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Petitioner: WORKERS VS Respondent: THE MANAGEMENT, SULTAN TEXTILE MILLS LTD.,
Court Name: Lahore High Court Judge(s): Muhammad Afzal Cheema, Karam Elahi Chauhan, Muhammad Akram Title: WORKERS vs THE MANAGEMENT, SULTAN TEXTILE MILLS LTD., Case No.: F. A. O. No. 70 of 1963 Date of Judgment:1971-08-10 Reported As: 1973 PLC 175 Result: Reference answered
JUDGMENT
JUDGMENT MUHAMMAD AFZAL CHEEMA, J.- F. A. Os. Nos. 70/63, 138/65, 126/67, 33/66, 181/65, 145/64, 132/65, 20/65, 13/65,195/64, 145/66, 144/66, 73/66, 72/66, 33/68, 142 61, 134/67, 40/65, 43/65, 166/65, 85/65, 92/05, 81/65 and 77/65 are all connected matters having been filed under section 12(5) of the Industrial Disputes Ordinance. 1959 (No. LVI of 1959) as amended by Ordinance No. LXXIX of 1962. That Ordinance was subsequently repealed by the West Pakistan Industrial Disputes Ordinance of 1968, under which an Appellate Tribunal was set up to hear appeals from the decisions and awards of the Industrial Courts. Section 46(2) ibid however saved all pending proceedings and al "46. Repeal and savings.-(I). (2) Notwithstanding the repeal, of the said Ordinance, anything done, rules, notifications or orders issued, officers appointed, Courts constituted, notices given, references and applications to Courts made. Proceedings commenced or other action taken under the sad Ordinance shall, so far as the same are not inconsistent with the provisions of this Ordinance, be continued and be deemed to have been respectively, done, issued, appointed, constituted, given, made, commenced or taken under this Ordinance. Ordinance IV of 1968 in turn was again repealed icy 01rdirance XXIII of 1969 wherein a similar provision by way of a saving clause was incorporated in section 07(2). It is as follows:- "67(2) Notwithstan4'ing the repeal of any law by sub--section t 1), and without prejudice to the provisions of section 24.of the Central Clauses Act, 1897 (X of 1897):- (a) every Trade Union existing immediately before the commencement of this Ordinance, which was registered under any such law, shall to deemed to be registered under this Ordinance and its
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constitution shall, as far as it is not inconsistent with the provisions of this Ordinance, continue in force until altered or rescinded ; and (b) anything done, rules made, notification or order Issued, officer appointed, Court constituted, notice given, proceedings commenced or other actions taken under any law shell be deemed to have been done, made, issued, appointed, constituted, given, commenced or taken, as the case may be, under the corresponding provisions of this Ordinance, to the extent of consistency therewith." 2. The important question arising in these appeals relates to the correct interpretation of the two saving clauses contained in section 6(2) of the 1962-Ordinance and section 67(2) of the 1969- Ordinance. Precisely stated the question is whether the appeals pending in this Court against the awards made by the Industrial Courts under the repealed Ordinance of 1959, as amended, should be heard and disposed of by this Court or whether in the alternative the object of the law-Fiver was to oust the jurisdiction of this Court even in respect of pending appeals, which otherwise has been taken away with the establishment of the Appellate Tribunal whose orders made is regard to the awards have been made final of course leaving intact the remedy of appeal to the High Court In criminal matters. 3. This question was considered by a Division Bench 'of this Court of which one of u; (Mr. Justice Muhammad Afzal Cheema was a member, in F. A. O. No. 147 of 1968, wherein the view taken was that the jurisdiction of the High Court having been ousted under the new law the pending appeals could not be heard and disposed of by this Court in view of the deeming clause and as such should be returned to be presented before the Appellate Tribunal. This judgment dated the 14th of October 1968, was of course passed before the enactment of the latest Ordinance of 1969, and as such did not, and in fact could not take notice of the provision contained in section 67(2) thereof. 4. Having heard the learned counsel for the parties quite at some length, we' are inclined to think that perhaps it would be necessary to reconsider the earlier judgment passed In F. A. O. No. 147 of 1968. Since it is a matter of considerable public importance having far reaching Implications, we are of the view that a larger Bench may be constituted for the final determination of the issue involved. The matter may, therefore, be placed before the learned Chief Justice for the constitution of a Full Bench, if it may please his Lordship. The case is accordingly adjourned sine die. 4. These are pretty old cases involving important rights of the poor workmen. We would, therefore, suggest that the larger Bench, if approved by the learned Chief Justice, may be constituted without delay. K. E. CHAUHAN, J.-This judgment will deal with a preliminary point of jurisdiction arising in twenty- four appeals being F. A. Os. Nos. 70/63, 138/65, 126/67, 33/66, 181/65, 145/64, 132/65, 20; 65, 13/65, 195/64, 145/66, 144/66, 73/66, 72/66, 33/68, 142/67, 134./67, 40/65, 43/65, 85/65, 166/65, 92/65, 81/65 and 77/65. All these appeals are against the Awards of the Industrial Court given at the time when the (Central Law) Industrial Disputes Ordinance LVI of 1959, (as amended by Ordinance 79 of 1962) was in force. The appeals were filed in the years 1963, 1964, 1965, 1967 and 1968 under section 12(5) of the said Ordinance. During the pendency of these appeals, Ordin--ance LVI of 1959 was repealed and was replaced by the West Pakistan Industrial Disputes Ordinance IV of 1968 and later on by the Industrial Relations Ordinance XXIII of 1969. The question which has arisen is as to whether the High Court has jurisdiction to hear and dispose of these pending appeals or not. One school of thought based on (an interpretation of) a judgment of a Division Bench of this Court consisting of my learned brothers Muhammad Akram and Muhammad Afzal Cheema, JJ., in F. A. O. 147 of 1968 decided on 14-10-1968, it that this Court cannot bear and determine these appeals. 1n the said F. A. O., the facts were that an application under section 21 of the West Pakistan Industrial Disputes Ordinance IV of 1968 was filed by Ahmad Hussain in 1968 It was decided and dismissed by the its Industrial Court on 6-6-1968 and against the said decision an appeal was filed in this Court on 29-
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8-1968. Prior to promulga--tion of the 'West Pakistan Ordinance IV of 1968 (so far as relevant for the purposes of the present case), appeals only against Awards of the Industrial Court were provided for, and too appeal lay (as later on allowed by the Statute) against orders and decisions of the said Court (other than Awards). Under West Pakistan Ordinance IV of 1968, appeals against decisions and orders of an Industrial Court were to be filed before the Industrial (Appellate) Tribunal. It will thus appear that on the facts of that case (a) since the relevant application (that is plaint) was filed under Ordinance 1V of 1968; (6) it was decided under that Ordinance; (c) appeal was filed under that Ordinance and (d) the order was such which was not appealable under the old law, High Court held that the appeal before it was not maintainable. The decision of the Bench, so far as non-maintainability of that particular appeal was concerned has not been disputed before us and it is not the burden of this - judgment to/ go into that matter. An argument was raised before the Bench that since the relevant application which was made under section 21 of W. P. Ordinance IV of 1968, was in reality in continuation and for the enforcement, of some earlier Award dated 8-1-1965, therefore, it was liable to be enforced in accordance with the machinery, provided by Ordinance 56 of 1959, under which the Award was made. This argument was repelled in paras. 6 and 7 by the learned Judges who held that since old award (and as a matter of fact every thing done under the old law) was adapted by W. P. Ordinance IV of 1968, therefore, it was t-'- deemed to have been passed under-the new law and was, as such to be implemented and enforced In accordance with the machinery provided in the new law I.e., Ordinance IV of' 1968. 'This finding in my humble opinion is confined to the facts of that particular case and was not intended to cover appeals already pending in this Court under the Old Statute. However, the employers (whom I will be referring to as the responde0e), took up the stand on the basis of the judgment hereinbefore mentioned that the appeals had either abated in to be or in the alternative they should be returned to the appellants and cannot be heard. The employees (whom I will be referring to as appellants) were of the view that the pending appeals were not hit by the West Pakistan Ordinance 1V of 1968, or as a matter of fact even by the judgment In F. A. O. 147/1968 and that this Court could still bear them. It may be mentioned that the point was argued before us on the common ground that if appeals were not hit by the West Pakistan Industrial Disputes Ordinance IV of 1968, then they could continue and would not undergo any impairment due to the Industrial Relations Ordinance XXIII of 1969, which the parties argued did not shift the position any further. I have, therefore proceeded to examine as to whether West Pakistan Ordinance 1V of 1968, made any effect on the appeals already filed and pending in this Court under the earlier Ordinance of 1959. 2. After Searing the learned counsel for the parties, I have come to the conclusion that the contentions of the appellants seem to be quite correct and that these appeals can be heard and decided by this Court. My reasons for so holding and my replies to the various propositions raised before us are as follows:-- Reasons: (a) West Pakistan Industrial Disputes Ordinance IV of 1968 (hereinafter called W. P. Ordinance IV of 1968) was published in the Gazette of West Pakistan, Extraordinary; dated 11-6-1968 and came into force with effect from the said date, because it is written in its section 1(3) that it shall come into force at once. A Statute is not to be supposed to be retrospective unless it expressly so stabs or there is a necessary implication to that effect. In section 1(3) of the Ordinance, It is not stated that it was to come into force from any retrospective day or that It was to be considered to have always been in force. In the absence of any such indication, it is not possible for me to hold or to proceed on any line of argument, which has the effect of assuming that the Statute was retrospective in any manner so as to touch the rights acquired under the previous Central Statute, namely, Industrial Disputes Ordinance LVI of 1959, which was repealed. If the interpretation advanced by the learned counsel for the respondents is accepted, it shall virtually amount to giving a retrospective
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operation to the West Pakistan Ordinance. IV of 1968 which in my respectful opinion cannot be done. (6) Section 46 of the West Pakistan Ordinance IV of 1968, with which we are mainly concerned In this case reads as follows:- "46. Repeal and savings.-(1) The Industrial Disputes Ordinance, 1959 (LVI of 1959), in its application to the Province of West Pakistan, hereinafter referred to as the said Ordinance, is hereby repealed. (2) Notwithstanding the repeal of the said Ordinance, anything done, rules. notifications or orders issued, officers appointed, Courts constituted notices given, references and applications to Courts made, proceedings commenced or other action taken under the said Ordinance shall be continued and be deemed to have boon respectively done, issued, appointed, constituted, given, made, commenced or taken under this Ordinance." A perusal of subsection (2) of this section would show that it directs that any proceedings commenced under the repealed Ordinance shall continue. I pause here for a moment to pose a question, is not an appeal filed under the Old Ordinance, a proceeding commenced under that Ordinance? The obvious answer is that it is. If that is so then the mandate of the Statute is quite clear that it shall continue. The word "continue" suggests continuation of those proceedings as they were and wherever they wore and not shifting them from one forum to another: because In that context the process Will not be of continuation but of charge, shift or transfer. The words "commenced" and "continued" as applied to appeals fn my respectful opinion, lease no room for doubt that the appeal proceedings pending in the High Court under Ordinance LVI of 1959, are not to be disturbed. If the argument of the other side is accepted that the, appeal proceedings cannot continue in the High Court, it would run contrary to the mandate of the Statute which state: that they shall continue. (c) A perusal of both the Statutes hereinbefore mentioned, that is, Ordinance of 1959, and the Ordinance of 1968, shows that whereas Ordinance of 1959 was a Central Statute, which applied to the whole of Pakistan, the new Ordinance IV of 1968, teeing a Provincial Statute applied only to the Province of West Pakistan (except the Tribal Areas). In East Pakistan such a change had already been brought about earlier in 1965 by means of East Pakistan Labour Disputes Act VI of 1965. Section 44 of the said Act, which similarly repealed the Industrial Disputes Ordinance LVI of 1959, read as follows:- "44. Repeal and saving.--( 1969 PLC 390) The Industrial Disputes Ordi--nance, 1959 is hereby repealed. Anything done, action taken, rules framed, or notification or order issued under the said ordinance, shall, so far as it is not inconsistent with the provisions of this Act, be deemed to have been done taken, made or issued under the corresponding provision of this Act. (3) Any reference to the Industrial Disputes Ordinance, 1959 In any other law for the time being in force shall be construed to have a reference to this Act." In section 13(5) of the East Pakistan Act V1 of 1965, appeals against awards were preferable to the High Court with the leave of the Industrial Court concerned. It was argued that old appeals filed without any such certificate could not be proceeded with and should be dismissed. The effect of this change was considered by a Division Bench of Dacca High Court to Pakistan Pharmaceutical Industry Ltd. v. Workers' Union (1). It was held that the repeal did not have the effect of interfering with pending appeals in the High Court and that the old appeals could continue. This verdict was given despite the fact that in the section hereinbefore quoted there was no express provision allowing continuation of the old proceedings and the section was more brief simply laying down that, "notwithstanding the repeal anything done, action taken, rules framed, or Notification or under issued under the said Ordinance shall so far as it is not inconsistent with the provisions of tills Act, be deemed to have been done, taken, made or issued under the corresponding provi--sion of this Act." The present case is more strong because here there is in addition, an express provision,
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directing continuation of previous proceedings. Respectfully adopting the view which was arrived at by the Dacca High Court, with reference to the various authorities of the Supreme Court of Pakistan, and other Courts of high status like the Privy Council, I hold that here too the repealing section does not have the effect of impairing the present appeals as i9 being suggested by the learned counsel for the respondents and that the said appeals can continue in and be heard by this Court. (d) Appeal is an important matter and in my respectful opinion, it cannot be assumed that the Legislature intended to deal with such an important thing innuendo and not in any specific direct form. If the intention was that all appeals pending in the High Court were to be transferred elsewhere then there was nothing in the way of the Legislature to say so expressly. We know that when it was thought to abolish Letters Patent Jurisdiction of this Court in Second Appeals Ordinance L of 1962 expressly stated that the jurisdiction was abolished and that all pending appeals wou13 stand transferred to the Supreme Court. That such a method has not been adopted in this case goes to show that it was never the intention to touch the appeals already pending in this Court. (e) It is welt known that power to transfer a case from one Court to another is a substantive power and cannot be assume to exist in a Court how high it may be unless it is conferred by a Statute. There is no indication in the W. P. Ordinance IV of 1968 that the appeals pending before the High Court shall stand transferred to any other Court. Nor any such power of transfer is even otherwise bestowed on the High Court. What then was to happen to the appeals pending here? Since the High Court had no previous jurisdiction to transfer nor was any such jurisdiction conferred on It afresh, were these appeals to abate or were memorandums of appeal to be returned to the appellants for presentation to any other Court of competent jurisdiction? In the absence of any Indication of this kind, it is not possible for me to hold that the appeals stood automatically transferred to any other forum. In this context, learned counsel for the respondent argued that the memorandums of appeals should be returned to the appellants who would be at liberty to present them to the Appellate Industrial Tribunal and that they will be free to invoke the provisions of subsection (I-A) of section 16 as added in the West Pakistan Ordinance IV of 1968 by WestPakistan Ordinance VIII of 1968, the effect of which was that the time during which the Appellate Tribunal was not constituted, could be availed of by them alongwith such other grounds which they may have had to urge under section 5 of the Limitation Act, which also was made applicable to appeals before the said Tribunals. They submitted that all the period during which the appeals remained pending In this Court, will be considered a period, during which no Tribunal was constituted. In this way, It was argued that the right of appeal, which, it was conceded, wail. a vested right, could be exercised by the appellants if they wanted to exercise it and that the old appeals commenced in this Court could not be proceeded with or continued here, Respectfully, I do not agree. West Pakistan Ordinance VIII of 196", was brought about to cover I a gyp of about three months during which the Appellate Tribunal was not set up after the promulgation of the West Pakistan Ordinance IV of 1968 and it cannot be said to apply to appeals which were validly instituted in this Court well within the period of limitation at the relevant time and about which the mandate was that they should continue. If they could continue, then they are to continue in the same state of affairs and not to be made katcha again. The effect of the return of the memorandums of appeals, on the other hand, will be to destroy their commencement and to deny them the status of continuation. (f) It was argued that In section 4612) of West Pakistan O.4i,,-nce 1V of i9o8, it was wrist; n that, "anything done, rulesnotifications or orders issued, officers appointed, Courts constituted, notice given, reference and applications to Courts made proceedings commenced or other action taken under the said ordinance shall be continued and be deemed to have been respectively done, issued, appointed, constituted, given, made, commenced or taken under this ordinance.---
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Continuing the argument, it was submitted that an Award under Ordinance LVI of 1959, according to the Provisions hereinbefore mentioned was of 19deemed to be giver under the new Ordinance and could, as such, considered to be an award under section 16 of the West Pakistan Ordinance IV of 1968. After thus making the old Awards as Awards under the new law, Earned counsel for the A% aids tried to invoke sub-clause (c) of subsection (1) and subsection (2) of section 16 of West Pakistan Ordinance IV and 1968, where it was written that the Awards were not to be of questioned in any manner by or before any Judicial authority including the High Court. It as argued that this amounted to ouster of jurisdiction of the High Court with regard to the appeals pending against old Award as well. Respectfully, I do not agree.Firstly, because the Scheme of section 46(2) is not the same in which direction the argument is bong put for word. After referring to various things done, actions taken etc. Under the old law, the first command given in the order of operation is that those actions are to continue. If proceedings of appeals have been commenced in the High Court then those are to continue. Thereafter in the order commands comes the next direction and that is that the said proceedings etc., shall be deemed to have commenced under the new law. This is quite logical; because earlier those proceedings have been allowed to continue under the old law, but in spite of that a legal fiction is being created and that is that they shall be deemed to be under the new law (as I suggest for the purpose of implementation of the orders to be passed therein); because in the converse case, If the previous proceedings were automatically to continue under one new law, then they would have so continued and creation of a special fiction in that respect was a sheer redundancy. This cannot be assumed. Secondly, assuming without conceding that proceedings commenced in the High Court and the appeals filed here, were by virtue of section 16 of the West Pakistan filed once 1V of 1968 to be impaired in an respect, then my answer is that it was for this very reason that a saving clause was inserted in-section 46(2) in order to clarify that notwith--standing the new law raving come into force, the intention was to save and not to destroy them. The saving clause in this manner works both ways, namely, to save the abatement of previous actions and proceedings due to repeal of the old law and also to save them from abatement under the new law. The argument, which is being advanced is just the half-way and does not reach its logical end. The proper way to follow the process suggested by the learned counsel for the respondent is to lift section 46(2) from its present place and put it under section 16 (which is the section dealing with appeals) and then see how the situation reads. If so done, the result will become quite clear that notwithstanding the provisions of section 16, the old appeals are not to be hit by it, but are to be continued under the old law and will nevertheless be deemed to have been disposed of under the new law. (g) Learned counsel for the respondents argued that West Pakistan Ordinance IV of 1968 and as a matter of fact all Statutes on Industrial Disputes are procedural Statutes. With this premises, it was argued that since procedural Statutes are always retrospective, therefore, Ordinance 1V of 1968 was also retrospective with the result that it should be deemed to be in operation from a retrospective date and all appeals filed under the old law will either abate or will be dealt with by the new forums and that the High Court had no jurisdiction to deal with them any more. I have grave doubts a9 to whether the law in question can be termed wholly as a procedural law. The object of the Industrial Disputes Laws like various other Labour Laws is to ensure fair terms to the workmen, to bring about harmonious relations between the employer tend the employee, to preserve and promote the economy of the Country, to reconcile effective leadership with essentially impersonal character of big organizations to encourage collective bargaining and advancing the principle of laissez faire. Industrialisation means a social as well as an economic revolution and the problems of labour-management relations are a large part of human problem of adjustment to Industrial Change. The Laws of the kind under discussion are more of the kind of social legislation and not merely procedural. These laws create rights and liabilities; they lay down
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offences and prescribe penalties for the same. They provide for appeals and bestow other similar rights. They cannot, therefore, be called wholly procedural laws; because if the concept of procedural law is widened in this way, then all laws will be procedural inasmuch as they regulate the human and social conduct of the society. . (h) Even if a law may be procedural still the right of appeal given thereunder is not a mere matter of procedure. As for example Civil Procedure Code and Criminal Procedure Code, are procedural laws, but they contain substantive provisions as well, like right of appeal (or review in Civil Matters), which have never been held to be mere matters of procedure. Moreover, in the instant…
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