Find a Lawyer

Appeal No. LHR‑340 of 1979, decided on 28th June, 1982.

‑‑Ss. 25‑A, 36 & 38 read with Civil Procedure Code (V of 1908), O. VIII, r. 10 ‑Adjudication by Labour Court Procedure Striking off defence‑Date fixed changed not in presence of parties Respondent appearing on such date and requesting for adjournment for filing Written Statement‑Labour Court refusing adjournment and striking off defence‑No order for filing written statement even on previous, date-Order of Labour Court, in circumstances, set aside and as remanded by Appellate Tribunal.

Saleem Baig for Appellant.

Ch. Ghulam Qadir Cheema for Respondent.

Date of hearing : 20th June 1982.

This appeal arises from the decision dated 15‑5‑1979 passed by the learned Presiding Offer, Punjab Labour Court No. 2, Lahore, whereby the learned trial Judge had struck off the defence of the appellant under Order VIII, rule 10, C.P.C. and pronounced the judgment against it. Notice of application given under section 25‑A of the Industrial Relations Ordinance, 1969 was ordered to be issued for 28‑4‑1979 vide order dated 26‑3‑1979. The said order did not give any direction for the filing of the written statement by the appellant. On 28-4‑1979 Muhammad Sharif, Assistant, appeared for the appellant. The case was adjourned to 28‑5‑1979 for filing of written statement at the request of Muhammad Sharif, Assistant, for the reason that the counsel for the appellant was not present. The date of 28‑5‑1979 was cancelled on the same date and new date was fixed as 15‑5‑1979 for filing written statement. On 15‑5‑1979 reply was not filed for the reason that there was misunderstanding due to the change of date from 28‑4‑1979 to 15‑5‑1979. The learned trial Judge refused to adjourn the case for filing written reply and struck off the defence. Firstly, when the date of 28‑5‑1979 was cancelled and new date of 15‑5‑1979 was fixed, the presence of the parties was 'not even recorded. Even no note was given that the presence was as before and that in the presence of the parties the date had been changed. Secondly, since the date of 28‑4‑1979 was not given for filing reply, adjournment granted on the said date cannot be said to be on the request of the appellant. Rather for the first time direction was to be given to the appellant to file written reply. According to Order VIII, rule 10, C.P.C. the defence can be struck off when date has been found directing the filing a subsequent written reply. The defence, therefore, could not be legally struck off. Even otherwise one short date could be conveniently given, for the reply.

2. The learned counsel for the respondent has argued that the appeal is not from the same party which was party to the grievance petition. The appellant is Lahore Development Authority (WASA) through its Director‑General. The respondent in the grievance petition was Lahore Development Authority (WASA) through the Managing Director and the Director Administration, Lahore. The order of termination was passed by the Managing Director, WASA, Lahore Development Authority, Lahore. Since the Lahore Development Authority (WASA) was the respondent in the lower Court and the same party is the appellant, there is no force in saying that the appeal is not by the competent authority. Learned counsel for the respondent has cited PLD 1980 SC 80 and 1980 P L C 234. In the first mentioned authority it has been observed that the notice sent by that lawyer is invalid. This authority has no bearing on the case and the sane may be said with regard to 1980 P L C 234 in which it has been observed that the grievance novice is to be given to the appointing and dismissing authority. The question involved in the present case is not of issuing grievance notice to the proper authority. Therefore, the rulings are not helpful. Since in the grievance petition and in the appeal the party is the same i.e. Lahore Development Authority, it is immaterial that the Lahore Development Authority brought the appeal through Director‑General, whereas the Lahore Development Authority in the grievance petition was represented by the. Managing Director. If the Managing Director of the L.D.A. had been sued and the appeal had been brought not by the L.D.A. but by the Director‑General, there could be scope to say that the same party had not brought the appeal. I, therefore, overrule the objection.

3. As a result of the observations made above, I accept the appeal and setting aside the impugned decision of the learned lower Court, remand the case with the direction that last opportunity be given to the appellant to file written reply and if it is done, the case be decided on merits after recording evidence of the parties.

Case remanded.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.