1985 PLP 413 (PLC)

(d) Constitution of Pakistan (1973)

Art.199--Very initiation of proceedings before Tribunal was hit by law--Held, it was open to petitioner to avail constitutional jurisdiction. Muhammad Afzal Siddiqui for Petitioner. Nemo for Respondent No.1. Muhammad Asghar Malik for Respondent No.2. Date of hearing: 12th November, 1984. AKHTAR HASSAN, J.-- Respondent No.2 Sabir Ali, claiming himself to be a workman under the writ petitioner Messrs Dandot Cement Company Limited felt aggrieved of their order, dated 7-6-1982 (Annexure 'B') whereby his services as Civil Surveyor were terminated. Allegedly he sent grievance notice to the petitioner-employer on 14-6-1982 and then filed grievance petition before the Punjab Labour Court No.6, Rawalpindi, under section 25-A of the Industrial Relations Ordinance, 1969, through one Qazi Muhammad Farooq whom he subsequently appointed as his special attorney.

2. An objection was raised by the petitioner before the Labour Court that the grievance petition was not maintainable for having been filed not by the petitioner himself but by the attorney. The Labour Court dismissed the petition. However, in appeal the Punjab Labour Appellate Tribunal reversed the order holding that such a petition could have been filed even through attorney.

3. A distinction was sought to be made between the provisions of subsection (1) and subsection (4) of section 25-A of the Industrial Relations Ordinance, 1969. The former provided that a grievance may be brought to the notice of the employer by the employee either himself or through his Shop Steward or Collective Bargaining Agent. It did not authorise him to use the services of his attorney for the purposes of bringing his grievance to the notice of his employer. The word "himself" used in the subsection was emphasized to exclude an attorney. A Subsection (4) dealt with the next stage if the employer fails to make a decision within the prescribed period. It provides that the worker or Shop Steward or the Collective Bargaining Agent may take the matter to the Labour Court. The word "himself", of course, stands omitted. This contradistinction was interpreted to mean that the worker was authorised to employ an attorney for taking the matter to the Labour Court. 4 Assailing this view, counsel for the writ petitioner relied upon Gulistan v , Pakistan Railways 1981 P L C 760 which was later affirmed in Gulistan v. Sind Labour Appellate Tribunal, Karachi and Z others 1982 P L C 1007. Being conscious of the omission of the word "himself" in subsection (4), the learned Appellate Tribunal as also the D.B. held that it had to be harmoniously construed with other provisions of the section particularly subsection (1) and that the intent of the Legislature was to rule out any agency to give grievance notice to the employer or to file grievance petition in the Labour Court. The conten tion that a Labour Court was for all purposes a civil Court under section 36 of the Industrial Relations Ordinance so as to allow appearance of a party through attorney was ruled out altogether as it had to be read in conjunction with section 25-A (ibid) which allowed options to a worker in serving a grievance notice or making a petition in the Court. He could do it either personally or through a Shop Steward or a Collective Bargaining Agent. The very provision of such a large option was thought to exclude other agencies in the matter. Reliance was also placed upon Syed Muhammad Hussain v. Messrs Pakistan Tobacco Company Limited and another P L D 1980 S C 80 in this behalf where considering the provisions of subsection (1) of section 25-A, a view was taken that the intent of the Lagislature was to exclude agents other than those specifically mentioned therein viz. either the Shop Steward or the C.B.A.

5. In this case the petition (Annexure 'C') wag filed c/o Qazi Muhammad Farooq through Mr. M.A. Hamid Awan, Advocate. There is no indication if it had been filed by the petitioner himself as he was alleged to have gone abroad. The power-of-attorney (Annexure 'D') given by the petitioner in favour of the said Qazi Muhammad Farooq in a way supports the petitioner's contention that the petition had been filed through attorney. This is a question of fact upon which both the Courts concurred in that there was no finding by either of them if the petition had been filed by the petitioner personally. The rule laid down on the point in the above-cited Gulistan v. Sind Labour Appellate Tribunal's case seems to fully apply to this case. Although the afore mentioned case of Gulistan v. Pakistan Railways was cited before the learned appellate Tribunal yet it seems that its confirmation by the D.B. judgment as reported in 1982 P L C 1007 was not brought to it is notice. We see no way to differ with it as the entire provisions of section 25-A are to be interpreted harmoniously and the same do not permit any agency other than that of the Shop Steward or the C.B.A.

6. Opposing the writ petition, counsel for the respondent reiterated that the Supreme Court judgment did not consider the provisions of subsection (4) and that it should have been confined to a situation dealing only with service of grievance notice on the employer. We really doubt if subsection (1) could be considered in complete isolation of other provisions of the same section. The main purport of the entire section was to provide how a worker may press his grievance initially by bringing it to the notice of the employer and then by filing al petition in Court. Subsection (1) is rather prefatory excluding totally the agency of an attorney or counsel. All subsequent provisions occurring in the same section will have to be correlated to it in a conjunctive manner rather than to interpret them disjunctively making an inroad for an outside agent in prosecuting the same relief in Court. For this reason, notwithstanding the provisions of section 36 of the Industrial Relations Ordinance, the institution of representation through agents was considered out of question. C.P.C. as a whole did not apply and of course, could not be allowed to be applied by giving an extensive consideration of section

36. The Labour Court was of a special jurisdiction dealing with the problems arising between an employer and employee without the intermeddling of any outside agent. For this reason section 49 of the I.R.O. was pressed into service as it did not authorise representation even through a counsel before the Court. Leave for this purpose had to be obtained. In this case it was not shown if the Labour Court had allowed the filing of the grievance petition before it through counsel. Reliance was placed on Sher Muhammad v. Chairman. Industrial Court of West Pakistan and others 1967 P L C 147 but it related to old law, namely, section 34 of the Industrial Disputes Ordinance, 1959. Section 49 of the I.R.O., 1969 has been made in contradistinction to the old provision and, therefore, representation through a counsel was subject to the leave of Court and not as matter of right. Further, a contrary view was taken in Karachi Union of Employers and others v. The Industrial Court, Karachi and others PLD 1961 S C 57 in regard to the interpretation of section 34 of old Ordinance whereby legal practitioners were not permitted to appeal, in guise of office-bearers of Associations or Unions in proceedings before the Tribunal. Nothing turns upon this argument in favour of the respondent.

7. Lastly, it was urged that the writ was pre-timed as no final order had been passed by the Labour Tribunal. Since the very initiation of the proceedings before it was hit by law, it was open to the petitioner to avail writ. The objection is overruled.

8. For the foregoing reasons, we accept the writ petition and declare the impugned order, dated 11-4-1984 of the learned Punjab Labour Appellate Tribunal to be without jurisdiction and lawful authority. No order as to costs. M. Z. M. Petition accepted.