1987 PLP 980 (SCMR)

(4) Those officers who have been indulging in unfair practices should be removed from the organization. (5) Ghandhara Industries Employees Union should be treated as the only representative organisation of the employees of the Company. (6) Full wages/salaries for the period of strike and/or lock‑out be paid to employees. (7) Other matters which may arise during the pendency of this dispute should also be settled alongwith the above issue." On getting no response from the Conciliation Officer, the Union instituted a constitutional petition in the High Court of West Pakistan, Karachi Bench (Writ Petition No. 506 of 1963). They sought a direction to the Conciliation officer to issue a Failure Certificate under section 5 (4) of the Industrial Disputes Ordinance, 1959 in order to enable them to seek further legal redress. While this constitutional petition was pending in the High Court the order was issued by the Government of West Pakistan in exercise of the powers conferred by rule 132 of the Defence of Pakistan Rules read with Government of Pakistan Order No. S.R.O./III (R)/65, dated the 6th September, 1965. Taking note of this legal instrument, the constitutional petition was allowed in the following terms:‑‑ "Now the Conciliation Officer in case he is unable to bring about conciliation between the parties instead of issuing a Failure Certificate shall have to submit a complete report about the industrial dispute to the Government for satisfying itself whether it is a fit case for reference to the Industrial Court. In these circumstances, we would direct the respondent to comply with the above‑mentioned provisions of law in respect of the industrial dispute raised by the petitioners after notice to the parties at a very early date." The Conciliation Officer took up his statutory duties under the Order, submitted a report to the Provincial Government as required under the Order whereupon by a Gazette notification, dated 31st of March, 1966, the Government referred the industrial dispute under para. 4 of the Order, The schedule enumerated the demands which were the subject‑matter of dispute and which required the adjudication. These were as follows‑‑ Demand No.1‑‑All the employees/ workmen should be treated as permanent and their past services be taken into account for all purposes. Demand No.2‑‑There should be no change in terms and conditions of employment customs, usages, practice established in the Organisation and enjoyed by the workers/ employees while the Organisation bore the name of 'General Motors Overseas Corporation, Karachi Branch'. Demand No.3‑‑Those Officers who had been indulging in unfair practices should be removed from the organisation. Demand No.4‑‑All employees whose services have been terminated including those who have been dismissed and those who have resigned or have been compelled to leave their jobs should be reinstated with full benefits of continuity of employment. Demand No.5‑‑Ghandhara Industries Employees Union should be treated as the only representative Organisation of the employees of the company. Demand No.6‑‑Full wages/salaries for the period of strike or lockout be paid to employees. Demand No. 7‑‑Other matters which may arise during the pendency of this dispute should also be settled with the above issue." The Ghandhara Industries Limited raised certain objections to the very competence of such a reference and dispute and the Adjudication thereof by the Industrial Court and these objections were expressed to be under section 10(1) (a) of the Ordinance. The workers union objected to the very competence of such an objection and the merits thereof. This application under section 10 (1)(a) of the Ordinance was filed on 6th of July, 1966. Before that date a notification appeared in the Gazette Extraordinary, dated 29th June, 1966 rescinding the Order with a reservation. The aforesaid rescission order is reproduced hereunder in extenso as its effect is crucial to the decision of the appeal: ‑‑ "THE GAZETTE OF WEST PAKISTAN (EXTRAORDINARY) JUNE 29, 1966 The 13th June, 1966 No. Lab. (1) WI. 12/65‑‑In exercise of the powers conferred by rule 132 of the Defence of Pakistan Rules, read with Government of Pakistan Order No. SRO/III/65, dated the 6th September, 1965, the Governor of West Pakistan is pleased to direct that‑‑ (a) The Industrial Disputes (Conciliation and Adjudication) Order, 1965, published with the Government of West Pakistan, Labour Department Notification No. Lab (I) WI‑12/65, dated the 13th November, 1965, shall stand rescinded with immediate effect from the date of the Notification. (b) Notwithstanding the repeal of the aforesaid Order, any Conciliation Reports received by Government under the provisions of paragraph 3 (3) of the aforesaid Order and pending consideration of Government on the date of this notification, shall be dealt with in accordance with the provisions of the said Order and as if the said order had not been rescinded. By Order of the Governor of West Pakistan. MUHAMMAD ASLAM BAJWA, Secretary to Government of West Pakistan Labour Department." The Industrial Court while dealing with these preliminary objections, their competence and merit held as follows‑‑ "(1) The Industrial Court was competent to deal on merits with the preliminary objections because the order does not 'specify the powers of the Industrial Court and accordingly in terms of section 2(2) of the Order read with section 2 (e) of the Industrial Disputes Ordinance the Industrial Court has the same powers as under the Industrial Dispute Ordinance'. It was further held that "it is an admitted fact that the Industrial Dispute (Conciliation and Adjudication) Order, 1965 had been annulled by the Government of West Pakistan on 13‑6‑1966 without any saving clause. It means that this Order never existed on the statute book." (2) The Ghandhara Employees Trade Union being not registered with the Provincial Registrar after the new Constitution of Pakistan which came into force with effect from R‑6‑1962 could not initiate proceedings and these were ab initio invalid. (3) The General Motor Employees Union entered into an agreement on 15th March 1963, with the General Motor Corporation whereunder by clause 6 the Union on behalf of all the workmen in the establishment accepted voluntarily termination of employment and benefits for termination on 31st March, 1963. Accordingly, they ceased to be members of the General Motor Employees' Union with effect from 31st March, 1963, and as such the Union had ceased to exist on 31st March, 1963." There were certain other findings recorded which are not relevant at his stage for the purposes of disposal of this appeal. The question of non‑recognition of the Union by the employer was not touched upon and the change in the name was held to be of no effect. On these findings, the Industrial Court upheld the legal objection and dismissed the industrial dispute. The Government of West Pakistan by a notification published in the Gazette Extraordinary, dated the 22nd October, 1966 notified this Award of the Industrial Court which forms the part of the schedule of the notification, the opening part of which is as follows:‑

GOVERNMENT OF WEST PAKISTAN LABOUR DEPARTMENT NOTIFICATION The 18th October, 1966 No.3. 124 (L.11)/66‑‑Whereas certain Industrial disputes arose between the management of Messrs Ghandhara Industries Limited, Karachi and the representatives of Workmen of Ghandhara Industries, Karachi (hereinafter referred to as the said dispute); And, whereas, under subsection (5) of section 5 the Industrial Disputes Ordinance, 1959 (hereinafter referred to as the said Ordinance), the Conciliation Officer held conciliation proceedings with regard to the aforesaid dispute; And, whereas, the Conciliation Officer failed to bring about settlement of the said dispute and under subsection (4) of section 5 of the said Ordinance, issued a certificate of failure of conciliation proceedings; And, whereas, under subsection (5) of section 5 of the said Ordinance an application was made to the Industrial Court, West Pakistan, Karachi (hereinafter called the said Court), for adjudication and determination of the said dispute; And, whereas, the said Court had given its award which has been received by the Provincial Government on the 15th October, 1966. Now, therefore, in pursuance of the provisions of subsection (2) of section 12 the said Ordinance, the Governor of West Pakistan is pleased to order that the award, reporduced in the Schedule annexed hereto, be the same, and is hereby published in the official Gazette." The references in this Notification to sections 5 (4) and 5 (5) of Ordinance are patently erroneous because as mentioned in referring Notification (Extraordinary Gazette of West Pakistan dated 31‑3‑1966) the dispute was referred under para. 4 of the Order and not under these sections. Aggrieved by the award, the Workers' Union filed an appeal in the High Court which was expressed to be under section 12 (5) of the Ordinance. Two preliminary objections were decided by the High Court first by an order, dated 31st of October, 1972. These related to the competence of the appeal itself under section 12 (5) of the Ordinance. The main objection was based on para. 8 of the Order which provided that ".an award or decision of an Industrial Court shall not be questioned in any manner or before judicial or any other authority". The High Court rejected this objection to the competence of the appeal before it on the following finding:‑

"To my mind I think the interpretation put in clauses 7 and 8 of the Order by the learned counsel for the appellants is correct and if the Order of 1965 under discussion was in force at the time of filing the present appeal then obviously the appeal would be not maintainable in view of particularly clause 8 of the Order, 1965. But unfortunately the Order of 1965 which created a bar to the appeal against the award of the Industrial Court on reference by the Provincial Government to it was rescinded as already said by the Notification dated 13th June, 1966 which has also been reproduced above. As such this bar of appeal no longer existed at the time the present appeal was filed. I might also mention that it should be appreciated that the Order of 1965 in question was rescinded even before the impugned Order in the present appeal was given by the Industrial Court. I need hardly say that it is well‑established and settled law that a right of appeal accrues to an aggrieved party in accordance with the law obtaining at ‑the time the Order sought to be appealed against is passed by any Tribunal or Court. In the instant case such a provision of law existed in section 12 (5) of the Industrial Disputes Ordinance. 1959 providing for the present appeal when the bar containing the elimination of this provision of the Ordinance was removed from clauses 7 and 8 of the Order 1965 by the rescission of this Order long before the present appeal was filed." Finally, the appeal was disposed of by the High Court on 14th of January, 1974 holding that neither under section 10 (1) (a) nor under Order XIV, rule 2, C.P.C. the objections raised by the employer to the competence of the matter before the Industrial Court could be taken up as preliminary issues and decided. The reasons given for allowing the preliminary objections were also found to be not tenable. Particularly, with regard to the last ground mentioned by the Industrial Court reproduced as No. 3 above, the learned Judge observed as follows: "This is a question of fact which does not arise out of the preliminary objection raised by Ghandhara, therefore, it cannot be considered in this appeal."' On these findings, the appeal was allowed by the impugned judgment of High Court, the award of the Industrial Court dated 30th October, 1966 was set aside and the case was remanded to the Industrial Court so that the industrial dispute raised by the Union "may be heard and decided according to law". Mr. Muhammad Ali Sayeed, Advocate, the learned counsel for the appellant, strenuously contended that in view of para. 8 of the Order, there was no appeal competent against the decision of the Industrial Court. Such was the finding of the High Court itself in its judgment dated 3‑10‑1966. However, it was not acted upon on the ground that the Order had been rescinded when the decision was given and such a rescission being of a temporary legal instrument, the provisions with regard to appeal contained in section 12 of the Ordinance became effective with full force. It is contended by the learned counsel for the appellant that neither the Industrial Court nor did the High Court take note of the saving clause (b) of the rescission Order which provided that certain proceedings shall be continued to be governed by the provisions of the Order notwithstanding its rescission. The proceedings already initiated in the Industrial Court before the rescission of the Order stood saved by such a provision and had to be dealt with under the Order. On merits, it was contended that the Industrial Court having recorded the finding that with the withdrawal of their demand No.8 and the acceptance of the termination of their service from 31‑3‑1963 and receipt of all the benefits consequential to termination of service by each of the employees of the General Motors Overseas Limited, no such dispute as was referred to in the Industrial Court could, at all be raised or could be said to have any merits whatsoever. With that finding of fact having been recorded by the Industrial Court and that finding being not amenable to the appellate jurisdiction of the High Court in view of the bar imposed by para. 8 of the Order, it had attained finality. Mr. Ali Amjad, Advocate, representing respondent No.1 on the other hand, contended that on the strength of para. 7 of the Order, the provisions of sections 12 and 14 of the Ordinance, among others, stood incorporated in the Order. The incorporated provisions prescribed a remedy of appeal to the High Court against an award of the Industrial Court. The finality mentioned in para. 8 of the Order was subject to this right of appeal and that was the only consistent way of interpreting both these provisions. As regards the merits, it was contended that in the settlement of dispute over the demands raised by the General Motors Employees Union, notwithstanding the withdrawal of demand No.8, the terms of their continuance in employment were open to negotiation with the successor employer and further, there being no provision with regard to dissolution of the Trade Union except by a resolution passed by the required number of the Trade Union itself (section 27 of the Trade Unions Act, 1926), the termination of the service of the employees could not as such lead to the dissolution of the earlier Trade Union. Besides, it had been properly reconstituted and its amended constitution approved by the Registrar, Trade Unions. Finally, it was contended that even if the provisions of the Order continued to govern the proceedings as section 10 was not specifically incorporated and applied by para. 7 of the Order, the entertainment of the application preferred under that provision and the disposal of the entire case by reference to it by the Industrial Court, was wholly outside the purview of the law governing the case. The judgment of the Industrial Court could not on that account be sustained. The High Court in its judgment dated 31st of October, 1972 took a correct view of the law in so far as it held that "if the Order of 1965 under discussion was in force at the time of filing the present appeal then obviously the appeal would be not maintainable in view of particularly clause 8 of the Order 1965". However, this conclusion was not given effect to on the ground that this Order was rescinded by a Notification, dated 13th of June, 1966 and the effect of such rescission was that the original provision of appeal contained in the Ordinance which was eclipsed, revived. The latter conclusion, it appears, fails to take note of the saving clause contained in the rescission order. The industrial Court also committed the same omission by observing that "it is an admitted fact that the Industrial Dispute (Conciliation and Adjudication) Order, 1965 had been annulled by the Government of, West Pakistan on 13‑6‑1966 without any saving clause". Clause (b) oft the rescission Order provided that notwithstanding the repeal of the aforesaid Order any conciliation reports received by Government under the provisions of paragraph 3 (3) of the aforesaid Order and pending consideration of Government on the date of this notification shall be dealt with in accordance with the provision of the said Order as if the said Order had not been rescinded." This provides the terminus quo, of the specific date, or proceedings which were to continue to be governed by the provisions of the Order and this included not only the matters pending with the Conciliation Officer in respect of which reports were awaited but by necessary implication the references which had been made to the Industrial Court under the provisions of the Order. This follows because if the latter proceedings are saved, the earlier could not suffer a change or transformation. Another feature to be noted in the context is that the Defence of Pakistan Ordinance under which the Defence of Pakistan Rules were framed and under which this Order was passed, was a temporary statute covering the period of Emergency. Notwithstanding the rescission of the Order, as the Defence of Pakistan Rules itself continued beyond the date of rescission of the Order, it cannot be said that clause (b) saving certain proceedings overstepped the limits of the parent law itself. Such a saving clause could continue to govern the proceedings till at least as long as Defence of Pakistan Rules continue to have their legal efficacy and force. While laying down and interpreting the law relating to appeals generally the learned Judge of the High Court in judgment dated 31‑10‑1972 held as follows:‑ "I need hardly say that it is well‑established and settled law that a right of appeal acrues to an 'aggrieved party' in accordance with the law obtaining at the time of the order sought to be C appealed against is passed by any Tribunal or Court." and applied it to the matter in hand. With utmost respect to the learned Judge this is not a correct view of the law relating to appeals generally. In the leading case on the subject (Colonial Sugar Refining Co. Ltd.‑ 1905 AC 369) the principle applicable was laid down in the following words:‑ As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well‑founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And, therefore, the only question is, was the appeal of His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suit or in a pending action of an appeal to a superior Tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well‑known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested." The various principles governing appeals have been summarized in the following words (Bindra Interpretation of Statutes 1961 edition page 577):‑‑-- "The following propositions are well established: (i) The legal proceedings of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. (ii) The right of appeal is not a mere matter of procedure but is a substantive right. (iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. (iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. (v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. The institution of a suit carries with it the implication that all appeals then in force are preserved to it through the rest of its career, unless the Legislature has either abolished the Court to which an appeal then lay or has expressly or by necessary intendment given the Act a retrospective effect." Paras. 7 and 8 of the Order, incorporating certain provisions of the Ordinance and conferring finality on certain decisions and awards are expressed in the following words:‑ "

7. Certain provisions of the Ordinance to apply to decision‑ and awards _of the Court.‑‑The provisions of sections 12, 13, 14, 1 and 22 of the Ordinance, shall, so far as may be, be applicable to awards and decisions made by Industrial Court under this Order.

8. Finality of award.‑‑An award or decision of an industrial Court shall not be questioned in any manner or before any judicial or other authority." A reference to the incorporated sections of the Ordinance discloses that section 12 deals with procedure regarding decisions and awards of the Industrial Court and subsections (4) and (5) which are relevant in the context are as hereunder:‑ "(4) Any decision of the Court other than an award shall be final and shall not be questioned in any manner by or before any judicial or other authority. (5) Any award published under subsection (2) or subsection (2‑B) may be appealed against to the High Court by any party to the dispute within thirty days of the publication of the award; and the decision of the High Court in such appeal shall be final." Section 13 indicates the person on whom settlements and awards are binding and section 14 provides for the period of operation of settlements and awards. Section 15 makes provision for recovery of money due from an employer under an award, etc. Finally, section 22 prohibits financial aid to illegal strikes and lock‑outs. Para. 8 of the Order in a peremptory language confers finality on the award as well as the decision of the Industrial Court and the permissive language of para. 7 of the Order in case of inconsistency must yield and give way to the finality enjoined by para.

8. In the circumstances, it cannot be contended that para. 8 of the Order would be subordinate to incorporated provision of section 12 (5) of the Ordinance. This being the legal position, the judgment of the High Court in appeal merits to be set aside on the ground that no such appeal was competent and the one filed, entertained and decided by the High Court was totally without jurisdiction. As regards the merits of the case and the decision of the Industrial Court. We find that the view taken by the High Court about the inapplicability of the Order to the proceeding is not sustainable. All the same it having recorded a finding of fact, which is not disputed even before us that the employees having submitted to the termination of their service from 31‑3‑1963 and having accepted compensation, and all the consequential benefits, and having accepted fresh appointments could not resurrect their past service for any purpose whatsoever sol as to bridge this gap or to establish a link and continuity. The dismissal' of the demands raised by the employees by the Industrial Court was, therefore, well‑merited. In view of what has been stated, this appeal is allowed, the two judgments of the High Court dated 31‑10‑1972 and 14‑1‑1974 are set aside and that of the Industrial Court is restored. No order as to costs. S.Q./N‑10/S Appeal allowed.