P L D 1981 Supreme Court 39 (PLP)

MUHAMMAD HALEEM, J.-These appeals, by special leave; arise from the common judgment of High Court of Sind dated 20th of August, 1978, by which Constitutional Petitions Nos. 172, 173 and 174 of 1975 were dismissed. The appellant in these appeals is Alhassan Silk Mills Ltd. which is incorporated as a private limited company. It had a small weaving factory and employed 30 weavers to work the 30 power looms installed therein. Each weaver worked on three power-looms in each shift which were three in number. The dispute arose as the weavers declined to work on three looms and instead were prepared to work on two looms. The appellant, thereupon, approached the Union of the workmen to persuade the weavers to work on three looms but the Union declined to render any assistance. Thereupon, the appellant charge-sheeted the respondents and the others for adopting "go slow tactics" and pursuant to the domestic enquiry for establishing this charge, their services were terminated by identical orders dated 25th of May, 1974. The respondents served grievance notices on the appellant but getting no redress, they filed applications for their re­instatement before the Junior Labour Court under section 25-A (6) of the industrial Relations Ordinance on 16th of June, 1974. The Junior Labour Court, by order dated 31st of July, 1974, held that their services were validly terminated under Standing Order No. 12(1) of the West Pakistan Standing Orders Ordinance, 1968, as their number was less than 50 during the relevant period. It was further held that the charge for adopting "go slow tactics" was established. The respondents went in appeal to the Sind Labour Court No. IV and succeeded as by order dated 20th of February, 1975, it held that the appellant had failed to establish that less than 50 workers were employed in the weaving factory; and further it was of the opinion that the charge was not established. The appellant approached the High Court through the aforementioned Constitutional Petitions for redress but did not succeed as the High Court not only concurred with the first appellate Court on the question that the appellant had failed to establish the charge but also that despite the non-applicability of Standing Order No. 15 by reason of the second proviso to section 1(4) of the West Pakistan Standing Orders Ordinance, the termination of service had to be in accordance with the provisions of Standing Order No. 15 in the face of Standing Order No. 12(5) on the principle that both these provisions had to be reconciled. Leave to appeal was granted to consider the effect of the second proviso to section 1(4) vis-a-vis Standing Order No. 12(5) of the Standing/A ~p Orders Ordinance, 1968. The same question arose in Civil Appeal No. K-70 of 1978 and this Court held on an examination of the second proviso to section 1(4) of the West Pakistan Standing Orders Ordinance, 1968, that Standing Order No. 12(5) has no application in case of termination of service of a workman r for misconduct in an establishment where less than 50 workers are employed. This decision would have sufficed to dispose of this appeal butt the 'earned counsel raised submissions to impress that despite the deletion of Standing Order No. 15 the workman could not be dismissed for misconduct otherwise than by recourse to the procedure prescribed in Standing Order No. 15(5). Firstly, he urged that Standing Order No. 12(5) constitutes an exception to the second proviso to section 1(4) of the Ordinance; secondly, that clause (4) of Standing Order No. 15 should be read as part of clause (3) of Standing Order No. 12; and thirdly, that subsections (4) and (5) of section 25-.k of the Industrial Relations Ordinance, 1969, should be read as part of clause (3) of Standing Order No. 12 so as to make the grievance of termination justiciable. The object underlying the first two submissions apparently seems to be to achieve indirectly what cannot be directly done. If the second proviso to section 1(4) of the Ordinance is to be given effect to and there seems no reason why it should not be effective, then the object of the Legislature could not be, on the one hand, to deny the applicability of Standing Order No. 15 and on the other to keep its effect alive by reason of clause (5) of Standing Order No.

12. Clause (5) of Standing Order No. 12 is of general application whereas the second proviso to section 1(4) has denied its application to those establishments where less than 50 workers are employed. The limitation placed on the applicability of clause (5) of Standing Order No. 12 is clear from the rule of construction as stated by Maxwell in his book on the Interpretation of Statutes, 12th Edition, which runs as under:-- "if a proviso cannot reasonably be construed otherwise than as con­tradicting the main enactment, then the proviso will prevail on the principle that `it speaks the last intention of the make's'." Therefore, it is difficult to accept that clause (5) of Standing Order No. 12 is either an exception to the second proviso to section 1(4) or that clause (4) should be read as part of clause (3) of Standing Order No. 12 on the principle of legislation by incorporation. Again, we do not see how the third submission can lend aid to the point under consideration when the Legislature, in its wisdom, has, by enacting the second proviso to section 1(4) of the West Pakistan Standing Orders Ordinance, 1968, excluded the applicability of Standing Order No. 15 to those establishments wherein less than 50 workmen were employed. The intention thus was clear not to make termination by reason of misconduct a justiciable issue. Instead of giving full effect to the second proviso to section 1(4) of the West Pakistan Standing Orders Ordinance, the High Court, in an attempt to reconcile the inconsistency held that the procedure prescribed by Standing Order No. 15(5) would be applicable for determining misconduct to save the effect of Standing Order No. 12(5) which interpretation, in our view, is erroneous for the reasons that we have given above. Concluding therefore, we would re-affirm our decision in Civil Appeal No. K-70 of 1978 and hold that the appellant had rightly terminated th services of r0spondents Abdul Hamid, Ashraf Hussain and Abdul Ghani b recourse to; Standing Order 12(1) of the West Pakistan Standing Orders Ordinance;; 1968. Accordingly, we allow the appeals and set aside the impugned judgment but with no order as to costs. g. Q. Appeal Allowed.