' This is an application for restoration of Petition No,4-A(2066) of 1996-L, which was dismissed in default by the then Senior Member of this Commission (Mr. Bahader Ali) on 16-6-1998 as no one had appeared for the petitioner on that date. Case of the applicant is that his petition was fixed on 14-11-1996 when it was adjourned to 24-11-1996 in the presence of the parties but on the last mentioned date, neither the case was fixed for hearing nor was any cause list issued for that date and it was generally announced that the cases were adjourned to a date in office. Further, contention of the applicant is that after 24-11-1996 (when this case was on the file of Agha Salim Khurshid, the then Member, NIRC posted at Lahore) neither the applicant nor his counsel received any notice for appearance. No notice was issued even to the respondents and it was on 8-3-2000 that the applicant came to know from the office of the respondent-Managemennt that he was again being promoted as SEC. Supervisory Pay Scale, SPS-1, as his petition stood dismissed. Till then the applicant had not received any notice from this Commission. It is further stated that on further probe, the applicant came to know that the Reader of the learned Member had adjourned the case on 21-4-1998 to 16-6-1998 and on that said adjourned, dated viz 16-6-1998, the case was dismissed in default. It is submitted that the non-appearance of the applicant and his counsel on the date fix after 24-11-1996 was neither deliberate nor intentional but was due to the non-service of any notice, and in any case, since 16-6-1998 was the date fixed by the Reader of the Member, the case could not have been dismissed in default on that date. The application for restoration is shown to have been filed on 11-3-2000 i,e, almost 21 months after the dismissal of the petition in default. The applicant has, therefore, also moved an application for condonation of delay which is supported by his own affidavit.
2. I have heard the learned counsel for the parties and have also gone through the relevant record.
3. Perusal of the order-sheet shows that the order, dated 14-11-1996 adjourning the case to 24-11- 1996 was passed by the then learned Member (Agha Salim Khurshid) though the said order is unsigned. Be that as it may, case does not appear to have been fixed for hearing on 24-11-1996 or on any date thereafter until 29-12-1997 when it was placed before Mr. Bahader Ali, the then Senior Member, who adjourned it to 26-2-1998 with the direction to issue fresh notice. On 26-2-1998, counsel for the respondents was present but no one appeared for the petitioner and the case was adjourned by the then Senior Member to 21-4-1998 on which date, the Senior Member was stated to be on tour to Islamabad and the case was adjourned by the Reader to 16-6-1998. On the last mentioned date, no one appeared for the petitioner. His case was, therefore, dismissed in default.
4. In view of the position afore-stated, the applicant's contention that after 24-11-1996, neither he nor his counsel received any notice does not appear to be quite correct as the order, dated 29-12- 1997 passed on the file of the main petition shows that the applicant's counsel had appeared before Mr. Bahader Ali, the then Senior Member on that date. Learned counsel for the applicant has, however, vehemently contended that since the learned Senior Member seized of the case was on tour on 21-4-1998 and the case in his absence was adjourned by his Reader to 16-6-1998, the said date could not be said to be the date to which the hearing was adjourned within the meaning of Order 17, rule 2, C.P.C. And as such the petition could not be dismissed in default on that date.
Reliance for this submission has been placed by the learned counsel on two cases reported as "Muhammad Qasim v. Moujuddin and others" (1995 SCM R 218) and "Nowsheri Khan v. Said Ahmad Shah" (1983 SCM R 1092). Learned counsel pointed out that by virtue of section 36(2) of I.R.O., 1969 read with Regulation 19 of NIRC (Procedure and Functions) Regulations, 1973, the procedure prescribed in Civil Procedure Code in regard to the suits is applicable to the proceedings for adjudication and determination of Industrial disputes before the Commission. Judgments cited by the learned counsel fully support his contention. In both these cases (which arose from the orders dismissing the appeal in default), it was held that if the, date to which the hearing was adjourned was a date not fixed by the Court but by the Reader, the same could not be treated as a date of hearing to which the appeal stood adjourned with the result that the appeal could not be dismissed on such a date. Reference may usefully be made to the following observation in the case of Nosheri Khan:-- "There is no dispute that the appeal was adjourned to 16-9-1976 by the Moharrir (Reader) of the District Judge as the learned District Judge was absent on the date which was fixed earlier. This Court in the case of Muhammad Swaleh and another v. Messrs United Grain and Fooder Agencies PLD 1964 SC 97 while discussing the provisions of Order XVII, rule 2 of the C.P.C. While interpreting the words 'the date to which the hearing of the suit is adjourned' observed that 'adjourned' means 'adjourned by the Court. Thus, the date 16-9-1976 could only be the 'date to which the hearing is adjourned', if the, appeal had been adjourned to this date by the Court itself and not by the Moharrir (or the Reader)."
' As regards the question of limitation, it was observed in the case of "Nowsheri Khan' afore-referred that the dismissal of appeal in default on a date fixed by the Reader without duly serving the appellant for the said date" was void and a nullity" and "no question of any limitation arose and the application for restoration of the appeal dismissed for non-prosecution should have been entertained and accepted and not dismissed as barred by time....". Again in the case of Muhammad Qasim afore-referred, it was held that since the order of dismissal of appeal for non- prosecution was void and nullity, the appropriate Article applicable was Article 181 of the First Schedule to the Limitation Act and not Article 168 thereof and as such the appellant's application for re-admission of the appeal 13 months after its dismissal could not have been treated as time- barred. It may be stated that Article 181 of the Limitation Act is a residuary Article which provides a limitation period of three years from the date when then right to apply accrues.
5. Confronted with the afore-noted legal proposition, learned counsel for the respondents submitted that in view of the provisions of new Rule 5 which was inserted in Order 17, C.P.C. In the year, 1972, even the date fixed by the Reader would be the date of hearing within the meaning of Order 17, rule 2, C.P.C. Rule 5 of Order 17 relied upon by the learned counsel reads as follows:-- "(5) When on the day the Presiding Officer of the Court is absent by reason of illness or any other cause, the parties to the suit or proceeding set down for that day (notwithstanding the knowledge that the Presiding Officer would be absent) shall appear in the Court in the Court-house on that day and the ministerial officer of the Court authorised in that behalf shall hand over to the parties slips of papers specifying the other date fixed for proceeding with the suit or proceedng and signed by him."
' This provision was taken note of and examined in detail in the case of Nowsheri Khan and it was observed that the language of rule 5 shows that it deals with the suits and is not in terms applicable to the appeals as the matters relating to the dismissal and restoration of appeal are dealt with in Order 41, Rules 17 and 19, C.P.C. It was, however, observed that even if the provisions of Rule 5 of Order 17 are held to be applicable to the proceedings under Order 41, C.P.C. By virtue of the provisions of subsection (2) of section 107, C.P.C., the Reader is authorised thereunder to fix the date for proceeding with the suit subject to the condition that he shall hand over "to the parties slips of papers specifying the other date fixed for proceeding with the suit or proceedings", which was mandatory requirement. It was found on facts of the precedent case that the appellant was admittedly not present when the Reader fixed the case for 16-9-1976 and consequently there was no question of any slip being handed over to the appellant specifying the next date, fixed for hearing of the case. It was accordingly held that Rule 5 of Order 17 was thus, not complied with and as such the order of the District Judge dismissing the appeal for non-prosecution on 16-9-1976 was illegal. It was observed that the date given by the Reader might have become the "date fixed for proceeding with the suit or proceedings", if the parties were handed over the slips of paper specifying the adjourned date and since this requirement was not complied with, " it was necessary to duly serve the parties for the said date". In the present case also, the petitioner was not present on 21-4-1998 when the Reader adjourned the case to 16-6-1998. It may be pertinently pointed out in this behalf that on their previous date viz 26-2-1998 when the case was adjourned to 21-4-1998 by the Member himself, counsel for the respondent was present but no one was present for the petitioner and on 21-4-1998, the Reader marked the presence "as before." This shows that the petitioner was not present on 21-4-1998 when the case was adjourned by the Reader to 16-6- 1998. In the circumstances, there is no question of any compliance with the mandatory requirement of Rule 5 of Order 17 that the Reader when adjourning the case shall hand over to the parties the slips of papers specifying the date fixed. That being so, the date given by the Reader in the absence of the learned Member could not be said to be the date of hearing and as such the petition could not have been dismissed for non-prosecution on that date. In the aforesaid view of the matter, no question of limitation arose and in any case, the application for restoration of the main petition was within the limitation period provided under Article 181 of the Limitation Act.
6. The upshot of the above discussion is that the order dismissing the petition in default on 16-6- 1998 is unsustainable in law and the same is accordingly recalled and the petition restored to its original number which may be fixed for hearing on 19-9-2000.
' The present application is thus disposed.