DECISION ' This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No,IV at Karachi, dated 13-8-1990, whereby the grievance petition of the appellant was dismissed.
2. 1 have heard Mr. Muhammad Abdul Qadir, learned Advocate for the appellant and Mr.Khalid Javed, learned counsel for the respondents and have also gone through the record and proceedings of the case.
3. The brief facts of the case are that the appellant was admittedly employee of the respondents. It is alleged by the appellant that his services were orally terminated by the respondents on 1-2-1988 for which he served upon the respondents grievance notice, dated 18-2-1988. It is further alleged by him that the respondent instead of replying to the notice orally asked him to resume duty from 1-4- 1988 and promised to pay wages for February and March, 1988. However, the respondent is alleged to have again terminated the services of the appellant on 6-5-1988 without any order in writing and without payment of salary for which he served grievance notice upon the respondent on 7-6- 1988. The same was again not replied. He, therefore, filed grievance petition before the learned Labour Court which was resisted by the respondents on the ground that they were registered under the Shops & Establishments Ordinance, 1969 and as such they were not covered by the Standing Orders Ordinance, 1968. The respondent admitted to have employed the appellant in 1984 but stated that he himself left the service and opened the Bicycle shop and did not attend service after 29-1-1988.
4. The main point that requires consideration is as to whether the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the 'Ordinance') was applicable to the establishment of the respondent.
5. There is oral word of the appellant that the respondent employed more than fifty workers. He wanted to examine one witness in support of his contention but subsequently gave that witness up, on the ground that the respondents establishment was preventing the witness from giving evidence. The respondents have examined Saddaruddin Eessa Bhai, proprietor of the respondent establishment and also one Muhammad Tariq, contractor, who does the repair and maintenance work of the machines of the respondents. They state that the respondents employ five to eight workers. The appellant had also applied to the learned Labour Court to summon the attendance registers, payment registers and other record, of the establishment of the respondents but respondent made statement that they did not maintain the record and therefore the record was not summoned.
6. It is contended by Mr.Mohammad Abdul Qadir, learned Advocate for the appellant, that the record was in possession of the respondent as under the law and rules he had to maintain the record, its non-production would raise the presumption against the respondent. Whereas Mr.Khalid Javed, learned counsei for the respondent, contended that the onus of proof, was initially upon the appellant to show that the Ordinance was applicable to the establishment of the respondent and the respondent employed more than twenty or fifty workers on any date in the preceding twelve months.
7. In the case of Abdul Mannan v. M is Advance Textile Mills 1981 PLC 208 this Tribunal held that "the burden to prove that the establishment had more than 19 workers was upon the workman and where the petitioner relied upon payment or attendance registers in custody of management, he should have required the management to produce same before Court but as the workman failed to establish his assertion, establishment in the circumstances was rightly held not to be covered by the provisions of the Ordinance". In the instant case, however, the appellant had applied for the summoning of the record of the respondent but the respondents did not produce the same on the ground that they did not maintain the record.
8. In the case of Manzoor Ahmad v. Muhammad Afzal 1.990 PLC 444 this. Tribunal held that "establishment registered under West Pakistan Shops and Establishments Ordinance, 1969 was not exempt from provisions of West Pakistan Industrial & Commercial Employment (Standing Orders)
Ordinance, 1968 unless proved by evidence that reasons mentioned in section 1(4) thereof existed viz. That number of workers employed on any working day during preceding 12 months was not more than 20 ".
9. In the case of M/s. Humayoon Textiles, Karachi v. Abdul Rasheed 1977 PLC 223 this Tribuna' held that "where the worker claims applicability of the Standing Orders Ordinance, 1968 burden of proof lay on the workman to establish ground of his claim. Bare word of workman could not be relied upon to prove number of workers being more than twenty as the workman was not able to disclose name of a single worker working in the establishment.
10. In the case of Fazal Elahi v. Khurshid Khan and another 1979 PLC 362 learned Single Judge of Sindh High Court at Karachi held that "the Standing Orders Ordinance were not applicable to the establishment employing four workers and that there was no provision in the Shops and Establishments Ordinance for reinstatement in service".
11. From the aforesaid decisions it will be clear that initial burden lay upon the appellant to prove that the respondent had at any time and on any date in the preceding twelve months employed 20 or more workers so as to bring it within the ambit of the provisions of section 1(4)(a) of the Ordinance which reads as under:- "1. Short title, extent and commencement.---(1) This Ordinance may be called the West Pakistan industrial and Commercial Employment (Standing Orders) Ordinance, 196 It applies to---
(a) every industrial establishment or commercial establishment wherein twenty or more workmen are employed, directly or through any other person whether on behalf of himself or any other person, or were so employed on any day during the preceding twelve months".
' Admittedly there is only word of the appellant to the effect that the respondents employed more than fifty workers not supported by any other evidence whatsoever. He wanted to examine another workman Mohammad Akram but had given him up on the ground that he was prevented from giving evidence by the respondents.
12. Mr. Khalid Javed relied upon orders of learned Labour Court to the effect that Mohammad Akram and Mehmood had appeared before learned Judge and that Muhammad Akram stated that he had not been prevented by any body from giving evidence. However, the contention of the appellant that he could not produce any evidence as no workman of the respondent was prepared to give evidence does not look improbable. The respondents also have produced oral evidence of Sadaruddin and Muhammad Tariq to show that they employed six to eight workers. It is contended by Mr. Khalid Javed that Muhammad Tariq was independent witness. Appellant claimed, that Muhammad Tariq is Foreman of the respondents. However, Muhammad Tariq admits that he works on contract for repair and maintenance of machines of the respondents. He, under the circumstances. Cannot be considered as independent witness. Thus, there is only oral evidence of the appellant as against oral word of witnesses of the respondents with regard to the number of workmen employed by the respondents. The evidence of the parties, therefore, would be considered to be equally balanced.
13. The appellant tried to discharge his burden of proof by summoning the record of the respondent, but the respondents did not produce the record and pleaded that they did not maintain the record. The learned Labour Court held that under the Standing Orders Ordinance the respondent had to maintain such record but respondents had not maintained the record as the same was not applicable to establishment of respondent. However, the respondent is admittedly registered under the West Pakistan Shops and Establishments Ordinance, 1969 and he had produced such registration certificate. Even under the rules framed under this Ordinance the respondent had to maintain record as provided under rule 8, which is reproduced as under:- "8. Record and Registers.--Every employer shall for the purposes of the Ordinance maintain the following records and registers:-
(a) Register of employment and remuneration in Form IV.
(b) Register of leave in Form V.
(c) Inspection Book in Form VI (for establishments excluding shops).
Rule 11 provides penalties for breach of any rules while Rule 12 requires the Inspector of the Area to inspect the record maintained by employer. The maintenance of record is a mandatory provision of the rules under the West Pakistan Shops and Establishments Rules, 1969 and their non- maintenance is a criminal offence. The presumption in law would be that the common course of business has been followed in a particular case. The presumption would also be that the official act which requires the Inspector to check the record has been regularly performed by Inspector. If the respondents had not maintained the registers he was liable to be prosecuted and there is no evidence to show that he was prosecuted. There is no evidence that Inspector did not inspect his registers. Under the circumstances the oral evidence of Sadaruddin that he did not maintain the registers was in violation of mandatory provision of law and the rules cannot be accepted.
14. Again the presumption under the law would be that if respondents had produced the evidence viz the registers the same would have been unfavourable to the respondents. The appellant had discharged initial burden by stating on oath that the respondent did employ more than fifty workers. No question was put to him in order to show that he was not able to name the workmen.
His effort to prove the number of workmen employed by respondents by summoning the record of the respondent was thwarted by the respondents by not producing the record on the ground that they do not maintain the record which ground has been disbelieved by this Tribunal for the reasons recorded above. There is another factor also that supports the case of the appellant. The appellant sent two grievance notices, dated 18-2-1988 and 7-6-1988. Copies of these have been produced in which he claims, that he was illegally removed from service and had asked for reinstatement and further threatened that he would take legal action. Those grievance notices were admittedly not replied to by the respondents. Respondent could have easily repelled the claim in the notices by replying that there was no provision of reinstatement under Shops and Establishments Ordinance and that Standing Orders Ordinance was not applicable to the respondent establishment.
15. Keeping all the facts and law into consideration I am inclined to hold that the Standing Orders Ordinance is applicable to the establishment of the respondent. In absence of production of any record to show that the appellant was not working in the establishment after 29-1-1988, I am inclined to believe the appellant that he was removed from service and then again re-employed on 1-4-1988 and again removed from service on 6-5-1988.
' Reference in this content may be made to the decision of learned Single Judge of High Court in the case of Crescent Jute Products Ltd. v. Muhammad Yaqoob 1989 PLC 499. This case pertains to non-production of the record of enquiry and his Lordships held that "it was the employer who holds all the cards in his hands inasmuch as the documentary evidence was in his possession. It was not possible for the employee to make every document available to the Labour Court". Therefore, adverse presumption was drawn against the employer as in the opinion of his Lordships the record could not be kept back without satisfactory reasons. This decision was upheld by Hon'ble Supreme Court in their decision reported in PLD 1978 Supreme Court 207. In the instant case also I find that there is no credible or satisfactory reason advanced by the respondents for non-production of record and under the circumstances presumption will have to be drawn against the respondents with regard to the number of workers employed by them and the evidence of the appellant will have to be believed.
17. It is not claimed by the respondent that services of the appellants were terminated by respondents by any order in writing showing explicit reason for such termination as required under Standing Order 12 of the Ordinance. As such act of termination of the services of the appellant by the respondent is not tenable I therefore allow this appeal, set aside the order of Labour Court and order the reinstatement of the appellant in service. With regard to the back benefits it is alleged by respondents that the appellant is running his own `Bicycle shop'. The appellant in the cross- examination had denied that he had opened his private Bicycle shop but he admitted part-time job in the bicycle shop. However, there is no evidence as to how much he earns from this part time job. In view of the above circumstances I award him one-fourth of back benefits from 6-5-1988.