P L D 1969 Dacca 571 (PLP)

A. S. CHOWDHURY, J.‑This appeal is at the instance of the 2nd party, James Finlay & Company Ltd. and it arises out of an award of the 2nd Labour Court, Dacca given on 12‑8‑

67. The first party, Aminul Islam and six others filed an application on 8‑5‑57, under section 6 of the East Pakistan Labour Disputes Act, 1965 (hereinafter called the Act.). In that application a demand was made for declaration that the termination of the services of Aminul Islam by the Company was illegal. There was a prayer also for asking the Company to re‑instate in his former post with all the benefits from the date of termination. Aminul Islam's case is that he was Head Clerk‑cum -Accountant in the office of the 2nd party at Khulna and his services were terminated by the order passed by the 2nd party on 28‑3‑67, illegally and in violation of the principle of natural justice and terms of his employment. It was asserted that his services were terminated due to his Trade Union activities. It was alleged. that on 5‑1‑67 a Trade Union was formed with Aminul Islam as President and as a result thereof, he incurred displeasure of the 2nd party resulting in his ultimate dismissal. All material allegations made by the first party were denied by the 2nd party Company. On a review of the evidence and the materials placed before the Court, it reached the conclusion that "Aminul Islam is a `worker' as defined under section 2 (s) of the Act and the dispute that has been raised relating to his non‑employment by 7(seven) representative workers is a `labour dispute' as defined in section 2(k) of the Act, and it was also held `that the termination of his services amounts to dismissal by way of victimisation'. " The Court held that there should be an order of re‑instate ment of Aminul Islam to his former post witk all back wages from the date of termination of his services along with other benefits as would have been available to him had he been in service and an award was accordingly given. This award was given after obtaining the advice of Mr. S. A. Ansari, a Member of the Court representing the employees. The other Member Mr. R. A. Chowdhury representing the employer did not give any advice. Mr. Haider Mota submits that in the case of termination of the services of an employee, there can be no order of reinstate ment and his contention is that in this case there was a termination of service. The position in law is that the Court can order re‑instatement, provided it is not a case of termination simplicitor. But, in this case the Court found that termination was for Trade Union activities. Mr. Haider Mota's next contention is that the requirement of law laid down under section 25(1) of the East Pakistan Employment of Labour (Standing Orders) Act, 1965, has not been complied with, inasmuch as, the worker concerned is not an Officer of a registered Trade Union. Short answer to this contention of learned counsel is that the dispute was under the Labour Disputes Act and as such this contention is of no substance. The learned counsel for the appellant has next urged that Rule 34 of East Pakistan Industrial Disputes Rules, 1960 (hereinafter called "the Rules") provides that advice of the Members should be taken before giving an award and the learned counsel's contention is that since the representative of the employers Mr. R. A. Chowdhury has not given any advice as noticed earlier in the judgment, the said Rule 34 has been violated and as such the award is vitiated. Rule 34 reads as follows: ‑ "While giving an award or a decision the Chairman shall consider the advice given to him by the Members of the Court although he may not be bound to accept the advice either in full or part. Such advice may be given orally during day to day hearing of a case and finally it shall be in writing signed and dated by the Members concerned either jointly or separately after the close of the hearing of a dispute. The written advice so given shall form part of the record." Mr. Mozammel Huq, learned Advocate for the respondent submits that the said Rules are not in force. His contention is that on the 1st September 1965, the East Pakistan Labour Disputes Act (East Pakistan Act. No. VI of 1965) came into force ; and the Industrial Disputes Ordinance, 1959, under which the said Rules were framed was repealed by section 44 of the said Labour Disputes Act and as a result of the repeal of the Ordinance, the Rules framed thereunder also stand repealed. When attention of learned Advocate was drawn to subsection (2) of section 44 of the said Act which is to the effect that any rules framed under the said Ordinance shall be deemed to have been done under the corresponding provisions of this Act, learned Advocate urged that section 44 itself had been repealed on 31‑1‑67 by East Pakistan Repealing and Amending Ordinance, 1966 (East Pakistan Ordinance XIII of 1966). His contention, therefore is that even if these Rules were in existence from 1st September 1965 to 30th January 1967, Rules ceased to be in force on 31‑1‑

67. According to him the award having been given in this case on 12‑8‑67 the question of violation does not arise. Mr. Huq's further contention is that even if the said Rule 34 is in existence, it is repugnant to subsection (6) of section 9 of the said Labour Disputes Act. Mr. Haider Mota in an able argument urges that subsection (6) of section 9 deals with merely the absence of a Member and it does not make any provision regarding advice and as such there was nothing in the Act which could be construed as repugnant to Rule 34 of the Act. His further contention is that the said Rules are still alive by the express provision of East Pakistan Ordinance XIII of 1966 on which reliance has been placed by the learned :Advocate for the respondents as noticed earlier. Section 42 of the East Pakistan Labour Disputes Act is as follows: "The Provincial Government may, subject to the condition of previous publication in the official Gazette, make rules for carrying into effect the purposes of this Act." Learned counsel for the appellant and the learned Advocate for the respondent have informed us that no new Rules have been framed under section 42 of the Act. The material part of section 44 of the said Labour Disputes Act by which the Ordinance was repealed is as follows: ‑ "(1) Industrial Disputes Ordinance of 1959 is hereby repealed (2) Notwithstanding the repeal anything done, action taken, rules framed, or notification or order issued in the said Ordinance, shall, so far it is not inconsistent with the provisions of the Act, be deemed to have been done, taken made or issued under the corresponding provision of this Act." It is, therefore, clear to us that by reason of subsection (2) of section 44 the Rule framed under the Ordinance continued to be A in force as they are deemed to have been issued under the corresponding provisions of this Act, namely, section 42 of the said Labour Disputes Act just referred to above. Next question is, if the Rules survived the repeal of section 44 of the Labour Disputes Act which was repealed by the East Pakistan Ordinance No. XIII of 1966. Ordinance No. XIII of 1966 provides that the said Ordinance shall not affect any law in which any Act repealed by the Ordinance has already been applied. Saving clause is to be found in section 4 of the Ordinance No. XIII of 1966. We shall read the. 3rd paragraph of the said section "Nor shall this Ordinance revive or restore anything not in force or existing at the time of its commencement, or affect any law in which any Act, Ordinance or Regulation. hereby repealed has been applied, incorporated or referred to or affect any principle or rule of law, or establish jurisdiction, form or cause of pleading, practice or procedure, or existing usage, custom, privilege restriction, exemption, office or appointment, notwithstanding that they respectively may have been in any manner affirmed, recognised, or derived by, in or from any Act, Ordinance or Regulations hereby repealed." The material words in this paragraph for our purpose would be that this Ordinance shall not "affect any law in which any Act, Ordinance or Regulation hereby repealed has been applied." It, therefore, says in express terms that this repealing Ordinance shall not affect any law, that is, the Rules with which we are concerned. The Act which has been repealed by this Ordinance is section 44 which itself was applied to the said law. In other words, by application of the said provision of law rules were kept alive. We are not impressed with the argument of Mr. Huq that the word is "Act" and not "section of an Act". The Second Schedule of the repealing Ordinance will show that only section 44 of the Labour Disputes Act been repealed. He, therefore, contends that since only a part of an Act, namely section 44 has been repealed the word Act will not apply to this case. This contention, to say the least, is of no substance. The Act contemplates part of an Act. We are, therefore, of opinion that the saving clause kept the Rules in force on the C date the Labour Disputes Act came into existence, that is, on 1‑9‑

65. We are fortified in our view by a reference to the preamble of the Repealing Ordinance which is as follows: ‑ "Whereas it is expedient that certain amendment should be made in the enactments specified in the First Schedule. And Whereas it is also expedient that the enactments specified in the Second Schedule, which are spent or have otherwise become unnecessary, or have ceased to be in force otherwise than by expressed, specific repeal, should be expressly and speci fically repealed." It will, therefore, be seen that this Repealing Ordinance was brought into existence for two purposes, one such purpose was to insert certain amendments into certain enactments. Those enactments have been set out in the First Schedule of this repealing Ordinance. It has also been promulgated for the purpose of repealing certain provisions which have become unnecessary or ceased to be in force. Section 44 of the Labour Disputes Act which has been repealed by this repealing Ordinance occurs in the 2nd Schedule of the said Act, that shows that section 44 was repealed for it was felt that it had already spent its force or it had become unnecessary or ceased to be in force, or in other words it may be considered to have already performed its duty, that is, it kept alive the rules framed under the Ordinance on the date the Labour Disputes Act came into existence: After performance of that duty and also keeping alive other orders or actions that have already been taken under the Ordinance, this section was no longer necessary to be kept in force, inasmuch as, there would be no more rules to be kept in force, nor any more orders issued under the old Ordinance. This section 44, to put it briefly, has been repealed as it was considered unnecessary. We would now read section 25 of the East Bengal General Clauses Act, 1925. It is as follows: ‑ "Where any enactment is, after the commencement of this Act, repealed and re‑enacted by a Bengal Act or East Pakistan Act with or without modification, then, unless it is otherwise expressly provided, any appointment, order scheme rule, by‑law, notification or form made or issued under the repealed enactment shall, so far as it is not inconsistent with the provisions re‑enacted, continue in force, and be deemed to have been made or issued under the provisions so re‑enacted unless and until it is superseded by any appointment, order scheme, rule, by‑law notification or form made or issued under the provisions so re‑enacted." We have already seen the rules in question have been saved by a. saving clause in the repealing Ordinance. It is further seen from section 25 of the East Bengal General Clauses Act which also keeps the Rules framed under the Ordinance in force. Moreover, learned Advocates appearing before us have not been able to show that these rules have been specifically repealed or that new rules have been issued. Next argument of Mr. Huq is that the said rules are repugnant to the provisions of subsection (6) of section 9 of the Labour Disputes Act. Subsection (6) of section 9 is as follows: "If a member is absent from any sitting of the Court or is otherwise incapable to sit as a member or has ceased to be a member of panel, the Court, notwithstanding anything contained elsewhere in this Act, may function in the absence of such member and no‑act, proceeding, decision or award of a Court shall be invalid merely by reason of absence of any such member from any sitting of Court and no Court shall call in question any such act, proceeding, decision or award." It will be seen that the subsection (6) of section 9 speaks of absence from a sitting. This is clear from the opening words of the subsection. It is true it also speaks of a member who is otherwise incapable of sitting as a member or has ceased to be a member of a panel. In all these eventualities, it is stated that the Court may function, in the absence of such member. This provision, therefore is for functioning of the Court in the absence of a member owing to his inability to sit for his having ceased to be a member or for any other reason. It is rightly urged by Mr. Haider Mota that the attention is directed to the absence of a member for any reason by this provision. The word "merely" occurring in subsection. I, must say, lends support to the contention of Mr. Haider Mota. The immunity is granted by the latter part of the said subsection to the award from an attack against the award merely on the ground of absence of such member, I therefore, do not find anything contained in subsection (6) about the `advice' of a member. It deals with absence and not advice of a member. Had there been any clear provision relating to advice of a member Rule 34 could have been argued to be repugnant to that provision? It is argued) that if one ceases to be a member of the panel, he cannot give advice and as such it should be held have impliedly dispensed with requirement of advice, and Rule 34 requires advice to be obtained from members is to that extent repugnant. This is not so. In our opinion, one who has ceased to be a member need not give any advice and rule 34 which I have quoted curlier in the judgment speaks of "advice given to him (Chairman) by members of the Court." It is, therefore, seen that no advice can be sought, nor obtained, nor acted upon when a person has ceased to be a member. Rule 34 requires advice to be obtained from a member and subsection (61does not therefore say anything which is contrary to rule

34. I am; therefore, unable to accept the contention of Mr. Huq that Rule 34 is repugnant to subsection (6) of section 9 of the Act. In order to give effect to the argument of Mr. Haider Mota we have also to notice that the argument made by Mr. Huq to the effect that Rule 34, is merely directory and as such its violation does not vitiate the award. It is true difficulties at times have‑ been felt to determine whether a certain provision of a statute is directory or mandatory. In a case where the Legislature itself has expressed its opinion as to the consequence of non‑compliance with such a direction no difficulty arises. But in a case where the Legislature, does not indicate its mind as to the consequence for violation of provisions, the Court has to consider whether the instruction of the Legislature is merely directory or mandatory. This has to be construed by reference to the object intended to the achieved or other surrounding circumstances. In this case, Mr. Haider] Mota rightly points out that subsection (2) of section 9 of the Act gives a clear indication to the intention of the Legislature. I would now read subsection (2) of section 9 of the Labour Disputes Act: "A Labour Court shall consist of a Chairman and two members to advise the Chairman, one to represent the employers and the other to represent the workers, appointed in the manner hereinafter provided." This provision indicates that the Court shall consist of a Chairman and two Members. The Court does not consist .of Chairman alone or one member alone, or even the two together. It is true subsection (6) provides for absence of members. But the Court consists of the Chairman and the Members, and the award has to be given by the Court, that is, by the Chairman and also all the available members. The Court consists of Chairman and two of the persons who have not ceased to be members. Therefore the award has to be of the Chairman and of the persons who have not ceased to be member. In the case before us there is nothing in the record to show that Mr. R. A. Chowdhury has ceased to be a member. Therefore, the award of the Court has to be given after complying with the requirement of taking advice as laid down in Rule

34. Rule 34 provides that the advice is to be given by a member during the hearing of the case. That advice may be given orally. If the member is not present, he is not required to give advice during the day to day hearing inasmuch as by reason of subsection (6) of section 9 of the Act, attack on the award merely on the ground of absence is not permissible. But rule 34 makes a distinction between advice that may be given during the day to day hearing and the advice that is to be given after the conclusion of the hearing. This rule clearly lays down that "finally it shall be in writing, signed and dated by the members concerned, either jointly or separately after the close of the hearing of a dispute." The opening words of Rule 34 indicate that while giving an award, the Chairman shall consider the advice given to him by the members, and in sub‑rule (7) of Rule 32, it is provided "As soon as the draft of the award is ready, it shall be shown to the members of the Court for perusal and advice for the consideration by the Chairman." This provision, therefore, makes it clear that the draft of the award is to be shown to the members, of the Court for their perusal and advice for the consideration of the Chairman. In this case Mr. Huq, learned Advocate for the respondents, argues that this advice is immaterial inasmuch as the Chairman may disregard the advice. This provision, according to him, is merely a decoration. We can attribute no such intention to the Legislature that he may disregard the advice arbitrarily nor can we assume that he will disregards the advice arbitrarily. Rather, we should proceed on the assumption that Chairman will judicially consider the matter in all its aspects and consider the advice given by both the members with a view to reach correct conclusion in the interest of justice and will not dispose of the matter on a preconceived notion. He will reach conclusion after due consideration of the view represented by the two members. We are, therefore, of opinion that sub‑rule (7) of Rule 32 leaves no room for doubt that the requirement for obtaining advice from a member before giving an award is a mandatory one. Mr. Haider Mota also argues that sub‑rule (7) requires that before advice is obtained draft should be shown to the members and there is nothing on record that the draft was never shown. In view of the violation of the mandatory provision as laid down in rule 34 of the Rules the award stands H vitiated. It is not necessary for us to express any opinion, as to the contention of Mr. Haider Mota, nor is there anything before us to show as to whether or not the draft of the award was shown to the members as required under Rule 32 of the Rules. In reaching this conclusion we have been guided by two decisions of this Court. In the case of The Chittagong Mercantile Employees' Association v. Chairman, Industrial Court of East Pakistan and others (18 D L R 45) a Division Bench of this Court in which one of us was a party, it was observed that Rule 34 shows that the importance or the Members comes into play when an award has to be given. Sattar, J. (as his Lordship then was) in delivering the Judgment of the Court observed as follows: ‑ "On an examination of the relevant provisions in the Ordinance and the Industrial Disputes Rules, we do not find that on account of mere absence of a Member of the Industrial Court on any particular date no proceedings can take place before that Court. If rule 34 is read carefully it will be found that the importance of the Members comes into play when an award has to be given." In that case a Member was absent but the award was given after consultation with both the Members. It was, therefore held that the award was not vitiated by mere absence of the Members. It is true, that decision was given when the Ordinance was in existence and it is also true that subsection (6) of section 9 of the Labour Disputes Act which was invoked by Mr. Huq to show repugnancy of the Rule 34 was not in existence ; but we have dealt with subsection (6) of section 9 to show that there is no repugnancy. Therefore, the observation that the importance of the Members comes into play when an award is given indicates that Mr. Huq's contention that the advice is a very immaterial part of the adjudication is of no substance or force. In the case of East Pakistan Aluminium & Iron Manufacturing Co., Tejgaon v. Chairman, Industrial Court, East Pakistan and others (P L D1965 Dacca 211) a Division Bench of this Court consisting of Sattar and A. M. Sayem, JJ. had to consider the effect of the violation of Rule 34 and it was held in that case if advice is not taken the award would be vitiated. The learned Judges observed "It is true that the parties are also represented at the time of hearing but the idea behind the appointment of the two members seems to be that some independent advice with regard to the two new points, namely, that of the workers and the employers should be presented to the Chairman so that he can come to a correct decision. In our view, if the present decision of the Chairman which has been arrived at by him without consulting and receiving the advice of the member representing the employers is upheld, the whole purpose of the Act would be frustrated." The learned Judges have further said that the omission to take advice frustrated the very purpose of the Act and if such an omission has such a tremendous consequence it can never be said, as contended by Mr. Huq that it was merely directory. That is why we have said we have received guidance by this decision in reaching our conclusion as to whether or not this provision is a directory or a mandatory one. The only argument that was advanced against the application of that decision to the facts of this case is the provision in subsection (6) of section 9 of the Act to which we have addressed ourselves at length and have shown that no repugnancy exists as contended by learned Advocate for the respondent. We have already made it clear that this requirement of taking advice will not apply 2o one who has ceased to be a member and cannot give advice. In Re: An Arbitration between Gifford and the Bury Town Council (1888 Q B D 363) it was held that where the provisions of the Public Health Act required that an appointment of an Arbitrator was to be made on behalf of the local authority under their common seal and on behalf of any other party under his hand, that non‑compliance with such a provision in the method of appointment would render the appointment invalid. In other words it was held that a breach of the requirement of appointing an arbitrator by a party under his hand would render an appoint ment itself invalid, that is, the provision was held to be mandatory. The provision of subsection (1) of section 180 of the English Act was as follows: ‑ "Every appointment of an arbitrator under this Act when made on behalf of the local authority shall be under their common seal, and on behalf of any other party under his hand . . . . ." In that case a party appointed an arbitrator but the appointment was not made under his hand. Simply because the appointment was not made under his hand the appointment itself was held to be invalid. It seems to us that the case of appellant before us as to whether or not the provision is directory or, mandatory is a stronger one than in this case. In the case Smith, J. observed "It appears to me that the arbitration is not an arbitra tion by consent ; it is pursuant to statute. There is a statutory submission, and I think that the provisions of the statute, which are mandatory and not directory, must be complied with." The position, therefore, is clear that owing to the breach of rule 34, the award given in this case is vitiated and the case must be sent back for retrial. We may mention here that one of the arguments of Mr. Haider Mota was that as a result of the introduction of the relief under section 25 of the East Pakistan (Standing Orders) Act, the relief of re‑instatement under the East Pakistan Labour Disputes Act is not available, though it was available before introduction of section 25 of the Standing Orders Act. We may at once say that there is no substance in this contention. Re‑instatement is the most effective remedy available to workmen under the Labour Disputes Act against arbitrary dismissals by employers even when they be under the cloak of termination or retrenchment or discharge. The remedy given under section 25 of the Standing Orders Act to an individual worker is a special remedy in addition to the remedy available under the Labour Disputes Act on raising a Labour Dispute in accordance with the provision of the Act, the procedure for which is rather elaborate and time consuming. The remedy under section 25 of the Standing Orders Act, however, is rather limited by its terms. It could never have been the intention of the Legislature to curtail the right of the workers in the matter of re‑instatement as argued by Mr. Haider Mota nor can any such intention be spelt out from the provisions of the two relevant Acts which came into force on the same day, the 1st of September 1965. The contention of Mr. Haider Mota is accordingly overruled. We need not refer to other arguments regarding the merits of the case advanced by Mr. Haider Mota, namely, that the conclusions reached by the Court to the effect that it was a dismissal for Trade Union activities and it was a case of victimisation are not sustainable. We shall not make any observation with regard to this contention. Mr. Haider Mota also submits that this Court has no power to send the case back for retrial. When asked to point out any such provision he failed to do so. As a Court of appeal we can confirm the award or reject the same and in cases where it is necessary in the interest of justice we may send the case back for retrial. We do not conceive of any restriction of the powers of an appellate Court in Labour Dispute cases. Therefore, this contention is of no substance. For the reasons stated above we set aside the award and the case is sent back for retrial. In view of the delay that has occurred in this case we direct the court below to proceed with the retrial as expeditiously as possible. There will be no order as to costs. A. H. KHAN, J.‑I agree. Award set aside. Case remanded for re‑trial.