MUNAWAR HUSSAIN TOORI, MEMBER.----These two miscellaneous applications have been filed by the applicant/appellant bearing No 7A(195)/2022-L, praying for recalling/ setting aside the order dated 15.09.2020 of Full Bench of this Commission in Original Appeal No.12T(666)/2016-L dismissing the appeal for non-prosecution. The second Application bearing No. 7A(196)/2022-L has been filed praying for condonation of delay in filing miscellaneous application for recalling the order referred supra.
2. On promulgation of IRA, 2012, the cases of trans-provincial establishments which were pending before the Labour courts/PLAT were transmitted to the Single Bench/Commission as well as to the Full Bench N.I.R.O respectively. The case of the applicant was also pending before the PLAT, Lahore and was fixed before full bench for hearing and disposal.
3. That the applicant averred in his application that the main appeal was fixed on 12.11.2019 for hearing and same was adjourned to 31.12.2019. On 31.12.2019, the Full bench was not available and even same situation was on the date 16.03,2020. The appeal was further adjourned by the Reader for 18.08.2020, and on the said date the Full Bench was not available again and appeal was adjourned to 15.09.2020 and this was the date on which the appeal was dismissed due to non- prosecution as no one appeared on behalf of applicant/appellants; that on 05.09.2022 the dismissal of the appeal came to knowledge of the applicant when he approached the commission for the fixations of his appeal. On 07.09.2022 certified copy of the order was applied; applicant impugned the order on same day through instant applications without any delay, which is with in time.
4. Arguments heard and record perused.
5. Prior deciding instant applications, a question arises in our mind that whether a restoration application can be decided on the preliminary hearing without serving notice to the other party. In order to address this query, we need to look into the circumstances and facts of the case to decide it on its own merits. This is an established principle of natural justice that no one should be condemned unheard this is true where it is likely that the other party may suffer irreparable loss if it is left unheard, conversely, where prima facie case and balance of inconvenience lies in favour of the applicant as well as no valuable right of the opposite party Withers away or no injustice is done to the other party, under such circumstances the matter can be decided on the basis of available record especially where technicalities may defeat the ends of justice. Considering the matter in hand, the main controversy among the parties should be decided on merits in order to meet the ends of justice rather either of the party be knocked out and deprived of its valuable rights permanently. Deciding the instant application on this preliminary stage without serving notice does not harm or infringe any valuable right of the opposite party as the main appeal under which the rights and obligations of the parties can be determined, has been dismissed for non prosecution rather on merits.
6. Now the question of limitation arises whether the instant applications have been filed with in time or hit by limitation? While computing the period of limitation prescribed for filling of an application is 30 days from the date of pronouncement of order or the date of knowledge, the day on which the impugned order pronounced, and the time requisite for obtaining a copy of the order, impugned, or sought to be reviewed, shall be excluded. The original record requisitioned by this Full Bench and perused the same which reflects that admittedly, the applicant/appellant applied for certified copy of the order dated 15.09.2020, on 07.09.2022 and accordingly was delivered to applicant on the same day and finally the instant application filed on same day too. Admittedly, it is transpired from the record that the main appeal bearing No. 12T (666)2016-L was fixed on 12.11.2019 for hearing and same was adjourned to 31.12.2019 on the date fixed. That on 31.12.2019, 16.03.2020 and 18.08.2020 the Full bench was not available, and the reader of the bench adjourned the cases. The order sheet of the appeal further shows that when the matter was listed on 18.08.2020 the adjournment was granted by the reader rather than judicial officer/Member and was further adjourned to 15.09.2020 even by the office of the Reader without marking of any attendance of the parties by only stating that "Full Bench is not available is adjourned to 15.09.2020.". On 15.09.2020, the Full Bench held the session and dismissed the appeal due to non- prosecution. When there was no attendance of either party marked at order sheet/Note sheet of previous dates and nor served any notice for date fixed, then inference can be drawn that applicant or his counsel have no knowledge about the fixation of the appeal for the said date. If we consider the previous conduct of the applicant and his counsel from the record it is found satisfactory, they kept on appearing before this Commission on various dates as shown in the earlier orders of this Commission, it cannot be inferred that they were not vigilant Learned Counsel for the applicant/appellant were unable to attend the court and was prevented by sufficient cause as they were unaware about the fixation of the appeal and record also reflect that no proper procedure was adopted by the office to convey about the fixation of the appeal; even no order is placed on file which reflect the issuance of the notices to the, parties. It was obligatory to the bench that when it is clearly reflects from the order sheets that since long the bench was not in session and previous order sheet/office note was written by the Reader of the bench, which itself even not reflecting that either party was in attendance on the said dates, fresh notice should be issued to the to the parties in the interests of justice prior dismissing the same on default. Effective hearing of any case/appeal would be the one on which the arguments of the parties are to be advanced/heard. The Court/Commission is under an obligation to ascertain in the first instance that the parties should have been properly served with the notice. It is evident from the record that the appeal had been fixed for several dates and the full bench was not available and reader of the Full bench himself adjourned the cases. From the above discussion, it can be concluded that the applicant's plea seems to be true about the knowledge of the dismissal of the appeal. Therefore, the instant application for restoration filed on 07.09.2022, is being considered well within Thirty days
(30) from the date of knowledge.
6(sic). An Application No. 7A (196)/2022-L for condonation of delay in filing of application for restoration of more than 21 months, and explains inability for non-appearance on the day fixed (15.09.2020). The contents of the application were also supported by two affidavits, one is of the applicant, and the second affidavit is filed by the counsel of the applicant.
7. Ultimately, now we come to the main application for restoration, whether there has been a sufficient cause in the instant application or not? Admittedly, the appeal can be dismissed for non- appearance of the appellant at any stage: it can be dismissed in limine if the Court/Commission is not satisfied that a prima facie case is made out. The appellant having notice/knowledge about the fixation of appeal but did not appear the date fixed, the court may make an order that the appeal be dismissed. The dismissal of appeal at this stage is also discretionary and according to the situation. It cannot be disputed that in the case before us the order of dismissal was not made after fulfillment of all codal and legal formalities including notices and the same has not been ordered by the Commission and not served by the office to the applicant neither his counsel. It was obligatory when it is clear that the adjournments were granted by the Reader of the Commission without marking any attendance of the parties, in this situation the commission should have issued notice to the appellant afresh by fulfilling the principle of natural justice that once the appeal crosses the hurdle of preliminary hearing and same has been admitted for regular hearing the same should not be heard and decided without the service to the parties as well as their counsel.
The conclusions we have reached, therefore, is: Firstly, that it was the duty of the Commission to ascertain that the appellant has been served the notice duly: if not then the appeal should have not been dismissed for non-prosecution. Secondly, no act of court shall prejudice any party. The court/commission is under obligation to reverse the wrong done to a party by the act of court/commission, which is an elementary doctrine and tenet to the system of administration of justice. Reference can be place on reported judgment 2023 SCMR 334 titled, Abdul Qudoos v.
Commandant Frontier Constabulary, KPK Peshawar and another.
8. The superior Courts categorically discouraged the adjournments which are granted by the court staff/Readers. The Reader of the courts/Commission has no power to adjourn the court proceedings it only rests with the courts/Commission. The adjournment can only be extended by the judicial officer/Member. Reference can be placed on reported judgments. Kumaran Co. and others v. Modern Motors and another, PLD 1990 SC 713 and another judgement of Lahore High Court Shafqat Karim v. Shaukat Karim 2006 YLR 293.
9. One of the reasons for allowing the applications for restoration of appeal is the affidavit of the learned counsel for the applicant and no doubt under routine circumstances such affidavits are not submitted by the counsels in support of their clients'. When a counsel submits affidavit for mentioning the reason of default of non-appearance, must be given due weightage by the Courts/Commission and it is presumed that the same is based on true facts. The applications for restoration and condonation of delay reflects that what was the sufficient cause which precluded him from filling said applications. The record of the case shows that office has not issued the notice to the applicant for the fixation of appeal. Affidavit of the counsel alone is sufficient to accept the plea of the counsel particularly when the record fully supports the version taken in the affidavit.
Normally the lawyers are vigilant with their professions and do not put their professional loyalties at stake to unfairly defend the interest of the clients. Reasons of non-appearance is also supported by affidavit of the learned counsel.
10. The chief concern of administration of justice is to help people provide proper opportunity and not to thwart the rights of the people on technicalities. The same must be avoided as law always does favour adjudication on merits rather than non-suiting the parties on technicalities and therefore, further opportunity should be granted to the applicant/appellant to contest appeal/case on merits. In this regard there are several judgments reported as (i) Imtiaz Ahmad v. Ghulam Ali and others (PLD 1963 SC 382), (ii) Salamat Bibi and others v. Settlement and Rehabilitation Commissioner Multan (PLD 1966 SC 467), (iii) Municipal Committee Rawalpindi through the Secretary Municipal Committee Rawalpindi v. Raja Muhammad Sarwar Khan (1968 SCMR 817), (iv) Muslim Commercial Bank Ltd. v. Tariq Saeed and another (2004 CLD 920), (v) Defence Housing Authority through Secretary and another v. Mst. Parveen Akhtar (2017 MLD 899), (vi)
Shaheen Ahmad Siddiqui v. Muhammad Yaseen Khan and others (2007 YLR 2007), (vii) Bahadur v. Jamat Ali and 6 others (1999 MLD 2429), (viii) Anwar Khan v. Fazal Manan (2010 SCMR 973), (ix)
Muhammad lqbal v. Sardar Khan (2012 MLD 1487), (x) Messrs National And Grindlays Bank Ltd. v. Arshad Ali Khalid Qureshi and another (PLD 1990 Karachi 436), (xi) Lt. Col. Mirza Munawar Beg and others v. Mst. Hassan Bibi and others (1981 SCMR 160). The adjudication of appeal on merit rather than on technicalities, be sufficient to say that the exercise of discretion in this regard entirely depends upon the facts and conditions of each case and this scheme cannot be applied as rule of thumb, the applicant/appellant has to adequately explain about absence on the date of hearing and any negligence will not absolve from the legal obligation to pursue the appeal vigilantly. In exercise of discretion, the courts/Commission, are required to keep cogent/balance in their approach by not allowing a litigant to misuse indulgence or concession. The appeal/prior matter in dispute to impugned order, more than three consecutive adjournments were granted by the Reader of the Bench and order sheets/office notes written by him are not showing the attendance of the parties which itself strengthen the plea of the applicant and his counsel that they were not aware about the fixation of the appeal on the date fixed, it transpired that there were no attendance at all from the parties.
11. For what has been discussed above, the counsel of the applicant has succeeded in satisfying this full bench establishing their inability to be present on the date fixed. Arguments advanced and plea raised in the application of condonation of delay are carry weight too. Both the miscellaneous applications are allowed, and the appeal of the applicant is being restored. We while allowing the Application bearing No.7A (196)/2022-L. for condonation of delay on the reasons narrated in para No. 6 of this order,' and treat the application filed within time by condoning the delay so occurred in filing of application and accept the application bearing No. 7A (195)/2022 and recalled the impugned order dated 15.09.2022 the main appeal bearing No 12T (666)/2016 has been restored at its original number and consequently the appeal is fixed before the full bench of this Commission to decide the same on merits in accordance with law and be placed on next date of hearing i.e. 05.07.2023 and let notice be issued to the parties as well their counsel in the main appeal for the date fixed. The instant file be consigned to record room after due completion.