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Appeal No. 13 of 1983, decided on 16th November, 1984.

‑‑‑S. 15‑‑Non‑payment of wages‑‑Allegations of employing in factory without issuing appointment order or payment of wages‑‑Claim allowed by Authority‑‑Order impugned on ground that factory had not commenced at relevant time and employment was not proved‑‑Claimant failed to produce any oral or documentary evidence‑‑Could not say what work he was doing and who were his co‑workers‑‑Claimant failed to prove his employment‑‑Order allowing claim set aside.

1981 P L C 42 ref.

Muhammad Bashir Await for Appellant.

Shaikh Wahid Bux Representative for Respondent.

This appeal has been filed under section 17 of Payment of Wages Act assailing the order dated 20‑8‑1983 whereby the learned Authority under the Payment of Wages Act has allowed the payment of Rs.1,991.76 to the respondent towards his wages for the period commencing from 10‑3‑1982 till 12‑5‑1982.

I have heard Mr. Mohammad Bashir Awan learned Advocate for the appellant and Mr. Wahid Bux Sheikh learned Representative for the respondent. I have considered the evidence on record as well as the impugned order.

According to the case of the respondent /applicant as put forward before the learned Authority, he was employed by the appellant /opponent on 10‑3‑1982 without issuing any letter of appointment. He worked upto 12‑5‑1982 but he was not paid even a single panee throughout this period. Whenever he demanded for the payment of wages as also the issuance of appointment letter he was first kept on false hopes and finally the appellant refused to either pay him or issue any letter of appointment. Faced with this situation the applicant /respondent approached to various Authorities and finally filed an application under section 15 of Payment of Wages Act for recovery of an amount of Rs.1,991,76.

Mr. Awan has submitted that since the appellant had questioned the relationship in between the parties thereof, the learned Authority had no jurisdiction to adjudicate upon the said issue, as the jurisdiction to decide this issue only rests with the Labour Court, the impugned order is to be set aside, it being without any lawful authority. Learned counsel has placed reliance on 1981 P L C 42 on this point. His next submission is that the appellant had not even started his factory in the month of March 1982 and that the factory itself commenced its work in December 1982; so question of appointment of applicant/ respondent did not arise as the factory itself was not in existence. His last submission is that, in any case, there is no evidence whatsoever to prove the assertions of the applicant/ respondent and so the impugned order is liable to be set aside.

Mr. Wahid Bux, learned Representative has repeated the assertions made by the applicant/ respondent before the learned Authority. He also submitted that in fact it was for the appellant to have produced the attendance and wages registers to show that the applicant/ respondent was not employed by him and since he failed to produce these important documents, presumption can be raised against the appellant. Learned Representative submits that in Bangles Factories no appointment letters are issued and so it was not possible for the applicant/respondent as well to produce any documents to prove his employment

I have given my anxious consideration to the arguments advanced at the bar. The applicant/ respondent asserted that he was employed by the respondent/applicant but he did not produce either any documentary proof or even any oral evidence. The observations of the learned Authority in the impugned order, and which have greatly influenced him while passing the impugned order that burden lay on the appellant to prove the non‑employment of the applicant /respondent, are mis-conceived and unwarranted by law. In fact, one who asserts a thing or a fact is legally obliged to prove the same and the other side is only to rebut such an assertion. In the instant case, it was the applicant/ respondent who had asserted his employment with the appellant and so he was legally bound to produce some tengible evidence but he failed. Not only this but he also could not say what work he was doing during the course of his employment or who were his companions or co‑workers during that period. He also did not bother to summon the record of opponent /appellant and, on the contrary, it was suggested during the course of cross‑examination of the appellant that the later did not even maintain any record of service. In fact, the applicant/ respondent should have at least produced some oral evidence if documentary evidence was not available with him. A person who does not know what job he was doing or who was working alongwith him, cannot be considered to be an employee of any concern and his oral word alone cannot be taken as a gospal truth. The witness examined by the appellant was also not cross‑examined on behalf of the applicant/ respondent though he had given most damaging statement against the applicant/ respondent and such statement was also supported by the order passed by Additional City Magistrate, Hyderabad in the direct complaint filed by the applicant/ respondent himself. In the circumstances of this case I am of the firm view that the applicant/ respondent had not been able to prove that he had even been employed by the appellant and so he could not have claimed the amount in question.

In the result, I accept this appeal, set aside the impugned order and consequently dismiss the Application No. 1 of 1982 filed by the applicant/ respondent before the learned Authority under Payment of Wages Act, Hyderabad.

M. I.

Appeal accepted.

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