1986 PLP 268 (PLC)

The submission of the petitioner's counsel is that the Labour Court has misconceived the position in law when it has held that the dismissal of the petitioner was made when the proceedings of industrial dispute were pending. He has submitted that the matter was sub judice till such time that the appeal could be filed by the C.B.A. and since the time for filing appeal was thirty days, therefore, the same could have been filed by 18‑5‑1981 and during this period the proceedings should have been treated to be pending and hence the action of respondent No. 3 was covered by the bar of section 47(2). The learned counsel relied upon 1945 A E L R 167 the case of Delbert‑Evans v. Davies, where it was held that during the time between the conviction of accused on indictment and his appeal to the Court of Criminal appeal the case was still sub judice and any improper statements may give rise to proceedings for contempt of Court. The learned counsel also relied upon 1981 Law Notes S C

90. The Supreme Court observed that a case is pending up to the time of expiry of limitation period for filing an appeal in such case. Lastly reliance was placed upon P L D 1972 S C 271 (275) where the Supreme Court held that if a mandatory condition for exercise of jurisdiction is not fulfilled then entire proceedings which follow become illegal. Mr. Abdul Hafeez, the learned counsel for respondent No. 3 has drawn our attention to subsection (4) of the section 41 of I.R.O., which provides as under: "Proceedings before the commission or a Labour Court shall be deemed to have concluded on the date‑on which the award or decisions is delivered under subsection (1) of section 37." His submission is that once Legislature has itself provided the time for conclusion of a certain proceedings then the general principles, about the matter being sub judice, will not be applied and the Court shall have to construe the provisions of law in accordance with the intention of the Legislature as evidenced by clear words used therein. In this respect he also relied upon 1957 S C 170 where the proceedings under section 20 of the Industrial Dispute Act XIV 1947 were construed. These provisions had provided for the date of commencement of conciliation proceedings and the conclusion of the same and had also provided for commencement of reference to a Court or tribunal under section 10 and conclusion of the proceedings before the Tribunal. The said provisions of law were a kin toy pawned section 41 of I.R.O. the following observations made by the Supreme Court in cited case are relevant:‑‑ "Employer becomes subject to certain disability with the commencement of conciliation proceedings and, therefore, the legislature considered it necessary to define when conciliation proceedings are deemed to commence and conclude." The submission of the respondent's counsel is that the commencement and conclusion of proceedings before the labour Court should be interpreted in the light of the clear words used in section 41(4) of I.R.O. of 1969 and not in accordance with the general principles of sub judice. We have given our anxious consideration to the point submitted by the two learned counsel. Section 47(2) of Industrial Relations Ordinance, 1969 provides as under:‑‑ "(2) Notwithstanding anything contained in subsection (1) an Officer of a registered trade union hail not, during the pendency of any proceedings referred to in subsection (1) be discharged for misconduct, except with the previous permission of the Labour Court," The purport of this subsection is clear and it is obvious that if any proceedings were pending on 9‑5‑1981 when the petitioner was dismissed from service then the same were completely barred But the legislature itself has provided in section 41(4), the point of time for conclusion of proceedings before the Labour Court as noted by us earlier. It would be relevant to note that the legislature in this case has given definite point of time as to when the proceedings before the Labour Court shall be deemed to be concluded. If there had been no such definition then obviously in accordance with the general principles of sub juice and division of our Supreme Court the proceedings could be deemed to be pending till the time for filing of appeal had expired. But the legislature appears to have provided otherwise and has thus clearly excluded the application of general principle of sub judice in respect of proceedings before Labour Court. The words used by the legislature are "deemed" which means that although ordinarily the proceedings may not be considered ordinarily to have been concluded but the legislature wants it to be supposed in law that the proceedings were concluded at a given time when the award or decision is delivered by the Labour Court It is well‑known that a deeming clause makes something exist which may not otherwise be in existence, It creates a fiction in law. Therefore, where it is clear that the legislature had intended the proceedings to the treated to have been concluded on the date when the award or decision is delivered, thereafter, it will riot be possible to fall back or, rely upon the general principle of sub judice and treat a proceedings as pending till such time that the time for filing the appeal expired. Therefore, in the present case before us we rely upon P L D 1975 S C 157 which is more relevant and to the point in this case. In this view of the matter the industrial dispute had 'concluded on 19‑4‑1981 when it was dismissed by Labour Court and since the? appeal was filed only on 18‑5‑1981, therefore, there was no dispute during 19‑4‑1981 to 18‑5‑1981. Hence the dismissal of the petitioner made on 9‑5‑1981 was not during the pendency of an industrial dispute and was not hit by the bar of section 47(2) of I.R.O. of 1969. The petition is, therefore, dismissed. Petition dismissed.