1989 PLP 992 (PLC(CS))

‑‑‑Ss. 25‑A, 36 & 38(3)‑‑Preliminary objection involving question of fact determinable after recording evidence‑‑Decision of Labour Court that evidence on entire case be recorded was not incorrect‑‑Petitioner insisting for decision on preliminary objection and acceptance of his petition on same basis and despite direction by Labour Court failing to file affidavit‑in‑evidence in support of grievance petition‑‑Decision of Labour Court dismissing petition for want of evidence upheld in appeal. Appellant in person. Date of hearing: 20th November, 1988. Appellant, Abdul Rasheed present in person.

2. The appellant had filed a grievance petition before the learned Labour Court complaining against the promotion of some persons, junior to him and had prayed that he may be declared senior and fit for promotion in comparison to Zafar Haider and Kh. Najeebuddin, who had been illegally promoted. The grievance application was resisted by the employer on the ground that promotion was not vested right and that the said two persons were found fit for promotion by the departmental promotion committee. 3.The appellant had contended before the learned Labour Court that the written statement was not verified by the person who could be considered as an employer and as such, it may be held that no written statement had been filed and, therefore, his grievance application be allowed. After hearing the parties, the learned Labour Court, vide its order, dated 6‑8‑1988 held that the question as to whether the person, who had verified the written statement was or was not an employer, was a question of fact, which could be determined only when the evidence was recorded. He accordingly dismissed the miscellaneous application ref the appellant, under Order VIII, Rule 10, C.P.C. and directed the appellant to file an affidavit‑in‑evidence in support of his grievance application. The appellant, however, failed to file any affidavit‑in‑evidence, but, moved an application under Rule 1 Order XVII, praying that such preliminary issue be framed and decided, hut, this application was dismissed by the learned Labour Court with the direction that the appellant should file his affidavit‑in‑evidence by the next date of hearing. On the said date also, the appellant did not file any affidavit‑in‑evidence, but, prayed for adjournment which application was dismissed by the learned Labour Court and consequently, his grievance application was dismissed on 3‑9‑1988, for want of evidence, hence, this appeal.

4. The view of the learned Labour Court that when the preliminary issue required recording of evidence, the evidence in the entire case be recorded, does not appear to be incorrect. The appellant had wrongly insisted on decision on preliminary issue first, not to file his affidavit‑in‑evidence. I find nothing wrong with the order. The appellant was provided opportunity to lead evidence, which lie failed to avail. As there was no evidence recorded, the grievance application was rightly rejected by the learned Labour Court. There is no merit in this appeal which is dismissed in limine. A.E./1348/Lb. S Appeal dismissed.