' This appeal under section 48 of the Industrial Relations Ordinance, 2002 impugns the order dated 6-1-2003, passed by learned Presiding Officer, Labour Court No,1., Larkana, dismissing the grievance petition filed under section 25-A of the Industrial Relations Ordinance, 1969.
2. The relevant facts forming the background of this case, precisely stated, are that applicant Ghanshamdas was, appointed by the Muslim Commercial Bank Limited in April, 1990 on ad hoc basis and was confirmed as officer grade-III. It is the case of applicant that despite aforementioned status of officer he was performing clerical duties as such he was a workman within the definition of West Pakistan Industrial and Commercial Employment (Standing Order)
Ordinance, 1968 and Industrial Relations Ordinance, 1969. He was dismissed from the service on 31- 7-1997 which order he challenged in Sindh Labour Court No,VIII, Larkana after serving grievance notice under section 25-A of Industrial Relations Ordinance, 1969. During the proceedings objection was raised about the maintainability of petition but the learned Labour Court deferred the determination of that point. A revision preferred against the said order of Labour Court was disallowed by Sindh Labour Appellate Tribunal, hence a Constitutional petition was filed impugning the order of the Tribunal (C.P. No,119 of 2000) which was allowed and the case was remanded to Labour Tribunal for determining, inter alia, the question of maintainability of grievance petition.
Subsequently, the case was transferred by the Appellate Tribunal from Labour Court No,VIII to Labour Court No,VI, Hyderabad and then to Labour Court No,7, Sukkur.
3. According to applicant while transferring the case to Sukkur the date of hearing was fixed as 25- 3-2002 but it was declared as Holiday on account of Ashora Moharram, the matter was, therefore, taken up on 26-3-2002 when none of the parties was present and the case was adjourned to 30-3- 2002. On that day both the parties again remained absent, learned Presiding Officer thereupon dismissed the petition for non-prosecution. On an application, made by the applicant, restoration was allowed subject to payment of costs of Rs,1,000. The applicant asserts that on the following date i,e, on 11-5-2002 he paid costs to the respondent. Thereafter, a revision was again filed before the Labour Appellant Tribunal at Karachi which was dismissed and the case was transferred back to the Labour Court Larkana, where an objection was taken that the costs of Rs,1,000 had not been paid. The Labour Court No,VIII Larkana after hearing the parties, dismissed the grievance petition through order dated 6-1-2003 which has been questioned herein.
4. I have heard Mr. Azizul Haq Solangi, Advocate for the applicant, Mr. Mahmood Abdul Ghani, Advocate for respondent No,2 and Mr. Muhammad Bachal Tunio, Additional Advocate-General Sindh for State and perused the material on record.
5. Mr. Solangi contended that the applicant had paid the costs of Rs,1000 on 11-5-2002 which fact is mentioned in the case in diary of the said date of the Labour Court, Sukkur which being the record of the Court is to be accepted. Even otherwise it would not appeal to reason as to why the applicant would destroy his career simply for Rs,1000 to be paid as costs. He further contended that this objection was not raised in revision proceedings. Mr. Mahmood Abdul Ghani, learned counsel for MCB submitting that no doubt the date for payment of costs was not specified by the Court, but when payment -is claimed it is for the applicant himself to prove the same whereas neither a receipt is produced in support of the payment nor such endorsement is recorded at the relevant diary with the signature of any person on behalf of MCB in acknowledgement of receipt of the costs of Rs,1000. Further referring to the case diary of 11-5-2002 as available in original record he pointedly drew the attention of the Court to the line-space between the last mentioned sentence indicating payment of the costs and the line space of the type-written text in respect of the other three lines of the same date and submitted the last line is a belated insertion and is a flagrant act of tampering the record. Mr. Tunio, learned A.A.-G. Adopted the arguments of Mr. Mahmood Abdul Ghani and submitted that there is gross negligence on the part of the applicant and the Labour Court has rightly reached at the conclusion that payment has not actually been made.
6. The contention of Mr. Solangi that the applicant would not destroy his case and lose his career for a petty amount of Rs,1000 is quite fascinating and impressive, but the fact remains that once the Court has passed an order, the conditionalities attached to such order are to be satisfied by the concerned party without admitting an element of doubt, failing which the consequences should follow inevitably. As already stated the Grievance Application was dismissed for non- prosecution on 30-3-2002 when the parties remained absent without intimation. Upon an application made for restoration of the petition the parties' counsel were heard and by order dated 29-4-2002 the petition was restored. The order is written in the hand of learned Presiding Officer, operative part whereof runs: ' Keeping in view minor default on the part of applicant, I allow this restoration subject to cost of Rupees one thousand only, and the Grievance Application is restored to its original position and the order of this Court dated 30-3-2002 is hereby recalled. In case of nonpayment of costs and future default by applicant the instant order shall automatically stand recalled and the order dated 30-3- 2002 shall resurrect.
' Announced in open Court on this 29th day of April, 2002."
7. The case diary dated 29-4-2002 reflects the same position and shows that the hearing was fixed on 11-5-2002. This diary was also written by hand. All other diaries for about previous 6 dates and subsequent 8 dates are type-written. The questioned diary of 11-5-2002 runs as under:-- "Applicant is present with his counsel Mr. Nizamuddin Baloch. Mr. Abdullah Ali Talat authorized person of respondent Bank is present, while their counsel Mr. Vizarat Hussain is called absent.
Today G.A. Is fixed for arguments. P.O. Is indisposed of therefore, the case is adjourned to 1-6-2002 for same purpose. Parties to attend. Cost of Rs,1000 paid by applicant to respondent."
8. It is evident from the above diary that the Presiding Officer, was indisposed and the matter could not proceed although it was fixed for arguments. The proceedings whatever had taken place in his absence and in routine, the typed diary was signed by him following the common practice that a Presiding Officer of a Civil Court, if on sick leave, had to sign the diaries. On a bare perusal of the type-written diary it manifestly appears that the last line bearing the words, "Cost of Rs,1000 paid by applicant to respondent were typed afterwards with a narrow line space between the 3rd and 4th line commonly termed as single line space whereas the line-space between the first three lines of same date/diary as also all other type-written diaries of previous 6 dates and subsequent 8 dates, running in pages, are uniformly typed with a constant line space. Wider than the aforementioned line space that is to say maintaining 1.5 line space. Ostensibly, the initial put by the Presiding Officer was the main obstacle in providing enough space to accommodate the above quoted line/words through the usual line space of 1.5 employed in all other case diaries. Since the writer could not cross this impediment, he adopted the usual course which conspicuously demonstrated an abnormal picture obtaining therefrom. Learned counsel for respondents were wholly justified in emphasizing that the above quoted line/words about the payment of costs had been introduced after the initial put by the Presiding Officer.
9. Moreover, in view of the practice in vogue if costs are paid to the party himself or his authorized agent, his signature is obtained on the margin of the diary so also the advocate would put his signature if he receives the costs, but no signature is appearing on the diary. The third course could normally be adopted by way of obtaining a receipt from the concerned person, but no receipt is forthcoming. Lastly if the costs were paid in presence of the Reader then the statement of the Reader should have come on record to authenticate the payment of costs made in his presence, since on that day the Presiding Officer himself was indisposed. This is a matter of common practice that if a Presiding Officer is on sick leave he would remain at the headquarter and may not perform judicial functions, but he would sign the diaries. Obviously, he would not be present in Court when the parties are called and given a fresh date. In such an eventuality Reader of the Court is the responsible person to speak about the presence of parties or for that matter the payments of costs etc., if made in his presence. No such document has come on record in this behalf.
10. The said diary shows that one Abdullah Ali Talat, the authorized agent of respondent, was present. In his affidavit, Talat has denied the payment of costs to him. The counsel Mr. Wazarat Hussain was absent, but he has also filed an affidavit that no costs of Rs,1000 was paid by the applicant. It was rightly argued by Mr. Mahmood Abdul Ghani that the diary is silent about the identity of the payee. He further pointed out that the ground taken in the memo. Of appeal is that the amount was paid to attorney, which, on the face of it, is self-contradictory since the diary itself indicates that the attorney was absent. The submission of Mr. Tunio, learned A.A.-G. Also carries sufficient weight as this is a case of gross negligence in making compliance of the order of the Court.
11. Mr. Solangi raised another contention that no time was fixed for payment. No doubt, the Court had not fixed the time for payment, but then in such a situation a reasonable time could be utilized for the purpose of payment. The position is altogether different in the instant case as the payment is being asserted and claimed to have been made on 11-5-2002, as such, the applicant was obliged to prove the payment fairly, legitimately and in accordance with normal practice, which is wholly lacking.
12. Mr. Solangi next contended that it would be desirable that the petition may be decided on merits by restoring it. In this context it may be observed that the prospects would have been different, had there been simple delay in payment and condonation thereof sought. Instantly, an unacceptable method has been employed, apparently tampering with the record by injecting type written words just to demonstrate compliance of the order. The applicant has not come to Court with clean hands. Learned Labour Court has rightly disallowed the plea of payment of costs in the above circumstances.
13. On a thorough examination of the ambient circumstances and the entries in the relevant record, I am of the considered view that the impugned order does not suffer from any infirmity, jurisdictional defect, illegality or gross irregularity. Even if proprieties are taken into consideration, the act of tempering with record would disentitle the applicant to any legal and equitable relief both. The appeal in the circumstances is dismissed with costs.