FAKHRUDDIN G. ESRAHIM, J.-During the pendency of proceedings in respect of certain industrial disputes between the respondent No. 1 company and its employees' Union before the then West Pakistan Industrial Court the respondent No. 3 herein, four identical applications were made under subsection (2) of section 30 of the Industrial Disputes. Ordinance, 1959, by the respondent No. 1 for permission 1tdischarge the petitioners under Standing Order 12 (1) of the industrial and Commercial Employment (Standing Orders) Ordinance, 1960 on the ground that the conduct of the petitioners had been such as to tautly apprehension in the mind of the respondent No. 1, and that they bad lost confidence in the petitioners. It was further atlese8 against the petitioners that their conduct had already caused and was further likely to cause damage to the reputation of the respondent No. 1.
2. In fiche written statements filed before the Industrial Court the petitioners denied the allegations made against them and further made the grievance of the fact that .the respondent No. I had neither issued any charge-sheet nor instituted any domestic enquiry, and that the real purpose of seeking the per--mission sought was to victimize the petitioners who were all admittedly office- bearers of a registered Trade Union in the respondent No. 1 establishment.
3. The parties led evidence before the Industrial Court morn particularly the respondent No. 1 was at pains to establish that the petitioners had committed misconduct, which was denied by the petitioners. The industrial Court disposed of all the four applications by a single order dated 27th June 1968, by which order, the requisite permission was granted but with a direction that the petitioners shall be entitled to all the benefits that would accrue to them under the aforesaid Standing Orders Ordinance. As regards the misconduct alleged against the petitioners the Indus-- trial court found that the respondent No. 1 ' had no evidence about the allegation that they had node against the petitioners and even it' the domestic enquiry lead been held or even if the Court had held such a domestic enquiry, the acts of omissions and commis--sions alleged against the petitioners could not be proved."
The permission sought, however, was granted for the reasons that the suspicions of the respondent No. 1 were genuine and that they had for genuine reasons lost confidence in the services of the petitioners and under such circumstances the management could not be forced to continue the petitioners in service against their wishes and that there was no questions of vic--timisation.
4. Against the said order dated 27th June 1968, the peti--tioners went in appeal before the then West Pakistan Industrial Appellate Tribunal the respondent No. 2 herein, who by his order dated 10- 5-1969 refused to interfere with the order of the Industrial Court and dismissed the appeals. The Appellate Tribunal came to the conclusion that in effect the respondent No. 1 had sought permission to discharge the petitioners for misconduct, which misconduct was prima facie established by them and the respondent No. 1 was accordingly entitled to the permission sought.
As regards the allegations made by the petitioners that they were neither charge-sheeted nor a domestic enquiry held, the Appellate Tribunal relying on certain decisions of the Supreme Court- of India came to the conclusion that issue of show-cause notice or domestic enquiry was not a condition precedent to the filing of applications under subsection (2) of section 30 and that it was open to the Industrial Court to hold full enquiry into the merits of the case. A review application was filed but it was dismissed by an order dated 17-9-1969.
5. This petition challenges the aforesaid orders dated 27th June 1968 and 10th May 1969 made by the Industrial Court and the Appellate Tribunal, respectively. In so far as the order of the Industrial Court is concerned Mr. Mumtazuddin, the learned counsel for the petitioners contended before us that the juris--diction of the Industrial Court to grant permission under section 30(2) of the Industrial Disputes Ordinance, 1959 arisen only when a workman, who is an office-bearer has been discharged or dismissed for a misconduct during the pendency of any proceed--ings before it in respect of an industrial dispute and not other--wise, and -that in the present case, the Industrial Court having come to the conclusion that no misconduct has been committed by the petitioners, the Court should have proceeded to dismiss the applications as not maintainable. The learned counsel argued, that under subsection (2) of section 30 it wits neither scary to seek permission for a discharge simpliciter nor, as the Industrial Court entitled to grant permission for a charge simpliciter. He further contended that though it was the peti--tioners' case that in effect the requisite permission was sought for an alleged misconduct on the part of the petitioners, the Industrial Court having come to the conclusion that no mis--conduct was committed by the petitioners it should have proceeded to dismiss the applications and not proceed to grant the per- -mission for discharge, simpliciter under Standing Order 12(l). The language of subsection (2) of section 30 makes it abundantly clear that the bar imposed on the employer, during the pendency of any proceedings, was against the discharge or dismissal for misconduct, for which discharge or dismissal the previous permission of the industrial Court is made imperative. The respondent No. t In their applications under section 30 (2) clearly alleged misconduct against the petitioners and if this misconduct was, as found by the Industrial Court, not established, he should have, in my opinion, proceeded to dismiss the applications.
6. As regards the order of the Appellate Tribunal there is no doubt that its conclusion that the respondent No. 1 in effect sought permission to discharge the petitioner for misconduct was clearly borne out by heir own applications under sec--tion 30(2). As aforesaid its finding was that prima facie the misconduct alleged had been established and to arrive at this finding tae learned Appellate Tribunal relied on the evidence of misconduct led before the Industrial Court. Admittedly the petitioners were neither charge-sheeted nor any enquiry held before the respondents filed the applications under subsection (2) of section 30 of the said Ordinance and 1 am called upon to examine the consequences that arise from these emissions on the part of the respondent No. 1. A further question that will arise for consideration is whether it was open to the Industrial Court itself to proceed to hold the enquiry to establish a prima facie case of misconduct as held by the Appellate Tribunal. As aforesaid the Appellate Tribunal relied on certain decisions of the Supreme Court of India to justify these conclusions.
7. It would appear to me that the attention of the learned Appellate Tribunal was not incited to at least two binding deci--sions of our own Supreme Court on these questions. These are River Steamship Navigation Co. Ltd. v. A. B. S. Choudhury and others (PLD 1958 SC (Pak.) 418) and Steel Corporation of Pakistan v. Sher Zaman and others (1968 SCMR 355). In both these cases the question for consideration before the Supreme Court was the' function of the Industrial Court under indentical provision of law. In the River Steamship Navigation Co. Ltd. the employer sought permission from the Industrial Court to dismiss 227 employees on the ground that these persons had been guilty of participating in an illegal strike. The Tribunal refused to grant the permission sought which decision was challenged in the Supreme Court. The Supreme Court came to the conclusion that mere fact of participation in an illegal strike without anything more was insufficient ground for grant of the requisite permission to dismiss a workman for misconduct and that what had to be established was that such a strike was attended by circumstances of aggravation e.g. fact may appear showing a conscious intention to cause grave and irreparable injury to the employer. To meet this situation it was urged on behalf of the employer that the grant of permission under section 33 would not necessarily mean that all workmen in question would be dismissed forthwith and that the employer had the intention to hold enquiries and to use the permission granted by the Tribunal only in relation to those found guilty of misconduct. This contention was answered by Mr. Justice Cornelius, J. as follows:- "The answer to this contention is that the correct procedure is, by framing of charges, to ascertain the misconduct first before approaching the Industrial Tribunal for permission to dismiss. Moreover the grant of permission in the sense suggested is not within the contemplation of the section and would be a clear misuse of the power vested ` in the Industrial Tribunal."
8. In the second case of the Steel Corporation of Pakistan Ltd., the facts were that the employer had charged certain office-bearers of the Union with inciting an illegal strike and after an ex parte enquiry, at which the workers were adjudged guilty, sought permission from the Industrial Court under section 30 of the Industrial Disputes Ordinance, 1959 to dismiss them. The Industrial Court purported to hold a further enquiry. The respondent workmen went in the witness-bore and denied the allegations that they were inciting the strike, while the employer only examined the Enquiry Officer who filed the enquiry papers to show that the workers had been properly charge-sheeted and an adequate enquiry held resulting in a bona fide finding against the workmen. The Industrial Court held that the domestic enquiry was perverse but the only reason given in support of this drastic conclusion was that before the Industrial Court the Corporation should have examined at least one witness to controvert the statement of the workman that they did not go on strike. The Supreme Court did not interfere with the order of the Industrial Court but for altogether different reasons. The Supreme Court came to the conclusion that the respondent-workmen did not have a proper opportunity of meeting the case before them in the domestic enquiry as the domestic '` enquiry was held at a time when the conciliation proceeding were in progress, which the office- bearers of Union in that case the respondent-workmen, were bound to attend, and they were thus bona fide prevented from attending the domestic enquiry. However on the powers of the Industrial Court when adjudicating upon an application under section 30 the Supreme Court had this to say:- "It should, however, be made clear that that does not include the power to repeat the enquiry conducted by the Corporation, or to supplement by production of fresh evidence. If the Industrial Court finds fault with the enquiry or the procedure thereof, its duty would be, while refusing permission to dismiss, to indicate where the fault or error lay, which vitiated the enquiry."
9. It would appear to me from the aforesaid two decisions of the Supreme Court that it is not the function of the Industrial Court under section 30 of the Industrial Disputes Ordinance to hold an enquiry to determine whether the workmen had com--mitted misconduct and on the basis of evidence led before it to grant and refuse icy grant the permission sought. This is what was precisely done by the Industrial Court in the present case which procedure was re-affirmed by the Appellate Tribunal. The impugned orders dated 10th May 1969 and 27th June 1968, there--fore, cannot be sustained.
10. Faced with this situation, Mr. Shah Jamil Alam the learned counsel for the respondent No. 1 contended that the petitioners have precluded themselves from filing this petition under Article 98 of the 1962- Constitution, as they have by sub--sequent conduct accepted the decision of the Industrial Court dated 27th June 1.968 by receiving all their dues including notice pay, employer's contribution to Provident Fund, Gratuity etc. He invited our attention to the counter-affidavit filed on behalf of respondent No. 11 in which it is alleged that the petitioners had taken all their dues up-to- date including the salary for the period of suspension and that they had given receipts of full and final settlement of their accounts. Though no rejoinder was filed on behalf of the petitioners, we, by an order dated 19-11973 directed .the responds a No. 1 to produce these receipts. We have examined the receipts, copies of which were also supplied In advance to the petitioners' counsel and we find that the petitioners had unconditionally accepted all their dues. Now though it may not be strictly correct to say that be accepting the aforesaid payments the petitioners have precluded themselves from filing this petition, it certainly stands to reason, that having done so, they cannot be said to be a party aggrieved by the impugned orders within the meaning of the expression used in Article 98 of the late Constitution of 1962. I am, therefore obliged to come to the reluctant conclusion that notwithstanding my disagreement with the impugned orders the present petition must fail and it would even otherwise be improper to grant the discretionary relief In favour of the petitioners. Mr. Mumtaz--uddin relied on the case of The Glaxo Laboratories (Pakistan) Ltd. v.
Pakistan and others (PLD 1962 SC 60), in support of his contention that notwithstanding the receipt of notice pay the petitioners were entitled to have the impugned orders set aside. It is argued that in this case the Supreme Court did not interfere with an order of re-instatement made in favour of a workman who was dis--missed for misconduct but had been paid one month's salary in lieu of notice along with his pay and overtime allowance. This case is clearly distinguishable and inasmuch as the payment received by the workman was not in pursuance of any order made by the Industrial Court and furthermore in that case, unlike the present one, there was no indication that the workman had been paid anything else by way of Provident Fund or any salary for, earned leave standing to the credit or that his accounts had been settled. In the present case not only the petitioners have received all their dues as aforesaid but have given full and final settlement receipt to the respondent No. 1. In these circumstances, interference now with the impugned orders is clearly uncalled for as the petitioners have unconditionally accepted the discharge of their services.
11. I will, therefore, dismiss this petition but in the circumstances of the case there will be no order as to costs.
TUFAIL AM A. REFIMAN, C. J.-I agree.