IJAZ AHMAD CHAUDHRY, J.- Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioners seek setting aside of the impugned order dated 21.7.2000 passed by respondent No. 1 and also pray that the grievance petition of the petitioners withdrawn on 4.12.1998 be declared to have been revived and pending before respondent No. 2 for adjudication in accordance with law.
2. Brief facts of the case are that the petitioners being employed in the Mill of respondent No. 3 had worked for a period of 15-25 years and the petitioners were workers/workmen, according to the nature of their duties in accordance with the provisions of the Industrial Relations Ordinance, 1969.
Their services were dispensed with on 14.10.1996, according to the petitioners, without assigning any reason and the petitioners were constrained to file a grievance notice to respondents Nos. 3 and 4 employers on 20.10.1996. The petitioners also filed a petition under section 22-A(8-g) of Industrial Relations Ordinance, 1969 before the National Industrial Relations Commission, Lahore Bench but the same was returned to the petitioners on 12.8.1997 for filing the same before the Labour Court, hence the petitioners filed petition under section 25-A of Industrial , Relations Ordinance, 1969 on 22.11.1997, which was, however, dismissed as withdrawn on some technical ground with permission to file a fresh vide order dated 4.12.1998. Respondents Nos. 3 and 4 preferred an appeal before respondent is against the said order and the same was accepted vide order dated 21.7.2000 with the observations that the grievance petition 'goes'. However, the petitioners and other respondents filed fresh petition under section 25-A of Industrial Relations Ordinance, 1969 under bona fide mistake.
3. Learned counsel for the petitioners contends that the petitioners had requested for withdrawal of the petition with the permission to file afresh but the learned Appellate Court respondent No. 1 has illegally dismissed the petition as withdrawn without accepting the alternate plea for permission to file afresh relies upon PLD 1999 SC 597 and 1970 SCM R 141 and argues that both the prayers should be rejected or accepted simultaneously; hence, the order dated 21.7.2000 is illegal due to the above-said case-law. It is further contended that the judgments of Honourable Supreme Court of Pakistan are binding on all the subordinate Courts but the above-said case-law has been ignored by respondent No. 1 while passing the impugned order.
4. On the other hand, learned counsel appearing on behalf of respondent No. 3 opposes this petition on the ground that the appeal is continuation of the suit as is laid down in PLJ 1996 SC 1673 and PLD 2001 SC 355. It is also contended that the petitioners also filed an application before the Labour Court vide CM No. 174 in Petition No. 274/1997, which was dismissed, hence, they have already availed the alternate remedy and could have challenged the said order. It is further contended that the writ petition is not maintainable and the same is liable to be dismissed. Also relies upon MLD 1956 Lahore 474 and 1984 CLC 2886 in support of his contentions.
5. Learned counsel for the petitioners on the query of this Court that whether this writ petition being filed at this latter stage is not hit by laces contends that there is no the limit for filing a writ petition if the order is found illegal on merit which can be struck by this Court instead of dismissing the petition on technical grounds. Also relies upon PLD 1970 SC 1 and PLJ 2001 Lahore 1052.
6. I have heard the learned counsel for the parties and also perused the impugned orders as well as the case- law cited by both the learned counsel for the parties, it is an admitted fact that the petitioners had filed a petition under section 25-A of Industrial Relations Ordinance, 1969 before the Labour Court No. 9, Multan against the dismissal of their application which was pending when on 4.12.1998 they requested for the withdrawal of the same with a permission to file afresh. The Punjab Labour Court No. 9, Multan vide order dated on the same day, i.e. 4.12.1998 accepted the request of the petitioners which order was challenged by respondent No.3 and 4 in appeal which has been accepted by respondent No. 1 vide order dated 21.7.2000 by pointing out certain illegalities in the said order that the petition was barred by the. The learned counsel for the petitioner while relying upon the judgments of the Honourable Supreme Court of Pakistan has contended that the petitioners had applied for withdrawal of this petition with a permission to allow them to file fresh petition and prayer could be accepted or rejected in toto but petition could not be dismissed as withdrawn by ignoring the prayer of permission to file afresh. The Honourable Supreme Court in Karim Gul and another vs. Shahzad Gul and another (1970 SCM R 141) has held that the Court must either reject or accept both the prayers in such an application for withdrawal of suit and it is not open to it to allow the withdrawal of the suit and yet refuse permission to institute a fresh suit in respect of the same subject-matter. Similar view has also been adopted by the august Supreme Court of Pakistan "Moula Bakhsh Vs. Muhammad ZahkJ and another" (PLD 1990 SC 596), which is reproduced as under:- -O. XXIII, Rr. 1 and 2-Withdrawal of suit-Permission by Court- Withdrawal is complete the moment the order to that effect is recorded by the Court and the right to bring a fresh suit flows from the withdrawal so permitted-Court cannot at the same the allow to withdraw suit and refuse permission to institute fresh suit."
In the present case the learned Punjab Labour Appellate Tribunal has accepted the prayer of the petitioners for the withdrawal of their petition but has not accepted their prayer for institution of fresh petition in the same Court, hence the impugned order being against the law laid down by the Honourable Supreme Court of Pakistan on the face of it is illegal and this Court in writ jurisdiction can strike down the same. Learned counsel for respondent No. 3 has badly failed to meet this point and the contentions raised by the learned counsel for respondent No. 3 are not sufficient, to refuse the prayer of the petitioners for setting aside the impugned order. The case law cited by respondent No. 3 is misplaced as in none of the cases it has been decided that if one prays for withdrawal of his suit or petition with permission to file afresh, suit can be dismissed by refusing the other prayer on technical grounds, it has been held by Mr. B.Z Kaikais, J., as he then was in "Imtiaz Ahmad vs. Ghulam AH, etc." (PLD 1963 SC 382) that technicalities should not stand in the way of disposal of case. The relevant portion the said judgment is reproduced as under:- I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his."
For the foregoing reasons, this petition is accepted, the impugned orders are set aside and the grievance as having been withdrawn on 4.12.1998 will be deemed to be pending and shall be decided afresh in accordance with law after affording equal opportunity of hearing to both the parties.