Hamid Sultan Abu Backer JC:

[1] This is my judgment in respect of the judicial review application in respect of the award of the Industrial Court seeking inter alia the following.

(i) The transfer of the applicant by the 2nd respondent to another entity, Ganda Plantations Sdn Bhd with effect from 1 January 1994 and with a reduction in the applicant's total remuneration constituted a dismissal of the applicant without just cause or excuse and/or was an unfair labour practice and/or unlawful or was victimization be upheld and affirmed;

(ii) That the 1st and/or the 2nd respondent be accordingly directed to reinstate the applicant to his former position or equivalent position in the 2nd respondent without any loss of wages, allowance, service, seniority privileges or benefits of any kind and/or any other alternate relief as shall be deemed fit and proper; and

(iii) That all necessary and consequential directions and/or other orders, as the case may be, be given.

[2] The respondent at the commencement of the hearing as a preliminary issue says that the applicant did not in his notice of hearing apply for an order for certiorari to quash the award of the Industrial Court and in consequence an order for certiorari ought not to be considered. I do not see any merit in such a line of argument as the leave application and notice of hearing must be read together. Further, any preliminary objection purely on technicalities ought not to be entertained more so when there is no formal application to do so, pursuant to O 2 of RHC 1980. I have dealt with this area of procedural law in detail in the case of Sibu High Court Civ-App-12-8-2007 Chiong Wee Chiok v. Barau Laja & Anor, [2008] 10 CLJ 95; and the relevant part reads as follows:

The only issue for me to decide is whether various provisions of the rules of procedure relied on by the respondents is mandatory. The law in this area is well settled. A rule of procedure is only mandatory when the law in positive terms say that or can be implied as a condition precedent in the cause of proceedings, otherwise any omission to comply with the rules may be condoned by the courts pursuant to various provisions of rules of courts as well as inherent jurisdiction of Court. (See O 2 SCR 1980; Megat Najmuddin Dato Seri (Dr) Megat Khas v. Bank Bumiputra (M) Bhd). Support for the proposition stated above can be garnered from a number of cases, and rules of procedure. Legal Practitioners often say that the distinction between 'mandatory' and 'directory' rules is largely a matter of judicial taste. There are many judicial decisions which will support this proposition. For example, the courts in interpreting O 32 r 13(2) of the RHC 1980 have held that it is a strict requirement that any affidavit filed in support of an application must be filed and served on the other party within 14 days. (See Malayan Banking Berhad v. Lim Tee Yong & 3 Ors, [1994] 3 MLJ 715). However, the Court of Appeal in Perbadanan National Insurans Sdn Bhd v. Pua Lai Ong; [1996] 3 MLJ 85; [1996] 3 CLJ 321; [1996] 3 AMR 2869; [1996] 3 AMR 2869 did not give a mandatory interpretation to the said rule. The importance of observing procedural law is essential to attain substantive justice and early disposal of the case. However, any form of predatory instinct to use procedural law as a sword to dispose of a case without merits being heard will in truth lead to miscarriage of justice. Such a result must be avoided at all costs to ensure that the legitimate expectations of the litigant who has been embedded with the notion that the fulcrum of justice will be met by judges by ensuring that merit of the case will be heard further. The doctrine of legitimate expectation requires an adjudicator to act fairly and has become integral part of natural justice. (See Union of India v. Hindustan Development Corp AIR [1994] 988). Many Malaysians cases has adopted this doctrine. (See Ahmad Tajuddin Haji Ishak v. Suruhanjaya Pelabuhan Pulau Pinang CA; [