2005 PLP 317 (PLC)

HAMID ALI MIRZA, J

This civil petition for leave to appeal is directed against an order dated 21-10-2003 passed by learned Judge in Chambers of the High Court of Sindh, Circuit Court, Larkana, whereby C.M.A. No.1 of 2003 (Ghanshamdas v. Presiding Officer, Sindh Labour Court No.VIII Larkana and another) under section 48 of the Industrial Relations Ordinance, 2002 was dismissed, hence this petition for leave to appeal.

2. Brief facts of the case are that the petitioner filed a petition under section 25-A of the Industrial Relations Ordinance, 1969 before the Presiding Officer Labour Court No. 1 Larkana, which was dismissed for non-prosecution on 30-3-2002 which was subsequently restored subject to payment of cost of Rs.1,000, However, the same was again dismissed on 6-1-2003 for non-payment of cost against which Order C.M.A. No.1 of 2003 under section 48 of I.R.O., 2002 was preferred before the High Court of Sindh, Circuit Court, Larkana which was also dismissed, as per impugned judgment.

3. We have heard learned counsel for the parties and perused the record.

4. The only contention of the learned counsel for the petitioner is that the initial order of dismissal was ab initio void and corm non judice, therefore supper structure built on the said order would be void and of no legal effect. In this respect he has placed reliance upon Muhammad Swaleh v. Settlement Commissioner (PLD 1964 SC 97). Learned counsel further submitted that the grievance petition was dismissed for non-prosecution on 30-3-2002 of which he had no notice, therefore imposition of costs was also uncalled for in case the petition was to be restored, consequently subsequent order cannot be sustained.

5. Learned counsel for the caveator has submitted that the petitioner was in the know of date, of hearing as he had enquired on telephone about the next date of hearing from the Court and further that the petitioner had not raised the said plea before the Labour Court and the High Court but had taken 'up the plea that cost of Rs.1,000 was paid which was found to be not correct and it was also found that such interpolation was made in the Diary Sheet as observed by the High Court in para-8 of the impugned judgment which reads:-- "On a bare perusal of the type-written diary it manifestly appears that the last line bearing the words, "cost of Rs.1000 paid by the applicant to respondent" were typed afterwards with a narrow line-space between the 3rd and 4th line commonly termed as single line-space whereas the line-space between the first three lines of same date/diary as also all other type-written diaries of previous 6 dates and subsequent 8 dates, running in pages, are uniformly typed with a constant line-space wider than the aforementioned line-space that is to say maintaining 1.5 line-space. Ostensibly, the initial put by the Presiding Officer was the main obstacle in providing enough space to accommodate the above quoted line/words through the usual line-space of 1.5 employed in all other case diaries. Since the writer could not cross this impediment, he adopted the unusual course which conspicuously demonstrated an abnormal picture obtaining therefrom. Learned counsel for respondents were wholly justified in emphasizing that the above quoted line/words about the payment of costs had been introduced after the initial put by the Presiding Officer."

6. It is true that the petitioner has not taken the plea with regard to the impugned order of dismissal to be ab initio void because of having no notice of the date of hearing while before this Court learned counsel for the petitioner has taken the said plea when before the High Court and the Labour Court the plea of the petitioner was that he had made payment of the costs which could not bear the fruits because of the above reasons assigned by the High Court which fact was also proved by the respondent when .the counsel also filed an affidavit to that effect. Learned counsel for the respondents has placed reliance upon Yusuf Ali Shah v. Quetta Serena Hotel and 2 others (2001 PLC 533), wherein this Court at page 542 observed that:-- "High Court was right in observing that the point which had not been raised before the forum seized of the lis in the hierarchy of Industrial Relations Ordinance, 1969, could not be allowed to be argued for the first time during Constitutional proceedings." In the instant case also said plea which has been raised before this Court was not pleaded before the Labour Court and the High Court, therefore it could not be permitted to be agitated before this Court, therefore contention of learned counsel for the petitioner has no merit on the said ground as well. Besides on merit, the High Court after going through the evidence on record has given cogent reasons to which we find no legal or factual infirmity. Admittedly the petition was restored subject to the payment of cost which was not paid even soon after the plea of non-payment taken up, the petitioner did not pay the said amount promptly, therefore the petitioner is not entitled to the exercise of discretionary relief in his favour from the Court having not come with clean hands. In the circumstances we find no merit in this petition, hence leave to appeal is declined and the petition is dismissed. M.H./G-56/S Leave refused.