1981 PLP 482 (PLC)

6. In the impugned order the learned Tribunal has held that to avail of the benefits of the proviso the employer should prove that the settlement was made or announced on or after 1st January, 1980 and that it has become effective on or after 1st January, 1980.

7. The contention of the learned counsel for the petitioners is that if any one of the conditions that the settlement was made on or after 1st January, 1980 or became effective on or after 1st January, 1980 is fulfilled the petitioners can claim the benefits of the proviso and will be entitled to adjustment. The learned counsel has further submitted that the interpretation of the proviso as propounded by the Labour Tribunal is not correct. According to him as there is ambiguity in the proviso the word "and" used between "reached" and "effective" are interchangeable with the word "or" and are to be read and interpreted as or to give effect to legislative intention. To adopt such an interpretation two pre‑conditions should exist firstly there should be an ambiguity and secondly the inter pretation advanced is to give effect to the legislative intention. To appreciate this controversy it is necessary to look to the history of the legislation.

8. For the first time Ordinance XXII of 1973 was promulgated which provided cost of living allowance to the workers. It was repealed by (Act I of 1974) Employees Cost of Living (Relief) Act, 1973 which provided that all employees whose wages on 1st August, 1973 did not exceed Rs. 700 per month are entitled to cost of living allowance in respect of their employment on or after 1st August, 1973 at the rate of Rs. 35 per month. It further provided that if the wages are more than Rs. 700 per month than so much allowance is payable as will make the total of wages and cost of living as Rs.

735. In addition to this it further provided that from 8th June, 1974 a further cost of living allowance is payable to employees gett ing wages upto Rs. 1,000 per month at the rate of 10% or Rs. 50 which ever is higher and in the case of those getting more than Rs. 1,000 so much allowance is to be paid as will make the total of wages and cost of living allowance as Rs 1,

100. Again by (Act LXI of 1975) Employees' Cost of Living (Relief) (Amendment) Act, 1975 promulgated on 29th July, 1975 it was provided that from 7th April, 1975 an allowance of Rs. 25 per month is to be given to all employees regardless of the wages they may be getting Thereafter came Ordinance XXXII of 1980, Employees' Cost of Living (Relief) (Amendment) Ordinance, 1980. By this Ordinance section 3 of Act I of 1974 was amended and subsection (4) was added which provided that in addition to the cost of living allowance admissible under subsections (1) and (2) or as the case may be sub section (3) if any, every employee whose wages do not exceed Rs. 1,500 shall in respect of his employment on or after the first day of July, 1980 shall be entitled to an allowance of Rs. 40 per month. This subsection was followed by a proviso which is the subject matter of the present con troversy. It provides that the said cost of living allowance shall be set off against the amount paid under an agreement .or settlement reached or an award given under the Industrial Relations Ordinance which has been announced and become effective on or after the first day of January, 1980.

9. It is an, admitted position that the settlements which are subject. matter of dispute in both the petitions are settlements within the meaning of the Industrial Relations Ordinance. The learned counsel for the petitioners has contended that as the object of the proviso was to give benefit to the employers it should be interpreted liberally and in their favour. He has further contended that as there is ambiguity in the said proviso it should be interpreted in the manner suggested by him. The contention raised by the learned counsel requires interpretation of the proviso. It has, therefore, to be seen whether there is any ambiguity in the proviso and whether it is necessary to take aid of the principle of interpretation. In this context the first point to be taken into consideration is the nature and purpose of the legislation. The proviso has been enacted in section 3 of Employees' Cost of Living Relief Act, 1974. A history of this legislation will show that the Legislature intended to provide relief from time to time to the employees from the year 1973 upto pro mulgation of Ordinance XXXII of 1980 and cost of living allowance was provided several times. The object of the legislation was to grant relief to the employees to meet the adverse effects of rise in the cost of living. Every time the allowance was granted in addition to the one granted earlier. The scope of its applicability was also increased. Such bene ficial legislation has therefore to be interpreted liberally in favour of the employees.

10. Before we deal with the principles of interpretation of the statutes it would be convenient to examine the settlement. The settlements in both the cases are for a period of two years. In the case of Pakistan Tobacco Co. Ltd. the last clause of the settlement provides that the period of operation of the settlement shall be for two years from 1st December, 1979. Almost all the clauses conferring monetary benefits under the settlement have been made effective from 1st December, 1979. This included clauses relating to revision of pay scales, cost of living allowance. house rent allowance, fixation of basic pay in the revised scale of pay and revision of allowance, conveyance allowance, encashment of unavailable sick leave and reclassification.' The only exception being in regard to the rate of contribution of the company to the Provident Fund, grant of Bhatta to watch and ward staff, annual bonus, determination of entitle ments of smoking allowance and annual leave and rationalisation of establishment. In the case of United Woollen Mills Ltd. the settlement was operative for two years effective from Ist July, 1979.

11. Having ascertained the intention of the Legislature and examined the nature of settlements we now discuss the principles of interpretation. In the present case the entire controversy rests on the interpretation of the proviso to newly‑added subsection (4) to section 3 of Act I of 1974. The proviso is a qualification to the section. The section deals with a particular field and the proviso excepts or takes or carries out from the field a particular portion and therefore before a proviso can have any application the section itself must apply. A proviso is an exception and the proper way to regard a proviso is a limitation upon the effect of the preceding or enacting clause In A I R 1941 P C 71 it was hold that the "proper function of the proviso is to except and deal with a case which would otherwise fall within the general language of the main enact ment". It is a rule of interpretation that the appropriate function of 4 proviso is to restrain or modify an enacting clause or preceding matter and it should be confined to what precedes. The proviso being a limitation upon the preceding enactment cannot enlarge the scope of the principal Act itself. It is with this view that the proviso has to be interpreted in a strict manner. In Rafiuddin v. Chief Settlement & Rehabilita tion Commissioner (P L D 1971 S C 252) it was held that "the function of a proviso is to restrict, limit or qualify the enacting part of a section to which it is attach ed but not to nullify the enacting part or render it wholly inoperative". In the case of East & West Steamship Company (P L D 1958 S C (Pak.) 41) at page 72 was observed that "a proviso is to be regarded as something which excepts a particular case from a general principle. The effect of proviso is to except something out of the preceding portion of the enactment or to qualify something enacted therein which but for the proviso would be within it." Again at page 73 it was observed that "the words of a proviso are to be construed strictly and confined to the special case which its words enact. It would be wrong to construe those words as being co-extensive with those used in the perview, particularly as the effect might be of bringing about a repeal to the perview". In the case of Hamdard Dawakhana (P L D 1980 S C 84) Anwarul Haq, C. J. referring to the various authorities observed as follows :‑ "It is true that ordinarily the function of a proviso is to except out of a previous enacting part of a statute something which, but for the proviso, would have been within the enacting part, but it is not an inflexible rule of construction that a proviso in a statute should always be read as a limitation upon the effect of the main enact ment, Generally, the natural presumption is that but for the proviso the enacting part of the section would have included the subject‑matter of the proviso ; but the clear language of the sub stantive provision as well as the proviso may establish that the proviso is not a qualifying clause of the main provision, but is in itself a substantive provision. 1n any case, as observed by Lord Watson in The Guardian of Poor of the West Derby Union v. The Metropolitan Life Assurance Society and others 1897 A C 647 it is clear that if the language of the enacting part of the statute does not contain the provisions which are said to occur in it, one Can not derive these provisions by implication from a proviso. A similar view was expressed by the Judicial Committee in Madras and Southern Mahratta By. Co. Ltd. v. Batwada Municipality (A I R 1944 P C 71) namely, 'the appropriate function of a proviso is to except and deal with a case which would otherwise fall with in the general language of the main enactment, and its effect is confined to that case. Where the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from It by implication what clearly falls within its express terms'. It is also well‑settled that a proviso must be strictly construed. In the words of Maxwell "the true principle is that the sound view of the enacting clause, the saving clause and the proviso taken and construed together is to prevail'."

12. The Court must give to the proviso as far as possible a meaning so restricted as to bring it within the ambit and perview of the section. If the proviso is capable of narrower connotation and is also capable of wider connotation, and if the narrower connotation brings it within the perview of the section, the Court must prefer the narrower connotation rather than a wider connotation. The proviso cannot be construed to enlarge the scope of enactment when it can be fairly and properly construed without attributing that effect. It is a well‑settled principle of interpretation that the provision of law has to be interpreted in its ordinary literal meaning. If there is any ambiguity then aid of the principles of interpretation are applied to ascertain the real intention of the Legislature. Conscious of this legal position the learned counsel for the petitioners, Mr. Irshad Hasan Khan, stated that there exists anomaly and ambiguity in the proviso and therefore it should be interpreted in the manner suggested by him, and wants to read the proviso in the following manner : "Provided that the said cost of living allowance was to be set off against the payment payable under an agreement or settlement reached OR became effective on or after the first day of January, 1980." According to him only one condition has to be satisfied before claiming benefits of the proviso viz. that either an agreement should have been reached or it should have been made effective on or after 1st January, 1980. Let us examine this argument to determine whether there is any ambiguity in the provision and whether the interpretation advanced by the learned counsel for the petitioners will be in accordance with the intention of the Legislature. The first impression created by the interpre tation propounded by the learned counsel for the petitioner is that it will widen the scope of the proviso and deprive the employees of the benefits conferred upon them by the Act. As a consequence all those employers who would not have been entitled to the benefits of the proviso would be entitled to it depriving the workers of the benefits. Under para. (a) to the proviso an employee claiming adjustment must satisfy two conditions (i) that the agreement, settlement or award should have been made or announced on or after the first day of January, 1980, and (ii) that it should have been become effective op or before 1st January, 1980. It is, benefit of the proviso the settlement should have been made or announced and also become effective on or after 1st of January, 1980. All settlements and awards which were made/announced or became effective from the year 1979 have been exclud ed from the operation of the Proviso and the employees cannot claim set off. The language of the proviso is clear and unambiguous. Its literal meaning is decidedly 'in favour of the employees and in conformity with the legislative intent set out specifically in the preceding paragraphs which we need not repeat here. It is a beneficial legislation for the benefit and welfare of the workers. We are therefore not inclined to accept any interpretation which may deprive them of the benefits.

13. On our querry to point out the ambiguity the learned counsel for the petitioners stated that if an employer under the settlement agreed to give benefit or allowance from December, 1979 upto December, 1980 then he is not entitled to set off but if he is giving benefits or allowances from January, 1980 onwards then he is entitled to a set‑off. According to the learned counsel this ambiguity and anamoly was never intended by the Legislature and as proviso has been enacted for the benefit of the employers it should be interpreted in their favour. The ambiguity set out by the learned counsel for the petitioners cannot be termed as an ambi guity. It may be a case of hardship for the employer but as the Legislature has fixed certain dates for claiming set off the Courts have to give affect to it and not to challenge or criticise to wisdom of the Legislature for fixing that date. In this context reference is made to the following passage from Maxwell's `The Interpretation of Statutes', 12th Edn., page 29: "Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the Legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be. The interpretation of statutes is not to be collected from any notions which may be entertained by the Court as to what is just and expedient ; words are not to be construed, contrary to their meaning as embracing or excluding cases merely because no good reason appears why they should not be embraced or excluded. The duty of the Court is to expound the law as it stands, and to leave the remedy (if one be resolved upon) to others."

14. The learned counsel for the petitioner also referred to Maxwell on the Interpretation of Statutes at page 189 and quoted it in ground 'S' of petition which is reproduced as follows "Difficulties sometimes arise in construing provisos. It will, how ever, generally be found that inconsistencies can be provided by applying the general rule that the words of a proviso are not to be taken `absolutely in their strict literal sense'." The learned counsel has unfortunately not quoted the entire sentence which can be completed by reproducing the following : "But that proviso is of necessity limited in its operation to the ambit of the section which it qualifies." This entire observation clearly explains that firstly there should be ambiguity and secondly that the proviso cannot travel beyond the section itself.

15. The learned counsel for the petitioners has vehemently argued that as specified above the word "and" should be read as "OR". The learned counsel has relied upon the following passage from Maxwell's Interpretation of Statutes, 12th Edn., page 232 :‑‑ "In ordinary usage "and" is conjunctive and "or" disconjunctive. But to carry out the intention of the legislature it may be necessary to read "and" in the place of the conjunctive "or" and vice versa." There can be no cavil with this proposition because it is an accepted principle that if there is an ambiguity the Court has to seek aid of the principles of interpretation. While interpreting such provision of law, the supreme consideration should be that it reflects the intention of the Legislature. The learned counsel for the petitioners has not been able to convince us that there exists any ambiguity and how the proviso if interpreted in its ordinary literal meaning will violate the intention of the Legislature. According to the learned counsel the proviso is for the benefit of the employer and therefore, it should be liberally construed in favour of the employer. We are not inclined to agree with such interpre tation because the proviso cannot govern the intention of the Legislature. Proviso is merely an exception to generality embodied in the enacting section. 1n this context reference may be made to Slehon and others v. State (P L D 1969 S C 267) wherein it was observed that ordinarily "or" is used in disjunctive sense. The governing rule, however, is to carry out intention of the Legislature. It may be found necessary to read the conjunctions "or" and "and" one for the other depending on the consequences intended by the Legislature". It, therefore, boils down to this that in matters of interpretation the governing factor is the intention of the Legislature. In the present case we have already observed that it will not be in conso nance with the intention, spirit and words of the enactment to accept the contention of the petitioners.

16. The learned counsel for the respondent Mr. Obaidur Rahman has invited our attention to section 40 of the Industrial Relations Ordinance. This section provides that a settlement shall become effective if a date is agreed upon by the parties to the dispute to which it relates on such date and if a date is not so agreed upon on the date the memorandum of the settlement is signed by the parties. In the present case the parties have agreed to make the agreement effective from 1st December, 1979. The learned counsel for the petitioners alternatively contended that the settlement consists of several clauses which are independent in nature and are effective from different dates and therefore each clause should be deemed to be separate agreement effective from the date mentioned against that clause. He therefore concluded that as some of the clauses of the settlement are effective on or after the 1st day of January, 1980 the petitioners are entitled to set off. A perusal of the agreement makes it clear that the clauses mainly conferring financial benefits on the employees have been made effective from Ist December, 1979. It is to be noted that the respondents had raised several demands and after negotiation they reached a settlement. Clause (19) of the Settlement provides that the offer made by the company as specified in the settlement has been accepted and the respondents No. 2 have withdrawn all other demands made in their letter of demand and undertake to make no further financial demands during the period of the settlement as specified in clause (b) which provided two years from 1st December, 1979. The entire settlement and all its clauses are a composite whole in the nature of a package deal. The respondents have withdrawn certain demands in consideration of the settlement and, therefore it is not possible to sever one clause of the agreement from the other and treat it as a separate agreement. Each clause will amount to a consideration for the agreement between the parties. The very fact that the parties have agreed to make the settlement operative from Ist December, 1979 may be a valuable consideration for the respondent No. 2 to agree to the terms and condi tions set out in the settlement. The settlement is not severable and therefore the petitioners cannot claim benefit of the proviso by treating each clause a separate agreement. Each of the clauses were severable the petitioners could not claim adjustment unless each clause is treated to be a separate and independent settlement, which is not permissible to hold, completely unconnected and unconcerned from the settlement itself.

18. The learned counsel for the petitioners did not press their objec tions that the petitions under section 50 of the Industrial Relations Ordinance, 1969 were not maintainable and that the impugned order is coram non judice. In view of the above discussions we are clearly of the view that the order passed by the learned Appellate Tribunal does not require inter ference. The petitions are, therefore, dismissed with costs. Petition dismissed.