DECISION ' This is an appeal against the order dated 31-10-1988, passed by learned Presiding Officer, Sind Labour Court No, III at Karachi whereby he allowed the grievance application of the respondent.
2. The brief facts leading to this appeal are that the respondent claimed to be employee of the appellant since 1972. He was made to work overtime but was not paid any overtime allowance and other benefits and when he pressed for payment of the same his services were terminated on 29- 7-1987 orally without assigning reasons. He moved an application to the Labour Officer, Labor Directorate. West Division, Karachi, who called a Meeting between the parties. According to the respondent the appellant agreed to reinstate him with back benefits but they did not reinstate him therefore, after serving grievance notice, he filed grievance application before the learned Labour Court.
3. The appellant resisted the grievance petition on the ground that respondent was never in their service and that he was not entitled to any relief.
4. The respondent had examined himself and he has, in his affidavit-inevidence, re-asserted his case as averred in the grievance petition. Mr. Fiazuddin, the partner of the appellant, examined himself. He asserted that the respondent was not their employee but admitted that they have appeared between the Labour Officer on the complaint filed by the respondent. He further asserted that the respondent was employee of Messrs Masnad-e-Rashid whose service the respondent also left in 1983. He has admitted to have paid Rs,500 to the respondent in proceedings before the Labour Officer but as an act of grace and charity. The learned Labour Court also summoned him as Court witness on the application of the appellant, Mushtaq Ahmed Labour Officer and Rashid Aziz, Proprietor of M/s. Masnad-e-Rashid.
5. I have heard Mr. H.A. Jafri, Advocate for the appellant and Mr. Mehmood Habibullah, Advocate for the respondent.
6. Mr. HA. Jafri has contended that the burden of proof to prove that the respondent was employee of the appellant was upon the respondent who has failed to discharge this burden as he was unable to produce any documentary evidence in this respect. In support he has relied upon the decision of this Tribunal in the case of Roshan v. Messrs Mackinnon & Mackenzie and Company 1988 PLC 371 and in the case of Firdous Tanneries Ltd. v. Syed Munir Hussain Shah 1980 PLC 224,
7. The ordinary principle of law is that the burden of proof is always upon the party who comes to the Court for relief. He has to prove that he is entitled to such a relief. However, the quantum and nature of proof required would be different looking to the circumstances and nature of each case.
In the instant case the respondent has stated that he was not issued any appointment order and that his services were terminated orally. Mr. Fiazuddin, who was examined himself has not stated that their company issues any appointment orders to their workers nor has he produced any record to show issuance of such appointment orders. He has also not produced his record to show as to who were their employees and that name of the respondent did not appear on list of the employee in their register. This is a case between an illiterate workman and the establishment who know the legal position and who are by law required to keep their record. In fact all the cards are with the management. In such a case the word of the worker on oath that he was employee of certain establishment would not be successfully rebutted by oral word of an officer of management but could be, under the circumstances, rebutted only by production of record by the management to show that the name of respondent never appeared in their record as their employee. Non-production of such documentary evidence which the appellant were in a Position to produce would raise presumption against them.
8. The learned Labour Court was impressed by the circumstance that the appellant had agreed to make payment of Rs,500 to the respondent before the Labour Officer. According to Labour Officer, Mr. Mushtaq Ahmed the appellant had contended that the respondent was not their worker but worker of M/s. Masnad-e-Rashid which is their sister concern and left its services in 1983, and that this fact was admitted by the respondent. He has further stated that the appellants agreed to pay Rs,500 to the respondent as a matter of charity and that the fact that the respondent was employee of M/s. Masnad-e-Rashid was also proved from the record. The minutes of this Meeting have been produced as Exh. C-1 which shows that record was produced before the Labour Officer by the Management. Mr. Rashid Aziz, Proprietor of M/s. Masnad-e-Rashid has stated in cross- examination that Mr. Fiazuddin did not take any record of respondent from him. His evidence belies the document Exh. C-1 and also evidence of Labour Officer that any record was produced before him. Exhs. C-1 and C-2/1 which is application of respondent with note of the Labour Officer purports to bear the signature of the respondent, but the note as well as document C-1 are in English and it is not disputed that respondent does not know English. Neither the Labour Officer nor Fiazuddin has stated that these documents in English were read over and explained to the respondent. The only other documents produced by Mr. Rashid Aziz are the resignation of Abid Exh. C-2, the receipt signed by Abid showing receipt of all the dues and the vouchers of receipt of Rs,30 also purportedly signed by respondent Abid. It may be pointed out that the respondent was never confronted with these documents and as such they are not of much evidentiary. Value. Besides these documents pertain to 1983 whereas the claim of the respondent pertains to the year 1987. Furthermore these documents are not on the printed form of M/s. Masnad-e-Rashid. Admittedly M/s. Masnade- Rashid and appellants were sister concerns. The respondent being an employee of the appellant would naturally have signed number of papers at the instance of the appellant, therefore on the basis of these documents alone it could not be said that the respondent was not employed in 1987 by the appellant. Had he be an employe, of M/s. Masnad-e-Rashid and not the employee of the appellant there was no reason for him to drag the appellant in the Office of the Labour Officer instead of M/s. Masnad-e-Rashid.
9. Keeping in view all the facts and circumstances the conclusion drawn by the Labour Court that the respondent was employee of the appellant does not I B appear to be erroneous so as to call for interference.
10. The second objection raised by Mr. H.A. Jafri, counsel for the appellant is that West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 is not applicable to the establishment of the appellant. This is a mixed question of facts and law. It was never so asserted by the appellant in their pleadings or arguments before the learned Labour Court. Mr. H.A. Jafri has contended that the respondent has not asserted in his grievance petition that the above-said Ordinance was applicable to the establishment of the appellant. The grievance of the respondent was that he was removed by verbal order without assigning reasons which impliedly shows that he claimed protection of the Standing Order No, 12 which requires that services of the workman could be terminated only by written order assigning reasons for the same. As pointed above the respondent is an illiterate workman and this assertion in the grievance application would clearly imply that he invoked the provisions of Standing Oders Ordinance and, therefore, it was incumbent upon the appellant to plead the non-applicability of the said Ordinance if it was not applicable to the establishment. Even before this Tribunal no evidence has been produced to show that the number of workmen employed by appellant is less than twenty. As such this argument is not tenable.
11. considering all the facts discussed above I dismiss the appeal and maintain the impugned order passed by the learned Presiding Officer of the Labor Court. The back benefits, if deposited in this Tribunal by the appellant, be released to the respondent.