DECISION ' This is an appeal against the order, dated 11-3-1990, passed by learned Presiding Officer, Sindh Labour Court No, III, Karachi, dismissing application of the appellant under section 25-A of I.R.O., 1969.
2. The brief facts of the case appear to be that the appellant was admittedly employed by the respondent as 'Administrative Assistant'. He is alleged to have misbehaved on 26-8-1989 with one member of the office namely Miss Shahida Bano Ali, who made such complaint in writing to Mr. Rathore, Administrative Manager. On 15-9-1987 the appellant was served with the show cause alongwith the complaint of Miss Shahida Bano Ali and was asked to explain his misconduct and show cause why disciplinary action should not be taken against him. After domestic enquiry his services were terminated by order, dated 25-10-1987 and he was granted one month's pay in lieu of notice. After serving grievance notice upon the respondent the appellant filed grievance petition which was resisted by the respondents on the ground that the application was not maintainable as the appellant had been removed under West Pakistan Shops and Establishment Ordinance, 1969 and also charges have been duly proved against the respondent.
3. I have heard Mr. Mahmood Habibullah, learned Advocate for the appellant and Mr. A. Hafiz, learned counsel for the respondents and have also gone through the record and proceedings of the case.
4. The only point that requires consideration is whether the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the 'Ordinance') is applicable to the establishment of the respondent. Under Standing Order 1(4) of the Ordinance it will be applicable to an establishment if it employs twenty or more than twenty workers on any da) during the preceding twelve months. Before seeking any relief under the Ordinance the burden was upon the appellant to prove that the respondent employed twenty or more workers as provided under section 1(4) of the Ordinance.
5. It may be pointed out that in the show-cause notice it is not mentioned that he was being charge-sheeted under the provisions of Standing Orders Ordinance. In the letter of enquiry, dated 21-9-1987, Ex. R/3 the appellant was specifically informed that it was a small commercial establishment having not more than 13 workers therefore Standing Orders Ordinance was not applicable but in the interest of justice he was given chance to defend himself in the enquiry. The Enquiry Report also does not show that it was held under Standing Orders Ordinance or that any charge under the Ordinance was proved against him. In the second show-cause notice, which is Ex. R/6, it is also specifically mentioned-that Standing Orders Ordinance was not applicable but in the interest of justice hp was given second show-cause notice to explain his conduct. It may be pointed out that in reply to these show-cause notices the appellant never asserted that Standing Orders Ordinance, 1968 was applicable or that the respondent employed more than twenty workmen. It was only in the grievance notice that this stand was taken by the appellant which was denied by the respondents.
6. Apart from the statement on oath of the appellant the only other proof that the appellant has produced to show that the respondent employed more than twenty workers is production of list of 57 employees of the respondent alongwith his grievance application. However, the appellant in the cross-examination stated that he has mentioned the names of all the persons employed by the respondents in all the cities throughout Pakistan including Karachi. He has however not mentioned how many of them were working at Karachi and how many of them were 'workmen' as defined under the Ordinance. He has admitted that he did not know the meaning and definition of workman as defined under the Ordinance.
7. The main contention of Mr. Mahmood Habibullah was that the respondent had not examined any witness therefore he deprived the appellant of the chance to prove his averment that Standing Orders Ordinance was applicable. He has relied upon the case of National Advertising Ltd. v. S.B.
Usmani 1974 PLC 84, wherein this Tribunal held that where the management had failed to produce the record to establish that it was employing less than twenty persons, therefore, in the absence of any satisfactory evidence the provisions of Standing Orders Ordinance would apply to the appellant concern.
8. This Tribunal, in the case of Kohinoor Chemical Co. Ltd. v. Kohinoor Chemical Workers Union 1975 PLC 269, held that where one owner owned two concerns employing more than twenty persons but falling under same ownership and union of workers of one concern extended to workers of second concern under same management, the provisions of Standing Orders Ordinance would be applicable. In the instant case there is no evidence that there are two concerns owned by the respondent which have only one union therefore this case is distinguishable.
9. Mr. Mahmood Habibullah also relied upon the case of Crescent Jute Products Ltd., Jaranwala v.
Muhammad Yaqub and others PLD 1978 SC 207, wherein their Lordships held that Labour Court could go behind a dismissal order and see for itself whether on facts and in circumstances of case dismissal order was or was not justified both on merits as well as law. This is now established principle and embodied under subsection (5) of section 25-A of I.R.O., 1969. He has also relied upon the decision of this Tribunal in the case of Zafar & Associates v. S.M. Kazmi 1975 PLC 70, wherein it has been held that persons covered by definition of workman employed at Head Office were to be included with workmen employed at a particular site in absence of some good reason for their exclusion.
10. The learned counsel for the respondent, on the other hand, had relied upon the decision of this Tribunal in the case of Aman Industries v. Sarfraz Khan and others 1981 PLC 45. It was held therein that where it was denied by the establishment that it was employing twenty or more workmen the burden of controverting this fact and proving that Standing Orders Ordinance were applicable to it lay on the workman and other person making such prayer. Similar view was taken by this Tribunal in the case of Abdul Mannan v. Advanced Textile Mills 1981 PLC 208 and in the case of M/s. Crescent Saw Mills, Karachi v. Muhammad Arif 1981 PLC 148. However, in all the cases the establishment had examined witnesses before the learned Labour Court who had asserted on oath that the workmen employed by the establishment were less than twenty and the workmen had opportunity to cross-examine witnesses of the establishment. In such cases this Tribunal also held that it was not necessary for the management to produce the registers as register could have been summoned by the workman himself. Reliance is also placed on the decision of learned Division Bench of Sindh High Court at Karachi in the case of Ehsan Sons Limited v. Abdul Razzak Habib 1987 PLC 390 wherein it is held that a company, individual or association of individuals runs or sets up separate establishments at different places would not authorise treating all such establishments, to be one establishment either for purposes of Industrial Relations Ordinance or Standing Orders Ordinance, even if there was a provision for transfer of staff from one establishment to another.
11. The respondent claim in their written statement that they employ less than twenty workmen and that the proceedings were taken against the appellant under the West Pakistan Shops and Establishment Ordinance, 1969. Section 24 of the aforesaid Ordinance requires every establishment to be registered with the Deputy Chief Inspector of the Area who shall issue a Registration Certificate. No Registration Certificate had been produced by the respondents to show that they are registered under the Shops & Estasblishment Ordinance. Their averment in the written statement that they employ less than twenty workmen cannot be considered as evidence as the person who signed the written statement has not been examined. Reliance is placed on PLD 1972 SC 25. The appellant in his grievance petition has asserted that the respondent employ more than twenty persons and in his evidence on oath he asserted that the contentions of the application were correct and true and the same may be treated as part of his affidavit. The respondents have not examined any person on oath to controvert this statement on oath by the appellant and mere reference in their letters that the Standing Orders Ordinance is not applicable to them or that West Pakistan Shops and Establishments Ordinance is applicable would not be sufficient to rebut the evidence on oath of the appellant specially in view of the fact that no witness has been examined by the respondent to assert on oath that they employed less than twenty workers nor any certificate under Shops and Establishments Ordinance was produced in support of their contention. By making statement on oath the appellant has primarily discharged his burden of proof. As already pointed out he has produced list of 57 workers employed by the respondent.
However, though he is not able to say as to how many of them were working at Karachi and how many were workmen, but in view of his statement on oath, the burden shifted upon the respondent to prove as to which of these employees were employed at Karachi as workmen as it would be within the knowledge of the respondents. They have also not produced the record of establishment to prove that number of workmen employed by them is less than twenty. The aforesaid decisions of this Tribunal relied upon by the respondents are distinguishable as in all cases respondents examined witnesses who asserted that the number of workmen was less than twenty and in such cases Tribunal held burden shifted upon workman and it was not necessary for the management to produce the record to prove that the number of workmen was less than twenty.
12. It appears that no satisfactory evidence has been produced by any party to show the number of workers employed by the respondent establishment. Under the circumstances, as held by this Tribunal in the aforementioned case of National Advertising Limited, Standing Orders Ordinance would be applicable to the establishment of the respondents.
13. I have already held that the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was applicable to the establishment of respondents. Admittedly the respondents have not taken action against the appellant under the said Ordinance. The appellant could be removed only in accordance with the provisions of Standing Orders Ordinance and therefore any order made under Shops and Establishments Act for the removal of the appellant cannot be considered as legal and sustainable. The appeal is, therefore, allowed. Order of learned Labour Court as well as dismissal order are set aside. The appellant is ordered to be reinstated.
However, under the circumstances of the case I award him fifty per cent back benefits. The order to be implemented within two months.