2000 PLP 79 (PLC)

‑‑‑‑S.22‑D‑‑‑Constitution of Pakistan (1973), Art .199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Available alternate remedy not resorted to‑‑ Effect‑ ‑‑Constitutional petition against order passed by National Industrial Relations Commission before availing remedy of appeal as provided under S.22‑A of Industrial Relations Ordinance, 1969‑‑‑Contention of petitioner was that since Full Bench oil National Industrial Relations Commission had expressed some opinion in another case, petitioner in good faith had opted to challenge order directly in Constitutional petition instead of exhausting remedy of appeal against said order‑‑‑Validity‑‑‑Mere fact that Full Bench of National Industrial Relations Commission had decided certain other cases on the subject and had expressed opinion, would not mean that petitioner could file Constitutional petition directly instead of availing alternative remedy of appeal‑‑‑Appellate jurisdiction would include jurisdiction to determine the issue afresh by taking into consideration legal and factual controversy‑‑‑If petitioner would feel that his case was distinguishable or that earlier view was not correct, he could address his argument to persuade the National Industrial Relations Commission for a different view, in accordance with law‑‑‑Constitutional petition could not be entertained in presence of available alternative remedy of appeal. Ch. Riaz Ahmed for Petitioner. Muhammad Sahir Ali for Respondents. Date of hearing: 15th November, 1999. In the course of hearing of this petition, it was observed that the order passed by N.I.R.C. was not challenged in appeal, though the appeal was maintainable under the provisions of section 22‑D of Industrial Relations Ordinance, 1969.

2. Learned counsel for the petitioner did not deny that no appeal was filed, though the remedy of appeal was available against order of which the petitioner was aggrieved. Learned counsel explained that since the Full Bench of N.I.R.C. had expressed some opinion in other case, therefore, petitioner, in good faith, opted to challenge the order directly in the Constitutional petition instead of exhausting the remedy of appeal against the said order.

3. Mere fact that Full Bench of N.I.R.C. had decided certain other cases on the subject and had expressed opinion, would not mean that the petitioner should file the Constitutional petition, directly instead of availing the alternate remedy. The appellate jurisdiction includes the jurisdiction to determine the issue, afresh by taking in consideration legal and factual controversy. If the petitioner feels that his case is distinguishable or that earlier view was not correct, petitioner can address his arguments to persuade to the Bench, for a different view, in accordance with law. Be that as it may, in the presence of available alternate remedy of appeal, writ petition cannot be entertained. The petitioner shall, therefore, in the first instance, avail the remedy of appeal, which if filed will, of course, be decided on its own merit and in accordance with law, by considering all the objections which the petitioner has raised in this writ petition. Be that as it may, since in this case the petitioner had pursuing the matter in the Constitutional jurisdiction and during this period, the limitation for filing of appeal expired, the appellate Bench of N.I.R.C., shall, therefore, consider the question of limitation sympathetically and shall condone the delay due to the consumption of tune in pursuing the matter in the writ petition. Learned counsel for the respondents frankly conceded that if a request for condonation of delay is made, respondents will not oppose the same and will welcome the decision on merit.

4. This petition is, therefore, disposed of with the observations that the petitioner may avail the remedy of appeal, which appeal, if filed, shall be decided on merit and in accordance with law by the appellate Bench of N.I.R.C., by taking sympathetic view in condonation of limitation. H.B.T./R‑115/L Order accordingly.