2018 PLP 22 (PLC N)

MUZAMIL AKHTAR SHABIR, J.

Through this Constitutional petition, petitioner has called in question order dated 28.02.2018 passed by respondent No.1/Punjab Labour Appellate Tribunal No.II, Multan whereby application filed by petitioner for setting aside order of dismissal of his appeal on 09.02.2017 was dismissed.

2. The brief facts of the case are that respondent No.3 namely Nabi Bakhsh filed grievance petition before respondent No.2/Punjab Labour Court No.9, Multan against appellant for his re-instatement into service with back benefits which was accepted vide judgment dated 16.10.2012, aggrieved of which, petitioner filed appeal on 03.11.2012 before respondent No.1/Punjab Labour Appellate Tribunal No.II, Multan which was dismissed for non-prosecution on 09.02.2017, petitioner filed an application under Order IX rule 9 read with section 151, C.P.C. for restoration of appeal which application has also been dismissed on 28.02.2018. Both the afore-referred orders of dismissal of appeal for non-prosecution and dismissal of application for restoration of appeal have been called in question through this Constitutional petition.

3. Learned counsel for petitioner has argued that petitioner had wrongly noted the date of case as 07.2.2017 instead of 09.2.2017 and on appearing on 07.2.2017 the Record Keeper of the court informed him that he would trace the file and inform him of the date which was not done and non-appearance of petitioner was not intentional, therefore, the afore-referred orders be set aside and the appeal of petitioner be restored.

4. Heard, record perused.

5. The respondent No.3 filed grievance petition with Punjab Labour Court No.9, Multan for his re-instatement into service with back benefits which was accepted on 16.10.2012, thereafter petitioner filed appeal against the said order which has been pending before the Punjab Labour Appellate Tribunal No.II, Multan since 03.11.2012. During subsistence of the appeal, from the order sheet available on record it is seen that petitioner/appellant before the said Tribunal had not appeared on many dates and had been seeking adjournments on one pretext or the other and lingering on the matter, thus, during the said period the appeal appears to have been dismissed for non-prosecution on some occasions and the Tribunal restored the same on the application filed by petitioner. Even on 09.02.2017 no one was available on behalf of petitioner/appellant and the Tribunal dismissed the appeal filed by the present petitioner by observing as under: "09.02.2017 Nemo. It is 2:30 PM none appeared on behalf of the appellant. This is second call, hence dismissed for non-prosecution. File be consigned to the record room after due completion."

6. Thereafter, the present petitioner filed application for restoration of appeal on 14.09.2017 and in the said application, petitioner has raised plea that due to some misunderstanding, the date has wrongly been noted as 07.02.2017 instead of 09.02.2017 and petitioner attended the court on the said date but did not see the case in the cause list. The cause list of previous date was checked in which the next date had not been updated. The Record Keeper sought some time to search the file. In March 2017 petitioner came to know that the appeal had been dismissed due to non-prosecution on 09.02.2017. It is further stated that the Factory Manager of appellant establishment was not available who had gone to Agha Khan Hospital, Karachi in connection with his elder brother's treatment and remained there for about six months but unfortunately his elder brother has passed away. In this scenario, he could not approach the court within time for filing of application for restoration of appeal. Thus, claims that the application for restoration of appeal be allowed.

7. The learned Tribunal while dismissing application has observed that the court awaited the petitioner on 09.02.2017 till about 2:30 PM for about the whole day but due to non-appearance of any person from petitioner's side, the case was dismissed. From the record, it is seen that the titled case was not being diligently pursued by petitioner since 03.11.2012 and numerous adjournments had been sought on behalf of petitioner on one pretext or the other; even it is seen from the record that previously also on 25.5.2013, 27.2.2014, 10.11.2014 and 02.06.2015 the case was dismissed for non-prosecution and on 09.02.2017 it has again been dismissed for non-prosecution. On previous occasions, court restored the case but again present petitioner sought adjournments and absented himself. The matter has been pending for the last about 5-1/2 years without any progress. The petitioner appears to be indolent in pursuing the case. The ground raised by petitioner for not earlier approaching the court for restoration of suit despite knowledge in March 2017 of dismissal of suit on 09.02.2017 and awaiting till 14.09.2017 relating to medical treatment of his brother does not appear to be proper justification for filing restoration application with delay. Besides, no reasonable ground or sufficient cause to justify restoration of appeal is made out from the record. Even otherwise, the non-appearance of petitioner appears to be contumacious as he has not let the court proceeded with the appeal by continuously seeking adjournments and avoiding to appear in court, therefore, the Tribunal had rightly dismissed the application for setting aside the order of dismissal of appeal for non-prosecution.

8. No illegality, infirmity or erroneous exercise of jurisdiction is seen in the afore-referred orders. Resultantly, this petition being devoid of merit is dismissed. HBT/S-20/L Petition dismissed.