DECISION MUNAWAR ALI KHAN, CHAIRMAN -- This 'appeal arose from the decision dated 22.5.1999 of Sindh Labour Court No. V, Karachi whereby the grievance petition of respondent Umer Zaib was allowed with direction that he be reinstated in service within 7 days of the decision with payment of all back benefits from the date of termination of his services.
2. The respondent's case is that' he was employed with the Appellate Company on permanent basis from April, 1993 to 29.7.1999 when all of a sudden his services were terminated with effect from 30.7.1998. After serving the necessary grievance notice on the Appellants Establishment, he filed grievance petition. His further case is that since the Appellants Establishment did not file any written statement, they were made ex-parte. However, the ex-parte order was not aside on 11.3.1999 and the Appellants Establishment was allowed to file written statement subject to payment of cost of Rs. 2,000/- to the respondent. After depositing the said amount in Third Sindh Labour Court, the Appellants Establishment filed written statement on 24.3.1999 which was however signed by Mr. Shah Nabir their Advocate. As the written statement was not verified on oath, nor was it signed by authorised person, the respondents moved an application on 15.4.1999 requesting therein that respondent's grievance petition be allowed as if there was no written reply signed and verified by any authorised person. When notice of such application was served on the appellants' Advocate, objections were filed but nor on oath not were they signed by the appellants. Instead their Advocate had signed the same. During pendency of this case it was transferred from Sindh Labour Court No. III, Karachi to Sindh Labour Court No. V, Karachi.
3. On 12.5.1999 the Advocate of both the parties were present before the lat mentioned Court when the case was adjourned to 21.5.1999. On this date the appellants were called absent and Adjournment Application, moved by their junior Advocate was disallowed. After hearing arguments of the , respondent's Advocate on the said date, the case was fixed for orders on the next day and as stated above the grievance petition was allowed.
4. It would appear from the above factual back ground of the case that no evidence was recorded nor any document was produced by either of the parties, Somehow the case was decided on technical grounds namely the defective written reply filed by the Appellants Establishment which was neither signed by them 'nor by any person authorised by the appellants nor was it verified on oath and therefore it was totally excluded from consideration. I have heard Mr. Nasir Mehmood, the learned Advocate of the Appellants Establishment and Mr. Ashraf Hussain Rizvi the learned counsel of the respondent. It was admitted on both hands that the Written Reply filed on behalf of the Appellants Establishment was not signed by them. But it was signed by their Advocate who again was admittedly not authorised to sign it. It was also not denied by the appellants counsel that the written reply was not verified on oath before the competent authorised. It has been repeatedly held that if the written statement is not signed by the respondent (here the appellants) or any other person authorised by the respondent and is also not verified an oath and furthermore the person signing the written statement has not been produced in evidence, such written statement cannot be read as evidence and shall be excluded from consideration. In this respect reference may be made to PLD 1972 Supreme Court P. 25 wherein it was observed:- "Written statement cannot be exhibited in a case without the person who filed the same being examined in Court. The statements made in the written statement are not on oath. They are only verified and therefore they cannot be treated as evidence in case----- However, appellants learned counsel invited my attention to the case reported as 1981 SCM R 687 wherein it was held:- "In so far the first contention is concerned it has no force in it. The learned counsel conceded before us that the respondents had, all along prosecuted their suits with diligence and had appeared as their own witnesses. In these circumstances, the non-signing of the plaint by them at the proper stage was a mere irregularity, and consequently the learned District Judge was entirely justified to direct that the said irregularity may be rectified. Furthermore:the learned counsel has not been able to show as to how he has been prejudiced, therefore, the objection raised by him is only technical the more so when substantial justice has been done between the parties."
Replying on the above authority the learned counsel argued that non-signing of the written statement by the respondent (Appellants Establishment) was a mere irregularity which could be rectified and since it had not prejudiced the other party it was of no consequence. I regret that the above arguments are far from convincing. The !Acts of the present case are distinguishable. It was the written statement and not the plaint which was not signed. Moreover, at no stage of the case the appellants showed their anxiety to rectify their irregularity of non-signing the written statement as they never requested the Court to allow them to sign it. On the contrary the record shows that on 15.4.1999 the respondent's Advocate (applicant in the original petition) moved an application in the Lower Court requesting therein that since the Appellant Employer had failed to file written statement duly signed by them but instead Employer's Advocate had unauthorisedly signed the same, necessary judgment be pronounced. When notice was issued to Appellants Establishment about the said application, instead of hastening to rectify the-aforesaid irregularity by signing the written reply they filed objections dated 28.4.1999 stating that the application was unjust, illegal and unlawful and that the written statement had been filed on their behalf containing true facts and as such requested for dismissal of the application. Thus, the Appellant's Establishment lost the opportunity provided to them to regularize the written statement by affixing their signature and having it verified on oath.
For the above reasons I am in full agreement with the learned Lower Court that the written statement unsigned by the Appellants Establishment and unauthorisedly signed by their Advocate was not written statement and had to be taken out of consideration. If so, nothing remained on record to rebut the contentions of the respondent (originally applicant). As such while maintaining the decision of the Lower Court, the appeal is dismissed.