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Constitutional Petition No. S‑123 of 1984, decided on 19th November, 1986.

‑‑‑Art. 199‑‑Industrial Relations Ordinance (XXIII of 1969), S. 25‑A‑ Grievance petition for reinstatement in service‑‑Employer failing to file written statement and Labour Court striking off defence of employer and granting petition of worker as prayed‑‑Labour Court subsequently recalling order for striking off defence and restoring case to its original position on application of employer under O.IX, R. 13, C.P. C.‑ Documents produced showing that employer had already filed his written statement, taking therein legal pleas to maintainability of grievance petition and that order of striking off defence was passed under mistaken assumption that employer had not filed written statement‑‑Order restoring petition to its original petition was made in exercise of judicial discretion of Labour Court and same required no interference‑‑Order of Labour Court recalling order for striking off defence made in exercise of judicial discretion, would not justify interference in constitutional jurisdiction of High Court.

A. De‑Cruze for Petitioner.

A.A. Zari for Respondent No. 2.

Date of hearing: 19th November, 1986.

The facts of the case are that on 15^th June, 1983 the petitioner filed an application under section 25‑A of I.R.O., 1969 for his re‑instatement with back benefits. The respondent No. 2 (hereinafter referred to as the employer) filed objections which he described as legal objections wherein prayer was also made that after hearing the parties on the said objections the application made by the petitioner under section 25‑A be dismissed.

(ii) On behalf of the petitioner subsequently an application was moved on 7th April, 1984 submitting therein that the employer had failed to file his written statement within 90 days of the service of notice, and, therefore, his defence be struck off and grievance application filed by the petitioner under section 25‑A be granted as prayed. This application was fixed for hearing on 6th May, 1984 when the employer and his Advocate were found absent. The respondent No. 1/Vth Sind Labour Court, Karachi, after observing that the case was pending since June, 1983 and that the employer though made appearance on 27th July, 1983 had not filed any written statement, applying the provisions of Order VIII, rule 10, C.P.C. and after further making observations that the conduct of the employer showed that he had no interest in the matter and no defence to make, accepted the said application, struck off the defence of the employer and granted the grievance petition as prayed.

(iii) Subsequently an application under Order IX, rule 13, C.P.C. was filed on behalf of the employer praying therein for setting aside the order, dated 6th May, 1984 referred to above, restore the case to its original position and the legal objections raised by the employer on 27th August, 1983 may be heard and decided on merits. After hearing the Advocates for the parties the respondent No. 1 by the impugned order passed on 30‑10‑1984 set aside and recalled the order, dated 6th May, 1984 and the matter was restored to its original position. The case was further directed to be fixed for arguments on preliminary legal objections.

2. Feeling aggrieved by the order passed on 30‑10‑1984 the petitioner has invoked the constitutional jurisdiction of this Court by filing the above petition under the Article 9 of P. C. O., 1981.

3. The learned counsel for the petitioner at the hearing when confronted with the fact that the employer had on 27th August, 1983 filed objections (described as legal objections), the respondent No. 1 was not justified to have made the observation that no written statement to the grievance petition ha0d been filed or to have struck off the defence applying rule 10 of Order VIII, C. P. C., submitted that he would not press this petition but the employer be confined to the objections already filed by him and be not permitted to file any further written statement. In the alternate he submitted that the employer be put to terms by directing him to file any further/additional written statement /objections if he wants to do so at the earliest and without any further delay as according to him, the petitioner a poor worker is suffering seriously due to delaying tactics adopted by the employer.

Mr. Zari, Advocate in reply firstly submitted that the employer does not want to file any further written statement. He, however, then stated that the employer may file additional written statement in reply to the allegations made in the grievance petition in case the decision on the legal objections raised goes against him. He also argued that the impugned order has been passed with jurisdiction by respondent No. 1 and the same cannot be challenged by invoking the constitutional jurisdiction of this Court.

4. Having heard the learned Advocates for the parties on the submissions made by them as above, I find that the order passed on 6‑5‑1984 was based on mistaken assumption that the employer had not filed any written statement/ reply. The documents produced by the petitioner himself shows that the employer on 27‑8‑1983 had already filed his reply/written statement taking legal pleas to the maintainability of the grievance petition. The respondent No. 1/Labour Court, therefore, A could not have totally ignored these objections, however inadequate the same might be. In the circumstances as also frankly conceded by the learned counsel for the petitioner, the learned Labour Court was justified to recall the order passed on 6‑5‑1984 by the impugned order made on 30‑10‑1984. The impugned order made in exercise of judicial discretion by the learned Labour Court, therefore, does not call for any interference by this Court.

5. Consequent to the observations made above the R & P received is ordered to be returned with the directions to the learned Labour Court to expeditiously dispose of the case in accordance with the law.

With the consent of both the learned Advocates it is directed that the parties shall appear before the concerned learned Labour Court on 8‑12‑1986 for which the parties through their Advocates have been put to notice.

With the consent of the Advocate for the petitioner it is further ordered that in case the employer files written statement/reply to the grievance petition within 15 days of the passing of this order, the same shall be accepted by the Labour Court.

It is further clarified that if written statement is not filed within the period mentioned above, it would be for the learned Labour Court in exercise of its judicial discretion to decide if the employer be allowed to file further/ additional written statement if request to that effect is made after taking into consideration relevant circumstances.

6. The petition accordingly stands disposed of but with no order as to costs.

M.Y.H./Q‑1/K Case remanded.

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