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Appeal No. KAR‑94 of 1983, heard on 21st March, 1983.

Industrial Relations Ordinance (XXIH of 1969)‑---

--‑‑Ss. 25‑A & 37‑Grievance petition against termination of service‑Resisted on ground that petitioner was employee of independent contractor‑Labour Court accepting petition and awarding re instatement with back benefits‑‑Record indicating that (1) contractor was not outsider but had been working in Mills. (2) petitioner was in employment of Mills before contract, (3) no proof that petitioner was Lever employed by contractor and (4) Daily production report of Mills containing name of petitioner‑Plea of petitioner being employee of contractor, in circumstances, held, rightly rejected by Labour Court.

Malik Sher Muhammad for Appellant.

Date of hearing : 21st March, 1983.

This appeal is directed against the decision of the learned IInd Labour Court, given on 7th March, 1983, allowing the grievance petitions of the 2 respondent‑workmen and directing the appellants to re‑instate them forthwith with full back benefits:

2. The sole ground on which the aforesaid decision of the learned Labour Court has been assailed in this appeal by Mr. Malik Sher, the :learned representative for the appellants is that the respondents at no time were the employees of the appellants but of their independent contractor, Sher Ali. This plea was also raised before the learned Labour Court but was repelled by it. In support of his contention, Mr. Malik Sher has relied upon 2 pieces of evidence, the first being the alleged agreement entered into between the appellants and their contractor, Sher Ali, and the second piece of evidence being the evidence of the said Sher Ali. No doubt, Sher Ali has stated that he had taken the Weaving Department of the factory of the appellants on contract, that be had employed the respondents and that further their services were terminated on 15th July, 1981, on which. date the contract entered into by him with the management of the appellants' factory was terminated, and some support is lent to his evidence by the agreement, dated 3rd September, 1981, a photo copy whereof was produced by him before the learned Labour Court, but on closer examination of these 2 pieces of evidence, I am of opinion that no reliance can be placed thereon. It may be pointed out that the alleged contractor, Sher Ali, is not an outsider or an independent contractor. He was working as a Weaving Master in the factory of the appellants. The witness claims that he had taken the Weaving Department on contract with effect from 3rd September, 1981, but according to the grievance petitions of the 2 respondents, both of them were in the employment of the appellant factory long before the contract was taken by Sher Ali. Respondent Mumtaz Khan claims to have been in the employment of the appellants with effect from 17th July, 1980, while Muhammad Rehman claims to have been in the employment of the appellants with effect from 1st November, 1979. It has not been explained by the appellants or even by Sher Ali how these 2 respondents who were employed in the appellants' factory before he had taken the Weaving Department on contract name to be employed by him, and if so, on what terms No record of any payment made to them was produced by Sher Ali nor did he produce their orders of appointment. In fact he produced no evidence indicating that they have been employed by him. So far as the contract is concerned, which is alleged to have been entered into between Sher Ali and the appellant factory on 3rd January, 1981, neither the original nor a certified copy thereof was produced and only a photostat copy of the same has been produced which does not indicate the name of the stamp vendor from whom it has been purchased. Moreover, a photo copy is not admissible in evidence, specially when the original must be in the possession of witness, Sher Ali. It may further be mentioned that according to the contract, it was to run for a period of 11 months, i.e., upto 2nd August, 1981, but it is claimed by Sher Ali that it was terminated on 15th July, 1982. It has not been explained why this contract was terminated earlier. It may also be pointed out that the contract does not appear to have been attested by a Magistrate or even an Oath Commissioner and apparently no information of the so‑called contract was given to the Labour Department. The contract purports to have been witnessed by one Abdullah whose address and particulars have not been given.

3. There are other circumstances indicating that neither the evidence of Sher Ali nor the contract can be relied upon in regard to the alleged employment of the respondents by contractor Sher Ali. In the first place it has been admitted by Muhammad Abdullah, the Manager of the appellant factory, that the document Exhs. 3‑A, 3‑B and 3‑C are their office records, and that the workers named in such records are in their factory. The document Exh. 3‑A which is daily production report of the Crescent Enterprises and bears the signatures of the Jobber, Supervisor and the Manager of the appellant factory, contains the name of respondent Mumtaz, the document Exh. 3‑B which relates to the production of 'A' shift, contains the names of both the respondents as also the document Exh. 3‑C, which is in respect of the production record of the B' Shift there is thus concrete evidence to show that the 2 respondents are or have been in the employment of the appellant factory. It was sought to be explained that the documents Exhs. A' to C' were prepared and submitted to the factory merely to show the actual daily production from workers but I fail to see why such record should be submitted by a independent contractor of the factory when the entire Weaving Department had been taken on contract by the so‑called contractor, Sher Ali. There is no such provision in the contract allegedly entered into by the appellants with contractor Sher Ali. On the contrary the contract provides that the contractor would be responsible for the maintenance of all the records, registers and documents.

4. It was finally sought to be argued by Mr. Malik Sher that as the number of employees in the appellant factory was less than 20, the Standing Orders are not applicable to it, hence the grievance petitions of the respondents are not maintainable. In the first place this plea was not raised by the appellant factory in the written statement or even in the evidence of their witnesses. Moreover, the contention of Mr. Malik Sher that only about 14 persons were employed in the appellant factory is not based on tangible evidence. Admittedly there were 2 departments in the appellant factory, a Weaving Department and the Stitching Department. The names of the workers shown in the documents Exhs. A' to C' refer only to the weavers in the Weaving Department and do not show the number of other workers of the other department of the appellant factory.

5. For the reasons discussed by me above, I find no merit in this appeal and dismiss the same in limine.

A. E. Appeal dismissed.

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