SAVED NAJAM-UL-HASSAN KAZMI J.--- In the course of hearing of this petition, it was observed that the order passed by NIRC 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 tiled, though the remedy of appeal was available against order of which the petitioner was aggrieved. Learned counsel explained that since the Full Bench of NIRC 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 NIRC 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 will law. Be that as it may, in the presence of available alternate remedy of appeal, writ petition cannot he entertained. The petitioner shall, therefore, in the first instance, avail the remedy of appeal, which if tiled with of course, he 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 been pursuing the matter in the Constitutional jurisdiction and during this period, the limitation for tiling of appeal expired, the Appellate Bench of NIRC, shall, therefore, consider the question of limitation sympathetically and shall condone the delay due to the consumption of time in persuing the matter in the writ petition. Learned counsel for The respondents frankly conceded that if 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 tiled, shall be decided on merit and in accordance with law by the Appellate Bench of NIRC, by taking sympathetic view in condonation of limitation.