1993 PLP 442 (PLC)

(a) To tender a written reply within three days as to why your case should not be handed over to police for proceeding against you legally for having found guilty of criminal dishonesty. (b) To complete the checking of outstanding dues alongwith Mr. Shahid Sultan and any other person detailed by the Sales Manager before November 10, 1990. (c) To apologise from Mr. M. Ibrahim Shaikh for the misbehaviour with the said Manager."

3. He had replied to the aforementioned show cause, when all of a sudden on 13‑2‑1991, his services came to be abruptly terminated, and that too orally.

4. Aggrieved by this turn of events he had sent a Grievance Notice, dated 9‑4‑1991 and as the reply did not mend the matters he had been constrained to file the petition before the Labour Court.

5. In the Written Reply inter alia it was said that the petitioner was not an employee of the Company, but was on `Contract' for an uncertain period, on Salary‑cum‑Commission basis. It was, however, admitted that the show cause notice' was issued and replied to. It was also added that on the verbal requests made by the applicant he was allowed to refund huge amount mis?appropriated by him. It went on to say that the applicant had given in writing that the same will be paid back.

6. It appears that the petitioner filed his affidavit‑in‑evidence and the copy was received by the respondent when the matter was adjourned to 9‑10‑1991 for his cross‑examination. On the said date the present appellant and his counsel did not turn up, and the following order was passed by the Court: "Applicant present in person. Respondents and their counsel called absent. Cross‑examination to applicant‑‑Nil. The applicant closed his side. Now case put off to 17‑10‑1991 for affidavit‑in‑evidence of respondents."

7. On 17‑10‑1991 the learned counsel for the respondents (the appellants herein) did not file any affidavit‑in‑evidence but moved an application for setting aside the order referred to above.

8. In the meantime the case came to be transferred from the Fifth Sindh Labour Court to the First Sindh Labour Court and notice was issued to the learned counsel for the respondents for 13‑1‑1992. Nobody appeared on behalf of the respondent on that date and the matter was adjourned to 22‑1‑1992. On that date again nobody was present on behalf of the respondents and therefore the application dated 17‑10‑1991 was dismissed and his side also was closed and the matter was adjourned to 28‑1‑1992 for arguments. On this date again the learned counsel for the respondent or his client did not turn up and after hearing the learned counsel for the petitioner the impugned order was passed. It appears that after the order had been passed the learned counsel for the petitioner turned up and he was informed of the happenings.

9. Mr. Anwar Ahmed, learned counsel for the respondents (appellants herein) admitted that he had received the notice of appearance before the 1st Sindh Labour Court and that he was present also on the day when the order was announced.

10. Mr. Latif Saghar, learned counsel for the Petitioner (respondent herein) contended that if the respondent and his counsel did not care to prosecute the proceedings with due diligence, they would have to thank themselves alone for the consequences. Reference was made to MA. Latif Farooqui v. National Bank of Pakistan PLD 1981 Karachi 645 and Rafiq Ahmed Khawaja v. Abdul Aleem 1982 SCMR 1239.

11. The question whether the deprivation of the right of cross-?examination or the evidence of the respondent was justified or not will not be decisive any more, because admittedly the affidavit‑in‑evidence of the petitioner had been filed and the matter was for the hearing of the parties.

12. The impugned order is not under Order 17 Rule 2 but under Order 17, Rule 3 and the judgment as given by the Labour Court was on merit. There can be no objection to it as made out from the case of National Bank of Pakistan v. Abdul Majeed and others 1984 CLC 2893, and it is the merit that has got to be examined.

13. As the narration of the events referred to earlier would show, serious charges had been levelled, against the respondent‑and he had also been given a show‑cause notice. The charges that had been raised constituted clear cut misconduct within the meaning of Standing Order 15(3)(b) & (c) which necessitated a full dress domestic enquiry. Nothing of the sort was done. Instead the respondent had been shown the door verbally. This could not be done under the law and that is enough to dispose of the appeal.

14. I will, therefore, up‑hold the impugned order and dismiss the appeal. H.B.T./2128/Lb.S ?????????????????????????????????????????????????????????????????????????????? Appeal dismissed.