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Appeal No. KAR‑575 of 1979, heard on 30th January, 1980.

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑

‑‑‑ S. 1 (4)‑Number of workers‑Whether more than 19‑Disputed by employer in written statement in reply to petition of worker and statement before Labour Court stating that number of employees was only five during whole year preceding filing of petition‑In absence of any evidence to establish his contention plea of respondent could not prevail and that of employer, held, could not be rejected.

Syed Zahir Hussain Chishti for Appellant

Ali Ahmed for Respondent.

Date of hearing : 30th January, 1980.

By this appeal the appellant mills have assailed the decision given by the learned First Labour Court on 23rd November, 1979, allowing the grievance petition of the respondent workman and directing the appellant mills to re‑instate him with full back benefits.

2. The respondent filed a grievance petition before the learned First Labour Court on 31st March, 1979, to the effect that he was a permanent workman of the appellant mills, having served them for one complete year, and that suddenly on 11th March, 1979, the respondent mills, verbally and without assigning any reason, terminated his services. The appellant mills resisted the said petition on the grounds, firstly, that the respondent was not a permanent workman for the purposes of the Standing Orders, secondly, that his services had not been terminated but he had voluntarily abandoned his services with effect from 11th March, 1979, and that finally, the grievance petition was not maintainable as the Standing Orders were not applicable to the appellant mills. The learned Labour Court repelled all the contentions of the appellant mills and accepted the respondent workman's grievance petition.

3. I have heard Syed Zahir Hussain Chishti, the learned counsel for the appellant mills and Mr. Ali Ahmed, who appeared for the respondent workman. The only ground on which Mr. Zahir Hussain Chishti assailed the impugned order of the learned Labour Court was that the Standing Orders were not applicable to the appellant mills and hence the respon dent's grievance petition was not maintainable. The learned counsel submitted that the appellant mills had taken the specific plea in their written statement that the strength of the workmen in the mills was only four or five but despite this categorical statement the respondent had failed to establish that this assertion in the written statement was incorrect and that the strength of the workmen in the appellant mills was more than 19. Though the respondent workman, in his evidence before the learned Labour Court claimed that there were about 26 workers employed in the appellant mills, he neither examined any worker of the said mills nor even gave their names. On the other hand, Mirza Musharraf Baig, the proprietor of the appellants mills was examined and he stated that the number of workers in his mills had never exceeded four or five at any time during the whole year preceding the filing of the grievance petition by the respondent. In view of this categorical statement and the plea raised in the written statement of the appellant mills, it was for the respondent workman to lead evidence in support of his contention that the number of workmen employed in the appellant mills was more than 19. He failed to discharge this burden. It has been observed by' this Tribunal in the case of Muhammad Ilyas v. Madina Woollen Mills, decided on 28th October 1979, that this Tribunal has repeatedly held that where it is denied by an establishment that it is employing 20 or more workmen, the burden of establishing that this assertion is incorrect and that in fact the establishment is employing not less than 20 workmen, is upon the workman or other person who makes such a claim. As already stated the respondent workman has failed to discharge this burden.

4. Mr. Ali Ahmed the learned counsel for the respondent submitted that it was for the appellant mills to produce the payment and attendance registers of the workmen and since they had failed to do so, an inference should be drawn against them that such registers very likely to establish the employment by the appellant mills of more than 19 workmen. If the respondent was relying on the said registers, he should have applied to the learned Labour Court for their production, which he admittedly did not do. It may further be pointed out that there is no evidence to show that any such registers were being maintained by the appellant mills. The respondent, in his statement before the learned Labour Court, was unable to say whether his attendance was being recorded in any register. He has also not made mention in his evidence, of any payment register being maintained by the appellant mills. There is, thus, a total absence of any evidence to contradict the assertion made by the appellant mills that they were at no time employing more than 4 to 5 persons. As such, I would agree with the contention of the learned counsel of the appellant mills that the Standing Orders Ordinance is not applicable to the appellant mills and, therefore, the respondent workman's grievance petition is not maintainable.

5. For the reasons stated by me above, the decision of the learned Labour Court is set aside and I allow the appeal.

Appeal allowed.

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