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Appeal No. HYD‑782 of 1980, heard on 4th February, 1981.
‑‑ Ss. 25‑A & 37'(3)‑Appeal against decision of Labour Court‑ Maintainable not only against a decision on merits but also against dismissal of petition due to non‑appearance.
M. O. Badshah v. Presiding Officer, Sind Labour Court No. III P L D 1975 Kar. 57 eel.
‑‑‑ Ss. 25‑A & 36‑Adjudication of dispute‑Practice‑Law favours adjudication on merits‑‑Dismissal for default‑Court should be inclined to restore where there is reasonable ground to believe that a bona fide mistake was made by a party or his counsel as to date of hearing‑Petitioner's counsel present but notice served upon res pondent not yet returned‑Case adjourned by Labour Court‑‑ Notice to respondent not yet returned on adjourned date and counsel for petitioner not appearing‑Petition dismissed in de fault‑Case, in circumstances, held, had been adjourned only for return of notice on respondent and that circumstance alone should have inclined Labour Court to give another opportunity to peti tioner and his counsel to put in an appearance‑Counsel for peti tioner further under bona fide mistake that case was fixed for some other date to which all such cases were adjourned‑‑Such circum stance of bona fide mistake, further held, should have inclined Labour Court to accept restoration application‑Dismissal order, in circumstances, set aside by Labour Appellate Tribunal and case remanded to Labour Court for decision on merit.
Abdul Majeed for Appellants.
Azmatullah Khan for Respondent.
Date of hearing: 4th February, 1981.
The appellant submitted an application under section 25‑A, I.R.O. to the learned VIth Labour Court at Hyderabad on 16th September, 1980, challenging his dismissal from service by the respondent corpo ration, Notice of this application was ordered to be issued by the learned Labour Court and the case was fixed for hearing on 30th September, 1980. On the latter date, the appellant was present alongwith his repre sentative but as the Notice on the respondent‑Corporation had not been returned, the matter was put off to 8th October, 1980, for the return of the notice. On 8th October, 1980, the appellant's grievance petition was dismissed by reason of his absence and absence of his learned repre sentative, though apparently the notice on the respondent corporation had not been returned even by then. The appellant filed an application for the restoration of his application, but the same was dismissed by the learned Labour Court by its order, dated 5th November, 1980. The appellant has accordingly come up in appeal to this Tribunal against the dismissal of his grievance petition.
2. Although the present appeal has been filed against the dismissal of the appellant's grievance petition by reason of his default, the appeal is nevertheless maintainable as under subsection (3) of section 37, I.R.O., a party has a right to prefer an appeal against the decision of a Labour Court given under section 25‑A, I.R.O. In the case of M. O. Badshah v. Presiding Officer, Sind Labour Court No. III(P L D 1975 Kar. 57), it was held that as the word "decision" in section 25‑A, I.R.O., is not qualified by any word of limitation, it cannot be construed so as to mean only a decision on merits. In the reported case, it was held that an appeal was maintain able against a dismissal of a grievance petition for non‑appearance.
3. So far as the merits of the appeal are concerned, as appears from the record of the learned Labour Court, the matter was fixed be fore it on 8th October, 1980, only for the return of the notice on the respondent‑Corporation, which notice does not appear to have been returned by that date. That circumstance alone should have inclined the learned Labour Court to give another opportunity to the appellant and his representative to put in an appearance. There is another circum stance which should have inclined the learned Labour Court, in any case, to allow the restoration application submitted by the appellant. It appears from the affidavit filed by the appellant in support of his restora tion application that a number of cases in which Mr. Abdul Majeed, the learned Representative of the appellant in the instant case, were fixed for 30th September, 1980, before the learned Labour Court, but they were adjourned to 19th October, 1980, which was declared to be a holi day and accordingly they were postponed from 19th October, 1980, to different dates. The appellant and his Representative appear to have been under the bona fide impression that the instant case was also simi larly adjourned to 19th October, 1980, specially as it was for the return of process and Mr. Abdul Majeed had to come to Hyderabad from Karachi. However, it appears that through some oversight or error of the officer, the instant case was adjourned from 30th September, 1980 to 8th October, 1980: As the absence of the appellant and his learned represen tative on the latter date was not deliberate but on account of a bona fide mistake, the' learned Labour Court should have allowed the restoration application. The law favours adjudication of disputes on merits and where there is reasonable ground to believe, as in the instant case, that a bona fide mistake has been made by a party or his counsel as to the date of hearing, the Courts should be inclined to restore the matter. I would accord ingly set aside the impugned order of the learned Labour Court, dated 8th October, 1980 and 5th November, 1980, and remand the case to the learned Labour Court for deciding the appellant's grievance petition on merits. The parties, i. e. both the appellant and the respondent Corpo ration; will appear before the learned Labour Court either personally or through their representatives, on 21st February, 1981.
Case remanded.
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