1976 PLP 405 (PLC)

Heard learned for representatives of parties at lengths. Pleadings. gave rise to the following preliminary issue: Whether this Court has jurisdiction to hear the present application? My finding is in the affirmative for the following reasons: Instant application under section 34 of I. R. O., 1969 read with section 6 of the General Clauses Act has been instituted by an individual work- man before this Court on 28-6-1973. It is necessary to touch relevant provisions of section 25-A and sec tion 34 of Industrial Relations Ordinance, 1969. A point for consideration: is whether an application of an individual workman of which cause of action bad arisen to him before November Amendment Ordinance, 1972 under section 34 of I.R.O. can lie? The Industrial Relations Ordinance was promulgated on 3-11-1969 On 13-4-1972 Standing Order XVIII was omitted by Ordinance IX of 1972. By the same Ordinance a new section 2S-A was introduced in the Ordinance. Before insertion of section 25-A_ in the Ordinance an individual workman for his wrongful termination of services had a remedy under Standing Order 18 (b) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 which was available to an individual worker from 1968 till 12-4-1972. Stand ing order 18(b) was repealed and the Legislature provided a remedy for an individual workman by inserting section 25-A in I.R.O. 1969 by Ordinance IX of 1972 on 13-4-1972. An individual workman had choice either to seek redress under section 25-A or under section 34 of the Ordinance. Both provisions of law existed. There was no impediment for choosing a better forum. Latter on 10th November 1972 subsection (6) in section 25-A was added. Junior Labour Courts were constituted and given exclusive jurisdiction to try matters under section 25-A of the Ordinance and word "workman" was omitted from section

34. Complete forum under section 25-A has been changed. By amendment dated 10-11-1972 an individual workman cannot invoke section 34 but section 25-A. Junior Labour Courts have exclusive jurisdiction to hear application under section 25-A from the date of their creation. In the present case cause of action had accrued to the applicant on 28-7-1972 much before the amendments dated 10-11-1972 and the birth of the Junior Labour Courts. Next point for consideration arises if an individual workman can invoke section 34 after the word "workman" was omitted from section 34 by November Amendment Ordinance, 1972? The law is that right o parties arising from fact which came into existence before the passing of a statute should be presumed to be unaffected unless it is expressly, or by necessary implication made retrospective. Section 34 of the Ordinance gives a vested right to the individual workman to seek redress in case of violation of any of the rights guaranteed under any law or any award or settlement. As to this aspect in Mir Hussain v. State (P L D 1969 Lab. 786), Bashiruddin Ahmed, J. expounded the following interpretation "If the law is changed during the pendency of an action the principle that governs the situation would be that the rights of the parties are to be decided according to the law as it existed when the action was begun, unless the new law shows a clear intention either by express words or by necessary intendment to vary such rights. There is no dispute that retroactive legislation can be made, but the rule of con struction which the Courts have evolved in regard to the interpretation, of the retroactive effect of legislation of what are called "vested rights" is that all legislation is presumed to be prospective unless by express words or by necessary intendment the Court finds that the legislation in question is calculated or is designed to have retrospective effect and then too no more effect by way of retrospective operation could be given to it, than is absolutely necessary. There is a string of rulings that a statute cannot be so construed as to take away the "vested right" unless there is an express provision to that effect or unless such a result follows as a necessary implication of any new statute." Thus "vested rights" cannot be taken away without specific legislation. Even plain and ordinary reading of section 6 (6) of General Clauses Act lays down that omission of word "workman" from section 34 shall not affect any right and privilege so acquired under any enactment so repealed. I reproduce a passage from page 206 of Maxwell on the Interpretation of statutes as under :-- "Where vested rights are affected prime facie it is not a question of procedure. There is nothing in the Act of 1938 which is intended to alter past rights which became vested before the new Act came into operation by reasons of the parties acting upon, and being entitled to act upon, the law as it stood before the new Act came into operation." Same view is taken in 1970 P L C

373. In P L D 1972 Lab. 686, it has been held that the amendments cannot be given retrospective effect and such amendments cannot take away already vested rights. In 1969 S C M R 40 it is observed "The general principle with regard to the interpretation of statutes as laid down in the well known case of the Colonial Sugar Refining Company Limited v. Irving 1905 A.C. 369 is that "if matter in question be a matter of procedure only", the provision would be retrospective. "On the other band, 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 extending from time of Lord Coke to the present day". the legislation would not operate retrospectively, unless the Legislature had either by express necessary intendment" given the legislation retroactive effect. To the same effect are the observations of Jessel, Master of the Rolls, in case of In re: Joseph Suche & Co. Limited (1875) I Ch. D 48 where it was observed that as "a general rule when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments unless in express terms they apply to pending actions, do not affect them. It is said that there is one exception to that rule, namely, that these enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights." For these brief reasons, therefore, I am of the opinion that this Court can take cognizance of all applications under section 34 of I. R. O., 1969, filed by individual workman, of which causes of action had arisen earlier than passing of Amendment Ordinance, 1972 and creation of Junior Labour Courts. As already shown above in the instant matter cause of action had accrued to the applicant on 28-7-72 and as such this Court has jurisdiction to entertain and hear and the application is maintainable in law.