DECISION ' This is an appeal against the order of the Labour Court allowing back benefits to the respondent on his application made under section 25-A, I.R.O.
2. TM respondent was employed as Junior Executive on a consolidated salary of Rs, 625 per month en 21st February, 1972 in the respondent Insurance Company. Thereafter he was promoted as Senior Executive on a consolidated salary of Rs, 1,250 per month. There arose some dispute between the parties in July, 1975. The respondent claimed that he was not paid salary since that time. After service of the grievance notice, he approached the Labour Court for re-instatement with back benefits.
3. The application was resisted and it was denied that the respondent was a workman as defined by the Industrial Relations Ordinance and, therefore, his application was not maintainable. It was further pleaded that the respondent bad himself deserted the job and started working in another insurance Company.
4. The respondent had filed his own affidavit while no evidence was led on behalf of the appellant in spite of the adjournments having been granted. However, in the meantime, the respondent was re-instated and, therefore, the dispute was confined to the back benefits. On the basis of the evidence of the respondent, it was held that the respondent was a workman and entitled to back benefits. Aggrieved by this, the present appeal had been filed.
5. At the outset the learned counsel for the appellant made a grievance that the Labour Court did not allow opportunity to the appellant to load evidence as application for adjournment was rejected. I find no force in this contention. From the history of the case, it is clear the appellant and his representative remained absent for 8 hearings and, therefore, it is clear that, on the contrary, indulgence was shown by the Labour Court by not deciding the case ex parte earlier and instead went on postponing it. I have perused the order of rejection and it is not open to any exception.
6. The only important question which now needs consideration is whether the respondent is a workman or not, I have considered the material on record in the light of the arguments advanced before me and I am of the view that the learned Presiding Officer clearly erred on coming to the conclusion that the respondent was workman within the meaning of industrial Relations Ordinance.
It is rather very strange that the learned Presiding Officer placed burden of proof to negative the contention of the respondent on the appellant. The respondent had approached the Labour Court and the burden of proof lay upon him to establish that he was a workman and entitled to make an application under section 25-A, I. R. O. It may be noted that neither in the grievance notice nor in the application made under section 25-A, I. R. O. Nor in the affidavit the respondent claimed that he was a workman. It is not understood how the Labour Court proceeded to observe that the respondent had invoked the Jurisdiction of the Court on the premises that he was a workman. The basis for the premises was not laid by the respondent. He oven did not care to enumerate the duties which he was performing. He also did not file another affidavit to refute the nature of the duties prescribed to him by the appellant in the written-statement. The burden of proof was wrongly placed upon the appellant.
7. It is also pertinent to note that the respondent was working as Senior Executive in the Insurance Company and his monthly salary was Rs, 1,250. By no stretch of imagination he could be treated to be workman, a apart from the fact that there was no evidence on record from the respondent that he was a workman. Merely by approaching the Labour Court for redress of grievance, it does not necessarily mean that he was a workman and to disturb that status the burden lay upon the other side.
8. In result the appeal is allowed and the impugned order is set aside.