2000 PLP 636 (PLC)

Ss.25-A & 38(3-a)

Application to substitute affidavit-in-evidence by filing new one

Revisional jurisdiction, exercise of

Employees applicants filed first affidavit-in-evidence and case was adjourned for cross examination

Employees on the adjourned date applied to file another affidavit-in-evidence before commencement of cross-examination of employees but said application was turned down by Labour Court for want of sufficient reason

No provision existed either in Industrial Relations Ordinance, 969 or in West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 which provided acceptance of affidavit in-evidence in matters of grievance application

Parties, however, could not cite any rule, regulation, notification or even a circular, issued by any Competent Authority under any law for accepting affidavit-in-evidence as substitute of examination-in-chief

Parties having agreed to put in their witnesses in the witness-box for examination-in-chief, cross-examination and re-examination, Labour Appellate Tribunal ordered accordingly with observation that practice of accepting affidavit-in-evidence should be discontinued. PLD 1975 SC 678 and 1982 SCMR 430 ref. M.L. Shahani for Applicants. By this common order, it is intended to dispose of four revision applications, filed under subsection (3a) of section 38 of the Industrial Relations Ordinance, 19699, for exercising revisional powers of this Court in respect of a common order, dated 13-7-1999, passed by the learned Presiding Officer, Sindh Labour Count No.5, at Karachi, in Applications Nos. 211, 215, 216 and 218 of 1998, under section 25-A of the I.R.O., 1969, whereby the prayer, made under section 151, C.P.C., for permission to substitute affidavit-in-evidence, by filing new one, was turned down for want of sufficient reason.

2. Mr. Shahani, learned counsel for the applicants submitted that the first affidavit-in-evidence was filed by the applicants on 23-2-1999. The case was then adjourned to: 10-3-1999 for cross-examination. On that date another affidavit-in-evidence alongwith an application under section 151, C.P.C. was presented in the learned Presiding Officer before the commencement of the cross-examination of the applicants. He referred to section 153, C.P.C. and submitted that the Court may at any time, and on such terms as to costs or otherwise as it may think fit amend any defect or error in any proceedings in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding". Learned counsel did not cite a single authority under section 153, which helps the situation, as involved in the case. He however, referred to two authorities namely PLD 1975 SC 678 and 1982 SCMR 430, but both these authorities deal with the question of technicalities. Unless, it is shown to my satisfaction that the facts, involved in the case, are of technical in nature, these authorities will be of no help to the counsel.

3. Mr. Humayun, learned counsel for the respondent, submitted that it is not a case of technicality. It is a question of substituting one statement by another, which is in the nature of examination-in-chief by affidavit, as also held by the learned Presiding Officer.

4. Mr. Humayun referred to Articles 71 and 130 of the Qanun-e -Shahadat Order, 1984, but both the Articles of the Qanun-e-Shahadat Order, 1984, in the facts and circumstances, of the case, are inapplicable. Lastly, Mr. Humayun submitted that it was stated in the application before the learned Labour Court that there was an inadvertent mistake by the typist in stating the facts correctly, which necessitated substitution of one affidavit by the other paras. 4 and 5 thereof.

5. On my querry to Mr. Shahani, he frankly admitted that it was mistake of the draftsman. Probably he could not comprehend correctly the instructions of the application, this submission of Mr. Shahani, seems to be quite plausible, as it has been found by me, in innumerable cases that the affidavit-in-evidence, filed, particularly by the labour, as a class, contained incorrect statements, found on cross examination by the other side, seemingly because most of them are either illiterate or half -literate.

6. There is no provision in the Industrial Relations Ordinance, 19691 which makes a provision of accepting evidence of the parties by means of affidavit. The provisions of Civil Procedure Code, 1908 have been made applicable under section 36(2) of the I.R.O., 1969, specifically mentioning the powers "of enforcing the attendance of any person and examining him on oath." There is no provision in the Industrial Relations Ordinance, 1969 and Standing Orders Ordinance, 1968, which provides the acceptance of the affidavit-in-evidence in the matters of grievance application under section 25-A of the I.R.O., 1969 and the Standing Orders Ordinance, 1968.

7. No counsel was able to cite any rule, regulation, notification or even a circular, issued by any competent authority under any law for accepting the affidavit-in-evidence in the Sindh Labour Courts as substitute of examination-in-chief. As stated by them, it is only the Sindh Rent Restriction Ordinance, 1979, which provides acceptance of affidavit-in evidence.

8. I, therefore, asked the learned counsel of the parties, if they would be ready to put in their parties and their witnesses, if any, in the witness-boa for examination-in-chief, cross-examination and re-examination. The reply o1 both the counsel was spontaneous that they would be willing to do so,

9. By consent, therefore, the revision applications stand disposed of it terms of their consent, as stated at the Bar. Order accordingly

10. Before parting with this matter, I would, however, like to observe that the present practice. of accepting the affidavit-in-evidence should be discontinued forthwith by all the Presiding Officers of Sindh Labour Courts. Unless the relevant statute or rule, made there under, make a specific provision for making a departure from the established rule of recording evidence in Court including the examination-in-chief under the Industrial Relations Ordinance or Standing Orders Ordinance, 1968. The parties and their witnesses must be examined in Court orally by the Court. As such, the present practice of accepting affidavit-in-evidence is against the judicial norm, as also enshrined in the Injunctions of Holy Qur'an and Sunnah.

11. It is noticeable that the Industrial Relations Ordinance, 1969 provides that application under section 25-A should be decided by a Labour Court within seven days. Although I am of the view that this limit of seven days is not only unrealistic but looks to be a mockery with law. But the case should be decided, at the most, within six/seven months, whereas they are being decided in four/five and in some cases seven to eight years, as I have come across during hearing of many appeals, which is highly deplorable. This may expedite disposal as well. Announced in open Court, this the 29th September, 1999. H.B.T./340/K (Lab. Trib.) Order accordingly.