P L D 1975 Lahore 1072 (PLP)

(2) Notwithstanding the repeal of the said Ordinance, anything done, rules, notifications or orders issued, officers appointed, Courts cons tituted, notices given, references and applications to Courts made, proceedings commenced or other action taken under the said 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." Subsection (2) of section 46 clearly provides that proceedings commenced or other action taken under the repealed Ordinance shall, so far as they same are not inconsistent with the provisions of the ‑ new Ordinance, be continued and be deemed to have been respectively commenced or taken under the new Ordinance. There is no question of inconsistency involved herein. Thus, the proceedings in the present case which had commenced under the repealed Ordinance, after the 8th of March 1968, would be deemed to have been commenced and continued till the final decision on 22‑4‑6g under the new Ordinance. That being so, the appeal as provided in the then existing law (section 16 of Ordinance IV of 1968) would lie only before the Tribunal created under section 17 thereof. As the saving provision is specific and clear enough, therefore, it is not necessary to examine in any detail the other argument advanced by the learned counsel. It is, however, observed that the Appellate Tribunal in this case consisted of a retired Chief Justice of the High Court and it cannot be said that the new forum of appeal was, in any way, less effective then the one provided in the repealed Ordinance. The change of forum in the present case did not involve any question of deprivation of vested rights. I, therefore, hold that the appeal before the appellate Tribunal was competent.

10. Before dealing with the argument of the learned counsel about limitation it is necessary to consider a subsidiary point raised by him relating to competency of appeal. According to him, section 16 of the new Ordinance provides an appeal against an award given under clause (b) of subsection (1) of section 15 within thirty days of the announcement of the award and against an award published under subsection (3) of section 15 within thirty days of the publication of the award. While reading clauses (a) and (b) of sub section (1) of section 15, an impression is gained that the two provisions deal with the preparation and supply of copies of the award and not the award itself. Keeping this as premise, learned counsel developed the argument that there being no decision or award under section 15(1) (a) and (b), an appeal against preparation or supply of copies would be mis‑nomer. The argument appears to be mis‑conceived. Probably, learned counsel failed to read in proper context the purview of subsection (1) of section 15 with its clauses (a) and (b). It provides that "the decisions of the Court under section 26 or section 37, and the awards of the Court, shall be given in writing signed by the Chairman." It is then further provided in clauses (a) and (b) thereunder that, "and (a) where the Central Government or the Provincial Government is a party to the industrial dispute, two copies thereof shall immediately be forwarded to Government; and (b) in other cases, announced is Court and two copies thereof forwarded to the Director." Thus, even if the matter falls under clause (a) or clause (b), nonetheless the decision and/or award is under subsection (1) of section

15. Therefore, it would not be correct to say that the appeal would not be against such decision or award given under section

15. The argument, therefore, is repelled. Some argument was also raised with regard to the dates of publication of relevant orders, but the same being questions of fact and not having been raised before the appellate Tribunal I would‑ ignore them because presumption of regularity would attach to the proceedings.

11. The argument of the learned counsel for the petitioner on the question of limitation is an elaborate one but, in substance, it amounts to this: the period prescribed under section 16 of the 1968 Ordinance for filing an appeal is thirty days from the announcement of the award; the order of the Industrial Court was published on 13‑7‑68 and the appeal was filed on 16‑10‑68; therefore the appeal was time‑barred. Learned counsel for the respondent gave a brief reply to the argument in that section' 16 of the 1968 Ordinance was amended by West Pakistan Industrial Disputes (Amendment) Ordinance, 1968 promulgated on 3‑9‑68 whereby subsection (1‑A) was added after subsection (1) of section

16. Thus, added provision reads as follows :‑

"(1‑A) In the computation of the period for appeal under sub section (1)‑ (a) the period during which there is no Tribunal appointed or constituted under section 17 shall be excluded; and (b) the limitation therefore shall be governed by the provisions of section 5 of the Limitation Act; 1908 (IX of 1908). " The Tribunal, it is admitted, was appointed on 17‑9‑

68. The Gazette notification in this behalf is of 19‑9‑

68. And as the appeal was filed on 16‑10‑68, therefore the same by virtue of the amendment is, according to the learned counsel for the respondent, within limitation. Despite the prima facie force in this argument, which is based on the amendment providing for the change of commencement of limitation (the period during which there is no Tribunal appointed or constituted under section 17 shall be excluded), learned counsel for the petitioner insisted that the appeal before the Appellate Tribunal would still be time‑barred; because such an exclusion is possible only by an order of the Appellate Tribunal to be passed under section 5 of the Limitation Act which was made applicable by clause (b) of sub section (1‑A) as added in section

16. I do not agree with the learned counsel. The two clauses (a) and (b) of subsection (1‑A) of section 16, in my view, are mutually exclusive. While' clause (a) provides for statutory exclusion of the period during which the Tribunal is not appointed, clause (b) provides for the application of section 5 of the Limitation Act which means that on application made the Tribunal concerned shall have the power and discretion to pass an order for condonation of delay on proper grounds. It is not conceivable to assume that the statutory exclusion under clause (a) was intended to bed considered as one of the grounds for condonation of delay under clause (b). It is abundantly clear that while clause (a) applied to the cases becoming ripe for appeal during the interregnum when the Tribunal is not appointed or constituted under section 17, clause (b) provides for the application of section 5 of the Limitation Act for all occasions. On this view of the matter, and taking into account the relevant dates qua the appointment of the Appellate Tribunal and the filing of appeal, the appeal was clearly within time.

12. The next and last argument of the learned counsel for the petitioner is a composite one having many facets. According to him, none of the demands/questions raised before the Industrial Court from the respondent's side could be treated as industrial dispute. In his view, the dispute or difference connected with the employment of a workman is different from demand and request made by him for improvement of terms and conditions of service. When it is claimed by a workman, he argued, that his terms of service should be improved, he essentially wants change therein and if that is so this would mean, in case of railway employees, the change of terms and conditions of their employment which, as he further argued, are controlled by service laws and rules framed under the Constitution and cannot be changed by Industrial Courts. In this connection, he laid stress on the point that the persons on whose behalf the demands had been made had accepted the terms and conditions of service at the time of initial employment and as they had no right to seek unilateral change therein, therefore, their demands made in this behalf cannot be treated either as dispute or difference. According to him, there was no legal basis for making such demands, therefore, as he put it, the so‑called disputes and differences in this case are not real and can at best be described as imaginary. Lastly, in this connection, he made reference to the definition of "workman" with reference to railways, contained in clause (u) of section 2 of Ordinance of 1968 and that of "railway", "railway administration" ‑ and "railway servant", contained in, section 3 of the Railways Act of 1890; and contended that the persons on whose behalf the demands were raised are not workmen unless, he further pointed out, they are shown to be working in the `railway' as defined in the Railways Act. In this connection, he also tried to take benefit from the impugned judgment wherein some of the workmen have been described as semi‑skilled and tried to build the argument that they are neither skilled nor un‑skilled, therefore, they cannot be treated as workmen and unless they are workmen, the demands raised by them would not fall within the definition of "industrial dispute" as contained in clause (i) of section 2 of the Ordinance.

13. The provisions referred to by the learned counsel or otherwise relevant are reproduced below: Ordinance IV of 1968; "Section 2 (f)‑‑"employer" includes‑ (i) in relation to an industry carried on by or under the authority of any department of Government, the authority prescribed in this behalf, or where no authority is prescribed, the head of the department; (ii) in relation to an industry carried on by or on behalf of a local authority, the chief executive officer of that authority; and (iii) in relation to any other industry, the proprietor of such industry and every director,‑ manager, secretary, agent or other officer or person concerned with the management thereof;". "Section 2 (h)‑"industry" means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen;". "Section 2 (i) ‑"industrial dispute" means any dispute or difference between employers any employers, 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;". "Section 2 (u)‑"workman" means any person, including an apprentice, employed in any industry to do any skilled, unskilled, manual, technical or clerical work, for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceedings under this Ordinance in relation to an industrial dispute, includes any much person who has been dismissed, discharged or retrenched in connection with, or in consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person‑-- (i) who is employed in the Police or the Armed Forces of Pakistan; (ii) who is employed in the service of a prison, or of a hospital for the treatment of human patients; (iii) who is a chowkidar (guards‑man) or is employed in service, declared by Government to be watch and ward or security service; (iv) who is employed in a managerial or administrative capacity; or (v) who is a public servant engaged in the administration of State, not being employed in a factory or in the railways, or in any other establishment, undertaking, department, profession or service declared by Government to be an industrial establishment or service for the purposes of this Ordinance." Railways Act, 1890 UX of 1890): "Section 3 (4)‑"railway" means a railway, or any portion of a railway, for the public carriage of passengers, animals or goods, and includes‑ (a) all land within the fences or other boundary marks indicating the limits of the land appurtenant to a railway; (b) all lines of rails, sidings, or branches worked over for the purposes of, or in connection with, a railway; (c) all stations, offices, warehouses, wharves, workshops, manufactories, fixed plant and machinery and other works constructed for the purposes of, or in connection with, a railway; and (d) all ferries, ships, boats and rafts which are used on inland waters for the purposes of the traffic of railway and belong to or are hired or worked by the authority administering the railway;" "Section 3 (6)‑"railway administration" or "administration", in the case of a railway administered by the Government or a State, means the manager of the railway and includes the Government or the State, and, in the case of a railway administered by a railway company, means the railway company;". "Section 3 (7)‑"railway servant" means any person employed by a railway administration in connection with the service of a railway"

14. The terms "dispute" and "difference" have not been defined in the Ordinance. The main question raised by the learned counsel has been considered by the learned Appellate Tribunal in another context. In para. 22 of the impugned judgment the learned Tribunal held as follows; "

22. It is only in glaring cases when the fixation of pay by the Government is patently and obviously unjust and unfair that a plea for increase of further pay should be entertained. In such matters the industrial Court must take an overall practical and common sense view. Thus, it may be stated as a rule that unless as a result of revision in pay of workmen, if particular' category of workmen have been ignored or the increase in their pay is patently disproportionate to the increase of pay of similar workmen, the Court will be reluctant to interfere with the order of the Government in implementing the Pay Commission's Report. Keeping the principles, which I have laid down for myself, I will now proceed to consider Demand No. 6 (e)." It may be straightway observed that it is somewhat restricted interpretation on, scope of jurisdiction of the Industrial Court/Tribunal with regard to on, rather major, part of the terms and conditions of employment of the workmen namely, pay. The same restriction might not be importable' qua the other terms and conditions say, for example, the benefit of free diet in a hospital run by the railway administration to certain categories of workmen. However the matter does not end here. On account of absence of the definition of the relevant terms, a major question of principle will have to be decided in clear terms, namely, whether the terms and conditions of service of persons, who fall under the definition of workman and who are otherwise covered by the provisions of the Industrial Disputes Ordinance, can be_ gone into for the purpose of improvement when brought before the proper forums in the form of what has, for the purpose of convenience, to be described as industrial dispute or difference. The difficulty, undoubtedly, arises both in the industry run by the Government as also the private industry. In the former, the decision one way or the other might affect the statutory terms and conditions of service and in the latter case, it would cover contractual obligations.

15. Keeping in view the statutory definition of `industrial dispute', it is clear that the terms "dispute" and "difference" used therein are susceptible to both liberal and restricted interpretation. In the former case, the improve ment in terms and conditions of service would be included and would favour the workman; but in the latter case, there would be no scope for improvement therein and the resolution of disputes would have to be confined to the interpretation or clarification of the existing and/or initially agreed terms and conditions. This restricted construction would favour the employer. Social justice is one of the basic motivations for modern labour legislation. Continuance of industrial differences by and large works against the interests of the weaker patty. Thus, the resolution of industrial disputes through , legislation is on the one hand a beneficiary act qua the labour and at the same time it, through industrial calm and harmony, advances one of the major objects of social justice. In such like situation, liberal and beneficial construction qua the weaker party, namely the labour, would not, unless contra indicated by statutory provisions, be unjustified or against any known principle. While dealing with a similar question arising out of proceedings under the Workmen's Compensation Act, in cost. Kalsoom Akhtar v. Abdul Rashid and others F. A. O. No. 42 of 1973 decided on 25‑7‑74 it was observed by me as follows;

"

7. There is yet another aspect of the matter. By virtue of the latest dispensation under our Constitution, social justice (as understood in Islam) is one of the corner stones of our polity. This principle and concept has now been enshrined in the Constitution itself. All the organs of the State and authorities and persons performing functions on their behalf have been enjoined to see the fulfilment of this and the other principles of policy contained in the Constitution. Article 3 of the Constitution has codified in an expressive form a part of this principle. Keeping this as a basis, if the Workmen's Compensation Act is studied with particular attention to the preamble thereof and its underlying spirit as also the spirit of the Constitution, the old theory (if there was any) underlying the principles of interpretation of this enactment as contained in the commentaries on the Workmen's Compensation Act relied upon by the learned Assistant Advocate General does not hold good. I am of the view that the interpretation beneficial to the workman in so far as it does not violate the language used in the enactment has now to be adopted. The interests of the beneficiaries thereunder have to be safeguarded and it is no more possible to hold that it is a penal statute in so far as the employers are ' concerned. In view of the same background of spirit and principle it is not even a quasi‑penal statute. It lays down the duties and liabilities of one citizen in the position of an employer towards the other citizen who is his workman. There is no question of exacting a penalty from the employer. The spirit of the Constitution and the law, as discussed above, enjoins upon the employer to fulfil his obligations under, in accordance with and subject to this law, not as a penalty but as an ordinary duty and obligation towards the workmen. I, therefore, express my dissent in so far as the following cases cited by the author in the commentaries relied upon by the learned Assistant Advocate‑General are concerned: Bombay Burmah Trading Corporation Ltd. v. Ma B. Nan A I R 1937 Rang. 45; and Mating Kyan, In the matter of (A I R 1931 Rang. 173). It may be mentioned here that in one of the cases, namely, Chilu Kahar v. Burn & Co. Ltd., Howrah (A I R 1953 Cal. 516), somewhat similar conclusions were reached but on a different reasoning, namely, that with the progress of the times, the conception of the circumstances in which the workman is entitled to compensation has widened, and become mere liberal. That reasoning is also possible to support the above expressed views and I approve of it but, as discussed above, my reasons for laying down the above rule are different, namely, require ments and dictates of our Constitution together with the purposes and the spirit of the enactment in question, namely the Workmen's Compensation Act." As noted above, the change in Pakistan in so far as the advancement of social justice is concerned; has been recognised in the Constitution with difference that out of various types only the Islamic social justice has been recognised and accepted as the corner stone of policy. In the light of the above discussion, I am of the view that whenever there are two equally strong possible interpretations of a statutory provision contained in a labour law, the liberal one beneficial to the labour would have to be adopted provided this curse is not contra indicated by any other provision of law.

16. In this case, the question raised by the learned counsel can be resolved on the basis of the above principle and it can be straightway held that the terms and expressions used in the definition of "industrial dispute", namely, "dispute', "difference", "the terms of employment" and "the conditions of work" are such that taking a prima facie view of the matter, both the constructions‑liberal, including the improvement of terms and conditions of employment, and the restricted namely, the interpretation and clarification of the existing terms and conditions‑can be adopted. As both the constructions are possible, therefore, the liberal one would have to be adopted unless of course there is any statutory bar.

17. The learned counsel for the respondent has made a bold statement that there is no such 'statutory bar ether in the Industrial Disputes Ordinance or in any other relevant law, generally excluding the improvement in terms and conditions of service of workmen employed in public or private sector. However, according to him, when the Legislature keeping in view the peculiar nature of the industrial establishment and/or the sensitive character of the employment, thought it fit such a bar has been specifically created. He cited the example of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, .1968. Under subsection (4) of section 1 thereof, the establishments including. industrial and commercial have been categorised to which the said law has been made applicable. But by virtue of a proviso to the said section the application of the Ordinance has been ex. luded qua "the industrial and commercial establishments carried on by or under the authority of the Central or any Provincial Government, where the statutory rules of service, conduct or discipline are applicable to the workmen employed therein." In section 3 of the said Ordinance, it has been provided that "in every industrial or commercial establishment, conditions of the employment of workmen and other incidental matters shall, subject to the other provisions of this Ordinance, be regulated in accordance with the Standing Orders.", Implications are obvious, namely, that the provision already referred to (i.e. proviso to section 1(4) in connection with the statutory rules of service) would not be affected on account of the saving clause, namely, "subject to the other provisions of this Ordinance." Section 9 of this Ordinance protects certain terms and conditions of service provided they are favourable to the workmen. It reads as follows: "

9. Protection to existing conditions of employment.‑Nothing in this Ordinance shall affect any law, custom, usage, award or agreement in force immediately before the promulgation of this Ordinance in so far as such law, custom, usage, award or agreement ensure conditions of employment more favourable to workmen than those provided in the Standing Orders." 'The same law, it was pointed out by the learned counsel, subject to the pro hibition referred to above permits change of terms and conditions of employment of the workmen by agreement. Learned counsel for the petitioner has not been able to point out any similar prohibition as is contained in the Law referred to by the other learned counsel, prohibiting the resolution of a dispute under the Industrial Disputes Ordinance where it (dispute) relates to a demand for improvement of terms and conditions of service of workmen em ployed in an industrial establishment carried on by Central or any Provincial Government or under its authority. The absence of such a prohibition, particularly when another law in the same category contains such a pro hibition, would lead to three conclusions,‑-- (i) that the Legislature while enacting the Industrial Disputes Ordinance, 1968 (it received the approval of the Provincial Assembly of West Pakistan with certain amendments on 30th May 1968,‑the nomenclature, however, remained the same) did not consider it necessary to prohibit the resolution of the disputes, on demands for improvement of the terms and conditions under reference under the said law ; (ii) there being no such statutory bar which could have provided a contra indication to a liberal and beneficial interpretation qua the labour, the same can be adopted in so far as the construction of the expressions used in the definition of `industrial disputes' is concerned ; (iii) it is not such a subject which has been left unnoticed. Whenever, Legislature thought it fit, such statutory terms and conditions of service have been excluded by statutory provisions. In the light of the above discussion, it becomes abundantly clear that the disputes relating to demands for improvement of certain terms and conditions of service, which can be treated as statutory, canvassed by the learned counsel for the petitioner is untenable. The argument, there fore, has to be repelled.

18. Before dealing with another aspect of this question, 4t needs to be noticed that the argument of the learned counsel based on certain definitions in the Railways Act, with respect, appears to be misconceived. In the definition of `workman' in section 2(u) of the Ordinance it has been provided that any person employed in any industry to do any skilled, un skilled, manual, technical or clerical work, for hire or reward, whether the F terms of employment are express or implied, would be workman for the purpose of proceeding under the Ordinance in relation to an industrial dispute Certain categories of such persons, however, have been excluded in sub‑clauses .(i) to (v) under clause (u). They are employees of Police or Armed Forced ; prisons or hospitals for human treatment I guardsmen and other employees in a service declared by Government to be watch and ward or security service; persons employed in managerial or administrative capacity ; or a public servant engaged in administration of State‑in this last category, those persons, who are employed in a factory or in the railways or in any other establishment, under taking, department, profession or service declared by the Government to be an industrial establishment or service for the purposes of this Ordinance, are not included. This is not the case of the learned counsel that `railways' has., not been declared such an establishment. Thus, the railway employees are not covered by the excluded categories in so far as the definition of 'workman' is concerned ; provided the individuals concerned otherwise are covered by it (the definition. The learned counsel laid too much stress on the technicality, namely, that in the definition the exclusion from the prohibition is of the persons employed "in the railways" If one looks at the definition contained in the Railways .Act relied upon by the learned counsel, it becomes abundantly clear that none of them would, in the context, cover the language used in the defini tion of workman under discussion wherein the expression retained is "in the railways". I agree with the learned counsel for the respondent that this exe pression has been used in a general and not in any technical sense referable to the Railways Act.

19. Similarly, no importance can be attached to the distinction sought to be drawn by the learned counsel between skilled/unskilled and semi‑skilled work. Firstly, 'semi‑skilled' would have to be treated as a sub‑class of skilled and not altogether a separate category and, in any case, semi‑skilled work would also be manual work. Therefore, if some of the workmen dealt with in. the impugned judgment are semi‑skilled, they nonetheless for that reason cannot be excluded from the definition of 'workman'.

20. The side argument of the learned counsel for the petitioner that, persons employed in railway administration would not be treated as workmen, runs counter to the definition of `workman' because it includes all those. persons who are employed on manual, technical or clerical work. Even if, technically speaking, they are employed by the railway administration, none theless they are "employed in the railways". The argument, therefore, is untenable.

21. As pointed out above, there is yet another aspect of the question.. The industrial dispute as defined in the Ordinance should be a dispute or difference which is connected with the employment or non‑employment or is connected with the terms of employment. Not only this, it can also be a. dispute or difference which is connected with the conditions of work. The ex pression "connected with" has a wide connotation. Same is the connotation of "difference". If the Legislature intended to restrict the definition it could have avoided the use of the term "difference", after the term "dispute" had. been specifically used. It was in order to widen the scope of the dispute that the term `difference' was used as an alternative‑in other words, with a view to widen the geld. Similarly, the expression "connected with" is wider than any other similar expression like "arising out of "; but that also is not much consequential because of the selection of another more meaningful expression. After having provided that the `dispute' or `difference' might be `connected with the employment or non‑employment, it was' specifically provided that it can also be connected with the `terms' of employment. Not only this, the Legis lature wanted to be more clearly liberal in this behalf and did not leave the matter at that because one could argue that the terms of employment could mean the existing terms of employment ; therefore, it added the further widening expression, namely, that it might be connected with the `conditions' of work. A dispute or difference would arise when improvement or betterment of conditions of work is demanded or becomes a subject of" dispute.

22. If a right is guaranteed under a law or a rule and is merely violated, then as the learned counsel, for the respondent contended, there would be no, real industrial dispute and the violation could be challenged otherwise. In order however to keep the calm and peaceful conditions in the industry the bargaining and balancing power has been created through operation of labour laws in such a manner as to force issues even if the law is silent about the resolution of such an issue. The forum, namely, the Labour Court would then come in the picture and instead of allowing the situation developing into an uncontrolled frenzy of demands and denials thereof would channelise the same in orderly conducted proceedings. Thus looked at from this angle also, the demands for improvement in conditions or terms of work are not excluded from the `industrial dispute'.

23. Lastly, even though according to the learned counsel for the peti tioner there is no discussion or a clear finding by superior Court in Pakistan on the question raised by him, namely, whether the improvements in terms and conditions of service/employment or conditions of work of workmen are included in the definition of `industrial dispute', learned counsel for the respondent mentioned many reported cases where similar demands relating to improvement in the terms and conditions some of which were even statutorily controlled, were treated as having been lawfully included in the subject‑matter for the resolution of `industrial disputes'. In Mughal Tobacco Company Limited, Karachi v. Islamic Republic of Pakistan and 2 others (PLD1959SC(Pak.)31) even though it was held that improving terms of employment of workers out of recognition through an award of an industrial dispute was not proper, yet it appears, it was assumed that if the improvement is not iniquitous it might be per missible. This assumption finds support from The Glaxo Laboratories (Pakistan) Ltd. v. Pakistan and 2 others (PLD1962SC60) where, even though there is no discussion on the various questions raised by the learned counsel in this case, an observation at page 67 of the report gives an indication of their Lordships' view on the main question of alteration of terms. It was observed that "it is now well settled that a Tribunal, functioning under the Act, can alter the terms of contract between the employer and his workmen in order to resolve any industrial dispute and this Court has in several cases upheld orders of rein statement of workmen whose services were terminated illegally". It is true that the observations were being made qua re‑instatement yet it cannot be said that they are not relevant in the context of the question involved in the present case. It is thus only in this sense of re‑instatement that the observa tion made at page 68 of the report, "that an order passed in favour of the workmen does not have the effect of improving his contractual rights under the terms of his service", has to be understood. Their Lordships particularly noted that the above principle vas affirmed by them in the aforenoted ruling in the case of Mughal Tobacco Company Limited. Both these cases were decided by the Supreme Court before December, 1961. Few months before the decision in The Glaxo Laboratories (Pakistan) Ltd.'s case their Lordships had given a decision in May 1961 on an appeal from the award of the Industrial Tribunal, Dacca, which is reported as Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company Employees' Union, Dacca and 2 others (1961 P L C 1033) where in all the five learned Judges of the Supreme Court wrote separate judgments. The question involved therein was the scope of definition of `industrial dis pute' in so far as the interpretation of expression "any person" used in the definition contained in the Industrial Disputes Act, 1947, is concerned. The question as to whether alteration of terms and conditions of service was in cluded in the said definition was not directly involved in the case, therefore, there is no elaborate discussion thereon in the leading judgment written by the learned Chief Justice. However, at page 1040 of the report it was observed that the settlement of service conditions of such employees, who do not fall within the scope of the definition of industrial dispute, "is to be effected free ly, within the scope of the Law of Contract, and is not susceptible of control through the instrumentality of the Industrial Disputes Act". Kaikaus, J., however, while examining the connotation of `dispute' and `difference' made observations which are directly relevant in the present case. At page 1C48 (et. seq.) of the report, it is observed as follows :‑ . "The words `dispute' and `difference' have a very well‑known con notation in the ordinary law relating to arbitration and I see no ground for not adopting a similar connotation in case of an industrial dispute. It will be proper to state here the difference between an ordi nary arbitration and a proceeding before an Industrial Tribunal. The arbitrator like a Court simply determines what the rights of the parties are. He neither purports to grant nor can he grant to a party any right which it does not possess. If an arbitrator were, for instance, to find in a case of inheritance that one of the heirs is entitled under the relevant law to one‑third shares of the estate of the deceased he could not on equitable grounds convert that one‑third to one‑half. The scope of the jurisdiction of the Industrial Tribunal is however entirely different. The Tribunal does not discover what the rights of the parties are. If he were simply to do that he would never be able to help the workmen because the rights of the workmen are based on contract and cannot go beyond the terms of the contractor. The Tribunal possesses a jurisdiction by which it alters the terms of the contract and grants to parties rights which they do not possess under the law on what it considers to be just and equitable grounds. Truly speaking, there are no fetters at all on the discretion of the Tribunal to vary the conditions of service. Some general principles on which the Tribunals should act are found in decided cases but they have no binding force as precedent and the jurisdiction of Tribunal, subject of course to the jurisdiction of any appellate authority remains supreme." The above‑quoted observations undoubtedly are complete answer to the arguments raised by the learned counsel for the petitioner in this case, I respectfully adopt and follow the same. In another case, also decided in May 1961, namely, Karnaphully Paper Mills Ltd. v. Karnaphully Paper Mills Workers' Union and others (PLD1961SC329) their Lordships of the Supreme Court were pleased to hold that an award on an industrial dispute ordering an elaborate disturbance of pay structure in allowing a demand, was uncalled for. Similarly, it was held that increase by a Tribunal in scale of pay without ad ducing reasons could not be maintained. This decision was also given on an appeal from the award of an Industrial Tribunal of East Pakistan. It might be observed with respect that while giving the above findings in the matter before their Lordships it appears that in the circumstances of the case certain parts of the award/order were set aside on the afore‑noted reason but there is absolutely no decision and/or assumption that the Tribunal had no jurisdiction to alter the terms and conditions of employment ; rather the discussion shows a contrary assumption particularly if the other rulings already noted, given in the same year, are kept in view. In yet another case also decided in May 1961, on an appeal from the award of an Industrial Tribunal of East Pakistan already noticed in another context, namely, Pakistan River Steamers Ltd., it was clearly assumed that a demand in rise of salary or other alteration in the terms and conditions of employment could be made the subject‑matter of an industrial dispute. Some of the demands and findings thereon, in this behalf, were rejected but others with regard to en hancement of certain payments were upheld. In Province of West Pakistan v. Moharram Ali and others which was a case of railway employees and included the alterations of terms and conditions of their employment, it was held that the industrial disputes would cover controversies with regard to the employment or non‑employment or the terms of employment or the con ditions of work of any person under subsection (5) of section 12 of the 1959 Ordinance. There is no discussion on the question involved in the present case, but most of the controversies raised in the industrial dispute in that case, which had been dealt at length in the High Court judgment (also referred earlier in this judgment), related to the alteration in terms and conditions of employment of railway employees.

24. The above analysis of the rulings of the Supreme Court creates an unavoidable impression that even though their Lordships did not consider the elaborate argument advanced by the learned counsel in the present case, as it appears the question was not raised before them in any of these cases in the precise form in which it has arisen in this case, yet the assumption in all those rulings is that the alteration/improvement of the terms of employment and conditions of service of the employees in industrial establishments sub ject to the Industrial Disputes Act, are not excluded from the scope of the definitions of the `industrial dispute'. On the discussion in the earlier part of this judgment, I have taken due note of the constitutional and other changes brought about during the period subsequent to the above‑cited ruling and have also noticed the new dispensation contained in our Constitution, namely, `social justice as enunciated by Islam'. It needs no further elaboration in so far as the present case is concerned.

24. Before parting with this judgment, it needs to be noticed that though for different reasons, the Federal Court of India in Western India Automobile Association v. The Industrial Tribunal, Bombay and others (AIR1949F C 111) and the Supreme Court of India in The Bharat Bank Ltd., Delhi v. The Employees of the Bharat Bank Ltd., Delhi and another (AIR 1950 S C 188) have also interpreted and determined the scope of the expression "Industrial dispute" as used in the Indian Statutes, wherein language comparable to Pakistani statutes has been used, and have adopted an interpretation which is liberal and beneficial qua the labour.

25. None of the arguments raised by the learned counsel for the petitioner succeeds. This petition, therefore, fails and is dismissed but there shall be no order as to costs. Petition dismissed.