GHARO TEXTILE MILLS LTD. Versus 5TH SIND LABOUR COURT

This petition is directed against an order of Labour Court No. V, Karachi dismissing the appeal filed under section 36‑D of the Industrial Relations Ordinance, 1969 due to default in appearance of the petitioner and declining by an order dated 24th August 1973 to re‑admit the appeal on the ground that the Labour Court had no such powers of restoration under section 36 of Industrial Relations Ordinance.

2. It is the case of the petitioner that respondent No. 3, Badshah Khan, employed by the petitioner as a double sider remained absent from duty from 13‑6‑1972 to 8‑7‑1972. He was served with a notice and he resumed duty on 16‑8‑1972. The respondent again absented himself from 17‑8‑1972 on wards and he remained absent for more than 10 days without leave. His services were terminated. He turned up on 11‑12‑1972 and gave a petition that he was aggrieved. Thereafter on 11‑4‑1973 he filed an application under section 25‑A of Industrial Relations Ordinance before Junior Labour Court No. Il. The Junior Labour Court after perusal of the photostat copy of the medical certificate ordered respondent No. 3 Badshah Khan, to be re‑instated with full back benefits and to be paid the medical expenses according to the medical bills produced by him. The petitioner being aggrieved by this order preferred an appeal before Labour Court No. 5, Karachi. This appeal was dismissed for default on 28‑6‑1973. The petitioner then filed application under Order XLI, rule 19 read with section 151, C. P. C. for restoration of the appeal on the ground that the Advocate of the appellant could not appear on the date of hearing due to illness as per the medical certificate. The Labour Court, however, declined to re‑admit the appeal on the ground that the powers contemplated under section 36 of the Industrial Relations Ordinance did not include the power to re‑admit an appeal dismissed for default.

3. It has been argued by the learned counsel on behalf of the petitioner that under section 36(2) of Industrial Relations Ordinance, 1969, a Labour Court is deemed to be a civil Court and has the same powers as are vested in such Court under the Code of Civil Procedure. That if an appeal can be dismissed for default or non‑appearance of the appellant or his Advocate, then it can also be restored if sufficient cause is shown, and it is pointed out that the non‑appearance was neither wilful nor deliberate. That an authority that can do a thing has also the power to undo it. Under section 21 of the General Clauses Act, power to make also includes power to rescind orders. In P L D 1972 Lah. 603 it has been observed that where once an ex parte order is passed the Rent Controller can set aside such an order and take up the case for re‑hearing. To deny the right to a person to apply for restoration of a case dismissed in default or for setting aside an ex parte order on the ground that the suit has ended, and, therefore, the Court had become functus officio for all purposes is not a correct view. There always exists an implied and an inherent power in every tribunal to set aside orders passed in default of appearance of the parties. A perusal of the Ordinance will show that there is no provision in it any where for dismissing a matter in default or to proceed ex parte. If, therefore, any such recourse is adopted by Rent Controller it is obvious that he adopts it by virtue of the inherent power vested in him to choose any procedure he likes. If once he has chosen such a procedure, then to carry the matter to its logical sense, he must retain the power to recall or set aside orders passed ex parte or in default. It was also held in P L D 1968 Kar. 589 that where Rent Controller passed ex parte order of ejectment for default in appearance he can recall the ex carte order on sufficient cause being shown for non‑appearance, although the provisions of the Code of Civil Procedure were as such not applicable to proceedings under the Rent Restriction Ordinance. The learned Presiding Officer of the Labour Court has referred to the decision in Brook Bond's case (P L D 1973 Kar. 189). That authority dots not lay down that under section 36 of the Industrial Relations Ordinance the Labour Court has no jurisdiction to recall a matter dismissed for default. The Labour Court can exercise the powers under the Civil Procedure Code for the purpose of adjudicating and determining any industrial dispute. The power to restore a matter dismissed for default would be covered by this requirement of the law. Unless a matter can be restored it could not be effectively decided on merits.

4. I would, therefore, allow this petition and declare that under the industrial Relations Ordinance, 1969 the Labour Court can exercise the powers under the C. P. C. for the purposes of restoring a matter dismissed for default. The Labour Court may accordingly dispose of the appeal on merits.

S. A. H. Petition allowed.