P L D 1976 Karachi 1098 (PLP)

The 3rd respondent was employed with the petitioner as Manager. Hey worked in the petitioner's Organisation up to 15-2-72. While in service he is. alleged to have misbehaved with a customer on 31-1-72, accordingly on the allegation of misconduct repeated charge-sheets issued to him on 4-2-1972, 14-2-1972 and 18-2-1972. It is stated by the petitioner that repetition of charge-sheets was necessitated because the 3rd respondent was constantly avoiding to accept the charge-sheet. Subsequently the 3rd respondent absented himself from duty from 15th February 1972 to 18th September 1972 without any intimation to the petitioner. The absence from duty compelled the petitioner's Bank to dismiss him from services. He accordingly dismissed him from services with effect from 19th September 1972.

2. The 3rd respondent challenged his dismissal from service under section 25-A of Industrial Relations Ordinance by filing an application before the Junior Labour Court on 8th April 1973. The petitioners filed their written statement before the Junior Labour Court on 28-8-1973 and raised two preliminary objections regarding the maintainability of the application of the 3rd respondent. The first objection was that the application was time barred while the second objection was that the 3rd respondent was not covered by the definition of the term a "workman" as given in sec tion 2 (xxviii) of the Industrial Relations Ordinance, 1969. The Junior Labour Court accepted both these pleas on 4th October 1973 and dismissed the application of the 3rd respondent.

3. The 3rd respondent feeling aggrieved by the order of the Junior Labour Court preferred an appeal before the Vth Sind Labour Court who remanded the case to the Junior Labour Court on 16-2-1974 on the ground that evidence had not at all been recorded by the Junior Labour Court while adjudicating the points on which the parties were at variance. The Junior Labour Court was directed to record the evidence of- the parties and decide the case afresh.

4. After remand the Junior Labour Court received the R & Ps of the case on 26th February 1972 and issued notices to the parties. On 2nd March 1972 both the parties appeared before shim. The statement of the 3rd respondent was in progress on 6-4-1974 when the case was adjourned to 19th April 1974 and the time for its hearing was fixed at 11-30 a. m. The parties were informed about the date and time fixed in the case though the Junior Labour Court did not make a note about the time on its own file. However, the 3rd respondent reached the Court earlier on 19th April, 1974 and the Junior Labour Court bona fidely proceeded with the matter in the absence of the petitioners. Subsequently on the same day the petitioner and his counsel appeared at about 11-45 a. m. and requested the Court to set aside the ex parte order. The application moved in this connection was allowed on 24-4-1974 after due notice to the parties.

5. The 3rd respondent filed an appeal before the Vth Sind Labour Court against setting aside of the ex parte order by that Junior Labour Court which was allowed on 23rd May 1974. The Vth Sind Labour Court held that in view of section 36-B of Industrial Relations Ordinance, 1969 which specifies the power of Junior Labour Court and also in view of the provision of section 36-D of the said Ordinance, which provides for an appeal against the order of the Junior Labour Court, only an appeal was competent and the Junior Labour Court could not review its own order. It is against the order of the Vth Sind Labour Court dated 23-5-74 that this petition has been preferred.

6. The main contention of the learned counsel for the petitioner is that the Junior Labour Court was competent to recall its own order. In this connection a reference may be made to the West Pakistan Urban Rent Restriction Ordinance, 1959 which does not provide for review. The provisions of Order IX, C. P. C. are also not applicable. However on the consideration of the legal proposition that a Court which is competent to pass an order is also competent to review, rescind, vary, cancel, alter, correct or modify it. It was held in N. Q. Industries v. Mrs. Bapai Kaikhusro (P L D 1968 Kar. 589) that the Rent Controller was competent to review its own order. In this case reliance was also placed on P L D 1956 F C 46 and a number of other cases. The following paragraph from the judgment in that case may be reproduced below for the convenience of reference: - "Thus, the power to make orders under the West Pakistan Urban Rent Restriction Ordinance, includes the power to recall and correct such orders, including ex parte orders of eviction section 15 (5) of the Ordinance, which makes the order of the Controller, an appellate authority or the High Court final should not operate as a bar to the exercise of this power, because the finality which attaches to the orders referred in this subsection is for the purpose only of saving these orders from being called in question in a Court of law by suit or otherwise. In this view of the matter, though Order IX, rule

13. C. P. C. may not be available for setting aside the ex carte orders of the Controller, the power to make $n order under the Ordinance, includes the power to recall such order, or vary or alter it or add thereto. Consequently, the appellants' application, though not maintainable under Order IX, rule 13, C. P. C., could be made under the Ordinance itself and the Controller was competent to review and recall his earlier ex parte order of eviction." I agree with the principle laid down in the above cited-case. The Junior Labour Court has been specifically vested with the powers under section 36-B .of Industrial Relations Ordinance, 1969 to decide the case after hearing both the parties in almost the same manner as a Rent Controller decides a case under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959. As such the powers enjoyed by the Junior Labour Court to pass an order also include the powers to modify, alter, recall, rescind or correct its order. Although the provisions of Order IX, C. P. C. are not available to it, but these powers are vested in it by virtue of section 36-B of the Industrial) Relations Ordinance under which he has final authority to decide a case falling within his jurisdiction. The Junior Labour Court was therefore competent in recalling its earlier ex parte order to enable itself to decide the case on merits. Even otherwise the principles of natural justice demand that as far as possible the case should be finally decided after giving full opportunity of hearing to both the parties. Keeping in view these principles also the recalling of the ex parte orders is not unjustified provided such an action would promote the ends of justice.

7. As a result, for the foregoing reasons, I allow this petition and set aside the impugned order dated 23-5-1974. The Junior Labour Court is directed to decide the case on merits after hearing both the parties. In the circumstances of the case I will make no order as to costs. S. Q. Petition allowed.