1989 PLP 990 (PLC(CS))

‑‑‑Ss. 25‑A, 36 & 38(3)‑‑Civil Procedure Code (V of 1908), O.VII, R. 10 & OXVII, R. 1‑‑Grievance petition‑-Adjudication of‑‑Practice and procedure‑ Preliminary issue requiring evidence‑‑Labour Court's order for evidence in entire case instead of only on preliminary issue as prayed by petitioner was not found incorrect‑‑Petitioner raising plea that written statement was not verified by person who could be considered as employer hence no written statement would be deemed to have been filed and therefore, petition be allowed‑‑Labour Court after hearing parties held that question whether person verifying written statement was an employer or not could be determined only after evidence was recorded as it was a question of fact‑‑Petitioner was directed to file affidavit in evidence in support of his petition failing which his petition was dismissed by Labour Court‑‑Decision impugned‑‑Held: Petitioner workman had wrongly insisted decision on preliminary issue first and it was not proper for him to dis obey order of Labour Court and not to file affidavit‑in‑evidence in support of his petition‑‑Appeal dismissed in circumstances. Appellant in person. Date of hearing: 20th November, 1988. Appellant Tehzeebul Hasnain Zaidi present in person.

2. The appellant had filed a grievance petition before the learned Labour Court complaining against the promotion of some persons, Junior to him and had prayed that he may be declared senior and fit for promotion in comparison to Zafar Haider, Kh. Najeebuddin and Kamal, who had been illegally promoted. The grievance application was resisted by the employer on the ground that promotion was not vested right and that the said persons were found fit for promotion by the departmental promotion committee.

3. The appellant had contended before the learned Labour Court that the written statement was not verified by the person who could be considered as an employer and as such, it may be held that no written statement had been filed and, therefore, his grievance application be allowed. After hearing the parties, the learned Labour Court, vide its order, dated 6‑8‑1988, held that the question as to whether the person, who had verified the written statement was or was not an employer, was a question of fact, which could be determined only when the evidence was recorded. He accordingly dismissed the Miscellaneous application of the appellant, under Order VIII, Rule 10, C.P.C., and directed the appellant to file an affidavit‑in‑evidence in support of his grievance application. The appellant, however, failed to file any affidavit‑in‑evidence, but, moved an application under Rule 1 Order XVII, praying that such preliminary issue be framed and decided, but, this application was dismissed by the learned Labour Court with the direction that the appellant should file his affidavit‑in‑evidence by the next date of hearing. On the said date also, the appellant did not file any affidavit‑in‑evidence, but, prayed for adjournment which application was dismissed by the learned Labour Court and consequently, his grievance application was dismissed on 3‑9‑1988, for want of evidence hence, this appeal.

4. In view of the learned Labour Court that when the preliminary issue required recording of evidence, the evidence in the entire case be recorded, does not appear to be incorrect. The appellant had wrongly insisted on decision on preliminary issue first. It was not proper for him to disobey the order of the Court and not to file affidavit‑in‑evidence. I find nothing wrong with the order. The appellant was provided opportunity to lead evidence, which he failed to avail. As there was no evidence recorded, the grievance application was rightly rejected by the learned Labour Court. There is no merit in this appeal which is dismissed in limine. A.E./1347/Lb. S Appeal dismissed.