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Appeal No. LHR‑45 of 1982, decided on 13th November, 1983.

‑‑-Ss. 25‑A, 36 & 38 (3) read with Civil Procedure Code (V of 1908), O. IX, r. 4‑Grievance petition‑Dismissal in default‑Restora tion‑Counsel of petitioner being out of station making single applica tion for adjournment of his four cases‑No separate application for adjournment of instant case made‑Labour Court, in circumstances, held, justified in dismissing petition in default‑Petitioner also advised by Counsel not to appear‑Attitude of Counsel in making such advice, held, though deplorable yet petitioner (appellant), in circumstances, should not be made to suffer for such unjustified and objectionable advice‑Appeal against Labour Court order of dismissal of restoration application, in circumstances, accepted by Appellate Tribunal and grievance petition restored.

Malik Muhammad Asghar for Appellant.

Mian Muhammad Yasin for Respondents.

Date of hearing: 1st November, 1983.

This appeal arises from the decision, dated 17th May, 1981 passed by the learned Presiding Officer, Punjab Labour Court No. 2, Lahore, whereby the grievance petition of the appellant was dismissed in default and the decision, dated 18th January, 1982 whereby the petition for restora tion of the said grievance petition was dismissed. The ground for restora tion is that the learned counsel was out of station on 17th May, 1981 and had made application for the adjournment of his four cases including the present one. Since no separate application for adjournment was given in this case, it was rightly disallowed and thus the order, dated 17th May, 1981 is not assailable.

2. So far as the petition for restoration of the case is concerned the affidavits of the learned counsel and his clerk to the effect that the learned counsel was out of station and that he had advised the appellant not to appear, stood un-rebutted inasmuch as no counter affidavit has been filed by the respondents. The learned lower Court has said that the learned counsel should have advised his client to appear on the date fixed. I totally agree but the learned counsel on the contrary advised the appellant not to appear. The attitude of the learned counsel is no doubt deplorable but the appellant should not be made to suffer for his counsel's unjustified and objectionable advice. The learned counsel prevented the Court from proceeding with the case. He is otherwise submissive, so appears to have been overpowered by some sudden and unknown impulse. It is expected that he would not repeat such an attitude in future. Since the appellant did not appear under the advice of his counsel, so he was not guilty of any gross negligence.

3. As a result of what has been said above, the appeal is accepted and setting aside the decision, dated 18th January, 1982 the grievance petition is restored.

A.E. Appeal accepted.

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