' SALAHUDDIN MIRZA, J.---Petitioner Muhammad Noorul Amin had approached the Authority under the Payment of Wages Act, 1936, under section 15 of the said Act in respect of certain claims (Case No, 127/88 (15). Respondent No, 2, the employer, contested the same and filed legal objections and reply statement on 17-7-1988. Learned Authority framed the following issues:-
(1) Whether the application is maintainable?
(2) Whether the applicant is entitled to the amount claimed or any part thereof?
' The case was then fixed for hearing but respondent No, 2 and its counsel remained absent not only on one date but on eight consecutive dates, namely, 14-1-1989, 28-1-1989, 11-2-1989, 25-2-1989, 2-3-1989, 12-3-1989, 21-3-1989 and 28-3-1989. In spite of so many opportunities having been given to respondent No,2, it did not further contest the case after the framing of the issues with the result that on the aforementioned last date the Court proceeded ex parte against respondent No,2.
Petitioner was then asked to file affidavit in ex parte proof and on the basis of evidence before him and after hearing the petitioner (o his counsel) learned Authority partly allowed the application vide order dated 28-3-1989 whereby a sum of Rs,28,097 was awarded to the petitioner by way of notice pay and cost of living allowance but rejected the claim in so far as it pertained to the encashment of casual leave and sick leave because the Authority was of the view that such encashment was not permitted by law. Respondent No,2 still slept over the matter until 7-6-1989 when an application under Order 9, rule 13 C.P.C. Read with rule 8 (2) of Payment of Wages (Procedure) Rules was moved before the Authority under the Payment of Wages Act, West Division, Karachi, for setting aside the order dated 28-3-1989. As is clear from its date, this application was moved more than five months of 14-1-1989 when respondent No,2 absented for the first time in the case before the Authority and was later proceeded against ex parte. The affidavit of Mr. Arif in support of this application explained that he had engaged an Advocate (Mr. Siddique Mirza Advocate) who was incharge of the case but he abandoned the case without intimating him of his intention to do so with the result that he (Mr. Arif) remained ignorant that respondent No,2 had been proceeded against ex parte in the proceedings. This application came up for hearing before the Authority under the Payment of Wages Act on 28-8-1989 when it was allowed and the ex parte award was set aside in these terms:-- "However, since the applicant side remained absent on the date of last hearing, I hereby dismiss the objection raised by the applicant side, and restore the case for normal hearing."
' After so setting aside the award dated 28-3-1989, the Authority fixed the case for fresh hearing.
The petitioner has felt aggrieved from this order which is impugned in this Constitutional petition.
2. It is primarily the duty of a party to appear in person before a Court, specially when the proceedings are of a summary nature under the Labour Laws, and if any party engages a counsel or appoints an attorney, such party is usually responsible for the consequences arising out of the negligence of such counsel or attorney. It is, however, not an absolute rule that in every case the client must always suffer for the faults and defaults of his Advocate. There can be cases where a party may not be penalised for the negligence of his Advocate. Where a party has been vigilant and has taken all steps required to be taken by a party who engages an Advocate to represent him in a case and no fault, default or negligence can be attributed to him, the Court may not penalise him for the faults, defaults or negligence of his Advocate. Each case has to be decided on its facts. But, in the present case, respondent No,2 himself was negligent. Even after engaging an advocate, respondent No,2 was required to be vigilant and keep a track of the progress of the case before the Payment of Wages Authority. Nothing had been brought on record to show that respondent No,2 at all contacted his Advocate after he had been engaged to find out about the progress of the case and whether his presence was required before the Authority. In the circumstances, respondent No,2 could not take up the plea that the entire responsibility for the case proceeding ex parte against him lay upon his advocate I and respondent No,2 could not at all be blamed in this regard.
3. According to para. 5 of the affidavit in support of the application dated 7-6-1989, the Authority under the Payment of Wages Act, once the written statement had been filed and issues framed, could not proceed ex parte. It was, however, not indicated what course of action the Authority should have adopted after respondent No,2 elected to remain absent from the proceedings. In fact, under rule 8 (2) of the Payment of Wages (Procedure) Rules, the Authority can proceed ex parte against an employer if he or his representative fails to appeals before him on the date fixed for the hearing. Under the proviso to sub-rule 3 of rule 8, however, an employer can approach the Authority under the Payment of Wages. Act for setting aside an ex parte decision subject to the condition that good cause for doing so is shown to the Authority within one month of the date of the said order. In the present case, the first date on which respondent No,2 remained absent was 14-1-1989 and the final award was made by learned. Authority on 28-3-1989. As such, application for setting aside the same could have been filed at the latest by 28-4-1989. It was, however, filed on 7-6-1989. It was thus barred by time. Condonation of delay under section 5, of the Limitation Act is ruled out because section 5 of the Limitation Act is not applicable to the proceedings under the Payment of Wages Act. Besides, respondent No,2 had not even moved such an application before the Authority. Thirdly, no good cause had been shown by respondent No,2 for condoning his absence on as many as eight consecutive dates.
4. We are of the view that the application dated 7-6-1989 for setting aside the ex parte decision dated 28-3-1989 was devoid of any merit. The operating portion of the impugned order dated 28- 8-1989 which has been quoted above makes a very disconcerting reading. It does not bear any date, not even under the signatures of the Authority, and we assume its date to be 28-8-1989 merely because learned counsel for the parties state so at the bar. Moreover, this order shows that the ex parte decision of 28-3-1989 was set aside not because any good reason therefor had been shown by respondent No,2 but because the petitioner had remained absent "on the date of last hearing". This was hardly a rational and lawful justification for setting aside the decision of 28-3- 1989. Learned counsel for respondent No,2 referred to PLD 1978 SC 189 (Shamroz Khan v.
Muhammad Amin). We were specially referred to para-10 of that judgment at page 194. In Court view, reliance by the learned counsel on this judgment was misplaced. Besides, we also cannot fail to note that the Authority did not set aside the decision dated 28-3-1989. Instead it ordered that "I restore the case for normal hearing" as if the case had been dismissed in default. There was no question of restoring the case for normal hearing because it had not been, in the first place, dismissed for any reason.
5. For the reasons given above, the impugned order dated 28-3-1989 was set aside and the decision of Authority dated 28-3-1989 restored by our short order dated 10-12-1990.