DECISION ' In this appeal the Management of Messrs Nagaria Textile Mills (Private) Limited has called in question the correctness of the order passed by Sindh Labour Court No,IV at Karachi whereby the said Court has allowed the grievance petition of respondent Feroz Shah by ordering his reinstatement with back benefits.
2. In his grievance petition respondent Feroz Shah claims that he had been performing his duties as Weaver on permanent basis in the appellants' Mills for two years. However, on 20th June, 1995 his services were terminated verbally without assigning any reason. His case is that he was appointed directly by management of the Mills without intervention of any contractor. In fact no contractor existed in the Mills at the time of his appointment.. Like other workers he too was not provided with any letter of appointment and other necessary documents connected with his appointment excepting the Card in Form B-2 indicating the cover of Social Security Scheme provided to him as was done in case of other workers and the Management paid the contributions for such cover.
Despite the fact that the appellants' Company earned huge profits, they did not share the same with the workers by way of paying them any bonus. As the agitation was started for payment of bonus the employers were annoyed and they ultimately terminated the respondent's services.
After going through legal formalities by way of serving grievance notice, the respondent filed grievance petition which was contested by the appellant-Company. The plea taken by the Management was that there was no relationship of employer and employee between the parties.
According to the Management the respondent was employee of contractor Muhammad Sharif who in pursuance of contract concluded between him and the Management was made responsible for managing/running of Weaving Department of the Factory independently. It was contractor's own concern to appoint any workers for discharging his contractual obligations.
However, Weaving Department was finally closed on 20-9-1995 and consequently the contract came to an end on 30-9-1995. The Management's objection was that grievance petition was not maintainable as the Management had no concern with the respondent who was the appointee/employee of the appellants-Management and as such he was not entitled to any relief from the Management. As regards the contribution provided to the respondent, the Management's reply was that their job was only to secure the contribution testifying the fact that they have been paid or received from the contractor for onward payment to the concerned Department and this was done only to safeguard the interests of the workers of the contractor.
3. The respondent has filed his affidavit-in-evidence in proof of the version of his case and on the other hand Muhammad Ibrahim Officer of the Management has filed his own affidavit-in-evidence to support the case of the Management. The main issues struck by the learned Labour Court for decision are:--
(1) Whether the respondent was a permanent workman of the appellants' Management and his verbal termination from the job without any explicit, reason was illegal?
(2) Whether the respondent was employee of the contractor and therefore was not entitled to any relief against the appellants Management?
4. It goes without saying that respondent was performing his duties as Weaver in the appellants Mills. He claims to have worked in that capacity for about 2 years whereafter his services were terminated by verbal order and without assigning any explicit reason. As stated earlier the case of the appellants Management was that there existed no relationship of employer/employee between the parties and therefore the respondent was not entitled to any relief as claimed by him in his grievance petition. According to the Management he was employee of independent contractor Muhammad Sharif who in pursuance of the contract entered into by him with the Management had undertaken to management and run the Weaving Department for which it was his responsibility to appoint any worker if he so desired. On the other hand the respondent's case is that he was directly appointed by the appellant-Management as a permanent Weaver (worker) and his services lasted for about 2 years when his services were dispensed with without any notice and without any reason.
5. In view of respondent's claim the burden was on him to prove his version. It is true that he has not been able to produce any written appointment order in proof of his appointment as Weaver.
Instead he has produced a card issued by Sindh Employees' Social Security Institution wherein he is shown as employee of the appellants Mills. It is also his case that Social Security Contribution was paid on his behalf and thereby he was provided cover of Social Security Scheme. He has emphatically denied that the card produced by him was forged. Even otherwise there is no evidence to prove the card to be forged. The question is whether such document can be accepted as proof of the respondent's employment in the Appellants Mills. Though it is not a substitute of written appointment order, yet it has its own bearing inasmuch as that such card is issued only to these employed in the Appellant Mills. However according to the learned counsel if the appellants Mills since such cards are also issued to the workers appointed by contractor they cannot be held to provide any proof that they were not the employees of contractor. The thrust of the learned counsel's argument was that the card would at the most show that the respondent was working in the appellants Mills without establishing that he was directly appointed by the Appellants Management and not the contractor. But in pursuance of the contract made between him and the Management he had to run the Weaving Department and appoint workers for that purpose.
6. With a view to scrutinize the claim of the learned counsel of the appellants Mills that there existed no relationship of employer/employee between the appellants Mills and the respondent, as the respondent was employee of the contractor and not the appellant Mills I thoroughly searched for the material to prove such claim. I am sorry to say that excepting the management's own version there is no iota of evidence in its support that respondent was employee of the contractor and not of the appellants Mills. There is no document to throw light on this point. Even the contractor was not examined to show that the respondent was appointed by him and not by the Mills. No doubt Muhammad Ibrahim who has produced his affidavit-in evidence in support of the Management's case has stated in his affidavit that respondent was not employed by the appellants' Management but his evidence does not inspire confidence for two reasons Firstly he has stated in his affidavit that he was not in the employment of appellants Management when the case under reference was filed and therefore his statement was based only on the record of the case. In other words he has no personal knowledge of the case. Admittedly the written statement filed on behalf of the appellants Company was neither filed nor verified and signed by him. He admits that it was signed as well as filed by his predecessor. It is a settled law that if the person who files and verifies the written statement is not produced in evidence the written statement has absolutely no value. It is after the said person is produced in evidence and subjected to cross-examination in order to scrutinize the truth of the material contained in the written statement then alone reliance can be placed on the written statement. In this particular case since the person who was responsible for filing the written statement and verifying its contents has not been examined in Court, the assertions made in the written statement cannot be looked into nor can they be relied upon in absence of any independent reliable material.
7. Reverting to the evidence of Muhammad Ibrahim of the appellants Management his further admissions are significant inasmuch as that he did not know that the respondent was working in the Weaving Department, as the witness was not in service of the Mills at that time. So this gentleman had no personal knowledge about the working of the respondent and as such his statement that the respondent was employee of the contractor was unbelievable. Thus the Appellants Management had failed to establish that the respondent was employed not by the Appellants Management but by independent contractor. In absence of any other written proof, the Social Security Card-produced by the respondent is enough to indicate relationship of the parties as employer and employee. Such card cannot be lightly ignored. In fact there is no reason to discard it. It is common knowledge that to avoid complications with regard to relationship of employer/employee, the Management of the Mills etc. Often avoid giving written documents to the persons recruited by them in their establishment. This case too may not be exception to such illegal practices. In fact the Court is faced with two versions of the case namely one version put forth by the Appellants' Management that the respondent was never employed by them and therefore he was not their employee and consequently no relationship of employer/employee exists between them which as has been discussed above has not been proved by the appellant's Management. Therefore the second version of the respondent himself that he was directly appointed by the Management of the Mills was obviously correct.
' In view of above discussion, the findings arrived at by the learned Labour Court are correct.
Consequently the appeal filed against the order of the said Court is dismissed.