2000 PLP 355 (PLC)

Col. (Retd.) Sadiq Hussain Sheikh v. Lt.-Col. Farooq Ahmed 1987 SCMR 1887; K.M.C. Sanitary and General Employees' Union v. Sindh Labour Court No.II and others 1987 PLC 754; Syed Munir Hussain Shah v. Mst. Syeda Mahfooz Begum and others 1987 PLC 1241; Shahzad Alam Mirza v. Pakistan Steel Mills 1989 PLC 693 and Kala Khan v. Jubilee Spinning and Weaving Mills 1993 PLC 864 ref.

Law helps vigilant and not indolent. This is a revision application under section 38(3) of Industrial Relations Ordinance, 1969 filed against the order, dated 26th of September, 1998 whereby the learned Labour Court No.V, Karachi, dismissed the application for restoration. Briefly stated, the facts are that an application under section 25-A(4) of the Industrial Relations Ordinance, 1969 was filed on 2-12-1997 by the applicant for reinstatement with full back benefits against his alleged wrong dismissal. The written statement was filed by the respondent on 12-1-1998 and the matter was adjourned to 5-2-1998 for evidence of the applicant. As on 5-2-1998 having been declared public holiday, the matter was taken up on 6-2-1998 but the applicant and his representative were called absent. The matter was, therefore, adjourned again for filing affidavit-in-evidence of the applicant. On 26-2-1998 the applicant and his representative were again called absent. The matter was put off to 19-3-1998 but the applicant and his representative again remained absent. The matter was again put off to 1-4-1998 but again applicant and his representative were called absent. On the next date, perhaps, for the first time, on 16-4-1998 Mr. Khaleel-ur Rehman, Representative of the applicant was present. On .14-5-1998 Representative filed an application for adjournment which was allowed by consent. On 16-5-1998 the matter was again put off to 28-5-1998 for affidavit-in-evidence of the applicant. On 28-5-1998 applicant was present in person but made an application for time which was allowed and the case was put off to 10-7-1998 for affidavit-in-evidence of the applicant. On 10-7-1998 applicant and his representative were called absent. Respondent was present. Grievance petition under section 25-A of I.R.O., 1969 consequently dismissed in default for non-prosecution. On 7-8-1998 the applicant moved an application for restoration which, after hearing the parties, learned Presiding Officer was pleased to dismiss by his order dated 2.6-9-1998 against which the above revision application has been filed. I have heard Mr. S.P.Lodhi, Representative of the applicant and Mr. Mehmood A. Ghani, 4dvocate for the respondent. Mr S.P. Lodhi, Representative of the applicant first of all, submitted that the impugned order is void. The learned Presiding Officer should not have dismissed the main application under section 25-A of LR.O., 1969 in default but ought to have proceeded with recording statement of the respondent and decide the case on merits as provided under section 25-A(4) of I.R.O., 1969. Reference is made to the provision of subsection (4) of section 25-A, of IRO, 1969. He advanced to arguments except referring to the above provision of law. Learned counsel for the respondent, in reply, submitted that the learned Labour Court is required to give the decision on merits only when there is - an affidavit filed by the applicant in support of his application. Moreover, burden of proof was on the applicant. The submission of Mr. S.P. Lodhi is entirely misconceived and is not even supported by reading the provision itself. The next submission of the Representative of the applicant. is that on 12-7-1998 when the application was dismissed in default applicant's Representative Mr. Khalil-ur-Rehaman had gone to Nepal to attend a Seminar. When I enquired Mr. Lohdi as to the date when he left Karachi for Nepal and came back from Nepal to Karachi, he was not in a position to tell me about any date. Although Mr Khalil-ur-Rehman had entered the Court room alongwith Mr. Lodhi but when this case was taken up he had already left the Court, so Mr. Lodhi showed his inability to make inquiry from Mr. Khalil-ur-Rehman himself. In any case, it was the duty of Mr. Khalil-ur- Rehman to inform the Court of his departure and inability, if there was any, to appear on 10-7-1998 in the Court. "On one hand the certificate speaks that he is suffering from Hypertension and on the other hand allows him to resume his normal activities the next date. Furthermore, the Certificate has been issued by the Maternity Home Doctor. This Certificate, on the face of it, is a bogus Certificate." It was further stated in the affidavit that if on 10-7-1998 the applicant could go to the Doctor, should equally come to attend the Court for filing his affidavit but he failed to do so. In view of the challenge to the genuineness of the document, that is, the alleged Medical Certificate by the respondent, it was necessary to produce the Doctor to testify his Medical Certificate. He made no application of summoning the Doctor. The learned Presiding Officer, Sindh Labour Court No.V, Karachi, was, perhaps, himself in doubt about the genuineness of this medical certificate, so he deputed his bailiff for verification of the said Certificate with a summon for appearance of Doctor Shah Sultan Rafique who seems to have signed the said Medical Certificate. The bailiff stated on oath that he went to the address given by the Court i.e. Naseem Medical Centre and Maternity Home, Dr. Rahim Jannat Ali who was present in the office read the summons and said that: So she refused to receive the summons

1. That on 21-9-1998, I was handed over the summons alongwith photostat copy of Medical Certificate Nasir Medical Centre and Maternity Home for service on the Doctor Shah Sultan Rafique of the above named hospital situated at 1338, 32/E, Nasir Colony, Korangi No 1, Karachi.

2. That I reached on the aforesaid address and offered the summons for delivery whereon Dr. namely Rahim Jannat Ali was present there, who after reading the summons and photostat copy of the Medical Certificate said that there is no doctor by name Shah Sultan Rafique in this Clinic and that the certificate was not issued from this Clinic, it is a forged and manipulated Medical Certificate. The rubber stamp is also not of this Medical Centre.

3. That I submit this report alongwith the specimen of rubber stamp of the hospital on a piece of paper. " For the above said reasons learned Presiding Officer placed no reliance on the Medical Certificate and rightly so, in my opinion. It is quite pertinent to note that there was no cross to the bailiff by the applicant's side. The last submission made by Mr. Lodhi was that it will be in the interest of justice if the case is remanded back to the learned Labour Court for giving opportunity to the applicant to produce his affidavit-in-evidence and deciding the case on merit. Looking to the entire history of the case and after going through the entire case diary I regret to state that the demand of justice seems to be otherwise i.e. in favour of the respondent. The scale of justice should be kept evenly balanced. (i) Col. (Retd.) Sadiq Hassan Sheikh v. Lt.-Col. Farooq Ahmed (1987 SCMR 1887) wherein it was observed that: "Proceedings adjourned on three occasions to enable petitioner to produce his evidence but Rent Controller; after being satisfied that petitioner was purposely prolonging the proceedings, closing his evidence." (ii) K.M.C. Sanitary and General Employees' Union v. Sindh Labour Court No. II, and others 1987 PLC

754. It was a case of seeking one adjournment which was refused by the Labour Court. A revision was filed against the said order in the Tribunal which was dismissed and then the matter was taken to the High Court of Sindh by filing four Constitution Petitions there. The Hon'ble Judge refused to issue the writ observing that: "But a request for adjournment was made on behalf of the petitioners on that date. Consequently the Labour Court had discretion either to grant the request of the petitioners or to refuse the same. Merely because the discretion was not exercised by the Labour Court in favour of the petitioners the same cannot render the proceedings before it without jurisdiction. Of course, if no opportunity of hearing at all had been provided to the petitioners, the case might have been different. I, therefore, do not find force in this contention as well and the same is also repelled." (iii) Syed Munir Hussain Shah v. Mst. Syeda Mahfooz Begum and other (1987 CLC 1241) it was observed that: "The aforementioned resume of the proceeding shows that the petitioner had sufficient opportunity to produce the evidence but he failed to avail it. In the circumstances, his complaint of wont, of opportunity is without any substance." (iv) Shahzad Alain Mirza v. Pakistan Steel Mills (1989 PLC 693). It is a decision of this Tribunal wherein it was observed that: "It may also be pointed out that the case was dismissed in default on 8-10-1988 while the application for restoration was filed after more than weeks viz 5-11-1988. One Medical Certificate has been produced to show that the appellant was suffering from Hepotic disorder from 6-10-1998, to 26-10-1998. This Certificate also does not appear to be beyond suspicion. It does not bear the signature of the patient viz. the appellant in whose favour it purports to have been issued and does not even show the name of father of the patient. No affidavit of the doctor has been filed that on 8-10-1998 appellant could not attend the Court for the reason beyond his control. " "The appellant has miserably failed to establish that his. Absence before the learned Labour Court on 18-2-1987 was reasonable genuine, and beyond his control. There is also nothing on record to prove the fact that the absence of the Advocate-Representative of the appellant was also cogent. Under these circumstances, I am of the view that the impugned order is quite correct and lawful and is not liable to be set aside. Hence it is maintained. Appeal dismissed." Reverting to the instant case, it is apparent that the case was adjourned as many as 9 times out of which at least 4-5 times both the applicant and his Representative were called absent. The law helps the vigilant and not the indolent. In my opinion, there will be an open injustice to the respondent if this application is allowed and the case is remanded to the Labour Court as submitted by the representative for the applicant. For the above discussion, I am fully satisfied as to the correctness legality, and propriety of the order, dated 26th of September, 1998 passed by the learned Presiding Officer, Sindh Labour Court No.V, Karachi. In result the revision application is dismissed. H.B.T./316-K/Lab. (Trib.) Revision dismissed.