1984 PLP 557 (PLC)

"The provisions of a statute cannot be applied retrospectively in the absence of express enactment or necessary intendment. But the pro visions of a statute dealing merely with matters of procedure may properly, unless that construction be textually admissible, have retrospective effect attributed to them: No person can have a vested right in a course of procedure, and it is an elementary principle that a plaintiff or a defendant has the right of prosecution or defence in the manner prescribed, for the time being, by or for the Court in which he sues, and if there is an act which alters that mode of procedure has no other right than to proceed according to the altered mode." It has been further observed :‑ "The general principle is that alteration in a procedure is retrospective unless there be some good reasons against it. Where a statute is passed for the purpose of supplying an omission in a former statute or for explaining a former statute, the subsequent statute relates back to the time when the prior statute was passed. The facts of the case from which A I R 1941 Lah. 22 arose were that a wife had brought a suit for declaration to the effect that her marriage had come to an end on account of her conversion to Christianity faith. The suit was decided before Act VIII of 1939 had come into force, but during the pendency of the appeal the said Act was enforced. It was, therefore, held that the right claimed by the wife had not vested in her under any statute and consequently she could not insist that that right was indefeasible. The law applicable was that as contained in section 4 of Act VIII of 1939 by which no marriage could be dissolved merely on account of change of faith. The facts of the case from which P L D 1965 S C 157 arose were that there was a bar against the election of Government contractors to Provincial Assembly which had been imposed by section 116 of the Representation of the Peoples Act, XXXI of 1957. By Repealing Act XXIII of 1963 the bar had been removed when the appeal was pending before the Supreme Court. It was held that the effect of the repealing Act was retrospective. In P L D 1965 S C it has been observed :‑ "On filing the appeal the entire matter becomes reopened rind sub judice and has to be decided in accordance with the law prevailing." In P L D 1965 S C 681 it has been observed :‑ "A statute cannot be said to have a retrospective operation because its supplies a new mode of procedure to suits commenced before its passing. In other words, if a statute deals merely with the procedure to an action, and does not affect the rights of the parties, it will be held to apply prima facie to all actions, pending as well as future. It is only if it be more than a mere matter of procedure, that is, if it touches a right in existence at the passing of the new Act, that the aggrieved party would be entitled to succeed in giving a successful challenge to the retrospective effect of the new Act." No question of retrospective effect of any law was involved in the last mentioned authority cited by the learned counsel for the appellant i. e., 1964 P L C 887.

6. It is clear from the survey of the above‑mentioned authorities that only a procedural law has retrospective effect, but not a law which has changed the vested rights of the parties. This is noteworthy that in P L D 1965 S C 157 the Act which barred the Government Contractors to take part in election of Provincial Assembly had been repealed before the election was held, the election petition was filed and the Tribunal had passed an order setting aside the election. The Act of 1957 was by section 2 of the Act, 1963, deemed to have been repealed on 23rd March, 1962, whereas the election was held in May, 1962. The election petition was filed on 8th June, 1962 and the Tribunal had set aside the election on 7th February, 1963. It is apparent that before the very election, was held the bar had been removed by the repeal of the Act, therefore, the appeal of the elected person was accepted by the Supreme Court. In the present case since at the time the respondent was terminated paragraph 234 had not been declared to be the decision of the Wage Commission, the respondent had a right not to be removed from service under the said paragraph without being charge‑sheeted and an enquiry held against him and that the said paragraph was declared as the decision of the Wage Commission with effect from 1st January, 1931 much afterwards. After the expiry of three years the first Wage Commission Award automatically came to an end under section 38‑C of the Industrial Relations Ordinance, 1969. In the second Wage Commission Award paragraph 234 was not declared as the decision, therefore, the said paragraph did not give any right to the employer upto 31st December, 1980 to terminate the services of his employees without charge‑sheeting and making an enquiry against them. This big gap could not be filled in automatically unless expressly a retros pective effect had been given to the third Wage Commission Award. Even retrospective effect could not be given to the third Wage Commission Award because the Ordinance which authorises the Wage Commission to make decisions does not give power t3 it to give retrospective effect to its findings. Section 38‑C provides in clear terms that the decisions of the Wage Commission after being published as required by subsection (1) of the said section came into operation on such date as may be specified in the deci sions and where no date is so specified they shall come into operation on the date of their publication. Since the Wage Commission expressly provided that the third Wage Commission would come into operation from 1st January, 1981, paragraph 234 became the decision of the Wage Commis sion from the said date and not from any date prior to that. Paragraph 234 is not procedural but gives a right to the employer to terminate his employee on one months notice or one month's pay in lieu of notice or to ask the employee to resign from service So far as A I R 1941 Lah. 22 is concerned before coming into force of Act VIII of 1939 there was no codified law providing that a marriage could come to an end by the conversion of faith. The suit of the wife, therefore, was not based upon any right guaranteed by any codified law and since during the pendency of the appeal expressly it was provided by section 4 of Act VIII of 1939 that dissolution of marriage could not take place automatically merely on account of change of faith, there fore, it was held that the wife was not entitled to wriggle out of the marriage tie. Likewise in the present case also before the third Wage Commission Award gave right to the employer to terminate the services of its employees on one month's notice or one month's pay in lieu of notice, there was no provision in this respect and thus he had no such power, therefore, no question of retrospective effect arises. From 1st January, 1981 no doubt the banks have authority to terminate their employees under paragraph 234 on one month's notice or pay in lieu of notice or to ask the employees to give resignation. Since paragraph 234 did not stand included in the decisions at the time the respondent was terminated, the appellant could not terminate the services of the respondent without assigning any cause and without giving him oppor tunity to show cause and to defend himself.

7. The other point argued by the learned counsel for the appellant is that the Labour Court had no jurisdiction in the cases in which the National Bank takes any action against its employee because the Award of the Commission is not that Award which has been defined in section 2 (ii) of the Industrial Relations Ordinance, 1969. According to him, such an Award cannot be said to guarantee any right for which a petition under section 25‑A of the Industrial Relations Ordinance, 1969 may be made. He supports his arguments by 1982 P L C

1. In the authority cited by the learned counsel for the appellant it has been observed that the Award of the Commission is not that award which has been defined in the Industrial Relations Ordinance, 1969. The Legislature was aware of this fact when it provided in section 38‑D of the Ordinance that "decisions of the Wage Commission published under section 38‑C would be deemed to be an award of the Full Bench of the Commission and the provisions of the Ordinance applicable to such award including the provisions of sections 51 and 55 so far as may be and with the necessary modification shall apply to the deci sions of the Wage Commission". The words "deemed to be an Award" are significant. The Legislature knew that Award of the Commission otherwise was not covered by the definition of `Award' given in section 2 of the Ordinance. Therefore, it was said that the decisions of the Wage Commission would be deemed to be an Award. Since the provisions of the Industrial Relations Ordinance had been made applicable to the Award of the Commission under section 38‑D, the Award mentioned in section 25‑A includes `the Award of the Commission and not only the Award as defined in section 2 of the Ordinance. If the provisions of the Industrial Relations Ordinance are held to be not applicable to the Award of the Commission, then section 38‑D would become redundant. No Court can declared a provision of law as redundant and law is to be followed as it stands. Since section 38‑D makes the provisions of Industrial Relations Ordinance applicable to the Award of the Commission, by no stretch of imagination it can be said that such an Award cannot guarantee a right for the infringement of which a worker may come to the Labour Court. I, therefore, cannot agree with the learned counsel for the appellant that the Award of the Commission does not benefit the respondent and that he could riot go to the Labour Court under section 25‑A of the Industrial Relations Ordinance, 1969 for the infringement of the provisions of the said Award.

8. The last point raised by the learned counsel for the appellant is that the respondent is not a workman as only that employee is covered by the definition of workman as given in section 2(xxviii) of the Industrial Relations Ordinance, 1969, who is in the employment. According to the learned counsel, since the respondent stands terminated and is no longer in service, he is not covered by the definition of workman: The intention of law is to be seen in this respect. For this purpose it is necessary to consider the scheme of the Labour Laws. The preface of the Industrial Relations Ordinance, 1969 reads as under :‑ "Whereas it is expedient to amend and consolidate the law relating to the formation of trade unions, the regulation of relations between employers and workmen and the avoidance and settlement of any differences or disputes arising between them or matters connected therewith and ancillary thereto ; And whereas the national interest of Pakistan in relation to the achievement of uniformity requires central legislation in the matter ; Now, therefore, in pursuance of the Proclamation of the 25th day of March, 1969 read with the Provisional Constitution Order, 1969 and in exercise of all powers enabling him in that behalf the President is pleased to make and promulgate the following Ordinance." This is apparent from the preface of the Ordinance that the intention of the Legislature to promulgate the said Ordinance was the regulation of the relations between the employers and the workmen and to avoid and settle all differences or disputes arising between them. When an employee is terminated or dismissed, it does not mean that there remain no difference between such an employee and the employer ; rather this is the real dispute between them. No employee wishes to be terminated or dismissed. It, therefore, cannot be said that such an employee has no difference or dispute with his employer. If the intention of the Legislature had been that a terminated or dismissed person is not a workman and cannot come to the Labour Court then the very purpose for which, according to the scheme, the Ordinance has been promulgated would be defeated and it would lead to chaos and disturbance in the labour sphere. If terminated and dis missed persons cannot get any remedy from the Labour Courts, the very purpose of the establishment of Labour Courts becomes redundant and the promulgation of the Labour Laws and the establishment of the Labour Courts becomes meaningless. Special tribunals have been constituted to promote speedy remedy to the workers, because in the ordinary Courts in view if the lengthy and complicated procedure, many formalities are to be observed and gone into before that stage reaches when a case can be decided. Again if the intention of the Legislature had been that rule of master and servant should apply in respect of the labour disputes, there was no need to promulgate labour laws and to establish Labour Courts, because otherwise the terminated or dismissed persons could go to the ordinary civil Courts. If this view is taken that terminated or dismissed workers have no remedy under the Industrial Relations Ordinance, 1969 then it would mean that only those workers can come who have any dispute only regarding seniority and conditions of service. But 'this does not appear to be the intention of law. The definition of worker and workman given in section 2 (xxviii) reads as under :‑ "Worker" and "workman" means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retren ched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge retrenchment, lay‑off, or removal has led to that dispute but does not include any person ‑ (a) who is employed mainly in a managerial or administrative capacity, or (b) who, being employed in a supervisory capacity draws wages exceeding eight hundred per mensem or performs either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature." The words `is employed' do not mean that an employee must be in service at the time any grievance arises to him against the employer or at the time he brings the grievance petition to the Labour Court. What does it actually mean is that he must have been come in the service of the employer. Thus, a person who has never been employed by the employer would not come within the definition of workman, but a person who has been once employed would be a workman even though at the time any grie vance arises to him or he brings his grievance to the Labour Court is not actually in service. Not only in the definition given in I. R. O. present tense is used, but everywhere the use of present tense has been made. Section 1 (3) reads as under :‑‑ "It shall not apply to any person employed in the police or any of the Defence Services of Pakistan‑‑‑‑‑‑ Likewise subsection (3‑a) reads as under :- "without prejudice to the provisions of subsection (3) for the period of sixty days from the commencement of the Industrial Relations (Amendment) Act, 1976 this Ordinance shall not apply to any person employed in the establishment of Pakistan International Airlines Corporation." Before 2nd February, 1977 subsection (6) was present in section 25‑A of the Industrial Relations Ordinance, 1969. This omitted section reads as under :‑ "Notwithstanding anything contained in subsections (1) to (4). any worker aggrieved by the termination of his employment as a result of retrenchment, dismissal, discharge, lay‑off, lock‑out or otherwise not earlier than two months preceding the commencement of the Industrial Relations (Amendment) Ordinance, 1972, may, within a period of two months from the commencement of the Industrial Relations (Amendment) Act, 1973, or the termination of the employment whichever is later, either himself or through his Shop Steward or trade union, take the matter directly to a Junior Labour Court having jurisdiction in the area in which the establishment is situated." In this subsection the word worker' is used and at the same time it is mentioned that he has been terminated as a result of retrenchment, dismissal, discharge, lay‑off, lock‑out or otherwise, he could go to the Labour Court within two months from the commencement of the Industrial Relations (Amendment) Act, 1973 or within two months of the order of termina tion whichever is later. If the intention of the Legislature had been by the words "is employed" used in the definition of worker and workman that then only that person is workman who is in service at the time of any grievance arose to him or at the time of coming to the Labour Court, then in subsection (6) neither he would have been mentioned as a worker, nor it would have been provided that if he is aggrieved of the termination of his employment as a result of retrenchment, dismissal, discharge, lay off, lock out or otherwise, he can go to the Labour Court. Enactments can never be said to be self‑contradictory. If the view expressed by the learned counsel for the appellant is accepted, then the definition of workman and subsection (6) of section 25‑A would become contradictory. In subsection (1) of section 25‑A it is provided that a grievance notice be given within three months of the date on which cause of grievance arises and the employer, according to subsection (2) has to communicate his decision in writing to the worker concerned within 15 days of the receipt of notice and if the decision is against the worker concerned, then within further two months from the date of decision or in cases where no decision has been communicated to him within two months and 15 days of the service of grievance notice he can bring the grievance petition to the Labour Court. Option was given to the aggrieved worker by subsection (6) not t0 serve a grievance notice, but in cases where a worker chose not to give grievance notice, it was necessary for him to go to the Labour Court within two months of the date of the enforcement of the Industrial Relations (Amendment) Ordinance, 1973 or within two months of the date of accruing of grievance to him. Afterwards the Legislature con sidered it unnecessary to give this option to the aggrieved workers and intended that in every case grievance notice be given within three months of the accrual of the cause of grievance and to bring the grievance petitions he brought within two months from the date of the decision communicated by the employer, if he is dissatisfied within the decision and within two months and 15 days in cases where the employer did not com municate his decision It is thus clear that the intention of the Legislature by using the words "is employed" used in the definition of worker and workman is not that only that employee is workman who is in service at the time the cause of grievance accrued to him or at the time he brings his1K grievance to the Labour Court. Learned counsel for the appellant has cited 1980 P L C 964, 1979 P L C 120 and 1979 P L C

543. In the first mentioned authority no doubt it has been observed by my learned brother that workman is that who is in employment at the time the grievance arises to him and that terminated or dismissed persons are not workmen, but with great respect I differ from the views expressed by him. It appears that the reasons like the ones given by me for holding that a terminated or dismissed person is also a workman were not argued before him, nor deleted subsection (6) of section 25‑A was brought to his notice. I am aware that one or two rulings of Karachi High Court are also on this point, but in respect of them also I would say that deleted subsection (6) of section 25‑A was not brought to the notice of their Lordships. Learned counsel for the appellant was made aware of the deleted sub section (6) of section 25‑A but he could say only this much that at present the said subsection does not stand incorporated in section 25‑A. This argument on the face of it is falacious. We have to see the intention of the Legislature. If the intention had been that a terminated or dis missed person is not a workman, then as mentioned above, in deleted subsection (6) the word "worker" would not have been used, nor it would have been provided that a dismissed or terminated worker could go to the Labour Court. It is necessary to point out that subsection (6) was not deleted for the reason that it was in jurisdiction of the definition of work man given in section 2 (xxviii) of the Ordinance. Subsection (6) was deleted by Ordinance IX of 1977 entitled as Labour Laws (Amendment) Ordinance, 1979 It reads as under :‑ "Whereas it is expedient further to amend certain laws relating to industrial relations and welfare of the workers". It is apparent that the amendment was made and subsections (6) and (7) were deleted to promote further industrial relations between the employers and the employees and for the welfare of the workers. So, it cannot be said that for some other reason the amendment was made. Learned counsel for the appellant has also argued that if the intention of the Legislature had been that a terminated or dismissed person is also a workman, then there would have been no necessity to say in the definition that for the purpose of any proceedings under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, dischar ged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay‑off or removal has led to that dispute. Making of such a provision does not go to show that only those employees are workmen who are in service. This provision had been made for those persons who otherwise are not covered by the definition of workman but if they have been terminated or dismissed or otherwise removed from service in connection with or as a consequence of any industrial dispute or their termination, dismissal or removal in any manner has led to an industrial dispute, they are also workmen. Clauses (a) and (b) show that the persons employed mainly in a managerial or administrative capacity or who are employed in supervisor capacity drawing wages exceeding rupees eight hundred per mensem are not workmen even though otherwise they are the employees. So, the intention of the definition is that even though such persons who are mentioned in clauses (a) and (b) or any other persons who otherwise do not fall within the definition of workman, they will be deemed to be workman, if they have been removed from service in any manner in connection with or as a consequence of any industrial dispute, or if their removal has led to the industrial dispute. Suppose an employee who has been empowered with the managerial or administrative powers or an employee who has been given power of supervisory nature and his pay is more than Rs. 800 has been dismissed or in any manner removed from service, but the C. B. A. wants that person to be in service and has raised an industrial dispute asking the employer to re‑instate such an employee or any such employee has been removed from service by the employer thinking that he was responsible for the raising of an industrial dispute by the C. B. A., then such an employee would be deemed to be a workman for any proceedings made under the Industrial Relations Ordinance, 1969 and thus would be entitled to bring an application under section 25‑A even though otherwise if his dismissal had not led to any industrial dispute, or he had not been dismissed as a consequence of the dispute he would not have been entitled to bring the grievance petition. This provision appears to have been made to avoid unnecessary unrest and bad relations between the employers and the employees, which is a necessary result of a raising of an industrial dispute. Otherwise lock out and strike are illegal, but if they are resorted to in connection with an industrial dispute they are not illegal. If this provision had not been made on employee who is not a workman he could be got re‑instated only by raising industrial dispute and by resorting to strike by the C.B.A. Since such a person would be a workman, therefore, he can bring a grievance petition under section 25‑A for his re‑instatement and the employer and the employee would be saved from harrors of industrial dispute and the dispute can be very peacefully settled. Learned counsel has also argued that if the intention of the Legislature had been that a dismissed or termi nated person is also a workman, in Standing Order 12 (3) of the Standing Orders Ordinance, 1968 it would not have been provided that workman aggrieved of the termination of his services or removal, retrenchment, dis charge or dismissal could take action in accordance with the provisions of section 25-A. Learned counsel says that a dismissed or, removed person can bring an application under section 25‑A only by virtue of the provisions made in clause (3) of Standing Order

12. I cannot agree with him. Such a provision has been made in clause (3) of Standing Order 12 because where the Standing orders ordinance is applicable, it guarantees rights to the workers. When Standing Orders Ordinance guarantees a right, as pro vide the forum for the exercise of that right and for this reason this specific provision has been made. Needless to say that section' 25-A is attracted only when there is an infringement of a right guaranteed by any law, settlement or award. Standing Orders Ordinance, being a law, guarantees right, so where such a right is infringed, an application under section 25‑A can be brought.

9. As observed above since the Award of the Commission guaranteed a right, to the respondent, he rightly brought application under section 25‑A and the learned lower Court in the circumstances of the case rightly directed his re‑instatement in service with back benefits. There is no force in the appeal, which is dismissed. A. E. Appeal dismissed.