1984 PLP 661 (PLC)

Muhammad Ahmed for Appellant. M. M. Jilani for Respondent. Date of hearing : 5th March, 1984. This appeal has been filed against the order, dated 27th August, 1983, passed by the Sind Labour Court No. V, Karachi, directing re‑instatement of the respondent Muhammad Ilyas with full back benefits.

2. The facts leading up to the appeal briefly stated are that the respondent was a permanent workman employed as an Accountant in the appellant establishment with effect from 10th June, 1978. He was con firmed on 10th September, 1978. His services were terminated by a verbal order on 20th March, 1981. Ha sent a grievance notice, but with no success. He then filed a grievance application under section 25‑A, I. R. O., 1969. The appellant having been duly served with the notices in conse quence, of filing of the application failed to attend. Ex parse proceedings, were then taken against the appellant and the learned Labour Court finding that the respondent was not a workman, as no evidence was led in that respect on his behalf, dismissed his application. He came in appeal in this Tribunal and the Tribunal, vide its order, dated 9th January, 1983 remanded the case to the learned Labour Court with a direction to record further evidence on the issue as to whether the respondent was a workman or not as well as further merits of the case and then dispose of the case by a fresh decision. The respondent filed affidavit in evidence but the appellant, failed to appear after having been duly served with the notices and, was therefore, proceeded ex parte. The learned Labour Court after considering the evidence on record with regard to the nature of the duties the respondent was performing as an Accountant as well as further merits of the case allowed his application and directed his re‑instatement with back benefits. Aggrieved by this order the appellant establishment has come in this appeal.

3. I have perused the relevant evidence on record and have also heard the learned counsel for the parties. Mr. Muhammad Ahmed for the appellant and Mr. M. M . Jilani for the respondent. The only question that arises for consideration is as to whether the appellant was duly served with the notices or not and if duly served was prevented by sufficient cause from appearing in the proceedings in Court. The learned counsel for the appellant, has mainly contended that the respondent had intentionally shown wrong addresses of the appellant in his application under section 25‑A, I. R. O., and thus had got the notices issued on such wrong addresses in order to see that he had obtained an ex parte decision in the proceedings against the appellant. The learned counsel for the respondent has contended that the appellant went on changing his add resses from time to time. He has further contended that the respondent made stran uous efforts to collect such changed addresses and got him served with notices but the appellant in spite of such notices duly served on him remained absent and intentionally avoided to appear in the proceed ings. In support of his contention he has produced two certificates from the office of the Registrar, Joint Stock Companies as the appellant was a Limited Company and as such registered, to show that the appellant went on changing his addresses from time to time. The address given in the application filed before the learned Labour Court at the relevant time and in Memo. of appeal in this Tribunal are in accordance with the addresses shown in these certificates. It would, therefore, be clear that the respondent did not fail to file correct addresses of the appellant either in his application or in the memo. of appeals filed from time to time. On examination of the contention in the light of the certificates produ ced and the application before the learned Labour Court and the appeal before this Tribunal, I find the contention of the learned counsel for the respondent not without substance. It would on the con trary appear that the appellant went on shifting his addresses and the respondent went on finding out his correct addresses from time to time. It is also clear that the learned Labour Court did not take any hasty steps. It went on issuing notices to the appellant nearly for about 12 months and the appellant in spite of having been duly served with the notices failed to appear without sufficient cause and contest the matter. The endorsement of the process‑server on the notices on record, dated 7th June, 1982 and 19th April, 1983 clearly disclose that the notices were refused by the Director of the appellant‑establish ment and the member of the staff of the appellant‑establishment, res pectively. The grounds on which an ex parte decree may be set aside are contained in rule 13 of Order IX, C.P.C. They are : (a) that the summons were not duly served upon the defendant or (b) that though the summons were not duly served upon defendant he was prevented by sufficient cause from appearing when the suit was called for hearing. Expression "duly served" in Order IX, rule 13, C. P. C., means "served in such a way as to give information of suit to the defendant". Reference in that respect is invited to the decision in the case of Muhammad Hanif v. Baga Muhammad (P L D 1979 S C (AJ&K) 120). No exception can be taken to the contents of the endorse ment of the process‑server to the effect that the notices were refused. He made the endorsements on Oath. It is, therefore, quite evident that the notices were in fact served on the appellant in a way that they did convey information of the proceedings to him. It is not the case of the appellant that he was prevented by any cause muchless sufficient cause, from taking part in the proceedings. Where a party deliberately obtains from contesting the matter which otherwise from the evidence produced by the other party is proved against him, the Court would be justified in such a situation to draw an interference adverse to such a party. It would, therefore, be clear that the appellant in spite of having been duly served with notices intentionally avoided to appear and contest the proceedings before the learned Labour Court and I find no force in the contentions raised on behalf of the appellant in that respect. Admittedly no other issue is involved in the appeal.

4. The result is that the appeal is dismissed. A.E. Appeal dismissed.