MUHAMMAD BANARAS vs THE SUPERINTENDENT OF POLICE, ATTOCK and 3
This matter arises from a petition for leave to appeal against the order of the Punjab Service Tribunal refusing to restore the petitioner's service appeal, which had been dismissed for non-prosecution. The core legal question revolves around whether the general adjournment obtained by the petitioner's counsel on the ground of serious illness implied the adjournment of all his cases, rendering the fixing of the appeal for hearing improper without recalling the general adjournment order, and whether the absence of the petitioner, his junior, or clerk was justified under such circumstances. The Supreme Court granted leave to appeal, holding that the questions raised regarding the effect of a general adjournment and the necessity of separate explanations for the absence of the party or juniors require detailed examination. The Court laid down that an order granting a general adjournment to counsel prima facie covers the fixing of cases during that period unless formally recalled.
- Does a general adjournment granted to a counsel on the ground of illness imply the adjournment of all his cases during that period?
- Can a service appeal be fixed for hearing during an active general adjournment granted to the counsel without recalling the said order?
- Is it necessary to separately explain the absence of a party, junior counsel, or clerk when the lead counsel's absence is already excused due to a general adjournment?
ORDER
1. ' MUHAMMAD AFZAL ZULLAH, J.---Leave to appeal has been sought; against the order dated 22nd February, 1988, of Punjab Service Tribunal; whereby it refused restoration of petitioner's service appeal which had been dismissed for non-prosecution on 6-1-1988.
2. ' One important, amongst others, ground for restoration of the appeal was that the learned counsel for the petitioner, as asserted in this petition, had obtained adjournment from the Service Tribunal "on the ground of his serious illness upto 31-3-1988". In the impugned judgment the learned Members of the Tribunal while dealing with this ground observed as follows:-- "We may make it clear at the very outset that the absence of the learned counsel is fully explained."
3. ' However, it was further observed and held that "absence of all concerned should be explained".
4. And as the learned Tribunal did not find sufficient cause or explanation for non-appearance of a junior of the learned counsel or his Clerk or for that matter the petitioner himself, therefore, it was not considered a fit case for restoration of the appeal and the application was dismissed.
5. ' The question; whether, the general adjournment granted to the learned counsel did not imply adjournment of all his cases till (or after) 31st March, 1988. If so whether, the appeal could at all he fixed for hearing, without dealing with the question of general adjournment in such a manner so as to recall the order in that behalf. That order obviously has neither been recalled nor there seems to be any observation in the impugned order that it was not to be acted upon.
6. ' In case it is held that the appearance of the petitioner himself was essential and also that he had the notice of the date of hearing, contrary to the position taken by him, and further it is presumed as assumed by the Tribunal that his absence was for a cause not known to the Tribunal, could it not be assumed that the general adjournment of the case at the request of his counsel could be such other cause. If the absence of the learned counsel could be excused on the ground that his cases stood adjourned, his junior/s, clerk/s and other employee/s would, prima facie, be absolved on the assumption that the case would not be fixed for hearing during the period of general adjournment. These and other related questions raised in this petition require examination. Is for this reason that the notice was issued to the respondents with information that on the next date of hearing the petition may be converted into appeal and disposed of accordingly". Today, only respondent No, 1 is represented: The other three respondents have not appeared despite the notices having been issued to them also. If respondent No, 1, having been served, has chosen to be represented, a possibility that the other respondents might also have en served but in all probability respondent No 1 being the contesting party the others have chosen not to be represented. However, by way of abundant caution another opportunity needs to be afforded to all the respondents.
7. ' Order accordingly. For the above-stated reasons we consider it a fit case for grant for leave to appeal. The appeal shall be prepared on the present record with direction to the parties to file all those documents which would be necessary for disposal of appeal. It shall be fixed for hearing in March, 1990.
8. ' In the meanwhile if the respondents are served and do not take steps to defend this appeal within reasonable time, the office shall take steps for obtaining orders for the hearing of the appeal ex parte against the disinterested parties.