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Suo Motu Revision No. 32 of 1982, heard on 30th March, 1982.

‑‑S. 25‑A read with Civil Procedure Code (V of 1908), O. IX, r. 4‑Grievance petition dismissed in default for non‑appearance of petitioner‑‑Restoration‑Petitioner praying for restoration stating. in affidavit that he had mis‑heard the date and attended Court on next day which according to his understanding was date fixed for hearing and. after waiting for the day when not called contacted Reader of Labour Court who informed him that his petition had been dismissed in default on previous day‑Restoration applica tion filed on next date dismissed by Labour Court on ground that had the petitioner been correct in his affidavit restoration appli cation must have been filed on very date on which he came to know about dismissal of petition‑Labour Appellate Tribunal in suo mote revision, held, Labour Court should not, in circumstances, have discarded or ignored affidavit of petitioner without inquiries from the Reader hence order of Labour Court set aside and case remanded for decision on merit‑Revision‑Industrial Relations Ordi nance (XXIII of 1969), S. 38 (3‑a).

S.M Kohistani for Applicant.

A. Hafiz for Respondents.

Date of bearing: 30th March, 1982.

Respondent Abdul Rahim had filed a grievance petition under section 25‑A, I.R.O. 1969, an 28th December, 1980, in the learned Fourth Labour Court, challenging the order passed by the Globe Textile Mills Limited, the other respondent herein, dismissing him from service. The respondent mills filed a reply statement, on 10th March, 1981 denying the allegations of the respondent workman and asserting that he had been lawfully dismissed from service, vide letter, dated 10th November, 1980 after a proper domestic enquiry. It appears that on 31st March, 1981 the respondent workman filed his affidavit in evidence in support of his grievance petition and the matter was thereafter put off to 16th April, 1981. No progress appears to have been made in the case till it was transferred on administrative grounds to the learned First Labour Court where it was received on 28th May, 1981. Even before the learned First Labour Court the case made no progress and was adjounred from time to time on one or the other ground till 27th October, 1981. On the latter date, the Personnel Officer of the respondent‑Company and their learned counsel; Mr. Abdul Hafiz, were present but neither the respondent work man nor his learned representative was present. Accordingly, the learned Labour Court dismissed the grievance petition of the respondent workmen for non‑appearance and default. .

2. On 29th October, 1981 the respondent workman filed an application for the restoration of his grievance petition and the ground taken in the affidavit of the respondent workman in support of the restoration application was that he mss‑heard the date as 28th October, 1981. He further asserted in his affidavit that he had attended the Court on 28th October, 1981 but his case was not called. He made enquiries from the Reader who informed him that the case was fixed on the previous day and had been dismissed on his default. The learned Labour Court was not impressed with the ground urged in the affidavit of the respondent workman and took the view that if the respondent workman had really misheard the date he should have filed the restoration application on the 28th October, 1981 which was not done 3. The respondent workman preferred an appeal to this Tribunal against the dismissal of his restoration application but the same was withdrawn as no appeal lies against such orders. However, this Tribunal in the exercise of its suo Motu powers of revision issued notices to the parties to show cause why the order of the learned Labour Court be not set aside.

4. 1 have heard Mr. S. M. Kohistani, who appeared for the res pondent workman, and lair. Abdul Hafiz, who represented the respondent company.

5. As already indicated, the assertion of the respondent workman in his affidavit in support of the restoration application was that he had misheard the date as 28th October, 1981 instead of 27th October, 1981 and that on the former date had actually attended the‑Court but his case was not called up. He made enquiries from the Reader of the Court who informed him that his case had been ‑fixed on the previous day and as be aid not appear it had been dismissed for default. The learned Labour Court has disbelieved the affidavit of the respondent workman solely on the ground that if be had actually misheard the date, he would have filed the restoration application on 28th October, 1981. The learned Labour Court, however, does not appear to have given due weight to the assertion of the respondent workman in his affidavit that not only he had appeared before the learned Labour Court on 28th October, 1981 but when his case was not called up he made enquiries from the Reader of the Court who' informed him that his case had been dismissed on the previous day. If his assertion of the respondent was considered false or was doubted by A the learned Labour Court it could have made enquiries in this behalf from the Reader. It appears that this was not done. Since there is no evidence on the record to contradict the assertion made by the respondent workman in his affidavit this should not have been discarded or ignored by the learned Labour Court. No doubt the restoration application was not filed on 28th October, 1981 despite the assertion of the respondent workmen that he had attended the Court on that date. There may have been, however, a number of reasons why the respondent workman was not able to file his affidavit on 28th October, 1981. As already indicated, he seems to have waited till the end of the day when he was informed that his case had been dismissed on the previous day. By then he may not have been able to find his representative to draft an application in this behalf and present it before the learned Labour Court. He, therefore, did the next best thing and filed the restoration application and affidavit on the following day. Mr. Abdul Hafiz, the learned counsel for the respondent‑Company, has very frankly not opposed the claim of the respondent workman for the restoration of his grievence petition in view of the facts stated above.

6. For the reasons discussed by me above, 1 would set aside the order of the learned Labour Court, dated 19th December, 1981 and would remand the case to it for decision on merits. It is further directed that priority should be given to this case and it should be disposed of expeditiously.

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