standing Order 1 (i) (b " of the Standing Orders Ordinance, 1968.
The order of termination of hi service is available on the record, vide Exh. C of the learned Labour Court file and in original at Exh. 2/2 of the appellate record. This order belies the version of the respondent, that his service was terminated by verbal order without assigning reason on 28th August, 1982. In the circumstances, I do not find that any of the provisions of the Standing Order 12 of the Standing Orders Ordinance, 1968, has not been complied with while ordering termination of the services of the respondent. Accordingly, no exception can be taken to the termination order, vide Exh. 2/2 of the appellate record. In this view of the matter, the application filed by the res- pondent under section 25-A, I.R.O., 1969, on 23rd September, 1982 was clearly time barred. The appeal would, therefore, succeed on both the grounds raised on behalf of the appellants.
6. The result is that the impugned order, dated 29th January, 1983 passed by the learned Labour Court is set aside and the appeal is allowed.