' AJMAL MIAN, J.-This petition is directed against the order dated"' 9th December, 1981 passed by respondent No, 1 i,e, learned Sind Labour Appellate Tribunal in Appeals Nos, KAR-427 of 1981 and KAR-428 of 1981.
' The brief facts leading to the filing of the above petition are that respondents 3 and 4, who were workmen in the petitioners factory were dismissed from service by letters, dated 31st December, 1980 and 21st December, 1980 respectively. They filed Applications Nos, 10 of 1981 and 8 of 1981 under section 25-A of the I. R.
0. Before respondent No,
2. The above applications were resisted by the present petitioners. The cases were fixed for evidence of respondents 3 and '4 on 7th March, 1981 when the same were dismissed on the ground of want of ev dence. It is the case of respondents 3 and 4 that the affidavits of evidence were ready and the same would have been filed during the day as their Advocate was busy before some other Labour Court but the cases were dismissed early in the morning. Respondents 3 and 4 filed Appeals Nos, KAR-202 of 1981 and K AR-203 of 1981 before respondent No, 1 against the above order, dated 7th March, 1981 but the same were withdrawn on 6th May, 1981 on the ground that they had filed applications for the restoration of the above two applications before respondent No,
2. The above two applications for restoration were heard and dismissed by orders dated 16th May, 1981 (Annexures .1 and J) to the petition. Against these orders also respondents 3 and 4 filed above Appeals Nos, KAR-286 of 1981 and KAR-297 of 1981, respectively, which were dismissed on 6th August, 1981 on the ground of limitation. After that respondents 3 and 4 filed applications under the caption "information placed under section 38(3- a)" which were registered as Appeals Nos, 427 of 1981 and 428 of 1981, upon which the above impugned order was passed setting aside the aforesaid orders dated 16th May, 1981 and remanding the case to respondent No, 2 with the direction to decide the matter on merits. The petitioners being aggrieved by the above order have filed the present petition.
2. In support of the above petition Mr. Abid Hameed Puri learned counsel for the petitioners has urged that since under subsection (3) of section 37 of the I. R.
0. The order, dated 7th March, 1981 as well as orders, dated 16th May, 1981 had acquired the finality, suo motu revisional jurisdiction could not have been exercised by respondent No, 1, particularly as the order of dismissing the appeals as time barred on 6th August, 1981 was passed after hearing respondents 3 and 4.
' On the other hand Mr. M. L. Shahani learned counsel for respondents 3 and 4 has contended as follows :-
(i) That constitutional jurisdiction being discretionary jurisdiction, this Court will not press into service if it will not foster the cause of justice but will result in miscarriage of justice.
(ii) That since there was no right of appeal against the aforesaid orders, dated 16th May, 1981 dismissing respondents Nos, 3 and 4's applications for restoration of their main applications under section 25-A of the I. R.
0., suo motu revisional power could have been exercised by respondent No, 1.
(iii) That since the above orders, dated 16th May, 1981 were passed by respondent No, 2 on taking erroneous view of the law that it was not competent to restore the main applications as it would amount to reviewing of the order, respondent No, 1 could have corrected this error of law in exercise of suo motu revisional power.
3. Adverting to the above contention of Mr. Puri, it may be pertinent to refer to subsection (3) of section 37 and subsection (3-a) of section 38 of the I. R.
0. The former provides that any party aggrieved by an award given under subsection (1) or a decision given under section 25-A or section 34 or a sentence passed under clause (c) of subsection (5) of section 35 may prefer an appeal to Labour Appellate Tribunal within 30 days of the delivery or passing thereof and the decision of the Tribunal in such appeal shall be final ; whereas the latter provision which was enacted by Ordinance No, IX of 1977 lays down that the Tribunal may, on its own motion at any time, call for the record of any case or proceedings under the Ordinane in which a Labour Court within its jurisdiction has passed an order, for the purpose of satisfying itself as to the correctness, legality or propriety of such order, and may pass such order, in relation thereto as it thinks fit, provided before revising or modifying any order adversely affecting any person, such person is to be given a reasonable opportunity of being heard.
From the plain reading of the above two provisions of the I. R.
0. It is evident that if an appellate order acquires the finality under subsection (3) of section 37, it cannot be reviewed in exercise of suo motu revisional power under subsection (3-a) of section 38 as the suo motu revisional power is only relatable to an order passed by a Labour Court within the jurisdiction of the Labour Appellate Tribunal. In other words, the Appellate Labour Tribunal cannot review its own appellate order in exercise of suo motu revisional power. The basic question therefore, in the present case is, as to whether factually respondent No, 1 reviewed the appellate order which had acquired the finality or in fact had revised the order passed by the Labour Court within its jurisdiction. As pointed out hereinabove that the appeals filed against the orders, dated 7th March, 1981 were withdrawn by respondents Nos, 3 and 4 on the ground that they had filed applications before respondent No, 2 for the restoration of their main applications. The above withdrawal order, therefore, cannot be said to have acquired the finality in terms of subsection (3) of section 37 of the I. R.
0.
4. We are, therefore, left with the order dated 6th August, 1981 passed by respondent No, 1, whereby the appeals filed by respondents 3 and 4 against the orders, dated 16th May, 1981 were dismissed in limine on the ground that the same were time-barred. It may be observed that much can be said on the question, whether an order dismissing an appeal on the ground of limitation and not touching upon the merits of the case will be an order within the purview of subsection (3) of section 37 in order to acquire the finality, but in our view it is not necessary to go into the C above question as the respondent No, 1 has held that no appeal was competent against the above orders dated 16th May, 1981 and therefore the filing of the appeals by respondents 3 and 4 and their dismissal in limine on the ground of limitation will be of no legal consequence.
Mr. Puri learned counsel for the petitioners is unable to canvass at the Bar that the above appeals were in fact competent. As a matter of fact this position was not even agitated before respondent No,
1. In this view of the matter, the above order dated 6th August, 1981 cannot be said to be an order passed in an appeal which would have acquired the finality in terms of subsection (3) of section 37 of the 1. R.
0. There cannot be any dispute that under subsection (3-a) of section 38, respondent No, 1 was competent in law to exercise suo motu revisional power in respect of an original order passed by a labour Court situated within its jurisdiction. The orders dated 16th May, 1981 were passed by Labour Court which was subject to the revisional jurisdiction of respondent No, 1.
' Mr. Puri has vehemently urged that a party cannot be allowed to sleep over the matter and thereafter to invoke the suo motu revisional jurisdiction. To put it precisely, his contention was that respondents Nos, 3 and 4 having made their above Appeals Nos, KAR-286 of 1981 and KAR-297 of 1981 time-barred, could not have circumvented the bar provided in subsection (3) of section 37 by pressing into service suo motu revisional jurisdiction contained in subsection (3-a) of section 38.
The above contention would have force and we might have inclined to agree with the above submission but as pointed out hereinabove the above appeals were not competent and, therefore, the above order, dated 6th August, 1981 dismissing the appeals as being time-barred is of no legal consequence. The provisions of subsection (3-a) of section 38 has been incorporated with the object to give power to respondent No, 1 to rectify miscarriage of justice in a fit case without any constraint. In the present case respondents Nos, 3 and 4's applications for restoration of the main petition under section 25-A were dismissed as observed hereinabove on the ground that respondent No, 2 was of the view that it would amount to reviewing of its own order, dated 7th March, 1981 which was not permissible.
5. Mr. Shahani has referred to the case of Grindlays Bank Limited v. Central Government Industrial Tribunal and others 1, in which the Indian Supreme Court held that setting aside ex parte order is a procedural review and not review on merits and an Industrial Tribunal is competent to set aside its ex parte award if it is satisfied that the aggrieved party was prevented from appearing by sufficient cause.
We are also inclined to hold that a Labour Court is competent to set aside an ex parte order or an order of dismissal of an application in default ' if sufficient cause is shown by a party. In the present case respondent No, 1 has set aside the above order, dated 16th May, 1981 and remanded the case to respondent No, 2 with the direction to decide the matter on merits. It has been rightly pointed out by Mr. Shahani that the question, whether respondents Nos, 3 and 4 had sufficient cause to get the above order, dated 7th March, 1981 set aside will be still in issue before respondent No, 2 as respondent No, 1 has not set aside the above order, dated 7th March, 1981.
6. Before parting with the discussion, we may refer to our own judgment on the construction of subsection (3-a) of section 38, namely, the case of Messrs Norwich Union Fire Insurance Society Ltd, v. Muhammad Javed Igbal and another . The relevant portion is contained in para. 6 of the judgment, which reads as follows :- "6. We are inclined to agree with Mr. Syed Iqbal Ahmed that a party cannot file a revision under section 38(3-a) of the I. R.
0. As a matter of right and, therefore, if the Sind Labour Appellate Tribunal would have dismissed the respondent No, l's above appli- cation under the above provision as misconceived, he would have no cause of action for agitating the above question through a Constitutional Petition..
However, the question in issue is, whether the Tribunal having jurisdiction to exercise suo motu revisional power has exercised the said powers though upon an application filed by a party can be said to have acted without jurisdiction. We are also inclined to hold that the learned Sind Labour Appellate Tribunal cannot entertain a revision application under section 38(3-a) of the I. R.
0. As a matter of course but at the same time we are of the view that if the Sind Labour Appellate Tribunal on receipt of information even from a party through an application comes to the conclusion that a case for exercise of suo motu revisional power has been made out and that it would foster the cause of justice instead of resulting in miscarriage of justice, it can exercise the sua motu power. We cannot read any restriction on the power of the Sind Labour Appellate Tribunal of the nature which has been canvassed by the learned counsel for the petitioner. The learned Sind Labour Appellate Tribunal in the instant case has found as a matter of fact that the dismissal order on the respondent No, l's application under section 25-A of the I. R.
0. And subsequent restoration application were not justified. After having held that, it exercised the power vested in it. In our view, no exception can be taken to the exercise of the aforesaid power."
We still adhere to the view expressed by us in the above-cited judgment. We are, therefore, of the view that the impugned order cannot be said to be without jurisdiction or in excess of jurisdiction warranting interference by this Court, in exercise of constitutional write jurisdiction.
7. The petition is, therefore, dismissed but there will be no order as to costs.
1 1985 P SC 21 PLD 1984 Kar. 319