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Constitutional Petition No. D-198 of 1986 , decided on 27th October, 1986.
---Art. 199--Industrial Relations' Ordinance (XXIII of 1969), Ss. 25-A & 38(3)-Terminated employee re-instated in service by Labour Court- Appeal by establishment heard and accepted ex parte against such employee--Plea of absence of notice by employee--Only one copy of notice available on record of appellate tribunal wherein endorse of peon of Tribunal was to the effect that notice had been received by employee--Perusal of copy of notice, however, showed that person other than employee had signed it--Notice of appeal, held, was not served on employee and report on notice that such employee had received notice was patently incorrect--Finding of Appellate Tribunal without proper service to employee could not be sustained as having been passed without lawful authority and of no legal consequence--High Court in its constitutional jurisdiction setting aside ex parte order of Labour Appellate Tribunal and directing appeal to be heard afresh in accordance with law.
Ch. Rashid Ahmed for Petitioner.
Mir. Raza Hussain Hydri for Respondent No-2.
31.1. Memon Additional, A.-G. on Court's Notice.
Date of hearing: 27th October. 1986.
-By order dated 9-1-1985 of the learned 4th Sind Labour Court, Karachi, the petitioner an employee of the respondent Karachi Transport Corporation, whose services had been terminated earlier by the Corporation, was re-instated in service. Karachi Transport Corporation challenged the said decision dated 9-1-1985 before the learned Labour Appellate Tribunal and by order dated 5-2-1986 the appeal was allowed in the absence of the petitioner. According to the petitioner, he later on came to know about passing of the order dated 5-2-1986 when he received a notice of dismissal from service from K.T.C. He then made an application to the learned Labour Appellate Tribunal to recall the order dated 5-2-1986 and re-hear the appeal by giving an opportunity of hearing to the petitioner. This application was rejected by the learned Labour Appellate Tribunal observing that the petitioner had been served with the notice of appeal on 25-7-1985 and there was no need to re-hear the appeal which stood decided. The petitioner has challenged the orders of the learned Labour Appellate Tribunal in the present Constitutional Petition. We have heard Mr. Ch. Rashid Ahmed, learned counsel for the petitioner, Mr. Mir Raza Hussain Hyderi, learned counsel for the respondent No.2, and Mr. M.I. Memon, learned Additional A.-G. who has appeared on Court notice.
2. It is contended by the learned counsel for the petitioner that the petitioner was never served with the notice of the appeal before the Sind Labour Appellate Tribunal. The record of the learned Labour Appellate Tribunal is before. us and only copy of the notice is available on back of which there is some endorsement of a peon of the Tribunal to the effect that the notice had been received by the petitioner. However, on the face of the copy of the notice one S.M. Jan has, signed endorsing that he received the notice on 1725 hours. On a perusal of the copy of the said notice it follows that notice had not been received by the petitioner but by some S.M.Jan and the peon of the Tribunal made an incorrect endorsement that the petitioner had received the notice.
On a perusal of the record of the learned Tribunal, it is apparent that notice of the appeal had not been served upon the petitioner. The learned Additional A.-G. also submits that this is the impression that A is gathered on a perusal of the R & P.
Mr. Mir Raza Hussain Hyderi, learned counsel for the respondent K. T. C. attempted to argue that some office-bearer of the Employees' Union of K. T. C. had received the notice on behalf of the petitioner and as such the notice must have reached the petitioner. On this assumption it cannot be held that notice- had been served upon the petitioner. The record does not show that any advocate had appeared on behalf of the petitioner before the Tribunal. Apparently on the report of the peon, learned Labour Appellate Tribunal reached the conclusion that notice had been served but as observed earlier this was patently an incorrect report and this is evident from the copy of the notice.
3. In the circumstances, the impugned order is liable to be set aside. Constitutional Petition No. D-198 of 1986 is allowed to the extent that the impugned order dated 5-2-1986 of the learned Labour Appellate Tribunal allowing the appeal of K.T.C. is declared to have been passed without lawful authority and to be of no legal effect and the matter is 6 remanded. The result is that the appeal filed by the respondent No.2 Corporation will be deemed to be pending before the learned Labour Appellate- Tribunal. Mr. Chaudhry Rashid Ahmad states that he will appear on behalf of the petitioner before the learned Sind Labour Appellate Tribunal in the appeal filed by K.T.C. and if a notice is sent to him, it will be deemed to be proper service of the notice and appeal on the petitioner. The learned Tribunal may decide the appeal as soon as possible.
There will be no order as to costs.
A. A. /4939/Lb Petition accepted.
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