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Appeal No. KAR‑39 of 1976, heard on 1st October 1976.
‑--S. 25‑A read with West Pakistan Industrial and Commercial Employ ment (Standing Orders) Ordinance (VI of 1968), S. 1(4)‑Applicability of Ordinance VI of 1968‑Burden of proof‑Respondent worker claiming applicability of Ordinance VI of 1968‑Burden of proof lay a' on respondent to establish ground of his claim‑Bare word of respondent‑Could not be relied upon to prove number of workers being more than 20‑Respondent not able to disclose name of a single workman working in establishment--‑Lower Tribunal, held, misdirected itself by placing burden of proof on appellant employer to establish employment of less than 20 workers.
The Presiding Officer misdirected himself by placing the burden of proof upon the appellant in order to establish that they were employing less than 20 workers. The respondent had approached the Court claiming the applicability of the Standing Orders Ordinance and it was upon him to establish grounds upon which the claim was based. It is a settled position that burden of proof lies upon that party which fails if no evidence is led or the evidence is not worthy of brief. In the present case there was bare word of the respondent and it could not be relied upon in the circumstances of the present case. He could not disclose name of a single workman working in the establishment.
Malik Sher Muhammad for Appellant.
Nemo for Respondent.
Date of hearing: 1stOctober 1976.
This is an appeal against the order of the Labour Court ordering instatement on an application made under section 25‑A, I. R. O.
2. The respondent was 9n the employment of the appellant. He was removed from service and certain benefits were withheld. In his application the Labour Court challenging the dismissal tie also claimed monetary relief.
The application was resisted on the ground that the Standing Orders Ordinance was not applicable and, therefore, the application was not maintainable. According to the appellant the number of workers was less than 20 whereas according to the respondent the number of workers was about 25. The learned Presiding Officer on his assessment came to the conclusion that the number of workers employed by the appellant was more than 20 and, therefore, Standing Orders Ordinance was applicable. Consequently, re‑instatement and certain benefits were ordered. Aggrieved by this, the present appeal had been filed.
3. The only disputed point is whether the Standing Orders Ordinance was applicable and this depends upon the number of workers employed by the appellant. Standing Orders Ordinance applies to every industrial establishment or commercial establishments where 20 or more workmen are employed.
4. At the outset I must say that the learned Presiding Officer misdirected himself by placing the burden of proof upon the appellant in order to establish that they were employing less than 20 workers. The respondent had approached the Court claiming the applicability of the Standing Orders Ordinance and it was upon him to establish grounds upon which the claim was based. It is a settled position that burden of proof 't lies upon that party which fails if no evidence is led or the evidence is not worthy of belief. In the present case there was bare word of the respondent and it could not be railed upon in the circumstances of the present case. He could not disclose name of a single workman working in the establishment.
5. The learned Presiding Officer, however, relied upon the reply given by the appellant to the grievance notice served by the respondent to which it was stated that the West Pakistan Shops and Establishments Ordinance was applicable as the concern was a small unit employing less workers and Statutory Bonus was applicable under Standing Orders Ordinance, 1968, on factories employing 49 or more workers. The learned Presiding Officer treated this to be an admission that there was more than 20 workers in the establishment. I am afraid that by bare reading the aforesaid statement made by the appellant in the reply, it cannot be concluded that more than 20 workers were employed in the establishment. Admittedly the applicability of the Standing Orders Ordinance did not depend upon the number of workers to be 49 or more. I agree with learned representative for the appellant that there was a typing error.
6. In the result the appeal is alloyed and the order of the Labour Court is set aside. "
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