' This is an appeal under section 37(3) of the Industrial Relations Ordinance, 1969, against decision, dated 21-3-1998, passed by the Sindh Labour Court No .5, in Grievance Application No,1 of 1997 under section 25-A(10) of I.R.O., 1969, for reinstatement with back benefits, whereby the respondents were ordered to be reinstated with back benefits.
' The facts, leading to the above appeal, briefly stated, are that fifteen workers (out of twelve are before me as respondents) filed an application under section 25-A(10) of the I.R.O., 1969 on 30-1- 1997, alleging, inter alia, that there were 67 workers in the appellant company, but were neither issued any .appointment letters, nor provided any cover under Social Security Scheme and other benefits including Old-Age Benefits. Furthermore, none of them were getting even the minimum wages as required by Minimum Wages Unskilled Workers Act, 1994. The appellant company, being annoyed with the insistence of the respondents for issuance of appointment letters and providing all other benefits, abruptly terminated their services on 10-9-1996 by an oral order.
3. Grievance notices, dated 18-11-1996 were given to the appellant company, which have been admitted by the appellant to have received the same. The respondents/workers, thereafter, filed a joint grievance petition under section 25-A(10) of the I.R.O., 1969 on 30-1-1997. by the appellant company that it had never employed twenty or more persons and, therefore, the application was not maintainable.
5. The applicants/workers, in support of their application, filed affidavit-in-evidence. They also filed an application under section 36(2) of 1.R.O., 1969 for summoning various documents in possession and control of the appellant company, which was allowed by the learned Labour Court, by its order, dated 10-11-1997, whereby the appellant was directed to produce the documents, prayed for, except the Income Tax Returns on the day when the evidence of the appellant company will be recorded.
6. The Chief Executive of the appellant company filed his affidavit-in- evidence on behalf of the company. He was cross-examined on 9-2-1998. The said Chief Executive denied sending the alleged reply, annexed with the affidavit-in-evidence of the respondents (R.2 and R.3). He also denied having 67 workers in the appellants establishment. It was averred that there were only 17 workers employed in the appellant company. The relationship of employer and employee was also denied.
7. The learned Presiding Officer, after hearing arguments of the counsel for both the parties, allowed the application under section 25-A(10) of I.R.O., 1969 by his decision, dated 21-3-1998.
8. The learned counsel for the appellant argued that appeal on 10-3-1999, but it was adjourned on the request of Mr. Gohar Iqbal. Thereafter, he proceeded for Hajj and, thus, the matter could not proceed earlier.
9. I have heard Mr. Gohar Iqbal, learned counsel for the respondent today.
10. Mr. Gohar Iqbal, submitted that the appellant failed to produce the documents, as ordered by the learned Presiding Officer, whereas, it was submitted by Mr. Agha Faquir Muhammad, learned counsel for the appellant that the Chief Executive brought all the accounts of the Company in Court, but no question was put to him in cross-examination on the same. It was further submitted by the learned counsel for the appellant that the appellant had specifically denied signature on the letter (undated), alleged to have been sent on 4-2-1997, in reply to the grievance notice. It was, thus, asserted vehemently by the learned counsel for the appellant that the said letter was forged in order to establish relationship of employer and employee between the parties.
11. After going through the decision, impugned in the above appeal and the record and proceedings of the case, it seems apparent that the learned Presiding Officer has relied on negative evidence as the respondents were not in possession of any positive evidence to prove that they had never been in the employment of the appellant. The entire case has been decided, in favour of the respondents, on the basis of negative evidence. No evidence, documentary or oral, has been produced by the respondents to substantiate their allegations.
12. I read, with Mr. Gohar Iqbal, the affidavit-in-evidence of appellant's. Chief Executive wherein it has been, inter alia, stated that the appellant company is a 100 per cent. foreign investment company which' was incorporated on. 10-8-1994 (para.2, page 345 R&P). The appellant company established its office on 1-1-1995 (para.3) page 345 R&P). The appellant company never employed more than 17 workers from its date of incorporation till July, 1996. The appellant company had acquired the factory establishment on 27-2-1996. It was further alleged that the company was registered with EOBI and notified under Social Security Act and are paying EOBI and social security contribution of its employees in accordance with law (para.7, page 347 R&P). The company produced the necessary Certificates, in testimony of their statement, issued by the concerned Department. It was also alleged that the Company has one Mr. Yousuf as a contractor and he never employed the respondents in his company.
13. I also asked Mr. Gohar Iqbal to kindly read out the cross-examination of appellant's Chief Executive. There appears to be no question as to the assertions, made by him in the affidavit-in- evidence.
14. As I have already observed that the entire case has been decided by the learned Presiding Officer on negative evidence and failed to discuss the position, as averred by the appellant Company. Our superior Courts have consistently observed that when the employee claims relationship, the burden of proof lies on the employee. There is nothing on record to show that there existed relationship of employer and employee since 4-8-1994, or even afterwards, as alleged by the respondents. It is also pertinent to note that the respondents/applicants did neither specify any date of employment in the grievance notice nor in the grievance application. The whole case seems to have been cooked up by the respondent No,1 Saleem Hussain. The averment, made by the appellant in his affidavit filed in evidence that the respondent No,1 (Saleem Hussain) had approached him and offered his services as a contractor at a low price, but upon refusal to accept him as a contractor, the respondent No,1 threatened him of dire consequences and thereafter, appellant company received the grievance petitions from the respondents. This explanation, offered by the appellant, seems to be plausible in the circumstances of the case.
15. It is noticeable that in the grievance notice as well as the grievance application and so in the appeal before this Tribunal, merely the names of the respondents have been mentioned with no description as to detail of father/spouse. The ages were also not mentioned of the respondents/applicants. Neither the residential addresses have been given nor the name of the advocate was given in the grievance notice except C/o 302, Lawyers Chamber, Karachi.
16. The alleged reply (undated) was not tendered in evidence in the Court by the respondents themselves. Only the appellant was confronted with the said replies (R.2 and R.3) about which he showed his complete ignorance and denied his signature as well. The learned Presiding Officer having based the entire case of the respondents on the said reply to notices R.2 and R.3, has drawn wrong conclusions therefrom. Apparently R.2 is a simple typed letter addressed to M/s. 302 Lawyers Chambers and the names of the respondents haVe been put on the top of it in somebody's handwriting, which was not at all proved. R.3 appears to be the envelope of the appellant company with a stamp of some office bearing, dated as 4-2-1997. R.3 is a simple envelope bearing a sticker of the appellant company, having been pasted on the top of the said envelope. This seems to be all fabrication. Except the date as 4-2-1997, the other contents are illegible, The fact, which went unnoticed by the learned Presiding Officer is that he failed to summon some one from the alleged office to testify whether such envelope actually posted because I am doubtful about the seal of the alleged Post Office as the seal of the Office is illegible and so is the case with the seal on the back of the envelope. The learned Presiding Officer seems to have not read the evidence on record. In fact, he totally ignored the affidavit-in-evidence of the appellant company and other documents, produced by him. The date of commencement of employment was, for the first time, stated in the affidavit in-evidence by the respondents, probably after ascertaining the date of incorporation of the company from some other source as they were not in the know that the factory was registered and commenced its business in or about 1996. There was no question of any employment of the respondents in 1994, when the factory was non-existent.
17. The decision of the learned Presiding Officer suffers from infirmity in law. He has misread the evidence and drawn wrong conclusion therefrom particularly in presence of specific denial of alleged letter, said to be a reply from the appellant company, he ought to have given no weight to it or referred the disputed signatures to handwriting expert for his opinion. We the Judges, cannot pretend ourselves to be the Handwriting Expert, particularly of Korean language.
18. I, therefore, accept the appeal and set aside the impugned decision. Announced in open Court, this the 3rd day of June, 1999.