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Constitutional Petition No. D‑372 of 1977, decided on 17th May, 1982.

Constitution of

Pakistan

‑‑Art. 199 read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15 (3) (a) (h) and. Industrial Relations Ordinance (XXIII of 1969), S. 25‑A Absence of illegality in‑ orders‑Interference in‑Worker dismissed from service for committing misconduct mentioned in S.O. 15 (3) (a) (h) of West Pakistan Industrial and Commercial Employment (S. O.) Ordinance, 1968‑His grievance petition under S. 25‑A of Industrial Relations Ordinance, 1969 before Labour Court allowed as employer not interested in contesting proceedings‑Labour Appellate Tribunal dismissing in limine employer's appeal against order of Labour Court‑Held, no limitation contemplated on dismissal in limine of appeal by Labour Appellate Tribunal and not imperative for it to call for record before such dismissal‑No illegality in orders held committed, hence no justification for interference by High Court.

Syed Mudaris Ali v. Syed Muhammad Ilyas All and others P L D 1971 Dacca 309 ; Imdad Ali v. Labour Appellate Tribunal and another P L D 1975 Kar. 288 and Shaikh Inayatullah v. Mian Abbas Ahmad Khan and another 1970 S C M R 130 distinguished.

Crescent Jute Products Ltd. v. Muhammad Yakoob etc. P L D 1978 S C 207 ref.

Madad Ali Shah for Petitioner.

Ali Amjad for Respondent No. 3.

Date of hearing : 17th May, 1982.

SAJJAD ALI SHAH, J.‑

This petition is directed against the impugned decision of Labour Appellate Tribunal, whereby order of the Labour Court dismissing grievance petition filed by respondent No. 3 has been allowed with direction to the petitioner to re‑instate the respondent No. 3 forth with all back benefits.

Shortly stated the relevant facts are that respondent No. 3 namely Mian Khan son of Ahmad Khan is a worker in Textile Corporation of Pakistan Ltd., petitioner before us. Respondent No. 3 was given charge‑sheet for com mitting misconduct under Standing Order 15 (3) (a) (h) of West Pakistan Industrial and Commercial Employment (S. O.) Ordinance, 1968 and domestic inquiry was held. On the report of the Inquiry Officer respondent No. 3 was dismissed from service on 31‑7‑1976. The said respondent filed grievance petition under section 25‑A of Industrial Relations Ordinance before Labour Court No. 6 at Hyderabad. The petitioner did not file written statement and order was made for ex parte proceedings. Later on a application was filed on behalf of the petitioner under Order IX, rule 7, C.P.C. for setting aside the ex parte order but the same was dismissed by the Labour Court for non‑prosecution on 28‑4‑77 consequently grievance petition of respondent No. 3 was allowed on the ground that the petitioner was not interested in contesting the proceedings and there was no evidence in rebuttal of allegations made by the said respondent in his grievance petition. Appeal filed against the order of the Labour Court has been dismissed in limine by the Labour Appellate Tribunal after hearing the counsel.

Learned counsel for the petitioner has contended before us that the Labour Appellate Tribunal has erred in law in dismissing the appeal in limine but has failed to point out any provision barring dismissal of appeal in limine. Section 37 (3) of the Industrial Relations Ordinance provides for appeal to be filed before the Labour Appellate Tribunal within 30 days from the decision or award of Labour Court. There is no such limitation contained in this provision. Furthermore section 38 (3) of the said Ordinance provides for powers of the tribunal and it is specifically stated therein that the tribunal may on appeal, confirm, set aside, vary or modify the award or decision of the Labour Court and shall exercise all the powers conferred by this Ordinance on the Labour Court. If both these provisions stated above are read in conjunction with each other, the position that s emerges is. that no limitation is contemplated that appeal cannot be dismissed in limine by the Labour Appellate Tribunal.

It was next contended by Mr. Shah that the Labour Appellate Tribunal did not call for record but he has failed to show us that it was obligatory for the tribunal to call for the record before disposing of the petition. It is not disputed by the learned counsel for the petitioner that he was not heard by the tribunal. If the counsel wished to bring to the notice of the tribunal any particular document from the record of the Labour Court, he could have appended certified copy thereof with the memorandum of the petition. Mr. Shah has also not been able to show us that any request was made in writing to the tribunal to call for the record and such request was refused. The relevant provisions with regard to the powers of the tribunal as stated above did not make it imperative for the tribunal to call for the record before dismissing the appeal in limine.

It was submitted 'on behalf of the petitioner that the Labour Court was‑not justified in ordering ex parte proceedings and refusing to set aside ex parte order but the learned counsel has not been able to explain the reasons for absence of the petitioner on the dates when such orders were passed. It is very clear from the order of the Labour Court that the written statement was not filed on the date fixed for that purpose and the application under Order IX, rule 7, C.P.C. was also dismissed for non‑prosecution. In such circumstances there was no evidence available on the record to rebut the case of respondent No. 3 as made out in the grievance petition.

In support of the contention that the Labour Court could not pass ex parte order, the learned counsel has cited three reported cases, the facts of which are distinguishable. The first decision is Syed Mudaris Ali v. Syed Muhammad 1lyas Ali and others (P L D 1971 Dacca 309). This was a suit for parti tion and dispute between the contesting parties related to the original ownership of suit properties and successful devolution of interest therein. On the verbal orders of the trial Court the parties filed affidavits on the basis of which the case was decided without examining any witness. It was held by the High Court in the reported judgment that there was no indica tion on the record‑as to under what circumstances the affidavits had to be filed as neither there was any prayer by any party nor direction by the Court to file affidavits. In these circumstances it was held that procedure adopted by the trial Court was unwarranted by law and in gross violation of provisions of Order XIX, rule 1, C. P. C. and in the result the case was remanded to the trial Court.

The second case cited is Imdad Ali v. Labour Appellate Tribunal and another (P L D 1975 Kar. 288). It has been held in this case that refusal of Junior Labour Court to go into merits of the case was a jurisdictional defect and as contemplated under section 25‑A (5) of Industrial Relations Ordinance of 1969 the Labour Court was competent to go into all the facts of the case.

The third case cited is that of Shaikh Inayatullah v. Mian Abbas Ahmad Khan and another (1970SCMR13Q). In this case ex parte decree was passed without any evidence having been recorded merely on the ground that the defendants were absent. It was held by the Supreme Court that in such circumstances decree was based on no evidence and as such has no value in law. Decision of the Supreme Court in the reported case arose from a suit for rendition of accounts. Application for setting aside ex parte order was dismissed by the trial Judge appeal against which was filed before District Judge. In revision the High Court set aside the order as well as preliminary decree passed by the trial Judge and remanded the case with direction to proceed from the stage of recording evidence of the parties in the suit. Petition for special leave to appeal was dismissed by the Supreme Court against the order of remand by the High Court and the relevant portion from the reported judgment is reproduced as under :‑

"We have heard Mr. Abdur Rashid in support of the petition. It appears from the High Court order itself that no evidence in the case has yet been recorded. Copies of the various orders of the trial Judge which have been placed on the file also appear to indicate that the ex parte decree was passed against respondents without any evidence being recorded merely on the ground that the respondents were absent. This preliminary decree, therefore, being based on no evidence, has no value in law. This is a grave defect in the case of the petitioner who wants that preliminary decree to be preserved intact. We do not think this is a fit case for interference by, way of special leave to appeal and dismiss the petition."

On the other hand Mr. Ali Amjad counsel for the respondent has contended before us that no illegality has been committed by the Labour Court or Labour Appellate Tribunal and the petitioner without any justifi cation failed to produce any evidence before the Labour Court in rebuttal of the case made out by respondent No. 3. Firstly that written statement was not filed and secondly application for setting aside ex parte order was dismissed for non‑prosecution and sufficient cause was not shown for omission to act as such the orders impugned in this 'petition are perfectly justifiable. In support of his contention the learned counsel has relied upon the case of Crescent Jute Products Ltd. v. Muhammad Yakoob etc. (PLD1978SC2Q7). The relevant portion from the said judgment at page 210 is reproduced as under :‑

"It is here where the employer in this case made the mistake and led no evidence to prove justification of the order passed by him on merits. In the absence of any relevant evidence the appellate Court was thus justified in accepting the appeal of the employee by holding that his dismissal had not shown to be warranted on the factual plane. He held that it had not been proved on record as to what was the misconduct or disobedience of Muhammad Yakoob, when and towards whom. The officer, or officers whose orders had been disobeyed, were not produced and nor the relevant orders themselves which had allegedly been violated or disobeyed. If the Punjab Labour Court in appeal, in view of the above facts and circumstances held that the justification for dismissal of the employee had not been proved by placing any evidence on record and that the dismissal order could not consequently be sustained just in vacuum there was nothing wrong in that verdict and the High Court was similarly fully justified in finding no fault in the order impugned before it in the exercise of its writ jurisdiction under Article 199 of the Constitu tion. The result is that this petition has no merits and is dismissed."

For the facts and reasons mentioned above we find no illegality whatsoever in the impugned orders and find no justification for interference.

In the result the petition is dismissed with costs.

Petition dismissed.

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