DECISION ' This case has a chequerred history of callousness of parties's counsel. It was started with grievance petition of respondent Farooq Khan as far back as 28-2-1994 and was completed with final arguments of the parties' counsel on 30-3-2000. Prima facie it is an appeal which has been preferred from the order, dated 16th February, 1998 of the learned Second Sindh Labour Court, Karachi, but the said order also covers 2 miscellaneous applications one, dated 25-10-1997 made by the respondent requesting for recall of the order of 25th August, 1997 and another, dated 1-10- 1997 made by the appellants requesting for recall of the order of 16th September, 1997.
2. I have heard the elaborate arguments of the learned counsel of both the parties and have very carefully gone through the voluminous record of the case. As stated above grievance petition was filed by respondent Farooq Khan under section 25-A, of I.R.O. His case was that he was employed as a helper in the appellant's establishment and in order to secure rights for himself and other workers, he started trade union activities which annoyed the appellants who, therefore, gate- stopped him with effect from 12-121993 without any order in writing. He served grievance notice on the appellants by way of making application for withdrawal of gate-bund but without any result.
Seeing no other alternative, he approached the aforesaid learned Labour Court with prayer for his reinstatement and paying him all the back benefits.
3. The perusal of the impugned order leaves no doubt that the appellants made repeated defaults in pursuing their case and the long latitude given to them by the Court was taken lightly. The learned lower Court went to the extent of recalling all the ex parte orders passed against the appellants, when it was brought to its notice that general adjournment was granted to the appellant's counsel by High Court for the period during which the said orders had arisen. But the learned lower Court was seemingly stunned to know that appellant's learned counsel appeared before High Court on 3 consecutive dates starting from 11-3-1997 and his such appearance gave a lie to his statement that he was confined to N.I.C.V.D. Due to heart ailment. The learned lower Court had rightly remarked that the history of the case shows that the case was made to linger on for over 4 years absolutely on flimsy grounds, so much so that even cross-examination of the respondent could not be concluded during that period. Apart from this, the appellants have made certain statements in the Memo. Of Appeal which speak of their negligence and carelessness. In para. 4 of the said Memo. Of Appeal it is stated that due to some unavoidable circumstances, no Reply Statement could be filed, and therefore, grievance petition was decided ex parte against them. Had the unavoidable circumstances been specifically mentioned the learned Labour Court might have appreciated the reason of appellant's absence in their favour and may be, the grievance petition was not decided ex parte against them.
4. Again in para. 3 of the Memo. Of Appeal it is stated that the grievance petition was fixed on 2-12- 1996 for the respondent's cross-examination but due to some unavoidable reasons the appellants' counsel could not reach the Court and ex parte order was passed closing the cross-examination of the respondent. Thus, once again "unavoidable reasons" have been mentioned without clarifying those reasons which prevented the learned counsel from attending the Court and as such the learned lower Court could not appreciate the reasons of non-attendance of the learned counsel and hence ex parte order was passed.
5. It is stated in para. 11 of the Memo. Of Appeal that the case was fixed on 31-3-1997 for filing of respondent's affidavit-in-evidence and as no one was present on behalf of the appellants, the appellant's side was closed and the matter was put off to 5-4-1997 for final arguments. On 5-4- 1997 the respondent's counsel argued the matter but no one was present on appellant's behalf.
Obviously no reason has been given for absence of appellant's counsel either on 31-3-1997 or on 5- 4-1997.
6. In the latter part of the Memo. Of Appeal the learned appellant's counsel has advanced his ailment as an excuse for his absence on dates of hearing though he knew that his ailment could not be accepted as valid reason for his absence particularly when the ailment was of serious nature and was to linger on for greater period of time. In such cases alternate arrangement had to be made and the Court could not be expected to repeatedly adjourn the case at the cost of other side and its counsel. In this way there are other assertions made in the Memo. Of Appeal which give impression that the appellants or their counsel did not take the Court's proceedings seriously and appeared in the Court at their own convenience.
7. Coming to the Miscellaneous Application for recall of the order, dated 16-9-1997 it would appear that the said order was passed due to nonappearance of the appellants' counsel even though notice was issued to him on Miscellaneous Application filed by the respondent's counsel. By the said order the appellant's side was closed and case was put off to 1-10-1997 for filing affidavit of appellant's witness. But instead of filing such affidavit application was moved for recalling the said order. It would appear from the impugned order that the appellant's learned counsel had not given cogent reasons for recalling the order, dated 16-9-1997. Moreover, to use the words of the learned Judge of the Labour Court in the light of the lingering on of the case of flimsy grounds he was not inclined to show more leniency and therefore, dismissed the application made for recalling the order, dated 16-9-1997. I see no reason to disagree with the learned Judge, and therefore, his order dismissing the application is hereby upheld.
8. However, the learned Judge has allowed the applications moved on 25-10-1997 by the respondent mainly on the ground that appellants had succeeded in getting condonation of his absence on the ground of general adjournment granted by High Court but since despite the said adjournment he himself appeared in High Court on 3 consecutive dates thereby by shattering the basis of condonation of the order, dated 25-8-1997 was, therefore, recalled by the learned Labour Court as having been obtained through misrepresentation of facts. For the reasons given by the learned Labour Court the said order is also upheld. In support .Of this order reliance has rightly been placed on 1992 :MR page 1908 and PLD 1975 SC 331.
9. Lastly in the concluding paragraphs of the impugned order the learned Labour Court has given reasons for acceptance of the grievance petition. No doubt though employed as helper the respondent started trade union activities for the benefit of workers working in the appellant's establishment. He also took active part in placing so many demands before the management which were, however, turned down by the appellants. In this way the appellants were annoyed with the respondent. He was first gate-stopped and ultimately ousted from service. I agree with the learned Judge of Labour Court that averments made in the Reply Statement of the appellants are not supported by any evidence. It is also correct that the pleas taken by the respondent have not been denied. Consequently the learned Judge of the learned Labour Court has rightly allowed the grievance petition of the respondent with all the back benefits.