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Petitioner: MEHRAJ SONS VS Respondent: PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE
1988 S C M R 1044
1988 S C M R 1044
Present: Muhammad Afzal Zullah, Ali Hussain Qazilbash and S.Usman Ali Shah, JJ
Messrs MEHRAJ SONS‑‑Appellant
versus
PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and 2 others‑‑Respondents
Civil Appeal No.226 of 1979, decided on 10th April, 1988.
(On appeal from the Order dated 7‑10‑1978 of the Lahore High Court, Lahore, passed in Writ Petition No .4719/1978).
West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑‑
‑‑‑S.1(4) & S.O.15‑‑Constitution of Pakistan (1973), Art.185(3)‑‑Leave to appeal was granted to consider whether there was a conflict between proviso to S.1(4) of Ordinance and C1. (5) of S.O.12, and whether proviso to S.1(4) had to prevail over any provisions to the contrary in Standing Orders, because Standing Orders had been framed under Ordinance VI of 1968 and were subject to terms and conditions of said Ordinance‑‑Appeal was found to have been fully covered by two judgments of Supreme Court reported as PLD 1981 S C 39 and PLD 1980 S C 283, which supported appellant‑‑Held: Proviso qualified generality of main enactment by providing an exception and taking out from main enactment a portion, which, but for proviso, would fall within main enactment‑‑Proviso, hence, to be given full effect and in consequence S.O.15 being expressly excluded could not be pressed into service irrespective of consideration of termination of service being for misconduct‑‑Extent and application of S.O.15, being controlled by S.1 of West Pakistan Ordinance VI of 1968, in view of proviso to S.1(4), said Standing Order, held, was not applicable to the establishment with 49 or less workers‑‑Judgment of tribunals below impugned in appeal, holding otherwise, set aside in circumstances.
Al‑Hassan Silk Mills Ltd. v. The Presiding Officer, Sind Labour Court and another P L D 1981 S C 39 and M/s. N.J. Silk Industries v. Presiding Officer IVth, Sind Labour Court P L D 1980 S C 283 rel.
A.R.Sheikh, Senior Advocate, Supreme Court instructed by Rana Maqbool Ahmad Qadri, Advocate‑on‑Record (absent) for Appellant.
Respondents No.1 and 2: Ex parte.
A.R.Arshad, Advocate Supreme Court and S.Abid Nawaz, Advocate‑on‑Record (absent) for Respondent No.3.
Date of hearing: 10th April, 1988.
JUDGMENT
MUHAMMAD AFZAL ZULLAH, J.‑‑This appeal through leave of the Court is directed against Judgment dated 7‑10‑1978 of the Lahore High Court; whereby appellant's Constitutional Petition arising out of a labour dispute matter, was dismissed.
2 The facts, law and reasons for granting leave to appeal are as follows: ‑
'The appellant owns an Industrial establishment which employs less than 49 workmen. It dismissed the third respondent on 14‑11‑1974, and according to Mr.Sheikh, this was after serving him a show‑cause notice, but according to this respondent to whom we will refer in this order as the respondent, he had been dismissed without any show‑cause notice and any enquiry as required under the provisions of Standing Order 15 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the said Ordinance). Therefore, he filed the usual application under section 25‑A of the industrial Relations Ordinance, 1969, and the second Labour Court, Lahore, allowed this application by its order dated 11th January, 1979, on the ground that the respondent's employment could not be terminated without following the procedure prescribed under Standing Order 12 of the said Ordinance.
'The appellant challenged this order in an appeal before the Punjab Labour Appellate Tribunal, but as this appeal was dismissed it filed a Writ Petition which was dismissed in limine, on 7‑10‑1978.
'Although, according to subsection (4) of section 1 of the said Ordinance, the said Ordinance applied to other industrial establishments employing more than 20 persons, the second proviso of this subsection reads:‑
'Provided further that the provisions of Standing Orders 10‑B and 11‑C, Clauses (6) and (8) of Standing Order 12 and Standing Order 15 shall not apply, in the first instance, to any Industrial Establishment wherein not more than forty‑nine persons were employed on any day during the preceding twelve months but Government may, by notification in the official Gazette, extend all or any of the said provisions to any such Industrial Establishment or any class of such establishment.
'Next, as to Standing Order 12, it is only clauses (6) and (8) which would not apply to the instant case, but clause (5) would apply and it reads:‑
'The services of a permanent or temporary workman shall not be terminated on the ground of misconduct otherwise than in the manner prescribed in Standing Order 15.
'The learned Judge held in the impugned order that although the appellant employed less than 49 persons, it was bound to follow the procedure prescribed in Standing Order 15, because of Clause (5) of Standing Order 12. And, in view of the concurrent findings of the tribunals (which were challenged before us) that the appellant had not served a show‑cause notice or held an enquiry against the respondent before dismissing him, the learned Judge held that the respondent's dismissal was illegal, because it was in breach of the provisions of Standing Order 15. Therefore, he agreed with the view of the Tribunals that the appellant had to re‑instate the respondent with the full benefits of back pay, etc. Aggrieved. by this order, the appellant filed the petition for leave.
Although Clause (5) of Standing Order 12 prescribes that the services of a workman shall not be terminated on the ground of misconduct otherwise than in the manner prescribed in Standing Order 15,' the proviso to subsection (4) of section 1 of the said Ordinance, which was quoted earlier expressly states that 'Standing Order 15 shall not apply' to the Industrial Establishments as specified in the proviso. Therefore, learned counsel submitted that there was a conflict between this proviso to Section 1(4) of the said Ordinance and Clause (5) of Standings Order 12, and the proviso to section 1(4) had to prevail over any provisions to 'the contrary in the Standing Orders, because the Standing orders had been framed under the said Ordinance, and were subject to the terms and conditions of the said Ordinance.
'This submission of the learned counsel raised an important question of law and required examination. Accordingly, we granted leave to examine this question.
??????????????????????? Mr.Sheikh sought a stay of the order of the Labour Courts but as all the decisions were against him, stay could only be granted on terms. Accordingly, we directed that the appellant will deposit in Labour Court No.2, Lahore, the wages of the respondent, including all arrears of wages, but the respondent will be permitted to the extent to which he furnishes proper security to the satisfaction of the Presiding Officer of Labour Court, Lahore, for the sums drawn out by him."
3. During the hearing the learned counsel for the appellant stated that the question noted for examination in the leave granting order has since been decided ‑by the Court in its two Judgments rendered after 18th December, 1979, when the leave to appeal was granted.
They are:
(1) Al‑Hassan Silk Mills Ltd. v. The Presiding Officer, Sind Labour Court and another P L D 1981 S C 39; and
(2) M/s.N.J.Silk Industries v. Presiding Officer IVth Sind Labour Court P L D 1980 S C 283.
4. Learned counsel for the respondent, in the first instance, took up the position that the two Judgments relied upon by the learned counsel for the appellant go against him; but the law laid down therein needs to be reviewed. Subsequently, however, he stated that the Judgments do not go against him because the appellant's concern is a commercial establishment; while the cited Judgments deal with industrial establishment.
5. After hearing him on this question, when it was pointed that prima facie the appellant's concern seems to be an industrial establishment, moreover, this being a question of fact, the appellant did not raise the same in the lower forum or the position taken was contrary to what the learned counsel has now stated, he again reverted to the position that the law laid down in the cited Judgments needs to be re‑examined. We also heard his preliminary submissions on this question which did not impress us at all. Accordingly, he was told that there is no need of re‑examination of the question of law settled, in the said cases. That being so, this appeal was found to have been fully covered by the said two Judgments of this Court, which support the appellant. The impugned Judgment was thus found, liable to be set aside.
6. At this stage, the learned counsel for the contesting respondent stated that he having received Rs.16,000 under the orders of this Court, would, in case of acceptance of the appeal, be liable to refund the same; but he is very poor and would not be able to make arrangement if the appeal is allowed.
It will not be possible in so far as the question of law is concerned not to direct the refund of the amount received by the respondent. However, when questioned in this behalf, the learned counsel for the appellant showed behalf of his client and stated that the said amount of Rs.16,000 would not be recovered from the respondent. We order accordingly and allow the appeal in these terms. The impugned Judgment is set aside. The orders impugned in the High Court are also set aside as without lawful authority and without any legal effect.
N.Y.H. /M‑418/S ?????????????????????????????????????????????????????????????????????????????? Appeal allowed.