1970 PLP 489 (PLC(CS))

Zakiuddin Pal for Respondent (in Appeal No. LHR‑108 of 1970). Chaudhury Altaf Husain for Appellant (in Appeals Nos. LHR 122 and 123 of 1970). Nasrullah for Respondent (in Appeal No. LHR‑122 of 1970). Akbar All for Respondent (in Appeal No. LHR‑123 of 1970). I propose to dispose of these three appeals by a common order, as the point for determination in all these appeals is common. The three appeals arise out of industrial disputes that were filed long before the coming into force of the Industrial Relations Ordinance, 1969 (hereinafter called. the Ordinance). In Appeal No. LHR‑108 of 1970, the industrial dispute was filed before the Court in 1963, while the industrial disputes giving rise to Appeals Nos. LHR‑122 of 1970, and LHR‑123 of 1970, came before the Court for determination early in 1969. The Ordinance of 1969 came into operation from 13th November 1969. A preliminary objection was taken before the learned Labour Court in all these three industrial disputes, giving rise to the present appeals, that the proceedings in the industrial disputes pending before the Court could not continue, as the West Pakistan Industrial Disputes Ordinance, 1968 (hereinafter called the repealed Ordinance), had been repealed by section 67 of the Ordinance. The learned Labour Court came to the conclusion that the right of the parties to have their disputes determined through the Court of law was a vested right and the same could not be taken away by the Ordinance, except by express term or by necessary intendment. It was not possible for the Court to construe from the provisions of the Ordinance that it had been given retrospective effect, so as to deprive the workers to have their disputes determined in a Court of law: The Court dismissed the preliminary objection and ordered to proceed with the merit of the industrial disputes.

2. Before I proceed with the merit of the appeals, I would dispose of the preliminary objection of Mr. Zakiuddin Pal, the learned Advocate for the respondent workmen in Appeal No. LHR‑108 of 1970. The learned Advocate contended that the industrial dispute giving rise to the appeal arose when the Industrial Disputes Ordinance, 1959 (hereinafter called the Ordinance of 1959), was in force. In that Ordinance the appeal lay to the High Court and not to the Tribunal and, therefore, the present appeal is not maintainable. There is no force in this contention. The Ordinance of 1959 was repealed by the Ordinance of 1968. Under subsection (2) of section 46, of The repealed Ordinance, the proceedings commenced under the Ordinance of 1959,"shall be continued and be deemed to have been respectively done, issued appointed, constituted, given, made, commenced or taken under the Ordinance of 1968." In that view of the matter, the appeal lay under the repealed Ordinance, to the Tribunal. I would hold that the appeal is competent.

3. In order to dispose of the contentions of Chaudhry Altaf Husain, the learned Representative in the appeals on behalf of Batala Engineering Company (Pakistan) Limited and that of Mr. Syed Sajjad, Advocate, on behalf the Colony Textile Mills Limited, it would be useful to reproduce subsection (2) (b) of section 67 of the Ordinance. It reads as under:‑ "anything done, rules made notification or order issued, officer appointed, Court constituted, notice given, proceedings commenced or other actions taken under any law shall be deemed to have been done, made, issued, appointed, constituted, given, commenced or taken, as the case may under, the corresponding provisions of this Ordinance, to the extent of Tex Mill consistency therewith.

4. The learned Representative for the appellant, relying do on the above provision, contended in the first place that the proceedings commenced under the repealed Ordinance being inconsistent with the provisions of the Ordinance could not be deemed to have commenced under the Ordinance. The most important in consistency 'pointed out was that under the Ordinance an industrial dispute could be determined by the Labour Court on a reference by the Government under section 32 or 33 of the Ordin0aace. In other words, the General Secretary of the Union or the Five Representatives of the workmen could not take their dispute for adjudication before the Labour Court under the Ordinance. There is no doubt that there is inconsistency between the provisions of the repealed Ordinance and that of the Ordinance. The important question, however, is as to whether the provision reproduced above has the effect of taking away the rights which had already come into existence prior to 13th November 1969. In all the appeals, industrial disputes had' arisen much before the promulgation of the Ordinance and these industrial disputes were before the Labour Court for determina tion. If the Courts, because of rush of work, could not dispose of these disputes within a few months time before the promulgation of the Ordinance the workers could not be made to suffer, unless the Legislature expressly or by necessary intendment laid down that those disputes would be deemed not to exist. The object of the Legislature, on the face of it, could not be to determine hundreds of industrial disputes pending in the country in this way and to bring about chaos in industry. If the object of subsection (2) (b) of section 67 of the Ordinance was, as convassed by Chaudhry Altaf Husain, the Legislature would have added a few more words therein; "otherwise they shall abate." There is nothing in subsection (2) (b) of section 67 of the Ordinance that the object of the Legislature wars not to continue the proceedings once commenced in respect of vested rights that the provision referred to above, lays down is that the actions commenced, if they are consistent with the provision of the Ordinance, they shall continue under the Ordinance, but it‑doe not lay down that they s hall abate if they are inconsistent with the Ordinance. The idea was only this that if the proceeding once commenced, could be continued under any of the provisions of the Ordinance, they should so continue otherwise they should continue under the provisions under which they had commenced. This was only to avoid confusion.

5. His Lordship Hamoodur Rahman, C. .T. in Mohammad Akhtar Husain and 4 others v. Government of West Pakistan through the Chief Secretary to Government of West Pakistan, Lahore and 434 others (P L D1970 SC 146) observed as under It is well settled that legislation may be made both prospectively and retrospectively but normally legislation, which is not of a purely procedural nature, will not be given retrospective effect so as to take away vested rights unless the Legislature has used express words in that behalf or such an intention necessarily flows from the language of the statute.

6. In that case his Lordship came to the conclusion, on the language of the enactment, that it was given retrospective effect. The present Ordinance could not be said to be of a purely procedural, pasture, so as to give it retrospective effect: 7, .In the next place, Chaudhry Altaf Hussain contended that the words "shall be deemed to have been done", in sub section (2) (b) of section 67 of the Ordinance, would mean that the enactment has been given retrospective effect so as to take away vested rights of the parties. In this connection, the learned Representative relied on Begun B. H.Syed v. Mst. Afzal Jehan Begun and another (P L D 1970 SC 80). I have carefully gone through the judgment. I cannot construe that any such principle had been laid down in that case that the deeming clause would have the effect of depriving people who had vested right. In this connec tion, Chaudhry Altaf Hussain also contended that the words "shall be deemed" in subsection (2) (b) of section 67 of the Ordinance indicate that it has been given retrospective effect. In this connection, the learned Representative relied on the Income tax Officer (Investigation) Circle I, Dacca and another v. Sulaiman Bhai Jiwa and others (P L D 1970 SC 80). Their Lordships of the Supreme Court that case observed as under: "No rule is more firmly established than the rule with regard, to retrospective operation of a statute of law. It is a funda mental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinct implication. It‑follows from this rule‑ that retrospective effect to a statute may be given either by express words or that the same may be inferred from the language employed . . . . . . . The use by the Legislature , of words, such as "shall" or "hereafter", is taken to indicate an intent that the statute is to be construed as prospective only ; on the other hand the use of words denoting past time, such as" has been or "here before" constitute an explicit declaration that the Act is to be construed retrospectively." ... .

8. On the language of the provision of law for interpretation in that case, their Lordships of the Supreme Court came to the conclusion that it has been given retrospective effect. It follows that no hard and fast rule can be laid down for determining as to whether an Act has retrospective effect or not. It would primarily depend upon the intrnt14on of the Legislature to b inferred from the language used in the enactment. As I have already held, there is nothing in subsection (2) (b) of section 6 of the Ordinance so as to take away vested rights of the parties whose disputes could not be disposed of, for no fault of theirs prior to the promulgation of the Ordinance. At this stage, I may also observe that the Legislature is deemed to be aware of the state of affairs in respect of the subject about which proposes to legislate. The Legislature must have been aware about the industrial disputes that were pending all over West Pakistan. The intention of the Legislature could not be to do away with those disputes without' their decision by a Court of Law. If the intention of the Legislature was as advocated by Chaudhry Altaf Hussain, there would be chaos in the country. No industrial disputes can be brought to the Court under the present Ordinance except by resorting to strike in the first instance.

9. In the next place, Chaudhry Altaf Hussain, contended that the Five Representatives of the Workmen could not be said to have any vested right so as to have an industrial dispute determined by a Labour Court. Vested right has not been given an exact definition by any Court of Law. It is well settled that right of appeal is a vested right. It is a right which is conferred by statute. No one has a right of appeal unless the statute, which has given him the right to file a suit, confers such a right. The General Secretary or the Five Representatives of the Workmen, for instance, have no common law right beyond the contract entered into between the employer and the workmen to ask for anything more through a Court of law. A workman as such ha no right to ask for bonus or for house rent or for medical facilities. Under the Industrial Disputes Ordinance such defiantly could constitute industrial disputes and the General Secretary of the Five Representatives of the Workmen could go to the Industrial Court for determination of these disputes. This is to my mind a very valuable right which the law conferred on the workers. I would hold that this is a vested right.

10. Lastly, Chaudhry Altaf Hussain contended that under; section 43 of the Ordinance no industrial dispute can be deemed to exist unless it has been raised by a Collective Bargaining Agent. Relying on the said pro vision of law, the learned Repre sentative contended that the present disputes having not been raised by a Collective Bargaining Agent, should be deemed‑ not to exist. There is no force in this contention. Section 43 of the Ordinance will apply only to the proceedings which would arise after 13th November 1969, when the present Ordinance cam into force. I have already held that the Ordinance has not bee given retrospective effect so as to deprive the workers of their vested right.

11. I would now proceed to briefly refer to the submission made by Mr. Zakiuddin Pal, the learned Advocate for the respondent. The learned Advocate relying on Malik Mir Hassan and another v. The State (P L D 1969 Lab. 780), contended that if the law is changed during the pendency pf an action, the principle that governs the situation would be that the rights of the parties are to be decided according to law, as it existed when the action was begun, unless the new law shows clear intention either by express words or by necessary intendment to vary such rights. Relying an this principle, Mr. Pal contended that the proceedings initiated by the Five Representatives of the Workmen must be disposed of in accordance with the old law. So far as to disposal of the industrial disputes are concerned there is no substantial difference between the repealed Ordinance and the present Ordinance. The power and the procedure is the same for disposal of the industrial disputes by the Courts, under the present. Ordinance as under the old.

12. Mr. Pal relied on Adnan Afaal v. Capt. Sher Afzal (P L D 1969 S C 187); in support of his contention that the general principle with regard to the interpretation of statutes is that if the provision‑in question relates to procedure only the provision would be retrospective. On the other hang, it is submitted if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, then in accordance with a long line of authorities the legislation would not operate retrospectively, unless the Legislature had either by express enactment or by necessary intendment given the legislation retroactive effect.

13. Mr. Pal submitted that under section 1(4) the Ordinance was to come into force at once. It does not lay down that it should be deemed to have always existed. In this connection, it may also be observed that subsection (2)(b) of section 67 of the Ordinance is a saving clause. The object of this Clause is to saver proceedings and not to determine the vested right. Mr. Pall contended, relying on Garikapati Veeraya v. N. Subbiah Choudhry and others (P L D 1957 S C (Ind.) 448), that if the right of appeal which follows from the institution of a suit cannot be taken away, how can the right of the party to continue the suit be taken away. The right of appeal came to vest in the party from the date that he filed the suit. The right to file a suit and to file an appeal co‑exist in a party. If the right of appeal vests in the party so does the right to have the dispute determined by the Court. Mr. Pal relied on Maxwell's Interpretation of Statutes, 1962 Edition, in support of his submission that the Legislature does not intend to be unjust by giving a statute retrospective operation. He read out pages 204 to 215 of the Book:

14. The order in these appeals was reserved. After I had dictated the order in these appeals, Chaudhry Altaf Hussain at about 2‑30 p.m., today (11th of May 1970), left some authorities with my Reader, which I would now proceed to briefly consider. He relied on the case of Uruddin Akhan (P L D 195 Dacca 272). It was held in that case that if an Act is in its nature a declaratory one, the argument that it must not be construed so as to‑take away previous rights is not applicable. I am of the view that Industrial Relations Ordinance, 1969, is not a declaratory Ordinance. It confers certain rights besides the procedure for enforcing those rights. He relied on the case, of Hamid Bakshu (P L D 1956 Dacca 132). It was held in that case by the learned Single Judge that if the recitals are clear and the operative part is ambiguous, the recitals govern the construc tion. If the recitals are ambiguous and the operative party is clear, the operative part must prevail. I cannot construe from this principle that the provision of subsection (2) (b) of section 67 of the Ordinance takes away the vested right. Reliance was v. placed on Government of Pakistan (P L D 1965 S C 527). It was a case in which is their Lordships of the Supreme Court considered the Legal Practice (Disqualification) Ordinance, 1964, in respect of certain in persons who were Judges of the High Court. This case has no K application to the circumstances of the present case. Reliance was placed on Mst. Fazal Begum's case (A I R 1941 Lah. 22). It was held in that case 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. I have held that the General Secretary; and the Five Representatives had a vested right to seek the help of the Industrial Courts to determine their industrial disputes. In that view of the matter, this case would not help. Laqtly, reliance was placed on the case of Saiyyid Abul A'la Maudoodi (P L D 1964 SC 673) I fail to see how the principles initiated in that case by their Lordships of the. Supreme Court would be applicable to the circumstances of the present case. The most material question in the present case, if I may repeat, is, whether the respondents had vested right. If they had a vested right, it could not be taken away‑ by the present Ordinance, except by express words or by necessary intendment.

15. I would, for the reasons given above, maintain the orders of the learned Chairman of the Labour Court (Northern Zone), Lahore, and dismiss the a peals.