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Appeal No. KAR‑175 of 1977, heard on 3rd July 1977.

----S. 33 read with Civil Procedure Code (V of 1908), O. IX, r. 4 -Ex parte order‑Setting aside ‑ Notice to opposite‑party essential before setting aside ex parte order‑Labour Court setting aside ex parte order without notice to opposite‑party‑Order of Labour Court, in appeal before Labour Appellate Tribunal, held, illegal.

Chaudhry M. Maarif for Appellant.

S. S. Jahangir for Respondent.

Date of hearing : 13th June 1977.

This is an appeal against the order of Labour Court setting aside the ex parte order and allowing the respondent to file written statement.

2. On 9th March, 1977 the appellant had made an application under section 25‑A, Industrial Relations Ordinance against the termination of his service and non‑payment of certain dues. The respondent was served on 16th April, 1977 for 18th April, 1977. On 18th April, 1977 the case was adjourned to 12th May, 1977 but on account of curfew none of the parties appeared. So the case was adjourned to 31st May, 1977. On that day the representative for the appellant was present while none appeared on behalf of the respondent. So the case was adjourned to 6th June, 1977 for ex parte proof. On the adjourned hearing an application was made on behalf of the respondent for setting aside the ex parte order and it was set aside by passing a following order on the application itself:.‑

"Order.‑The applicant is absent for reasons disclosed in the affidavit. The order directing ex parte proceedings is set aside. The respondent should file written‑statement on 13‑6‑1977."

Aggrieved by this, the present appeal had been filed on the ground that the ex parte order was set aside without any notice to the appellant.

3. On perusal of the record and proceedings and hearing the arguments I find considerable force in the contention raised on behalf of the appellant. The order as reproduced above clearly shows that no notice of the applica tion was given to the appellant and the order was passed without hearing him. I have looked into the case diary for that date and it is surprising to note that, the order passed on the application is in conflict with that diary which reads as under :‑

"6‑6‑77-Applicant is absent. Mr. Maarif Choudhary for the applicant. Mr. Suleman Habibullah for the respondent. Mr. Maarif files affidavit in ex parte proof, whereas Mr. Suleman Habibullah files his Authorization and moves application for setting aside the ex pane order supported with an affidavit. Orders thereon. Ex parte order set aside. Respondent directed to file Reply statement on 13th June, 1977.

(Sd )

Presiding Officer."

Indeed, according to the diary the appellant was absent but his represen tative, Mr. Maarif Chaudhary was present and actually an affidavit by way of ex parte proof was filed. So the absence of the applicant was irrelevant and immaterial. It was the duty of the Labour Court to have given notice of the application to Mr. Maarif Chaudhary who represented the appellant and was present. It is clear from the order‑sheet that no notice was given and, he was not heard. No order could be passed without hearing him. Consequently, the grave illegality was committed and this vitiates the order which A was passed on that date.

4. In result I allow the appeal and set aside the impugned order and remand the case to the Labour Court for disposal of the application for setting aside the ex parte order after hearing both the parties.

Appeal allowed.

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