1976 PLP 346 (PLC)

M. Bilal for Respondent. This is an appeal preferred against an order dated 2-4-75 passed by the learned Presiding Officer, Junior Labour Court, Rawalpindi on a petition under section 25-A of the I. R. O. filed by the petitioner. His petition was dismissed in default, hence this appeal.

2. I have heard the learned counsel for the parties.

3. Appeal is supported by an affidavit to the effect that this case was called at about 9-30 a.m. Petitioner was a bit late, so it was dismissed in default.

3. Learned counsel for the respondent has urged that the impugned order does not fall under the definition of a decision and therefore appeal does not lie against this order under section 36-D. Appellant should have applied to that Court for restoration of his petition.

4. Learned counsel for the appellant in answer to this preliminary objection has contended that any order is a decision by which matter has been finally disposed of by the Court. According to subsection (3) of section 36-D if any party does not appear before the Junior Labour Court despite notice, Court has to hear and decide the other party and has to dispose off the case ex parte. In the second place he has urged that counsel for the petitioner was present in Court. Court should have waited till its rise for the day. Again if the principles of C. P. C. are followed then two courses are open to the party aggrieved in such cases, either he should apply for restoration of the petition or he should file an appeal as the order has disposed of the matter finally at the level of the Junior Labour Court. If it is considered that C. P. C. is not applicable, then the only course open to the aggrieved party is to come in appeal. To refute this argument, learned counsel for the respondent has referred me to section 21 of the General Clauses Act. If this section is pressed into service, matter could be reopened before the Junior Labour Court.

5. Matter was finally decided at the level of the Junior Labour Court, therefore it becomes a decision and not an order. Appellant has rightly come in appeal. No doubt, presence of the counsel of the petitioner was immaterial. A lawyer has to only assist the party and that too with the permission of the Court and when the party was not there then question of assistance did not arise. But it is a question of commonsense that a Presiding Officer should have waited for the party till close of the day.

6. In that view of the matter, I set aside the order of the Junior Labour Court and remand the case back to the Junior Labour Court to be decided on merits after giving due notices to the parties at the convenience of the Junior Labour Court.