2008 PLP 60 (PLC)

ZIA PERWEZ, J.

This petition is directed against the impugned order of the Commission for Workmens Compensation and Authority for the Payment of Wages Act (West Division) Karachi, A respondent No.2, dated 4-11-2004 setting aside the ex parte orders dated 24-5-2003 whereby the respondent was allowed to file written statement on 8-11-2004. Brief facts of the case are that after institution of application under section 15 of the Payment of Wages Act, the notices were ordered to be issued, however, as none appeared the service was held good by the learned authority and case was ordered to proceed ex parte vide order, dated 21-12-2002 and finally the application of the petitioner was allowed to the extent of Rs.69,500 against his claim for Rs.1,05,

340. Thereafter, proceedings were initiated for recovery of the amount against the respondents. It was at that later stage that respondents moved an application for setting side the ex parte order before the authority on or about 21-7-2004. The petitioner filed objections to the application but after hearing application was allowed by the respondent No.2 vide order, dated 4-11-2004. No application for condonation of delay was filed along with the application seeking recall of ex parte order. Aggrieved by the said impugned order, the petitioner has approached this Court. Pre-admissions notices were issued to the respondents. The respondents after appearance requested for time on 30-10-2006. Two weeks time was allowed to respondent No.3 for filing the comments. As no comments have been filed, today Mr. A. De Cruz is invited to address the Court on merits. Advancing his arguments Mr. A. De Cruz, learned counsel for the petitioner, has stated that the authority under the Payment of wages Act, allowed the application in spite of its being time-barred. The earlier order, dated 21-12-2002 ordering the case to proceed ex parte was passed on merits and the same has been set aside in a slipshod manner. Learned counsel also stated that the authority has been adopting double standards. In support of this contention he has placed reliance on an order, dated 29-11-2004 in Case No.34 of 2004(15), copy of which is placed on record. In that case respondents after appearance failed to file written statement and on his failure to do so since 28-2-2004, ex parte order was passed and the application for restoration made after expiry of 30 days of the order was dismissed. I have heard the learned counsel appearing for the petitioner and have also perused the material available on record. As far as first contention of the learned counsel, the application for setting aside the order has been filed duly supported by an affidavit stating therein that the respondent was not aware of any proceedings. That no service of summons was effected upon him. That the respondent learnt about the proceedings only when action for effecting coercive recovery under Land Revenue Act was initiated against the respondents. As far as second contention of the learned counsel that the authority is proceeding in discriminatory manner, the very order in Case No.34 of 2004(15) dated 29-11-2004 relied upon by the petitioner, goes to show that the case was fixed for filing of the written statement. In that case for a considerable period i.e. from 28-2-2004 respondent remained absent and thus, ex parte order was passed on 30-8-2004. Subsequently, application for setting aside the ex parte order was filed which was dismissed. The facts in present proceeding appear to be entirely different inasmuch as the respondent did not put in an appearance before the authority till such time that the proceedings for recovery had not been initiated. The facts of the two cases are distinguishable. Furthermore, there can be, no denial that the authority is required to act under the provisions of law. Any manner of discrimination is unwarranted and is not expected from public functionaries who are required to act in just and bona fide manner strictly according to law while discharging their duties. However, it does not mean or implied that all applications for setting aside the ex parte order should either be allowed or should be rejected. Each case is considered, examined and decided on its own merits after serious application of mind as is reflected in two orders available before this Court. Under the circumstances of distinguishable facts in the two cases, no case of discrimination is made out. For the foregoing reasons, I do not find any merit in this petition which is accordingly dismissed in limine. However, the learned trial Court is directed to frame a issue as to the question of limitation, as may be raised by the petitioner, along with other issues, which may be disposed of on the basis of evidence as may be adduced by the respective parties and the application may be heard and disposed of on merits within three months of passing of this order. H.B.T./A-84/K Petition dismissed.