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Constitutional Petition No. 300 of 1974, decided on 28th August 1975.

Art. 199 read with Industrial Relations Ordinance (XXIII of 1969), S. 34-Writ petition---Labour Court deciding application under S. 34, Industrial Relations Ordinance, 1969 ex parse without notice to opposite-party (opposite-party's counsel withdrawing himself and Labour Court without issuance of notice to opposite-party granting relief to applicant)-Application under O. IX, r. 13 of Civil Procedure Code, 1908 for setting aside ex parte order also dismissed by Labour Court-Appeal not entertained by Labour Appellate Tribunal as no appeal against such decision of Labour Court was competent-Labour courts order not only ex parte without notice to petitioner but also passed without consideration of objection raised in written statement regarding incompetency of application under S. 34 of Industrial Relations Ordinance, 1969-Constitutional writ petition, in circum stances, accepted and order of Labour Court, held, without lawful A6 authority and of no legal effect-Application under S. 34 of Industrial Relations Ordinance, 1969, held, to be deemed as pending before Labour Court for decision according to law.

Azfzullah K. Shaikh for Appellant.

Ali Amjad for Respondent No. 3.

Date of hearing: 28th August 1975.

-The petitioner has assailed the ex parte award dated 3rd April 1972, the order dated 12th October 1973, by which the application for setting aside the award was dismissed, the decision dated 9th March 1974 given by the Sind Labour Appellate Tribunal, Karachi and the cognizance taken upon a complaint under section 54/55 of the Industrial Relations Ordinance, 1969, hereinafter referred to as the Ordinance.

2. The facts which have led to the filing of this petition are that the third respondent was employed as a weaver in the Allied Silk Mills, Karachi. He was charge-sheeted on 2nd October 1969 for being negligent and for causing wilful damage and in the course of the inquiry he absented -himself after making an initial appearance and was ultimately dismissed from service under Standing Order 15 on 14th March 1970. Without following the grievance procedure prescribed in Standing Order 18 the third respondent filed an application before the Second Sind Labour Court on 17th November 1970 under section 34 of the Ordinance seeking his re-instatement and back benefits. In the course of the hearing of this application on 12^th October 1971 the counsel for the petitioner withdrew from the case, whereupon the Second Sind Labour Court ordered the issuance of notice to the petitioner; nonetheless no such notice was issued and the Second Sind Labour Court vide order dated 3rd April 1972 granted the reliefs to the third respondent. On coming to know of the impugned order, the petitioner moved an application under Order IX, rule 13, C. P. C. seeking to set aside the ex parte order, but this application was dismissed on 12th October 1973, against which dismissal the petitioner moved an appeal before the Sind Labour Appellate Tribunal Karachi, but was unsuccessful as the Tribunal by its order dated 9th March 1973 held that an appeal against that order was incompetent, whereafter the third respondent moved the Second Sind Labour Court under section 54/55 of the Ordinance for the prosecution of the Petitioner as the petitioner failed to re-instate him. Being thus aggrieved, the Petitioner has filed this petition to seek redress against the impugned order.

3. Mr. Azizullah Shaikh, the learned counsel for the petitioner, raised two-fold objections. The first relates to the passing of the ex parte order shout notice to the petitioner and the second raises the question of the incompetency of the application for re-instatement. He also invited our attention to paragraphs 1 and 2 of the written statement, wherein)

a plea to this effect was raised but not in definite terms; nonetheless, he urged that the Second Sind Labour Court did not consider it and passed an ex parse order on the assumption that the inquiry was held whilst the third respondent was undergoing treatment in the Social Security Hospital and thus ordered his re-instatement pursuant to section 72 of the West Pakistan Employees' Social Security Ordinance, 1965. The Tribunal, of course, on a limited question dismissed the appeal and no occasion arose for raising such plea. Both the objections are substantial and it is agreed by the counsel for the parties that they should be disposed of by the Second Sind Labour Court in the first instance. It may, however, be mentioned that no appeal lies against an order passed by the Labour Court to the Tribunal, fur it is merely a decision and not an award under section 34 of the Ordinance. Impliedly, therefore, the counsel for the third respondent concedes that the orders impugned are without lawful authority in view of the above statement, we would declare them to be B without lawful authority and of no legal effect. The result would be that the application of the third respondent shall be deemed to be pending before the Second Sind Labour Court for decision according to law. The petition accordingly stands disposed of but with no order as to costs. The learned counsel for the petitioner further states that as an interim measure he has deposited an approximate amount of Rs.7,000 which he is allowed to withdraw as the other counsel has no objection.

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