1993 PLP 617 (PLC)

This appeal has been moved to call in question the legality of the order dated 8‑9‑1992 of the learned Labour Court whereby the application submitted by the appellant for setting aside the ex parte, order passed by the Labour Court was dismissed.

2. The relevant background narrated in brief form is that the respondent was employed as bill distributor by the' appellant Municipal Committee, Nowshera but through order dated 29‑7‑1991 he was dismissed from service. The grievance notice served by him on the appellant‑respondent was not responded and, therefore, he instituted the grievance petition in the Labour Court, Peshawar. The Labour Court issued process for appearance of the appellant‑respondent for 28‑11‑1991 and it is alleged that the appellant respondent was served for the said date but he failed to put in appearance himself or through an authorised agent. Accordingly the appellant was placed ex parte on the said date and after recording ex parte proof on 10‑12‑1991, the grievance petition was allowed and consequently it was ordered that the petitioner‑respondent be reinstated in service. The appellant‑respondent submitted an application for setting aside the ex parte order on 7‑1‑1992 wherein non‑appearance on the earlier dates in the case was described as unintentional and for reasons beyond their control. This application was contested by the petitioner‑respondent. The evidence that was led in these proceedings is ‑the statement of Shahid Khattak, Chief Officer as ANA who while clarifying the factual position which caused default in appearance stated that during those days the Assistant Commissioner, Nowshera was functioning as Administrator of the Municipal Committee and that he informed him that the case was fixed for 28‑11‑1991 and he should be allowed to engage a counsel to pursue the case on their behalf. He further deputed Mr. Zubair Durrani, Municipal Engineer, Nowshera on 27‑11‑1991 to represent the Committee in the Court on 28‑11‑1991 and to request for deferring the case to another date to enable them to engage a counsel. However, unfortunately the mother of the said Engineer died on the same date and, therefore, on 28‑11‑1991 he was busy in the funeral of his mother and neither could attend the Court himself nor could inform the appellant of this situation. It was further disclosed that the correspondence between him and the Administrator took time on account of official routine but ultimately when he was authorised to engage a counsel to represent the Committee then he submitted an application for setting aside the ex parte order. A.W.2 is Zubair Durrani, Municipal Engineer who verified the factum of death of his mother in the evening of 27‑11:1991 and of his being busy in Janaza etc. on 28‑11‑1991. On the other hand the respondent appeared as his own witness and blamed the appellant for wilful default in appearance and justified the ex parte order of reinstatement.

3. I heard both the learned counsel and went through the record.

4. It is pertinent to note that the positive assertion of the appellant's witness regarding the death of the mother of the Officer deputed to represent the appellant on the date of hearing could not be discredited in the cross‑examination nor through any evidence in rebuttal. The Chief Officer and the Engineer whose mother had died appeared as A.W.1 and A.W.2. Both stated that the mother of A.W.2 had died and, therefore, on the date fixed in the case the Municipal Engineer could not attend the Court. The cross‑examination of these witnesses would reveal that this factum of the death of the mother of A.W.2 has not been seriously challenged. Similarly in his statement R.W.1 has also not stated a single word regarding this point. It is settled principle of law that cases should be decided on merits and unless unsurmountable hurdles were there it should be the endeavour that cases are decided after allowing both the parties an opportunity of hearing. A Division Bench of the Peshawar High Court in a case reported in PLD 1986 Peshawar 81 has gone to the extent to hold that "The inadequacy of sufficient cause should not stand in the way of justice on merits. It should not culminate into the end loss to allow the dismissal of suit in default or ex parte decree intact for the end objective of the Courts is to do full and substantial justice in the cause after allowing due opportunity of hearing to the parties". Keeping in view the dictum in this precedent case and reasons shown for non‑appearance particularly the death of the mother of the witness who was depnted to represent the appellant it should be in the ends of justice to set aside the ex parte order and to allow both the parties fair opportunity of substantiating their viewpoint. Moreover, the learned counsel for the appellant cited an authority reported as 1982 PLC 914 wherein it has been laid down that employees of the Town Committees other than those engaged in a workshop of specific industry cannot be classified as workman. In order to bring a case for adjudication before the Labour Court under section 25‑A it is a condition precedent to prove that the petitioner qualified as a workman either under the Standing Orders Ordinance or Industrial Relations Ordinance. It is, therefore, necessary that this aspect of the case should also be thrashed out after allowing the parties full opportunity in this respect. Consequently this appeal is accepted, the order of Presiding Officer Labour Court is set aside and the case is remanded to him for decision on merits after affording both the sides opportunity of leading evidence in support of their viewpoints. There would be no order as to costs. Parties are directed to appear in the Labour Court on 15‑3‑1993. H.B.T./156/Lb.N Case remanded.