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Appeal No. GA‑767 of 1978, decided on 20th March, 1982.

‑‑ Ss. 25‑A, 36 & 38 (3) read with Civil Procedure Code (V of 1908), O. VIII, r. 10‑Practice and procedure‑Jurisdiction‑Court bound to decide whether it has jurisdiction before deciding case on merits -Service of grievance notice‑Goes to root of case because in absence"'' of service of valid grievance notice Labour Court lacks jurisdiction in grievance petition‑Service of grievance notice disputed‑Labour Court striking off defence of respondent (appellant) under O. VIII, r. 10 of Civil Procedure Code and announcing judgment against him‑Order of Labour Court without deciding fact regarding service of notice, in circumstances, held, not sustainable and case remanded by Appellate Tribunal to Labour Court with direction for opportunity to appellant to file written statement and decision on merits.

Muhammad Saeed Azhar for Appellant.

Nemo for Respondent.

Date of hearing: 3^rd March, 1982.

This appeal arises from the decision, dated 20th July, 1978 passed by the learned Presiding Officer, Punjab Labour Court No. 2, Lahore, whereby the defence of the appellant was struck off under Order VIII, rule 10, C.P.C. and judgment was announced against him. The ground for adjournment sought by the appellant was that counsel had been engaged on the date on which the impugned order was passed. This ground was not considered sufficient. In the judgment the facts of the case have not been narrated, nor grounds for accepting the application given under section 25‑A of the Industrial Relations Ordinance, 1969 are given. In the grievance petition it is mentioned that the grievance notice sent on 11^th January, 1978 had come back undelivered. It is also mentioned that the appellant had been getting wrong reports from the concerned postman, that is why A.D. notice was returned back and it could be delivered on 12^th February, 1978. The report is that the addressee had not been contacted and it was learnt that he was during those days residing in Gujranwala. The date of the report is 23^rd January, 1978. There is no other A.D. receipt of any other registered letter, which may have been sent to the appellant thereafter, therefore, the assertion made in paragraph 5 of the grievance petition that notice was delivered to the appellant on 12^th February, 1978 does not stand established. However, a certificate of posting is on the file of the lower Court which carries the same address on which the registered letter was sent and had come back undelivered. But postal seal affixed on this certificate carries the date as 27th May, 1978 and not 12^th February, 1978 On the memo randum of appeal the address of the appellant initially was given as "Shahdara, Lahore", but thereafter it was corrected to "Mohallah Sharif pura, Hafizabad Road, Gujranwala" It shows that the appellant was not residing on the address on which the notice was sent. There is no other such document on the record which may be bearing the address of the appellant. In these circumstances, the respondent had to give evidence on the point of service of grievance notice in time but since the lower Court did not put the respondent to evidence, he could not prove this fact. The question of service of grievance notice within time goes to the root of the case, because if the grievance notice is not proved to be served within time, the Labour Court lacks jurisdiction. It is the duty of every Court before deciding the case to see whether it has jurisdiction or not. The impugned order, therefore, is not sustainable. I, accordingly, accept the appeal and setting aside the impugned decision of the lower Court, remand the case with the direction that last opportunity be given to the appellant to file written statement and the case be decided on merits after affording oppor tunity to both the parties to produce their evidence.

A. E.

Appeal accepted.

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