1981 PLP 527 (PLC)

‑‑‑Ss. 25‑A, 36 & 37‑Dismissal of grievance petition in default Decision‑Appealable‑Applicant failing to submit affidavit in evidence on date fixed therefore though himself present‑Petition dismissed by Labour Court fair that reason.‑‑labour Court, held, could examine petitioner on oath‑Dismissal, held. not justified‑ Order of Labour Court set aside by Appellate Tribunal on appeal and case remanded. Mirza Muhammad Kazim for Appellant. Abdul Hadi Farid for Respondent. Date of hearing : 22nd January, 1981. The appellant preferred a grievance petition under section 25‑A, I. R. O., to the learned IVth Labour Court, against his dismissal from service by the respondent establishment. The grievance petition was fixed for hearing on 16tb October, 1980, for filing of affidavit in evidence by the appellant. Although the appellant was admittedly present in Court on the said date, the affidavit in evidence was not filed in spite of the appellant being given opportunity to file the affidavit during the course of the day. 1t was submitted before this Tribunal by Mr. Mirza Muhammad Kazim, the learned counsel for the appellant, that the inabi lity of the appellant to file his affidavit in evidence on the date in question was due to the fact that though the affidavit was duly prepared by his representative, but because of the unavoidable absence of the representa tive, the affidavit could not be filed in Court. In support of this contention, the learned counsel has filed the affidavit of Mr. Nazeer Jan, who was the Representative of the appellant in the learned Labour Court. In his affidavit, the learned Representative has asserted that though he had prepared the affidavit in evidence of the appellant and had promised the appellant that he would reach the learned Labour Court with the affidavit, he was unable to appear in Court due to sudden illness of his daughter.

2. The learned Labour Court has not specified the provisions of law under which the appellant's grievance petition was dismissed in spite of the fact that the appellant was present in Court. Even, if it be assumed that appearance in Court by a party means not mere physical presence in Court but being able to pursue his matter and to comply with any direction given by the Court, the question that arises is whether the failure on the part of the appellant to file his affidavit in evidence should have given rise to the impugned order in question. No provision of law was cited before me by either Mr. Abdul Hadi, the learned Representative for the respondent establishment or Mr. Mirza Muhammad Kazim, requiring the party to only file affidavit in evidence. On the other hand, section 36, I. R. O., empowers a Labour Court to examine a witness on oath. As such, if the appellant was unable, by reason of the absence of his learned Representative, to file his affidavit in evidence, the learned Labour Court could have examined him on oath, even if it did not want to adjourn the case. As such, the mere failure on the part of the appel lant to ‑file his affidavit in evidence, when he could have been examined on oath by the learned Labour Court, does not justify the dismissal of the appellant's grievance petition. No doubt, the appellant could have A filed an application for the restoration of his grievance petition, but the mere failure to do so, does not bar an appeal by him, since an appeal lies against a decision given under section 25‑A, I. R. O., and the impugned order dismissing the grievance petition of the appellant is to be deemed to be a decision under section 25‑A, I. R. O.

3. In the result, I would set aside the impugned order of the learned Labour Court, and remand the case to the learned Labour Court for giving one more opportunity to the appellant to adduce evidence in support of his grievance petition. Of course, if in spite of this opportu nity, the appellant fails or is unable to adduce evidence, the learned Labour Court would be fully justified in dismissing the appellant's griev ance petition.