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Appeal No. RYK‑561 of 1981 (Pb.), decided on 24th November, 1981

---‑Ss. 25‑A & 37 ‑ Order of Labour Court dismissing application for restoration of grievance petition already dismissed in default Not a "decision" hence not appealable.

1981 P I. C 304 rel.

Ch. Ghulam Qadir Cheema for Appellant.

M. G. Rabbani for Respondent.

Date of hearing: 14^thNovember, 1981.

This appeal is directed against the decision dated 19th September. 1981 passed by the learned Presiding Officer, Punjab Labour Court No. 8. Bahawalpur, camp at Rahim Yar Khan, whereby the application of the appellant for restoration of the petition given for the restoration of the grievance petition was dismissed.

2. In the grievance petition the date was 11^thFebruary, 1981 on which the representative of the appellant had appeared. The case was on that date adjourned to 25th February, 1981. Neither the appellant nor his representative appeared on that date and the result was that the grievance petition was dismissed in default. The appellant made an application for restoration of the grievance petition on 4^thMarch, 1981 on the ground that through collusion with the Reader wrong date was announced. The said application for restoration was also dismissed in default on 24^thMay, 1981. The application for the restoration of the same was made on 17^thJune, 1981 which has been dismissed on merits, and from the said order the present appeal arises. The ground given as mentioned above is that intentionally wrong date was told to the appellant as 25th May, 1981, whereas the date . fixed was 24th May, 1981 and for this reason the appellant could not appear. The diary and envelope were shown to the lower Court and to me. The said diary is not 9f the counsel. but of the appellant. In support of his application only the appellant came in the witness box but did not examine any other witness, whereas the respondent examined the Reader and the Senior Vice President of the C. B. A., who was acting as the representative of the appellant in the said case. The appellant is the President of the same C. B. A. Union.

3. The learned lower Court did not rely upon the diary and envelop maintained by the appellant. His solitary statement stood controverted by the statement of the Reader, who said that the date fixed in the petition for restoration of the main case was 24th May, 1981 and that on the said date the appellant had not appeared. It was not put to him in cross‑examination that he had intentionally told wrong date as 25^thMay, 1981 to the appellant on the previous date i.e., 26^thApril, 1981. If the contention of the appellant to the effect that the Reader intentionally gave him a wrong date had been correct, such a suggestion would have been made to him. If the date had been wrongly written in the diary of the counsel, the counsel being disinterested person, the same would have been believed. Since the diary in which the date was entered was the private diary of the appellant, the learned Labour Court was within its discretion to disbelieve it.

4. So far as the application for restoration of the main petition given under section 25‑A is concerned, the appellant did not come to the Court with clean hands and laid aspersions against the Reader of the Court stating that he in collusion with his opponent and the representative gave the date wrongly. Instead of doing so, he should have come with clean hands giving cogent reason for his non‑appearance. The learned Labour Court rightly refused to show indulgence to him. His representa tive was Vice‑President under him and it cannot be said that he joined hands with the Management and in order to intentionally cause harm to the appellant got his grievance petition dismissed in default. There is nothing on the record to show that the person who in the C. B. A. Union was the Vice‑President under him had acted detrimental to his cause. The appellant failed to show that he was not guilty of gross negligence in persuing his two petitions. Thus the lower Court was justified in dismiss ing the same.

5. Moreover, no appeal lies against the order dismissing an applica tion for restoration of the main petition given under section 25‑A of tile .4 Industrial Relations Ordinance, 1969, because such an order is not decision. I am fortified in my view by the observations made in 19811 P L C 304 by the Sind Labour Appellate Tribunal, which are as under : ‑

"However, by Act V of 1972 the expression 'answered' was sub stituted by the word 'decision'. It would, thus, appear that the term 'decision' as used in sections 25‑A and 37, I. R. O., is applicable to the final adjudication by the Labour Court of a grievance petition and not an interlocatory order or an order on a miscellaneous application."

It has been further observed

"In my opinion an order dismissing a restoration application cannot be construed as a 'decision' for the grievance petition already stands dismissed and it is the dismissal of the grievance petition which amounts to a decision. As such, while the appellant could have preferred an appeal against the order dated 24th May, 1980, dismissing the grievance petition, which was not challenged, no appeal lies against the impugned order."

6. Since no appeal lies from the dismissal of the application for restoration of the main grievance petition, for this reason also, the restoration of the main grievance petition cannot be considered in this appeal. That question could be gone into after the petition for restoration B of the petition for the restoration of the main grievance petition had been restored. There is no force in the appeal, which is dismissed.

Appeal dismissed.

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