DECISION ' This is an appeal against the order, dated 12-4-1990, passed by the learned Presiding Officer, Fourth Sindh Labour Court at Karachi, whereby the grievance application of the appellant was dismissed.
2. The brief facts of the case are that the appellant claims to have been appointed on 15-9-1987 by the respondents as Beam Piecer in their Weaving Department. He was allegedly gate-stopped on 17-1-1989 and without any written order he was not allowed to resume his duty. After serving grievance notice upon the respondents he filed grievance petition before the Labour Court which was resisted by the respondents on the ground that there was no relationship of the employer and the employee between them.
3. I have heard Mr. Raja Shamshuzzaman, learned Advocate for the appellant and Mr. Mahmood Abdul Ghani, the learned Representative for the respondents and have also gone through the record and proceedings of the case.
4. Apart from the oral word of the appellant, he has not produced any other document to show his appointment with the respondents except one Beam Register Annexure to his affidavit-in-evidence which shows that he worked on 21-8-1989. The learned Labour Court however came to the conclusion that the appellant was not employed with the respondents on the ground of non- production of the appointment order or any other document. It may also be pointed that in the cross-examination the appellant stated that he was issued a Gate Pass and if direeted he could produce the same. The record does not show that he was so directed but failed to produce the same. No doubt the initial burden of proof was upon the appellant who should have produced whatever documents he had but because he offered production of the document which does not appear to have been accepted by the respondents, who did not request the Court to direct the appellant to produce the gate pass, therefore, under the circumstances no adverse presumption would be drawn against the appellant for non-production of gate pass.
5. As pointed above the only evidence in support of the claim of the appellant is the extract from the Beam Register which bears his signature showing that he had worked on 21-8-1989. This Beam Register is admittedly a record of respondents mill. It may be pointed that appellant had produced the Beam Register alongwith his affidavit-in-evidence which was filed on 10-1-1990. Mr. Rab Nawaz, Personnel Manager of the respondents and the only witness examined by them has filed his affidavit-in-evidence on 17-2-1990. Conspicuously he has not denied, explained or said nothing about this Beam Register. It was suggested in the cross-examination of the appellant which was denied by him, that this Beam Register was signed by the employee of the Contractor for the purpose of handing over the accomplished work to the company. No contractor has been examined to prove this contention of the respondents. The respondent's witness has admitted in his cross-examination that Beam Register filed by the appellant is the record of the respondents mill which shows the persons who had fixed the beams on various looms. He has however voluntarily added that the persons who have done the job in the said photocopy were employees of the Contractor. Again there is no evidence in support of this contention also.
6. Mr. Rab Nawaz produced copies of the two agreements of contract as Annexures `R/1' and `R/2', which show that some work in Weaving Section was given on contract. Annexure `R/1' is the contract between the respondents and one Muhammad Adam for the contract of production of 30 lac metres cloth within the period of nine months. This contract is dated 12-7-1989. Similarly Annexure `R/2' a contract between the respondents and one Muhammad Yousuf is dated 10-7- 1989, under which the contract of 30 lac metres of cloth was given for the period of nine months.
None of these contractors have been examined though the appellant had denied that the work was given on contract. There is no evidence to show that the services of the workers employed by the respondents were discharged or retrenched when certain quantity of production of the cloth was allegedly given on contrast to aforementioned Contractors. It may also be pointed, that entire mill or any section of the mill was not given on contract, but the contract was given for the production of certain quantity of cloth only. Presumption would be that the employees of the respondents, working in the mill, before the alleged contract, continued to work in the mill even after contracts. Without any evidence that the services of the employees working in the mill were terminated, the relationship of the employer and employees would not automatically come to an end on giving out the work on contract.
7. The appellant claims to be in service since 15-9-1987 viz. About two years before same work was given on contract. No doubt he has not produced any appointment letter but that alone would not disprove his claim that he was employee of the respondents. He has also admitted that he did not make any application to the authority for issuance of appointment letter.
8. It is however not easy or desirable for ordinary workman to come in conflict with employer so long he was being paid his salary and was not being removed from service. The non-issuance of the appointment order, issuance card or the social security card are lapses on the part of the employer for which the workman cannot be punished.All the records are in the possession of the employer but the payment sheets of the relevant period for the beam workers have not been produced. The respondents have produced payment register for their officials and clerks as Annexures 'R/13' and 'R/14' but not of the beam workers.
9. The beam register clearly proves that the appellant did work in the respondents mill. No evidence was produced to show that he was employee of the Contractors. Under the circumstances, in my opinion it is sufficient proof in support of the contention of the appellant that he was employee of the respondents. Even if he was temporary employee, his services could not have been terminated without any order in writing as required under Standing Order 12(3) of the Ordinance.
10. For the aforesaid reasons, I allow the appeal and set aside the order of the learned Labour Court and order the reinstatement of the appellant in service. There is no evidence to show that during the intervening period the appellant was gainfully employed or was un-employed. As such, I allow him 50% back benefits. The orders to be implemented within one month.