DECISION ' This appeal is directed against the order passed by the learned Third Labour Court on 5th November, 1980, dismissing the appellant's grievance petition, made under section 25-A,
1. R.
0., on the ground of his absense from the Court on the date of hearing. Another ground which weighed with the learned Labour Court in dismissing the grievance petition was that during the past three months, the appellant had applied for adjustment on six or seven occasions.
' Mr. M. L. Shahani, the learned counsel for the appellant has assailed the impugned order on the ground that he was himself present on the date when the appellants grievance petition was dismissed in default. He further submitted that he had filed an adjournment application but the same was dismissed by the learned Labour Court on insufficient ground. It may be pointed out that the hearing at which the appellant's grievance petition was dismissed was fixed for the appellant's cross-examination. The appearance of the appellant, therefore, was necessary if the case was to be proceeded. In his application to the learned Labour Court Mr. Shahani had submitted that as the appellant was indisposed the Court may be pleased to grant a short adjournment. No doubt, the application was not accompanied by medical certificate regarding the appellant's illness but if the learned Court was not prepared to place implicit reliance on the learned counsel's assertion that the appellant was ill, at least an opportunity should have been given to him to substantiate his assertion, No such opportunity, however, appears to have been given by the learned Labour Court.
The learned counsel for the appellant at the time of this appeal had filed a medical certificate, from a registered medical practitioner showing that the appellant was ill and under doctor's treatment from 3rd November, 1980 to 6th November, 1980 which includes the date on which the appellant's grievance petition was dismissed for his non-appearance. The respondent's have filed a lengthy counter-affidavit but had not challenged the contention of the appellant regarding his illness and his consequent inability to attend the Court on 5th November, 1980. I am, therefore, inclined to believe that the appellant, by reason of his illness, was unable to attend the Court of the learned Labour Court on 5th November, 1980.
3. Mr. Syed Tariq Ali, the learned counsel for the respondent, however, raised a two-fold objection to the maintainability of the present appeal. His first contention was that an appeal lies against the decision of a Labour Court under section 25-A, I. R. O., but as the impugned order was not given on merits of the case but on account of the absence or default of the appellant, the said order would not appear to be a decision and, therefore, is not appealable. The short answer to this contention is that by the impugned order the learned Labour Court had dismissed the grievance petition of the appellant and, therefore4 whether the order was passed on merits or on technical ground it amounted to a decision under subsection (4) of section 25-A, I. R.
0. It may be pointed out that the term "decision' as used in the I. R.
0. Has not been defined. Furthermore, as provided in subsection (4) of section 25-A, I. R.
0., the Court is required to give decision on the grievance petition brought by a worker. It does not require that the decision must be on merits. A person aggrieved by the decision, therefore, I would repeat whether the decision is on merits or otherwise, would be entitled to file an appeal under subsection (3) of section 37. I. R.
0. To hold otherwise would mean that grievance petitions which are dismissed on preliminary objections such as that the applicant is not a workman or that the Standing Orders are not applicable to an establishment or that the grievance petition has not been filed within the prescribed period or in the prescribed manner would all become non-appealable. This could not, obviously, be the intention of the Legislature.
4. It was next contended by Mr. Syed Tariq Ali that the appellant should have submitted an application to the learned Labour Court for setting aside the orders of the dismissal of his grievance petition. No doubt, such an application could have been tiled in the instant case.
However, the failure on the part of the appellant to do so for whatever reasons would not disentitle him to file an appeal to this Tribunal nor4, can his appeal be rejected merely on that account, specially as subsection (3) of section 37, I. R.
0., entitle a person aggrieved by a decision to; file an appeal to this Tribunal.
5. For the reasons discussed by me above, I would set aside the impugned order of the learned Labour Court and demand the case to it with the direction to proceed from the stage it was before the passing of the impugned order, namely from the stage of the cross-examination of the appellant. . Case remanded.