DECISION ' This is an appeal against the order dated 16-2-1988, passed by the Presiding Officer, Sind Labour Court No, III at Karachi whereby he allowed the grievance application filed by the respondent.
2. The respondent claimed to be worker employed by the appellant for long period. He further claimed that his services were orally terminated by the appellant on 14-7-1986 as he had repeatedly demanded his several rights under the Labour Laws which annoyed the appellant. The respondent after serving the grievance notice filed grievance application before the Labour Court.
3. The appellant resisted the grievance petition on the ground that there existed no relationship of employer and employee between the parties and further that Standing Orders Ordinance, 1968 was not applicable to the establishment of the appellant as it did not employed twenty or more workmen.
4. I have heard Mr. Muhammad Khursheed Ahmed Siddiqui, Advocate for the appellants and Mr. Ali Ahmed, Advocate for the respondent.
5. Admittedly the respondent did not have any documentary evidence to show that he was employed by the appellant. He relied upon his oral evidence and that of one All Akbar. It is not alleged either in the grievance application or in the grievance notice or in the affidavit-in-evidence of the respondent or his witness that the appellant did not issue him appointment letter or that they do not issue any appointment letter to the workers. Even this question has not been suggested in cross-examination of Muhammad Hussain, Proprietor of the appellant establishment. Under the circumstances the oral evidence produced by the respondent in support of his claim that he was employee of the appellant should be trustworthy and convincing. In the grievance application the applicant has not given the time or date since when he was allegedly employed by the appellants.
In para. 1 of the application, however, he has stated he was employed by appellant as Maroriwala for a long time. In the grievance notice also he was vague and stated that he had served the appellant for the last considerable period of time. In the affidavit-in-evidence in para. 3 he has stated that he had served the appellant establishment as Maroriwala for the last three years.
However, in the cross-examination he stated that he worked with the respondent/appellant for about 8/9 years. Witness Ali Akbar stated that the respondent served the appellant establishment for more than three years. Thus the evidence of the respondent as to when or since when he was employed by the appellant is contradictory and conflicting. Similarly in the grievance application the applicant/respondent alleged that he was removed from service because he was demanding several rights and benefits as admissible under different Labour laws which annoyed the appellant.
In the grievance notice also it was averred that he was removed because he requested for cost of living allowance and other legal dues. However, in his affidavit-in-evidence he does not give any reason for his removal but in the cross-examination the applicant/respondent has alleged that his services were terminated on the ground that he was getting more wages and the respondent was able to find out workers on less wages. His witness All Akbar has stated in the cross-examination, that the services of the respondent were terminated on the charge that he was not working. It would be clear that even on the point as to why services of the respondent were allegedly terminated, there is conflicting evidence.
6. Witness Ali Akbar, who has been produced by the respondent in support of his case claims to have worked with the appellant establishment for about one and half years before he was examined on 25-3-1987. Even he has admitted that he does not have documentary evidence to show that he was employed by the appellant establishment. His evidence, under the circumstances, does not have much force or evidentiary value. As pointed out he has contradicted the respondent as regards the reasons why he was removed from service.
7. The learned Presiding Officer of the Labour Court appears to have based his finding on the ground that the appellant/respondent had failed to produce books of accounts and register of workmen which he had admitted in the Court question that he was maintaining. Admittedly neither the said registers were summoned by the respondent nor the Court asked the appellant to produce the same. It was not even suggested in the cross-examination of the appellant's witness that the name of the respondent does transpire in the register of workers or books of account. As already pointed out it was not even suggested to this witness that the appellant did not issue the appointment order to the respondent or his witness Ali Akbar or that it was the practice of the appellant not to issue appointment orders. In the absence of any such suggestion and in the absence of the appellant being called upon either by the respondent or by the Court to produce register of workers or books of accounts no adverse presumption can be drawn that the name of the respondent would appear in the register of workers or books of account maintained by the appellants. In view of the fact that the appellant denied in the very first instance to be the employer of the respondent it was the duty of the respondent to prove that he was employee of the appellants. The nature of oral evidence produced by respondent, as discussed above, is not sufficient to discharge this burden of proof. Admittedly there is no documentary evidence.
8. Mr. Muhammad Khursheed Ahmed Siddiqui has relied upon 1979 PLC 325 wherein this Tribunal held that burden of proof that workman was employed by the establishment lies upon workman. In 1982 PLC 872 this Tribunal had held that where respondent denied the relationship of master and servant the petitioner in the circumstances should be vigilant enough to lead evidence to establish the relationship of master and servant. The order of Labour Court accepting grievance application wherein there was no tangible evidence except petitioner's own testimony to support that he was employee of respondent, was set aside by the Appellate Tribunal.
9. In the instant case also there is no tangible evidence except oral evidence of the respondent.
Oral evidence as pointed out, is contradictory and does not inspire any confidence.
10. In view of the fact that on merit the respondent could not prove that he was employee of the appellant it is not necessary for the Tribunal to go into the legal question whether Standing Orders Ordinance, 1968, was applicable or not. In my view the learned Labour Court has erroneously held the respondent to be a workman of the appellant establishment.
11. As such I allow this appeal and set aside the impugned order of the Labour Court.