1. Muhammad Ramzan was employed in the Iftikhar Weaving Factory, Nishatabad, Lyallpur. He was removed from service on 9th February 1974. Be applied for re-instatement arid obtained an ex parte order from the Junior Labour Court on 31st May 1974. The employer filed an appeal. It was decided in favour of the employer but again decision was ex parte. The employee has filed this application to re-hear the appeal on the ground that the appeal was heard ex parte and judgment was pronounced against him. This order will dispose of this application.
2. The first point raised before me was that a Labour Court has no powers under Order XLI, rule 21 of the C. P. C. And so it cannot order re-hearing of the appeal. The question is not free from difficulty.
3. Section 36 of the Industrial Relations Ordinance, 1969 lays down the procedure and powers of Labour Court. Subsection (2) says that a Labour Court shall for tie purpose of adjudicating and determining industrial dispute, be deemed to be a civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure 1908. It maybe noted that these powers relate to an industrial dispute and not to other functions of this Court. The industrial dispute can be raised by a C.B.A. Either under section 32-A or under section 34 of the Ordinance. These disputes are like suits of civil nature. They are adjudicated and determined more or less in the same manner as a suit of civil nature is disposed of by a civil Court. A petition, comparable to a plaint is filed. A written statement is asked for by the opposite-party. Ordinarily, the issues are not framed. The reason is that in each petition, every demand is raised distinctly and independently. These demands are the points for determination for a Labour Court. Firstly, the evidence of the petitioner is recorded and thereafter the evidence of the opposite party is recorded. Thereafter the arguments are beard and the dispute is finally determined. Such a determination is called "award" and not a decree. Obviously, the procedure to be adopted by a Labour Court is the same as is adopted by a civil Court. It is why that a Labour Court under section 36 of the Ordinance is deemed tore a civil Court and law, been given the powers of a civil Court under the Code of Civil Procedure.
4. Besides the above dispute, a major function of a Labour Court is to decide appeals. Appellate powers are given to a Labour Court under section 36-D, section 8 or section 10 of the Ordinance. No provision has been laid down in the Ordinance as to what procedure should be adopted while deciding the appeals. One of the arguments may be that the Labour Court will follow the same procedure as has been laid down in Order XLI of C. P. C. Because an appeal relates to the industrial dispute. This argument does not hold good. An industrial dispute is defined is section 2(xiii) of the Ordinance. It means any dispute between an employer and workman which is concerned with the employment or non-employment or the terms of employment or the conditions of work of any person and is not in respect of enforcement of any right guaranteed or secured to him by or under any law. Section 43 of the Ordinance provides that no that no industrial dispute shall be deemed to exist unless it has been raised in the prescribed manner by a C. B. A. Or an employer. Obviously, the law does not recognize the existence of an industrial dispute unless it is raised by a C.B. A., in the prescribed manner i.e. By negotiation (section 26), conciliation (section 30) arbitration (section 31) and adjudication by a Labour Court. Without any manner of doubt the dispute in the present case is not an industrial dispute. The matter requiring adjudication or determination, is whether an employee could be re-instated. This dispute has not been raised by any C.B.A. It has not been ripened through the process of negotiation, conciliation or arbitration. As such a dispute cannot be called an industrial dispute, therefore, the Labour Court does not derive any powers under section 36 to determine it.
5. Undoubtedly, the Labour Court has been conferred appellate jurisdiction. The Ordinance does not lay any procedure to be adopted in appeals. There are no provisions if the opposite party can be ordered to attend the Court or arguments should be heard or the record of the lower Court should be looked into. As the powers for the decision of an appeal have been given to a Labour Court, therefore, it follows that the Labour Court has also been empowered to take every step for the final adjudication of the appeal. No guiding principle has been enunciated in the Ordinance on which the adjudication by the Court is to be based. In such circumstances, the Court is, therefore, left with its own discretion to decide what is just and fair in the circumstances of each case having regard to the consideration of justice, equity, good conscience and fairness to both the parties. The discretion is there but it cannot be exercised arbitrarily. It has to be exercised in judicial manner.
6. And the best thing for the Labour Court would be to follow the principles of procedure as laid down in the Civil Procedure Code. In a case of ex parte order the guiding principle is laid down in Order IX, rule 13 of C. P. C., for the trial Court and in Order XLI, rule 21 of C. P. C. For an appellate Court. In these provisions the principle is that a patty against whom judgment id pronounced may apply to the Court to rehear the suit or appeal as the case may be, if he satisfies the Court that the notice was not duly served or that he was prevented by sufficient cause for not appearing when the suit or appeal was called for hearing. I am of firm view that the Labour Court can follow the same principle in adjudicating the industrial dispute or the appeals. With these observations I hold that the Court has jurisdiction to decide the application filed by the employee in this case.
7. The next question is whether there are sufficient grounds to re-hear the appeal. The case of the employee is that he was not served in this case. The record shows that the notices were sent twice.
8. On both the occasions Mumtaz Hussain Process Server reported that the address was incomplete so employee could not be found by him. The Court ordered a substituted service by issuance of proclamation in a local Daily Newspaper. After the publication of this notice my learned predecessor did not take ex parte proceedings because- there was no Presiding Officer on the date for which the proclamation was issued. Accordingly fresh notice was issued. This the the same Process Server Mumtaz Hussain reported that the employee refused to accept service. On his report ex parte proceedings were taken. I am net satisfied that the report of the Process-Server is correct. My finding is that the employee was not served in this case at all.
9. The next question raised before me was of limitation. The impugned order is dated 9th October 1974, and the present application was filed on 15th December 1974. No limitation period is prescribed for such an appli--cation. The employee has stated in his application that he came to know of the ex parte order on 27th November 1974, as the employee was not served, therefore, the shall run from the date of his knowledge. Moreover, no particular period is prescribed, therefore the Court has to use its own discretion in such a matter. The application is held to be within the.
10. The result is that ex pane under is set aside and the appeal is admitted for re-hearing. For arguments to come up on 31 January 1975.