1998 PLP 447 (PLC)

MUHAMMAD ZAMAN QURESHI (CHAIRMAN).

Through this appeal, order dated 17-5-1995 passed by Agha Saleem Khurshid, Member-1, National Industrial Relations Commission has been assailed, whereby order dated '15-11-1994 was recalled and the application of the appellant/respondent was dismissed.

2. The facts of the case are that Muhammad Safdar, LS.I. filed petition under section 22-A(8)(g) of the Industrial Relations Ordinance, 1969 on the allegations of unfair labour practice praying that the charge-sheet dated 21-1-1993 issued to him, be set aside. Notice of the application was sent to the appellant for 21-2-1993, on which date no one appeared on behalf of the appellant/respondent and the then Member, Dr. Munir Ahmad Mughal, set aside the charge-sheet ex parte. The appellant filed an application for setting aside the ex parte order on the ground that notice for appearance on 21-2-1993 was not communicated to them due to which the appellant had not appeared on 21-2-1993. A notice of the application was given to the respondent. Vide order dated 15-11-1994, Agha Saleem Khurshid, Member-I, set aside the ex parte proceedings and the case was posted for 22-12-1994. However, on an application made by the counsel for the respondent/petitioner, a notice of that application was sent to the appellant/respondent, for 7-12-1994 and thereafter, vide order dated t7-5-1995, earlier order dated 15-11-1994 was recalled, hence this appeal.

3. It was contended by the counsel for the appellant that the petitioner was issued charge-sheet on the allegation of receiving illegal gratification from 41 villagers under Pakistan WAPDA (Efficiency and Discipline) Rules, 1978. He filed a petition in the Commission on 11-2-1993. The case was taken up by the Single Bench on 14-2-1993 and a notice was sent to the appellant/respondent to appear on 21-2-1993. The notice was despatched by the office on 20-2-1993 and was received by the appellant on 24-2-1993 and therefore, by an ex parte order, the petition was accepted. On an application made, the said order was set aside by the Single Bench on 13-11-1994. The case was fixed for 22-12-1994 for decision on merits. That date was changed to 7-12-1994 in the absence of the appellant. The case was, thereafter, adjourned from time to time as no proceedings were taken. Since the learned Member was not available on 22-12-1994, the case was adjourned to 22-1-1995. Thereafter, no date was fixed and strangely vide impugned order dated 17-5-1995, the learned Member recalled the earlier order dated 15-11-1994. The Single Bench had no authority in law to review the earlier order, particularly in the absence of the appellant.

4. While addressing the arguments, the learned counsel for the respondent said that the appeal was time-barred and that the order dated 15-11-1994 was obtained in the absence of the respondent ex pane and therefore, on an application trade by the respondent, it was recalled. He further urged that the respondent was performing his duties on construction of lines and not in office, and therefore, he being a workman could seek remedy under section 22A(8)(g) of the I.R.O., 1969. He was victimised on account of his trade union activities and the Single Bench rightly set aside the charge-sheet.

5. After consid6ring the arguments and perusing the record, it is observed that notice 'Mark-A' was issued from this office on 20-2-1993 requiring the Chairman, Area Electricity Board, WAPDA, Gujranwala, appellant, to appear on 21-2-1993. Naturally, therefore, the appellant could not appear on the date when the ex parte order was recorded by the then Member setting aside the charge-sheet. However, vide order dated 15-11-1994 that order was set aside on the sole ground that notice was not served upon the appellant in time. Yet by another order dated 17-5-1995, impugned through this appeal, that order was recalled behind the back of the appellant. According to the order sheet, learned Member on 19-12-1994 adjourned the case for 20-12-1994, and directed that the process be repeated to the respondent. The case was then taken up by the Reader on 20-12-1994, as the learned Member was not available, and posted it for 22-1-1995 and thereafter, no proceedings were taken till the impugned decision was passed in the absence of the appellant on 17-5-1995. Thus, the impugned order is not sustainable under the law because the learned Member had no authority to recall the order earlier passed by him. The impugned order is not maintainable on the reasons recorded in the absence of the appellant.

6. The objection taken by the respondent that the appeal is time barred is not tenable because after obtaining the copy on 15-6-1995, the appeal was filed on 18-6-1996, which on the face of it, is in time.

7. For the reasons discussed above, the appeal is accepted, impugned order dated 17-5-1995 is set aside and the case is remanded to the Single Bench for fresh decision after issuing notice to both the parties. H.B.T./301/N.I.R.C. Appeal accepted.