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Appeal No. KAR‑56 of 1977, decided on 7th April 1977.

‑ Ss. 25‑A & 37 read with Civil Procedure Code (V of 1908), O. IX, r. 4‑Dismissal in default‑Restoration of petition‑Petition dismissed for default‑Application for restoration though found having suffi cient cause rejected with observations that petition under S. 25‑A was not maintainable‑Order of Labour Court, held, not sustainable because it determined merits of petition without hearing and amounted to denial of justice‑Petition restored and case transferred to other Labour Court for adjudication on merit.

Mirza Muhammad Kazim for Appellant.

Ghulam Hasan for Respondent.

Date of hearing : 7th April 1977.

This appeal has been filed against the order of Labour Court No. IV dismissing the application for restoration of the application dismissed for non‑prosecution.

2. The appellant had filed an application under section 25‑A, I. R. O. in the Labour Court. On the date of hearing the appellant was absent and, therefore, his application was dismissed. Subsequently, he made an application for restoration on account of his illness. The application was resisted by the respondent.

3. The learned Presiding Officer was, although, of the view that sufficient cause existed for restoration .of the application and he would have restored the application but the application under section 25‑A, I. R. O. was not maintainable for the reason that, according to the respondent, there was no termination of the service of the appellant. I have heard the learned counsel for the parties and I am of the view that the order of the Labour Court cannot be supported. The only question which he was required to decide was whether sufficient cause existed or not for the restoration of the application and there was no question to consider the main application on merits. The dismissal of the application on the ground that the application under section 25‑A, I. R. O. was not maintainable, in A fact, amounted to denial of justice and the appellant was condemned un heard. The appellant ought to have been given an opportunity to support his contention and the merits of the case could not be judged simply on the basis, of the averment made by the respondent in the written statement filed against the application made under section 25‑A, I. R. O. The course of justice necessarily requires the disposal of the matter on merits after allowing opportunity to both the parties to lead their evidence. There was no justification for entertaining the view that the application under section 25‑A, I. R. O. was not maintainable in the absence of the opportunity required to be allowed to the appellant. Consequently, the observation made by the learned Presiding Officer with regard to the merits of the main application were uncalled for and unjustified.

4. In result I allow the appeal and set aside the order passed by the Labour Court and restore the application made under section 25‑A, I. R. O. Since the learned Presiding Officer has already expressed his view with regard to the merits of the application. I transfer the case to Labour Court' No. III for disposal according to law after due notice to the parties for the date of hearing which may be fixed by him.

5. The copy of this order be sent to the Presiding Officer of Labour Court No. IV for information and future guidance.

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