The applicant/appellant challenged the order dated 24/6/2013 passed by -Learned Labour Court 1st Quetta wherein application for restoration of petition was dismissed; hence this appeal.
2. For disposal of this appeal facts in brief according to application under Section 41 of BIRA, 2010 are that the appellant was appointed by Respondent No, 1 in the year 2000 as helper at power plant being maintained and run by Habibullah coastal power plant. It is further stated that on 25/4/2012 show-cause notice was issued by the general manager human rights resources alleging that the appellant/applicant purred water into meal in kitchen of dining hall and destroyed the meal. By this act committed misconduct and after inquiry when appellant/applicant recorded his statement staled that he has not committed any misconduct and pray for his reinstatement declaring the termination order illegal and unlawful.
3. After notice respondents filed their rejoinder wherein categorically denied the claim of appellant/applicant. It is further stated that during the course of proceedings neither appellant nor his counsel attended the Court due to lack of communication with his counsel and resultantly the grievance petition was dismissed on 4/6/2013 for non-prosecution. It is also stated that the case of appellant/applicant was dismissed on 4/6/2013 and a review application was filed supported by affidavit of counsel of appellant which was too dismissed on 24/6/2013 for nonappearance and on the point of jurisdiction i,e, that the trial Court has no review power.
4. It will be pertain to mention here that after admission of instant appeal the process of respondents served properly and learned counsel for Respondent No, 2 appeared and filed Vakalat Nama whereas after second process Respondents No, 1 & 3 proceeded ex-parte on 17/9/2013 but on 19/9/2013 the learned counsel for Respondents No, 1 & 3 filed application for recalling the ex- parte order dated 17/9/2013 and after notice the said ex-parte order was recalled on 26/9/2013.
5. The learned counsel for appellant contended that absence of appellant and his counsel was neither intentional nor deliberate but due to lack of communication. Secondly contended that no opportunity of hearing was provided to the appellant. Lastly contended that the relevant law applicable in the instant matter has neither been applied nor appreciated in accordance with law rather the fact has not been appreciated. The learned counsel for Respondent No, 1 & 3 at the very outset raised an objection with regard to limitation of filing appeal before this Tribunal. Secondly contended that the main grievance petition was dismissed for nonappearance on 4/6/2013 whereas in instant appeal the dismissal of review application dated 24/6/2013 has been challenged which is not competent. The learned counsel for Respondent No, 2 adopted the arguments of learned counsel for Respondent No, 1 & 3.
6. In the light of arguments advanced by the learned counsel for the parties, available material on record and relevant laws the following points needs considerations for disposal of this appeal.
(i) Whether appeal before this Tribunal has been filed within prescribed time or otherwise than whether CMA 20/2013 application under Section 5 of Limitation Act for condonation of delay is applicable on the ground of sufficient cause?
(ii) Whether without challenging the order dated 4/6/2013 the instant appeal is maintainable or otherwise?
(iii) Whether the Learned Labour Judge rightly exercised its jurisdiction under Order ix Rule 9 of CPC?
7. From perusal of record it reveals that impugned order was passed on 24/6/2013. The application for obtaining certified copy was submitted on the same day which was prepared and delivered to appellant on 25/6/2013. Appeal before this Tribunal was filed on 28/8/2013. According to Section 54
(2) of BIRA, 2010 thirty days are allowed for filing of appeal after delivery of certified copies. Meaning thereby the instant appeal was filed after more than two months which is apparently hopelessly time-barred. An application under Section 5 of Limitation Act for condonation of delay is also accompanied with the instant appeal wherein the ground for condonation of delay has been disclosed as under: "That the case of the appellant at present stage is of great value which is based upon, good _grounds and facts, the delay of the appellant and his counsel was due to non-communication the appellant had some urgent work and needed his attention towards it, and thereafter the vocations of Ramzan and Eid-Ul- Fitar came and the appellant was unable to communicate with his counsel"
In support of the above application the learned counsel relied upon a judgment reported in 1985 CLC 1063 which is not helpful to him for the reason that the fact and circumstances of referred judgment are quite different to the matter in hand. In the case of referred authority the plaintiff was seriously handicapped by his illness and was admitted in hospital, this by itself if proved was sufficient ground offered in support of plea of the absence on the date fixed but here in the matter in hand the main ground is lack of communication and due to some other works of appellant but the nature of other works has not been mentioned nor any other certificate or documents has been accompanied..
8. It is general principle that when the party engages counsel and both failed to appear on the date fixed for hearing explanation for the absence of both i,e, party and the counsel showing as has to be given to why they did not appear on the date fixed but in instant case no such reason has been stated except lack of communication. It is also settled principle that petitioner can squarely be made responsible for the negligence of his own counsel. Therefore when there was no explanation offered for the absence of the counsel on the fateful date the trial Court was justified in disallowing the prayer for restoration of the petition. The learned counsel for appellant referred another reported judgment in PLD 1969 Supreme Court 270 but it is too not helpful for the reason that in referred authority evidence in case was concluded and matter fixed only for arguments wherein provision of Order 9, CPC not attracted but case in hand was fixed for arguments on Issue No, 1 and due to nonappearance of petitioner and his counsel petition was dismissed. After filing of review application, notices were served and the counsel for respondents appeared and the Learned Labour Court waited for petitioner and his counsel till last time of Court hours and then dismissed the review application and observed at Page No, 1 as under: "After service of notice they appeared before the Court case called several times, but none was present on behalf of petitioner. In the interest of justice the application for restoration of petition kept pending till 12:15 afternoon. Again the case called the counsel for Respondents No, 1 & 3 Mr. Kaleem-Ullah Quresh Advocate and counsel for. Respondent No, 2 Mr. Abdul Sattar Khan Advocate are in attendance, but situation is same on behalf for petitioner, neither petitioner nor his counsel appeared, though called several times keeping the matter pending."
Before concluding the order impugned at page No, 4 it is observed: "After hearing the arguments, I once again go through the main case in very detailed. It is proved from the proceeding that on single date of hearing the petitioner never has attended the Court and from 6/3/2013 up to 21/5/2013, none was appearing before the Court, however in the interest of Justice and with the consent of counsel for respondents opportunity was granted. Lastly on 4/6/2013, the case was dismissed in none interest"
Lastly held as under: "Keeping in view the aforementioned discussion, facts and legal position. I am in the opinion that the petitioner and his counsel are not taking interest in the case and today they again remained absent from the Court, whereas, the application was kept in pending and called several times. The application for restoration of petition is dismissed in default and in none interest"
In view of above discussed material and referred authorities no sufficient ground has been mentioned in application under Section 5 of Limitation Act. Therefore the same is rejected. Meaning thereby neither sufficient ground has been mentioned in application under Section 5 of Limitation Act nor instant appeal has been filed within 30 days after delivery of certified copies as prescribed under Section 54 (2) of BIRA, 2010.
9. The learned counsel for Respondents No, 1 & 3 raised objection that without challenging the order dated 4/6/2013 wherein the petition was dismissed the impugned order on review application is not maintainable. From prayer clause of instant appeal it appeared that it is prayed that the impugned order dated 24/6/2013 passed by Presiding Officer Labour Court first Quetta may be set aside and grievance petition of the appellant be restored. It is un-understandable that the appellant has not challenged the order dated 4/6/2013 wherein main petition was dismissed and instead of appeal he filed review application. However in the interest of justice such technicalities cannot come in the way of filing instant appeal but again it appears that the order dated 4/6/2013 was also hit by provision of Limitation Act.
10, Coming on third and last point for consideration whether the Learned Labour Judge rightly exercised its jurisdiction under Order IX Rules 6 & 9 of, CPC or otherwise. Under Rule 6 of Order IX, CPC it is clear where only plaintiff appears and defendant does not appear when the suit is called on for hearing then the Court may proceed ex-party [and pass decree without recording evidence'.
Whereas Order IX, Rule 9 provide remedy for restoration of suit. Apparently the order dated 4/6/2013 was appealable but a review application has been filed and it was for the petitioner to request to convert review application into appeal or to approach the higher forum but unfortunately neither petitioner nor his counsel was present to do the needful.
11. In addition to above point it is settled principle of law that exercise of power of dismissal of suit/petition cannot be used on temporary fixed date rather the same can be exercised at the time of "hearing'. The term hearing has not been defined in the Code of Civil Procedure. This word has received restricted meaning perhaps out of natural anxiety of Courts to ensure that cases are decided on merits. Law, lexicon Wharton define the "hearing' as an investigation of a controversy. In a- reported judgment in .2010 CLC 807 the Word "hearing" has been explained as under,
(a) A date fixed for hearing of final arguments on the subject matter.
(b) A date fixed for evidence.
(c) A date fixed for framing of issues.
Admittedly the date 4/6/2013 was fixed for arguments on Issue No, 1 whereof the petitioner failed to appear. Therefore the petition was dismissed on a fixed date for arguments on Issue No,
1. It is further in the same CLC at page 1039 it is held, "Date fixed for settlement of issue is a date of hearing and in absence of plaintiff the suit would be dismissed in non-prosecution"
In view of discussion made hereinabove in the light of arguments of counsel of parities, available material on record and relevant laws the instant appeal has no force and the learned counsel for appellant did not point out any irregularities and illegalities in order impugned. Therefore order impugned dated 24/6/2013 passed by first Learned Labour Judge is upheld. Consequently appeal is dismissed with no order as to cost.
12. The copy of order along with original record of trial Court be sent to-trial Court. Case after completion be consigned to record.