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Petitioner: METRO GARMENT INDUSTRIES VS Respondent: SIND LABOUR APPELLATE TRIBUNAL AND 2 JUDGMENT
Court Name: Sindh High Court Judge(s): Muhammad Zahoor-ul-Haq, Ali Nawaz Budhani Title:METRO GARMENT INDUSTRIES vs SIND LABOUR APPELLATE TRIBUNAL AND 2
JUDGMENT
Reported As: 1984 PLC 241 Result: Petition dismissed Judgment JUDGMENT ' MUHAMMAD ZAHOORUL HAQ, J.-These 5 petitions are directed against the orders of Labour Appellate Tribunal where the orders of Labour Court were set aside or modified in appeals filed under section 37(3) of I.R.O. Of 1969. The workman had brought their grievances against their removal or termination before the Labour Court under section 25-A of I.R.O. ' In these petitions the common point of law involved is whether an order passed by Labour Court in respect of rights granted under Standing Order No, 12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance of 1968 is final or the aggrieved person can avail of the remedy of appeal provided under section 37(3) of Industrial Relations Ordinance, 1969 against the decisions of the Labour Court. The facts are not material in these petitions. The judgments of the Labour Court as well as of the Labour Appellate Tribunal are quite detailed and have analysed facts and findings arrived at have not been challenged before us. ' To understand the position we may note that till 1972 Standing Orders Ordinance provided certain rights to the workmen as therein defined and it also provided relief to the office-bearer of a union under Standing Order No, 18 if his services were terminated. The order passed under Standing Order No, 18 was however, final and there was no appeal provided against the same. On 13th April, 1972 by Ordinance IX of 1972, Standing Order No, 18 was omitted from West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance of 1968 and simultaneously section 25-A was introduced in I.R.O. Of 1969 which provided a right to individual worker to get his rights enforced which included rights granted under all Standing Orders including Standing Order No, 12 as well which ensured certain rights in respect of removal, retirement and retrenchment. Since orders
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under section 25-A, I.R.O. Are appealable, therefore, an aggrieved person was also having the right of appeal under section 37(3) of I.R.O., 1969. However, on 24th May, 1972 Standing Order 12(3) was amended and it was provided that a worker may bring his grievance to the notice of his employer in the manner laid down in section 25-A of I.R.O. And thereupon the provisions of the said section shall apply as they apply to the redress of the individual grievances. ' The argument of Mr. Shibli who argued for the petitioners is that it is a case of legislation by incorporation or reference and therefore, the adopted provision of 1.R.O. Namely section 25-A would alone be attracted without the provisions of appeal, and that too only in the form in which it existed on 24th May, 1972, when it was incorporated in Standing Order 12(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance of 1968 and no subsequent amendment made in section 25-A of I.R.O. Of 1969 should be taken into consideration. He has relied upon AIR 1931 P C 149, PLD 1977 Lah. 96 and lastly upon PLD 1979 Lab. 415. ' Counsel submitted that by incorporation of section 25-A of I.R.O. Alone in Standing Order 12(3) only one forum is now available and the appeal under section 37(3) is excluded because section 37(3) has not been incorporated in Standing Order 12(3). He elaborated that since a particular remedy has been provided in the very provision of Standing Order 12(3) which has created a right for a removed or retired worker therefore, the general remedy under section 25-A of I.R.O. With the consequent appeal by the aggrieved person under section 37(3) of the same Ordinance are necessarily excluded. ' The counsel referred to PLD 1977 Lab. 96 (98), from which relevant observations are produced here : "The learned counsel for the petitioner did not dispute the well-established position of law that when some provisions of an earlier Act, are incorporated in a later Act, the incorporated provisions for all practical purposes, become part and parcel of the later Act and no subsequent change in the earlier Act, even though retrospective in its application, shall apply to the incorporated provisions of the later Act unless the same has been made applicable expressly or by necessary intendment." ' However, more important view in this respect has been laid down in AIR 1931 P C 149 (152) and the relevant observations are herein reproduced : "It seems to be no less logical to hold that where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition. So, Lord Westbury says in Ex parte St. Sepulchre (1864) 33 L J, Ch. 372. "If the particular Act gives in itself a complete rule on the subject-matter, the expression of that rule would undoubtedly amount to an exception of the subject-matter to the rule out of the general Act." see also London, Chatham and Dover Railway v. Wandsworth Board of Works 8 C P 185. ' It would, therefore, appear that even in a case of legislation by reference the subsequent amendments made in section 25-A of I.R.O. Of 1969, could be read under certain conditions. In this respect we shall examine a little later the addition of subsection (8) brought about in section 25-A of I.R.O. Of 1969, in the year 1976. ' The relevant case relied upon by Mr. Shibli is the judgment of Mr. Justice Gul Muhammad Khan of the Lahore High Court reported in P. I. A. v. Chairman Punjab Labour Appellate Tribunal where almost the same point was involved and the learned Judge has made an elaborate survey of the law in respect of legislation by reference. He came to the conclusion that section 37(3) of I.R.O., 1969 was not available to a workman in respect of the vindication of his rights granted under Standing1
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Order 12 because sub-order (3) of the same Standing Order has incorporated the provision of section 25-A of I.R.O. Of 1969 and this being a particular remedy it has excluded the general remedy under the ordinary provisions of section 25-A of I.R.O. Of 1969 which could have included the second forum of appeal under section 37 (3) of I.R.O. The learned Judge laid down the rule that "intention of Legislature must be fulfilled." He was considerably impressed by the fact that from 13th April, 1972 to 27th May, 1972, section 25-A of I.R.O. Of 1909 a well as section 37(3) of I.R.O. Were available to a workman for' vindication of his rights but on 24th May, 1972 the Legislature merely incorporated section 25-A of I.R.O. In Standing Order 12(3) and did not incorporate the provisions of section 37(3) of I.R.O. And, therefore, the clear intention of the Legislature appeared to be that it wanted that only one remedy should remain available to a workman and not two. However, in para. 40 of the same judgment the learned Judge held that the subsequent amendments (obvious reference is to section 25-A of I.R.O.) shall apply but only to the extent as they would be applicable to taking action in accordance with section 25-A. This judgment is under appeal before the Supreme Court. ' At this stage it would be appropriate to take notice of subsection (8) of section 25-A introduced in 1976. ' The same provides as under :- "If a decision under subsection (4) or an order under subsection (5) given by the Labour Court or a decision of the Tribunal in an appeal against such a decision or order is not given effect to or complied with within a week or within the period specified in such order or decision, the defaulter shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees." ' The same question had been raised before another learned Judge of the Lahore High Court, Mr. Justice Shafiur Rahman, as he then was, in Cotton Trading Corporation (Pak) v. Shabbir Ahmad . He considered the judgment reported in PLD 1979 Lah. 415 and argued with the general propositions of law laid down there in respect of legislation by reference but he took the view that both the reliefs under Standing. Order 12(3) as well as under section 25-A of I.R.O. Were equally available to a worker and, therefore, he could resort to the more beneficial relief. Para. 3 of the said judgment is very pertinent and we reproduce the same : "So far as the first legal point is concerned, undoubtedly it has been so held that on strength of clause (3) of Standing Order No, 12, section 25-A of the Industrial Relations Ordinance stands incorporated in the Standing Order Ordinance but section 37 which provides for an appeal against an order under that section (has not been incorporated). Hence the jurisdiction of the Appellate Tribunal and the right of the aggrieved party to file an appeal has been held to be non-existent. This finding of law in so far as it goes, is not in issues. The question here is not what is the effect and extent of incorporation but the question is where two reliefs are equally available one under section 25-A of the I.R.O. And one under Standing Order 12, clause (3) as after incorporation and the one happens to be more beneficial than the other then with whom would the choice lie. It is the accepted principle that the remedies which are more beneficial in accordance with the sense of fairness and equity have to be preferred over those which give truncated relief of the aggrieved person. By all means, a law which affords a right of appeal to the aggrieved party against the first decision is a more beneficial provision than the one which completely shuts out such appeal. Therefore, on the strength of I.R.O. And the definition of workman therein the respondent could avail of the remedy of appeal." ' The same learned Judge has further reiterated his view in M/s. Shahi Bottlers Ltd. v. Khushi Muhammad etc. as under :- "It was not disputed that the respondent-employees also qualify as workmen under the Industrial Relations Ordinance. Their rights in the matter of retrenchment are secured under the Standing Order Ordinance. On the basis of the reasoning adopted in the decisions cited by the learned2 3
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counsel for the petitioner, the employees had remedies under two laws. The first under the Industrial Relations Ordinance and the second under the Standing Order Ordinance. Where such is the case, the benefit of both has to be extended to them or in any case the more beneficial one has to be made available to them as held in General Steel Tools Company, Gujranwala v. Presiding Officer, Punjab Labour Court No, 2, Lahore and 2 others PLD 1976 Lah. 528. The very language of section 25-A of the Industrial Relations Ordinance indicates that whosoever qualifies as a workman under that law can seek the remedy provided therein in respect of the rights secured under other laws. This provision, therefore, establishes a link directly with the substantive right enshrined in some other Act for which a remedial enforcement provision is made under this law." ' Mr. Shibli submitted that the definition of 'workmen' under section 2(1) of West Pakistan Standing Orders Ordinance of 1968 was much more restricted than the definition of a 'workman' under section 2(xxviii) of I.R.O., 1969. He submitted that workman under section 2(1) of W.S.O. Ordinance, 1968, means any person employed in any industrial or commercial establishment to do any skilled or unskilled, Manual or clerical work for hire or reward and, therefore he has to be a workman employed when he wants to seek a relief under any of the Standing Orders, while under section 2(xxviii) of I.R.O. a workman includes even a dismissed or discharged worker who was employed and who is not an employer etc. Which covers a wider scope. He argues that the legislature had, therefore, intended that a workman under Standing Order Ordinance whose services are terminated should have a limited right of ventilating his grievances in one forum only without any right of appeal. This argument has no substance. In the first instance the very fact that a workman whose services have been terminated has been given a right to ventilate his grievance under Standing Orders Ordinance 12(3) of West Pakistan Standing Orders Ordinance, 1968 shows that the person seeking a relief under section 12(3) need not continued to be employed in an establishment because it is only after the termination of his service that we can feel aggrieved on that account. ' The argument that the Legislature intended to restrict the retired or discharged or retrenched worker to only one relief under section 25-A of I.R.O. Of 1969 without further recourse to appeal under section 37(3) of I.R.O. Appears to be a weak one. In the first instance subsection (8) of section 25-A of I.R.O. Does speak of appeal although indirectly but still the appeal is visualized in section 25-A itself and hence it cannot be said that the concept of appeal is completely foreign to Standing Order 12(3). Although Mr. Shibli had wanted us to ignore subsection (8) 4 of section 25-A of I.R.O. Because it was introduced only in 1976 whil section 25-A of I.R.O. Was incorporated in Standing Order 12(3) on 24th May, 1972. But we are of the view that section 25-A with all its amendments has to be read in Standing Order 12 (3) firstly because ' Standing Order 12(3) was itself amended by Act XXIII of 1973 and the words "take action in accordance with the provisions of", were introduced before the words, "section 25-A of I.R.O. Of 1969, and thereupon the provision of the said section shall apply as they apply to the redress of an individual grievance." This shows that the Legislature intended to apply section 25-A with all its amendments, whether past or future, because the whole section 25-A was being applied with reference to the redress of an individual grievance. Moreover, even in PLD 1979 Lah. 415, relied upon by Mr. Shibli, it has been held in para 40 that remedy provided is contemporaneous with the stage at which the worker becomes entitled to take action and that subsequent amendments to section 25-A shall apply. And even in the Privy Council case AIR 1931 P C 149(152) it was clearly stipulated that subsequent amendments in the adopted, statute could be considered if the adopting statute did not remain effective without such amendments. To our mind subsection (8) of section 25-A makes section 25-A more effective as it provides for punishment in case the decision is not given effect by the party concerned. ' Mr. Makhdoom Ali Khan submitted that our own High Court has held that there is a right of appeal under section 37(3) against an order passed by the Labour Court in respect of rights granted under
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Standing Order 12(3). Mr. Z. C. Valiani, J, in a case reported in 1981 PLC 898, took the view that the appeal was available. His reason was that if the Legislature did not intend that the provisions of section 37(3) of I.R.O. Be not available to the workman in respect of his grievance under Standing Order 12(3) of West Pakistan Standing Orders Ordinance, 1968, then it would have clearly mentioned so while amending Standing Order 12(3) but it had not done so and hence the order was subject to appeal. With respect we agree. ' Mr. Makhdoom Ali Khan submitted that since Standing Order 12(3) had specifically referred to the procedure of an established Court, therefore, all the incidents of appeal and revision in respect of the decisions of such Court were attracted. He referred to AIR 1948 P C 12 (14) where it was held : "The true rule is that where a legal right is in dispute and the ordinary Courts of country are seized of such dispute, the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not terms confer a right of appeal, "43 I.A. 192 and 63 I A 180 referred." ' In the above case the Privy Council was considering the contention that under section 19 of the Madras Agriculturist Relief Act, a particular right was conferred upon a judgment-debtor, but that Act conferred no right of appeal from an order made under that section and, therefore, no appeal was competent. The Privy Council rejected that contention and held that an appeal did lie from such an order because the order in question had been made by the ordinary Court and under the ordinary rules of procedure applicable to that Court viz. C. P. C. An appeal was competent. The above-quoted observations of the Privy Council are general in their import and lay down a rule of law which is quite relevant and therefore, binding even in the cases before us on the premises that even if the orders of the Labour Courts were held to be orders passed under Standing Order 12(3) of the Standing Orders Ordinance, 1968 and therE was no appeal provided in that Ordinance against the orders passed under Standing Order 12 (3) yet because the Labour Courts were the ordinary and established Courts and ordinary rules of procedure applicable to those Labour Courts was the Industrial Relations Ordinance o 1959 and since section 37(3) of that I.R.O. Provided an appeal against any decision of the Labour Court to the Labour Appellate Tribunal, therefore, the order passed by a labour Court under Standing Order 12(3) would b appealable and hence the appeals in question against which the present petitions are directed were competently filed and were within jurisdiction of Labour Appellate Tribunal. ' Mr. Makhdoom Ali Khan referred to a Division Bench Judgment of this Court reported in 1981 PLC 561 (562-566) where the Honourable Judges were considering whether the order passed in appeal by a Labour Court under section 17 of the Payment of Wages Act of 1936 against which no revision had been provided in the Payment of Wages Act, was subject to revision by the Labour Appellate Authorities under section 38(3-a) of I.R.O. After noticing that the Labour Court had been conferred power under section 17 of the Payment of Wages Act to hear an appeal against an order passed by the Authorities under section 15 of the Payment of Wages Act and not under any provisions of the I.R.O. Of 1969, yet the learned Judges were of the view that the labour Court was an already established 'Court and its procedure and powers were already defined and since revision against its orders were competent under section 38 (3-a) of I.R.0, therefore, revision was competent. The Division Bench had taken note of a good deal of authoritative pronouncements on this subject. The relevant observations of Zafar Hussain Mirza, J. (as he then was) who wrote the said judgment, appearing at 566 are reproduced below :- "In our opinion, when a matter under any special law is transferred to the Labour Court under a statutory provision its adjudication and determination by the Labour Court becomes a proceeding under the I.R.O. By virtue of subsection (5)(d) of section 35 so that it is amenable to the revisional jurisdiction of the Appellate Tribunal. This conclusion is further fortified by the provisions of subsection (7) of section 35 which confers the power upon the Appellate Tribunal to transfer any
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proceedings from a Labour Court, within its jurisdiction, to any other such Labour Court. In this subsection the nature or proceeding has not been defined." ' With respect we agree with the reasoning in this judgment and the same is very relevant for the matter before us. The expression "and thereupon the provisions of the said section apply as they apply to the redress of the redress of an individual grievance", appearing in Standing Order 12(3) have been interpreted to include the procedure embedded, attached or linked with section 25-A of I.R.O. By Mr. Justice Shafiur Rahman (as he then was) in 1979 PLC 424 at pp. 495-496, and we reproduce the relevant portion which shows that Legislature has not restricted the right to one forum only. "Apart from this line of reasoning the incorporation of section 25-A on the strength of Standing Order 12 clause (a) has a distinct feature. The clause reads : ' The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance." ' The expression 'and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance' have to be noted. If it were the intention of the Legislature to stop at incorporating section 25-A and to restrict the incorporation to it, such an expression would not have followed. The only meaning that can be given is that once resort to S. 25-A is taken on the strength of this provision the provisions of that section in the matter of redress of individual grievance shall apply. Whatever, therefore, is the procedure embedded or attached or linked with section 25-A of the Industrial Relations Ordinance in the matter of the redress of grievance will automatically be available. The provision being remedial in nature, the full benefit of the remedy has to be given to the party claiming it. The restriction of the remedy only to the stage of labour Court and not extending it beyond to appeal and other proceedings available would appear to be some-what arbitrary and out of context. The judgments referred to particularly, Pakistan International Airlines Corporation is under examination by the Supreme Court Sahib.Cada K. A. K. Afridi v. P. 1. A. 1982 SCMR 167." ' The argument of petitioners counsel that Legislature intended to restrict the enforcement of right granted under Standing Order 12(3) does not appear to be correct if we have a broad look. Mr. Makhdoom Ali Khan brought our attention to section 35 (5)(d) of I. R. 0. 1969 which allows a Labour Court to exercise and perform such other powers and functions as are or may be conferred upon or assigned to it by or under this Ordinance or any other law. He emphasised that the words "any other law" would obviously cover the provisions of Standing Order 12 (3) and, therefore, the Labour Court would clearly be acting under its own statutory powers of section 35 (5) (d) when it is dealing with a matter under Standing Order 12 (3) and hence its decision would be subject to appeal and revision as provided under sections 37 (3) arid 38 (3-a) of the I. R. 0. This argument appears to be weighty and is supported by 1981 PLC 561 (562-566) already referred. He further contended that the Labour Court has the jurisdiction under section 25-A of I. R. 0. To grant relief to a worker in respect of any right guaranteed or secured to him under any law. He argued that Standing Order 12 (3) is also another law and, therefore, a worker while moving a Labour Court under section 25-A for redress of a grievance under Standing Order 12(3) is merely asking for enforcing a right which has been granted to him under Standing Order 12 (3) like any
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other rights granted to him under the other laws. The workman has two forums available to him of Labour Court under section 25-A and of appeal Court under section 37(3) in respect of any other right and, therefore, it does not stand to reason that the Legislature intended to deny him one forum of, appeal by merely mentioning under Standing Order 12 (3) that he can take action under section 25-A of 1. R. 0. Of 1969. The argument seems to be quite convincing particularly in view of the fact that the law in question is a beneficial one and it should advance the remedy of the litigant. ' Let us now examine the position about enforcement of the various Standing Orders themselves. In the first instance we notice that there is no authority prescribed for the enforcement of the Standing Orders. However, the contravention of all the Standing Orders is made punishable under section 7 of the West Pakistan Standing Orders Ordinance and subsection (6) prescribes that no Court other than labour Court established under the I. R. O. Shall try any offence. Therefore, all offences are made punishable by the Labour Court. But there are rights granted under different Standing Orders and since there is no other authority appointed under the said Ordinance therefore the labour…
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