1986 PLP 109 (PLC)

5. Now, I have to examine under what provisions a Labour Court is constituted and what are its powers and functions. In this regard reference has to be made to section 35 of the Industrial Relations ordinance, 1969 (hereinafter called 1969 Ordinance) under which a Labour Court is constituted which reads as follows:‑ "35.‑‑Labour Court.‑‑ (1) The Provincial Government may, by notification in the official Gazette, establish as many Labour Courts as it considers necessary and where it establishes more than one Labour Court, shall specify in the notification the territorial limits within which or the industry or the classes of cases in respect of which, each one of them shall exercise jurisdiction under this ordinance. (2) A Labour Court shall consist of one Presiding Officer appointed by the Provincial Government. (3) A person shall not be qualified for appointment as Presiding officer unless he has been or is qualified to be Judge or Additional Judge of a High Court or is a District Judge or Additional District Judge: Provided that the Provincial Government of Baluchistan may, after consultation with the Federal Government, appoint any person not so qualified to be the Presiding Officer of a Labour Court. (5) Labour Court shall-- (a) Adjudicate and determine an industrial dispute which has been referred to or brought before it under this Ordinance, (b) Enquire into and adjudicate any matter relating to the implementation or violation of a settlement which is referred to it by the Provincial Government. (c) Try offences under this Ordinance, and such other offences under any other law as the Provincial Government may, by notification in the official Gazette, specify in this behalf, (d) Exercise and perform such other powers and functions as are or may be conferred upon or assigned to it by or under this Ordinance or any other law."

6. It will be seen that the powers and functions of the Labour Court are mentioned in subsection (5) of section 35 of the Industrial Relations Ordinance, 1969, reproduced herein above and they inter alia, include adjudication and determination of an industrial dispute, exercise and performance of such other powers and functions as are or may be conferred upon or assigned to it by or under the 1969 Ordinance or any other law. Since under section 11‑A of 1968 Ordinance an establishment could be closed, save for the reasons stated therein, only with the permission of the Labour Court and since under section 35(5) of 1969 Ordinance the Labour Court has to exercise such jurisdiction or perform such functions as are conferred by 1968 Ordinance or any other law, therefore, it follows that the Labour Court has jurisdiction to entertain an application under section 11‑A of the Ordinance.

7. Mr. Muhammad Shibli has however, submitted that such a power must be conferred expressly. In my opinion, power to entertain an application under section 11‑A of 1968 Ordinance is contained expressly in section 35(5) of the Ordinance. If under section 11‑A of the 1968 Ordinance an employs‑r has been given a right to close his establishment and terminate services of the employees only with the permission of the Labour Court and is, therefore, is obliged to apply to the Labour Court for such permission, it is unthinkable that the Legislature would impose an obligation on the employer of seeking permission of the Labour Court without giving the Labour Court such power. If such provisions were not existing in 1969 Ordinance then Legislature would have provided for the same by amending the Industrial Relations Ordinance, 1969, or in any other manner but since power was already given in subsection (5) of section 35 of the Industrial Relations Ordinance, 1969, therefore, it was not necessary to provide for the same again.

8. A similar contention was raised in the Constitutional Petition No. S‑55 of 1974 (South British Insurance Employees Union v. The Sind Labour Court No. IV and others) and Dorab Patel, J., repelled the same and I quote from his unreported judgment: "And as admittedly no notification had been issued empowering Labour Courts to entertain claims under the Standing Orders, the contention was that the 1st respondent did not have the jurisdiction to entertain the 2nd respondent's application for the closure of its establishment. The argument is misconceived. Although Labour Courts are set up under the Industrial Relations Ordinance, clause (d) of subsection (5) of section 35 expressly (emphasis supplied) confers jurisdiction on these Courts with regard to matters assigned to them under any other law. No doubt, the power to entertain matters assigned under any other law were conferred by an amendment of this clause by Ordinance XIX of 1970. But that obviously cannot affect the validity of the power thus conferred, therefore, the only question is whether the Standing Orders or Standing Order 11‑A assigned to Labour Courts the power to entertain an application for permission to close an establishment, and as Standing Order 11‑A expressly confers this power on 'the Labour Court', I am satisfied that the 1st respondent was competent to entertain the 2nd respondent's application."

9. This case was taken to the Supreme Court and in the Supreme Court, it was urged that other steps necessary for closing down a business before moving an application under section 11‑A of the 1968 Ordinance were not taken. The decision is reported as South British Insurance Employees Union v. The Sind Labour Court No. IV and others 1975 S C M R 49 and was cited by Mr. Noor Muhammad, Advocate. Dealing with this point which was a new point it was observed by Anwarul Haq, J. (later on C.J.,) who wrote the opinion of the Court, as follows:‑ "The second point urged on behalf of the petitioner was not taker, before the High Court and on that short ground alone it could be disallowed in the present proceedings. Even otherwise, it has no substance. Standing Order 11‑A lays down that:‑ 'Notwithstanding anything contained in Standing Order 11, no employer shall close down the whole of the establishment without prior permission of the Labour Court in this behalf, except in the event of fire, catastrophe, stoppage of power supply, epidemics or civil commotion.' It will be seen that the Standing Order does not stipulate that the application to the Labour Court for permission to close down should be the first step in the process. All that it prescribes is that no employer shall close down the whole of its establishment without prior permission of the Labour Court in this behalf. Thus, the Labour Court's permission might indeed be the last step in the process of closing down, or an application in this behalf may be made by the employer simultaneously with any other step that he may have to take to wind up his business and close down his establishment. The Standing Order does not appear to us to spell out any sequence in which the various steps for closing down an establishment have to be taken by an employer, and, therefore, no question arises if the respondent having committed any illegality in this behalf."

10. Here reference to two well‑known elementary maxims may not be out of place; (1) Ubi jus ibi remedium (2) Lex Semper Dabit Remedium. According to the first maxim, whenever the common law gives a right or prohibits an injury, it also gives a remedy (3 Blac. Comm.123) This will also be in my opinion true in respect of statutory right. According to the second maxim if a man has a right, he must, it has been observed, "have a means to vindicate and maintain it", and a remedy if he is injured in the exercise and enjoyment of it, and, C indeed, it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal. (Per Holt. C.J., in Ashby v. White 3 Raym. Ld. 938, at p. 953; Per Vaughan, C.J. in Dixon v. Harrison, Vaugh. 37, at p. 47, in North v. Coe, Vaugh. 251, at p. 253; and per Willes, C.J, in Winsmore v. Greenbank, Will, 577, at p. 581). (See: Broom's Legal Maxims, 10th Ed., 118).

10. The contention has, therefore, no force and the petition has no merits. I accordingly dismissed it, leaving the parties to bear their D own costs. A.A. Petition dismissed.