2005 PLP 422 (PLC)

SABIHUDDIN AHMED, J.

The petitioner appears to be aggrieved by the dismissed of his appeal by the respondent No.1 vide order dated 24-2-1998, whereby an appeal against the order of the respondent No.2 was dismissed.

2. Briefly the facts appear to be that the petitioner apprehending his termination of services by the respondent No.4 on account of his trade union activities moved the respondent No.2 through an application under section 22-A(8)(g) of the Industrial Relations Ordinance, seeking to prevent commission of an unfair labour practice. Initially an interim order directing the respondent No.4 to maintain status quo was passed but eventually the appeal was dismissed by the respondent No.2. Against such order of dismissal the petitioner preferred an appeal before the respondents No.1 which was admitted for regular hearing on 2-3-1993 and an interim order in favour of the petitioner was also passed. However, on 1-9-1993 the petitioner's appeal came to be dismissed for non-prosecution, whereafter the respondent No.4 dismissed the petitioner from service through an order dated 12-10-1993. We are informed that the said order of dismissal was questioned by the petitioner under section 25-A of the then Industrial Relations Ordinance, 1969 and upon rejection of the application and appeal has been preferred.

3. Nevertheless after the dismissed of his appeal before the respondent No.1 dated 1-9-1993, the petitioner applied for restoration of the same and it was restored on 2-3-1994. The petitioner contended that upon restoration of the appeal the interim order passed by the respondent No.1 stood revived with retrospective effect. Nevertheless by its final order dated 24-2-1998, the respondent No.1 declared the appeal to have become infructuous.

4. Mr. Ashraf Hussan Rizvi, learned counsel for the petitioner argued that upon restoration of the appeal on 2-3-1994, the interim order passed earlier stood revived with retrospective effect and as such the order of dismissal dated 12-10-1993 had become a nullity in law. Therefore, the petitioner's appeal ought to have been decided on its own merits notwithstanding such order. In support of his contention learned counsel strongly relied upon the observations of the Honourable Supreme Court in Muhammad Saleh v. Muhammad Shafi 1982 SCMR 33 to the following effect. "

11. As for the second contention, it has been repeatedly held that once a suit or appeal, dismissed for default is restored by the order of the Court under Order IX, rule 9, C.P.C. all ancillary orders passed in the suit or appeal before the dismissal also stand revived and become operative since that date with all their legal implications."

5. It is no doubt well-settled that upon restoration of proceedings all interlocutory or incidental orders also stand revived and as far as possible need to be given effect from the date they were passed. Nevertheless we are extremely doubtful whether the above principle A would also cover past and closed transaction or situations where the fundamental change has taken place during the interregnum between dismissal and restoration. Indeed learned counsel brought to our notice the observations of a learned Single Judge of this Court in Abdul Rehman v. Federation of Pakistan (PLD 1955 Sindh 248) where it was held that in case of dismissal for default the defendant, though not legally bound to wait ought to have waited for the period of (imitation to make an application for restoration and then proceeded to take possession. In the instant case however, we have noticed that the appeal was restored nearly six months after its initial dismissal and the order of the petitioner's dismissal from service was also passed after more than one month of the dismissal of the appeal.

6. In any event it is evident that the petitioner acknowledged the order of his dismissal as fate afait accompli and proceeded to question it before the appropriate Labour Court on all grounds of law and. fact available to him. Indeed this was the proper course to adopt. As suggested by Mr. Mahmood Abdul Ghani, learned counsel who agreed to assist us at very short notice on certain law points. He could have also filed fresh complaint for commission of an unfair labour practice before the respondent. Nevertheless we fail to see how an appeal arising from an application wherein preventive action against termination. of service was sought could serve any purpose once the termination had actually come into effect and properly assailed before a competent forum which we expect would be decided soon. For the foregoing reasons we find the C impugned order to be unexceptionable and dismiss this petition. H.B.T./M-236/K Petition dismissed.