DECISION This is an appeal against an award of the learned Presiding Officer of Sind Labour Court No. II, Karachi, dated April 19, 1973, whereby the learned Labour Court ordered the respondent to be paid all that he had claimed, except the dues for overtime. Mr. M. A. Shahani, the learned Representative for the appellant, has taken two points before me, namely, (1) that the learned Labour Court should not have proceeded ex parte and (2) that the claim allowed is not justified in fact or law.
2. Mr. Shahani addressed me on the first point. In this connection, he submitted that 28th February 1973, was fixed only for cross-examination of the respondent and, therefore, the learned Labour Court should have debarred the appellant, if at all, only from cross-examining the respondent.; In this connection, the Order Sheet of 24th January, 1973 may be usefully reproduced.
It runs as under:-- "Parties are present. Again, by consent of the parties, case to come up on 28-2- 1973 for cross-examination." It is clear from the above Order Sheet that 28th February 1973, was fixed only for cross-examination of the respondent and not for the production of the evidence of the appellant. The Order Sheet of 28th February 1973 reads as under:--- "Petitioner is present. None is present for the respondent, though called several times. Mr. Farooq A. Ghani who is present in the Court withdraws his power. Therefore, the side of the respondent stands closed. Case to come up now for filing of the Written Arguments by the petitioner on 17-3-1973."
4. The learned Labour Court, as I have already observed, should have only debarred the appellant from cross-examining the respondent, as no one appeared for the appellant. The learned Labour Court should not have deprived the appellant from filing written arguments, if it so desired.
5. Mr. S. A. Kirmani, the learned Advocate for the respondent, contended in the first place that the appeal is time-barred. The impugned order was passed on 19th April 1973 and the appeal was filed on 21st May 1973. The time taken for obtaining the copy of the impugned order, i.e. two days, will be excluded. The appeal is, therefore, within time. In the second place, Mr. Kirmani contended that as Mr. Farooq A. Ghani had withdrawn his Power, it was the duty of the appellant to have appeared either himself or should have appointed someone else to appear on his behalf. I would have accepted the contention of Mr. Kirmani, if there was anything on the record to show as to when Mr. Ghani had informed that he was withdrawing his power. The letter of Mr. Ghani withdrawing the power is dated 28th February 1973. All that it states is that the learned Representative had already informed his client that he would not be appearing in the case. If the learned Representative had given the date as to when he had informed his client, I may have come to the conclusion that there was sufficient time for the client to either appear himself or to engage some other representative. The learned Labour Court should have asked the representative as to when did he inform his client about his intention not to appear for him. In the absence of anything on the record as to when Mr. Ghani informed his client, 1 am not in a position to hold that the client should have necessarily appeared on 28th February 1973 or should have engaged someone else.
6. I have come to the conclusion that the award of the learned Labour Court should be set aside. The only question is as to whether the case should be remanded for bearing from the stage when the respondent was to be cross-examined, i.e. from 17th March 1973, when the respondent was ordered to file the Written Arguments. In the interest of justice and in the absence of anything in the letter of Mr. Ghani withdrawing his power to show as to when he had informed his client, I would withdraw the ex parte order from 28th February 1973, and the appellant would be entitled to cross- examine the respondent. As it is a very old case, I would order the respondent Abdul Wahid to present himself before the learned Labour Court for cross-examination on 16th July 1973. The appellant should also be ready with his evidence on that date. The appellant to pay Rs. 200.00 (Rupees two hundred only) as costs to Mr. S. A. Kirmani, the learned Representative for the respondent, within 3 days. The award of the learned Labour Court is set aside, as observed before.