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Petitioner: HUZOOR ALAM AND 2 Other VS Respondent: NATIONAL: INDUSTRIAL RELATIONS JUDGMENT
Court Name: Sindh High Court Judge(s): Abdul Hafeez Memon, Tufail Ali A. Rehman Title:HUZOOR ALAM AND 2 Other vs NATIONAL: INDUSTRIAL RELATIONS
JUDGMENT
Reported As: 1974 PLC 161 Result: Petitions accepted Judgment JUDGMENT TUFAIL ALI A. RAHMAN, C. J. In all these petitions the petitioner is a person against*whom criminal proceedings are pending before the National, Industrial Relations Commission, hereinafter referred to as the Commission, and the Commission as well as the person who has initiated the proceedings are the respondents. A common question which arises in all these matters relates to the legality of the proceedings which are now pending and this question in turn depends upon the jurisdiction of the Commission and ancillary questions, we have, therefore, found it convenient to hear these matter together so as to have the advantage of the arguments of all the counsel appearing in these cases since these questions, all of which are questions of law, will largely determine the fate of these petitions. This judgement new, will, therefore, dispose of all these petitions. 2. The principal argument that is raised on behalf of the petitioners in this cave is that proceedings can be initiated before the Commission not by individuals but only by "industry-were Trade Unions, federations of such Trade Unions and federations of the national level" and this is based upon subsection of section 22-A of the Industrial Relations Ordinance, 1969, which reads as follows: "Only industry-were Trade Unions, federations of such Trade Unions and federations at the national level shall be entitled to initiate proceedings, or to appear before, the Commission Provided that the Commission may also-- (a) of its own motion take action with regard to any matter relating to its functions ; and (b) of its own motion, or on the application of a party, withdraw from a Junior Labour Court or Labour Court any application, proceedings or appeal relating to unfair labour practice."
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It is therefore, upon an interpretation, principally, of this subsection that the questions arising in this case will have to be determined and that construction, I think, must be the result not only of examining the sub--section in the context of the entire Ordinance but also of examining the law as it stood immediately before section 22-A was enacted. It is one of the most important principles of construction "to consider how the laws stood when the statute to be construed was passed, what the mischief was for which the old law did not provide, and the remedy provided by the statute to cure that mischief". (Maxwell on the Interpretation of Statutes, 12th Edition, page 40. This rule, although laid down as early as 1584, still holds the field and continues to be quoted in very modern cases as being a matter of prime importance. Now although the Industrial Relations Ordinance is one of 1969, section 22-A and some of the sections which immediately follow it were introduced only in 1972 and not only have there been in between a large number of amendments in the Ordinance but the Ordinance itself is only the latest law in a series of Acts and Ordinances, which have repealed, consolidated and amended the law on the subject from time to time since the year 1947. I, therefore, think it would be convenient to commence a consideration of this case with a brief history of the legislation up-to-date. 3. The first piece of legislation promulgated in this Sub-continent affecting the relations between employer and employees in the industrial field, which were till then regulated by the ordinary law of master and servant, would seem to be the Industrial Disputes Act, Act XIV of 1947,1 a Central pre- Partition Act. It is unnecessary to refer to the provisions of this in any detail beyond saying that, for the first time, it seems to have been recognised that workers as such had rights other than those conferred by mere contract. This Act held the field until the Industrial Disputes Ordinance, Central Ordinance LVI of 1959 which repealed the earlier Act and the overall scheme of this statute was that, in cases of industrial disputes, the first step that was to be taken was an attempt at conciliation and, only when conciliation officers who were to be appointed under the provisions of the Ordinance certified that a settlement of the matter in dispute could not be reached as a matter of conciliation, that it could be adjudicated and determined by an Industrial Court which was set up under the statute and which, among other things, also had power t7 try certain offences created thereunder, It is of some interest to note the definition of the expression "industrial dispute" which was define a in section 2 (h)as meaning: " `industrial dispute' means any dispute or difference between employers and employees or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of work, of any person." It will be noticed that the concept of an industrial dispute was not the dispute between any individual employee and his employer but the essence of the dispute was a difference between the employers and the employees as groups or even between workmen and workmen. This is not necessarily to mean that an individual grievance could not become the subject-matter of an industrial dispute inasmuch as that particular grievance might be, taken up by the employees or the workmen collectively as an issue but, until s4 taken up, it was not an industrial dispute. I emphasise this for I think this distinction between an individual grievance and a dispute raised by a Trade Union is one which h4s persisted throughout the history of legislation on the subject and it is not until much lacer that it became open to an individual to take his grievance to one of the tribunals constituted under the relevant law from time to time in force. It is, therefore of importance not to confuse the idea of an individual grievance with a dispute necessarily outside the purview of an industrial dispute for, being taken up as a common cause, the individual grievance might become in industrial dispute; it is of only that the grievance individually as such could not taken to Court (meaning a Court set tip under the labour law, by the individual unless it was, as it were, sponsored as an issue of principle, by the workmen or employees as a body. In other words it was
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not so much a question whether the grievance was individual the proceedings were initiated by an individual that mattered. 4. A provision, which it is think, worth noticing in this Ordinance is section 32 which reads: "32. Cognizance of offences.----(1) No Court shall take cognizance of any offence punishable under this Ordinance or of the abetment of any such offence save on complaint made by or under the authority of the appropriate Government. (2) No Court inferior to that of a Magistrate of the first class shall try any offence punishable under this Ordinance. (3) Nothing in this section shall apply to a Court constituted under this Ordinance which shall have exclusive jurisdiction to try an offence under section 26 or section 28.--- As I understand the provision this means that the offences in question were tribal even by Courts not set up finder the Ordinance but in that case they could not be taken cognizance of save on complaints made by or under the authority of the appropriate Government; concurrently with the ordinary Courts the Courts constituted under the Ordinance had also jurisdiction to try those offences, apart from exclusive jurisdiction to try two such offences, and as to these there was no restriction by way of condition precedent to the taking of cognizance. 5. The next piece of legislation that applied only in West Pakistan was the West Pakistan Industrial Disputes Ordinance, 1968, Ordinance IV of 1:968, which repealed, in its application to West Pakistan, the Industrial Disputes Ordinance of 1959. In the meantime the scheme of this Ordinance is much the same that of the Ordinance which it repeals and, as far as I van see, the principal and significant change lay in the fact that an appellant body was set up for the first time. It is of particular importance to notice that the expression ---industrial dispute" is defined in this Ordinance in language which is identical with the definition which was incorporated in the earlier Central Ordinance. All that I have said, therefore, as to the implications of that definition apply just as much to this Ordinance they do to the Central Ordinance. The functions of an industrial Court under section 11 of the Ordinance correspond closely to those of the Court under section 10 of the earlier Ordinance. The limitations on the taking of cognizance are also precisely the same. 6. Finally comes the Industrial Relations Ordinance, which is Central Ordinance XXIII of 1969, which is the Ordinance, which is still in force though it has been amended significantly a number of times. Radical departure, were made by means of this Ordinance even as it originally stood and still more important changes have been made in the subsequent amendment but, at the outset, let it be noticed that the words ---industrial dispute--- still continued to be defined inn precisely the same fashion as in the earlier statutes. In the form in which the Ordinance stood as originally promulgated certain matter; are, I think, worthy of notice. For the first time, for instance, the - expression, "collective bargaining agent" was defined to mean the Trade Union., of workmen which would, under section 22 of the Ordinance, function as the agent of the workmen in the establishment or industry concerned for the purpose of "collective bargain--ing", which last phrase itself was defined as meaning a negotiation with a view to arriving at a collective agreement. Conciliation proceedings were still a part of the statute but, under section 35, Labour Courts were established and their powers and functions were defined in subsections (5) and (6) of section 35. "35. (5) A Labour shall- (a) adjudicate and determine an, industrial dispute which has been referred to it under section 32 or section 33 or relating to a matter in respect of which art application is made to it under section 34 ; (b) enquire into and adjudicate any matter relating to the implementation or violation of a settlement which is referred to it by the Provincial Government; (c) try offences under this Ordinance ; and
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(d) exercise and perform such other powers and functions as are or mad' be conferred upon or assigned to it by or under this Ordinance. (6) Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (VII of 1923) or the Payment of Wages Act, 1936 (1V of 1936), the Provincial Government may, by notification in the official Gazette, appoint, a Labour Court to be, or confer upon it any power or function `of, any authority under any of the said Acts, and, upon such notification, the Labour Court shall be deemed to be such authority and shall exercise the powers and perform tile functions of such authority under the relevant Act." 7. A functionary to be called the Registrar was also created and his main functions were the registration of Trade Unions and the determination of questions as to which Trade Union was entitled to be certified as a collective bargaining agent besides lodging complaints with the Labour Courts for actions against Trade Unions for any offence or any unfair labour practice or violation of a provision of the Ordinance. In some details, unfair labour practices both on the part of the employers and the employees were defined, or rather enumerated, in sections 15 and 16: "15. Unfair Labour Practices on the part of employers. (1) No employer or Trade Union of employers and no person acting on behalf of either shall- (a) impose any condition in a contract of employment seeking to restrain the right of a person who is a party to such contract to join a Trade Union or continue his membership of a Trade Union; or (b) refuse to employ or refuse to continue to employ any person on the ground that such person is, or is not, a member or officer of a Trade Union; or (c) discriminate against any person in regard to any employment, pro--motion, condition of employment or working condition on the ground that such person is, or is not, a member or officer of a Trade Union; or (d) dismiss, discharge, remove from employment or threaten or dismiss, discharge, or remove from employment a working or injure or threaten to injure him in respect of his employment by reason that the workman- (i) is or proposes to become, or seeks to persuade any other person to become, a member or officer of a Trade Union; or (ii) participates in the promotion, formation, or activities of a Trade . Union; (e) induce any person to refrain from becoming, or to cease to be a member or officer of a Trade Union, by conferring or offering to confer any advantage on, or by procuring or offering to procure any advantage for such person or any other person; (f) compel any officer of the collective bargaining agent to sign a memo--randum or settlement by using intimidation, coercion, pressure, threat, confinement to a place, physical injury, disconnection of water, power and telephone facilities and such other methods; or (g) interfere with, or in any way influence balloting provided for in section 22. (2) Nothing in subsection (1) shall be deemed to preclude an employer from requiring that a person upon his appointment or promotion to managerial position shall cease to be, and shall be disqualified from being, a member or officer of a Trade Union of workmen. 16. Unfair Labour Practices on the part f workmen.-(1) No workman or Trade Union of workmen and no person acting on behalf of such Trade Union shall- (a) persuade a workman to join or refrain from joining a Trade Union during working hours; or (b) intimidate any person to become, or refrain from becoming, or to continue to be, or to cease to be a member or officer of a Trade Union; or (c) induce any person to refrain from becoming or cease to be a member or officer of a Trade Union, by conferring or offering to confer any advantage on, or by procuring or offering to procure any advantage. For, such person or any other person; or
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(d) compel the employer to sign a memorandum of settlement by using intermediation, coercion, pressure, threat, confinement to a place, physical injury, disconnection of telephone, water and power facilities and such other methods. (2) It shall be an unfair practice for a Trade Union to interfere with a ballot held under section 22 by the exercise of undue influence, intimi--dation, impersonation or bribery through its executive or through any person acting on its behalf." 8. A Labour Appellate Tribunal was also set up under section 38 as an appellate body over the Labour Courts. The statute itself provided that the member of the Tribunal shall be a person who is or has been a Judge of a. High Court; this would have been of interest in dealing with a question which was debated before us as to the qualifications of members of the commission. This question I have, however, found it unnecessary to decide. In the ordinance as it then stood, therefore, the highest Tribunal created for the purposes, generally of settlement and adjudication of disputes concerned with the relations between employers and workmen was this Labour Appellate Tribunal. 9. In view of the arguments which have been addressed to us it is of interest to note two provisions in the Ordinance, namely, sections 32-A and 32-B which, as far as I can see, are the first attempt to deal with such establishments as are situated in more Provinces than one and even industrial organizations established in Pakistan some of whose workmen are operating at a place outside Pakistan. These two provisions read thus: "32-A. Industrial disputes involving more than one establishment.---Where an industrial dispute relates to or involves an industrial organi--zation that has more than one establishment, then- (a) where the subject-matter of the dispute extends to more than one establishment situated in a Province while the headquarters office of the industrial organisation is in another Province, the negotiations provided by section 26 shall be conducted at a place in that Province to be nominated by the Provincial Government and the Conciliator having jurisdiction at such place under section 27 shall have jurisdiction to act further in the matter in respect of all such establishments. In any consequential proceedings under section 31, the arbitrator may be appointed, in respect of the dispute as affecting all the establishments, from the panel maintained by the Provincial Government or may be any other person; (b) where the subject-matter of the dispute extends to places in more than one Province, the negotiations provided by section 26 shall be conducted at the place where the headquarters office of the industrial organization having establishments in such Provinces is situated, and the Conciliator having jurisdiction at such place under section 27 shall have jurisdiction to act further in the matter. In case no settle--ment is reached, the parties shall have power to appoint an arbitrator under section 31, who may be a person whose name is borne on the panel maintained by one of the Provincial Governments involved, or any other person. 32-B. Industrial disputes involving Pakistani workmen employed abroad by organisations established in Pakistan.-Where an industrial dispute arises between an industrial organisation established in Pakistan and its workmen employed in any establishment operating at a place outside Pakistan, then, in respect of such of the workmen involved who are nationals of Pakistan the industrial dispute shall be deemed to have arisen at the place in Pakistan where the headquarters office of such industrial organisation is situated, and the procedures for nego--tiations, conciliation, arbitration and reference to the Labour Court, shall apply accordingly," (the manner in which these two sections are ,numbered is more in accord with amendments made later but it seems that they were a part of the Ordinance as originally promulgated; possibly the change may have been made in the course of drafting and !t may not have been considered advisable to alter the entire numbering of the various provisions." 10. For the first time also a right was given to a party to an industrial dispute to apply directly to a Labour Court (section 34); 1 think this clearly means that an individual could approach the Court
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despite the definition of an "industrial dispute". Even though this remained unchanged, a party to such a dispute, which, as has been seen, could include an individual grievance, might be an individual. In the conclusion that an individual can now approach a Labour Court directly I am fortified, I think, by the fact that section 49 of the Ordinance entitled "a workman who is a party to an industrial dispute" to be entitled to be presented. My conclusion, therefore, is, that in ' such cases the workman is a party though he could be represented if at all only by an officer of the collective bargaining agent, or could appear and plead his own cause in person. 11. As to offences the provision in the Ordinance was comparatively simple and prescribed merely that no Court other than a Labour Court or a Magistrate of the first class would have jurisdiction to try offences punish--able under the Ordinance. This might be particularly noted inasmuch as this section still is a part of the Ordinance because of an argument sub--sequently raised before us as to the exclusive jurisdiction of the National Industrial Relations Commission and this section makes it plain that neither within the system of the Labour Courts themselves nor in relation to the ordinary Courts, is the jurisdiction of an exclusive character. 12. The Ordinance was then amended by Central Ordinance XIX of 1970 but, important though many of the amendments thereby made are, for our present purposes none are material. It would be as well to notice, however, that a section was inserted immediately after section 22 and numbered section 22-A, which reads thus "22-A. Collective bargaining agent for institutions with more than one establishment. (1) Where an employer carrying on an industry has, for the purpose of that industry more establishments than one, any regis--tered Trade Union which fulfils such conditions as may be prescribed in this behalf may make "an application in such manner and to such authority as may be prescribed for being declared as the collective bargaining agent in relation to all such establishments and, upon such an application, there shall be determined in the prescribed manner a collective bargaining agent for such establishments. (2) Where a collective bargaining agent has been determined under subsection (1) for the establishments referred to therein, the collective bargaining agent determined, if any, under section 22 for any one or more of such establishments shall not undertake collective bargaining in respect of matters relating to the terms and conditions of employ--ment applicable to workmen employed in any of such establish--ments." I mention it only because in the present cases we are concerned mainly with section 22-A, as it now stands, but the present section is not the one which was inserted by this Amending Ordinance and has no relation, whatever, to it, the only thing in common between the two provisions being the numerological order in which they stand. 13. We now come to the most important of the amendments made in the Ordinance, though by no means the last. This was Ordinance IX of 1972 and amended a number of statutes of which those which are material for our present purposes are section 22-A, as it now stands, and section 23-B which read thus "22-A. National Industrial Relations Commission (1) The Central Government shall constitute a National Industrial Relations Commission, hereafter in this section referred to as the Commission. (2) The Commission shall consist of not less than seven members, including the Chairman.. (3) The qualification for appointment as a member or as the Chairman of the Commission shall be such as may be determined by the Central Government. (4) The Chairman and other members of the Commission shall be appointed by the Central Government. (5). Two of the members shall be appointed in the prescribed manner to advise the Chairman, one to represent the employers and the other to represent industry-were Trade Unions, federations of such Trade Unions and Federations at the national level.
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(6) The Chairman of the Commission may, in addition to the representatives of workers appointed to the Commission, co-opt, in cases when he deems it necessary, from amongst workers belonging to federations at the national level such representatives of workers as he may deem fit. (7) The workers' representative co-opted under subsection (6) shall be entitled to such honorarium as the Central Government may, on the advice of the Chairman of the Commission, determine. (8) The following shall be the functions of the Commission, namely--- (a) to promote the formation of Trade Unions of Workers within the same industry whether-'in establishments within a Province or in more than one Province and federations of such Trade Unions ; (b) to promote the formation of federations at the national level ; (c) to adjudicate and determine an industrial dispute to which an industry-were Trade Union or a federation of Trade Unions is a party and any other industrial dispute which is, in the: opinion of the Central Government, of national importance and is referred to it by that Government ; (d) to register industry-were Trade Unions, .Federations of such Trade Unions and federations at the national level ; (e) to determine the collective bargaining agents amongst industry-were trade Unions, federations of such Trade Unions and federations at the national level. (f ) to try offences in respect of matters relating to any of its functions ; (g) to deal with cases of unfair labour practices on the part of employers or workmen, whether individually or collectively, and to initiate, in such manner as may be prescribed, proceedings calculated to prevent an employer or workman from committing an unfair labour practice ; (h) to advise Government, industry-were Trade Unions and federations is respect to the education of workers in the essentials of Trade Unionism, including education in respect of their rights and obligations, and to secure the provision of facilities required therefore, and to apportion the cost thereof between the Provincial and Central Governments, industry-were Trade Unions,…
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