P L D 1973 Karachi 189 (PLP)

TUFAB. AU A. RAHMAN, C. J.‑This petition challenges the validity of an order passed by the Second Sind Labour Court at Karachi dated the 10th of April 1972 whereby, pending the disposal of an application under section 34 of the Industrial Relations Ordinance, 1969, which I shall refer to hereinafter as the Ordinance, the learned Chairman, granted an interim order purportedly under Order XXXIX, rules 1 and 2 of the Civil Procedure Code, restraining the petitioners from terminating the services of respondent No. 2.

2. The facts which give rise to the petition are relatively simple and are not in serious dispute ; such dispute as there is, does not affect the reasons on which I propose to base my judgment. The petitioner is Brooke Bond (Pakistan) Limited, a public limited company engaged in the business of marketing tea throughout West Pakistan. Respondent No. 2 was employed in the company as a salesman on and from 2nd August 1948. According to the company it was the general practice ^f the company to retire their employees at the age of 55 years but in the year 1954 it formally fixed that age and gave due notice of this to all Its employees, including of course respondent No.

2. In 1956 the company introduced a Retirement Gratuity Scheme and, as a part of that scheme, fixed the retirement date of its employees as the 1st April next following the date on which they reached the age of 55 years. Respondent No. 2 completed the age of 55 years some time before 1‑4‑1972 and thus, according to the petitioner, stood retired on that date and on 8‑3‑1972 tie was informed to that effect. On 10‑3‑1972, however, respondent No. 2 wrote to the company asserting that he could not, by reason of usage, be retired until he had completed 30 years of service which, admittedly he had not done. On 31‑3‑1972 respondent No. 2 got delivered to the company the keys of the depot of which he was in charge. Respondent No. 2's counter affidavit is confined to denials that, in law, he could be retired as the petitioner‑company claimed he could and asserted also that he received no letter on 31‑3‑1972 that he had been retired and thus claimed that he continued to be in service.

3. In the meantime respondent No. 2 made an application in the Labour Court under section 34 of the Ordinance praying, in substance, for a declaration that he continued to be employed by the petitioner and consequential relief. Along with this application he made an application under Order XXXIX, rules 1 and 2 of the Civil Procedure Code for an order restraining the company from terminating his services pending disposal of the main application. Notice of this interim application and the main application was duly served on the company on 27‑3‑1972. In due course after hearing the parties the learned Chairman passed an order on 10-4‑1972 granting the interim relief and it is this order which the petitioner now seeks, by means of this petition, to have declared as of no legal effect.

4. Admittedly there is no appeal or other remedy provided by law against an order of the kind complained of and a petition under Article 201 of the Interim Constitution is, therefore competent. A number of arguments have been advanced by the learned counsel who appeared for the petitioner, Mr. E. A. Nomani, in support of his contention that the Labour Court acted in excess of its jurisdiction and that, therefore, the impugned order Is without lawful authority and of no legal effect and it is sufficient, for the present purpose to notice these :‑ (1) The Labour Court has no jurisdiction except in an industrial dispute ; section 43 of the Ordinance prpvldes that no industrial dispute shall be deemed to exist unless raised in the prescribed manner by a collective bargaining agent or an employer. Admittedly respondent No. 2 is neither a collective bargaining agent nor an employer and, therefore, in law, no individual dispute can be deemed to exist. Consequently the entire proceedings are without jurisdiction and the impugned order, being passed in the course of the main proceedings, is also without jurisdiction. (2) The respondent was a salesman and, therefore, not a workman within the meaning of the Ordinance and could not, in any event, invoke the jurisdiction of the Labour Court. (3) That a Labour Court has no power to pass an order under Order XXXIX of the Civil Procedure Code. 4‑A. As to the second point I think it right to say that the controversy is one essentially of fact and depends on the nature of the employee's duties; this is one of the main controversies of fact before the Labour Court itself and, quite apart from the fact that in proceedings of this nature, this Court is extremely reluctant to decide controverted facts, I would bet very loath to ‑deal with it when the petitioner has not asked for a declaration that the Labour Court has no jurisdiction in the main matter, though learned counsel has so contended to support his stand that the impugned order is without lawful authority. Whatever view we take of this case, we would not, in any case, be quashing the entire proceedings and it, therefore, behoves us to refrain, unless it is absolutely necessary, from coming to a finding on this question.

5. For similar reasons, I would also prefer not to examine the first of the propositions which I have quoted above as the contentions of Mr. Nomani. I, therefore, find it convenient to examine the last of these arguments to see if the petition can be disposed of on the basis of a finding on that question.

6. The main argument on this point revolves round the true interpretation of section 36 of the Ordinance which reads thus :‑ "Procedure and powers of Labour Court.‑(1) Subject to the provisions of this Ordinance, a Labour Court shall follow as nearly as possible summary procedure as prescribed under the Code of Criminal Procedure, 1898. (2) A Labour Court shall, for the purpose of adjudicating and determining any industrial dispute, be deemed to be a civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908) including the powers of‑ (a) enforcing the attendance of any person and examining him on oath, (b) compelling the production of documents and material objects, and (c) issuing commissions for the examination of witnesses or documents. (3) A Labour Court shall, for the purpose of trying an offence under this Ordinance, have the same powers as are vested in the Court of a Magistrate of the first class under the Code of Criminal Procedure, 1898 (Act V of 1898) and shall, for the purpose of appeal from a sentence passed by it, be deemed to be a Court of Sessions under that Code. (4) No court‑fee shall be payable for finding, exhibiting or recording any document in, or obtaining any document from a Labour Court."

7. Mr. Nomani stresses that subsection (2) has not made the Labour Court a civil Court for all purposes but has only conferred upon it such powers as are vested in the Civil Procedure; Code for the purpose of adjudicating and determining any industrial 'dispute. Only such power, derivable from the Civil Procedure Code, that it needs for this purpose is conferred upon it and not all the powers that that Code confers on a civil, Court.

8. It will be seen that the section consists of three subsections which deal with procedure and/or power ; the fourth is concerned with a matter of court‑fees. The first of these which is not, in terms at least, limited to the functioning of a Labour Court in any of its said jurisdiction, requires it to follow as nearly as possible the summary procedure prescribed under the Code of Criminal Procedure. The subsection could well have been drafted more carefully but I think it right to construe it as a reference to, the procedure to be followed under that Code for the trial of offences in a summary manner. The Code, although mainly concerned with the investigation and trial of offences and appeals therefrom, nevertheless does deal with a variety of other matters, e.g. the maintenance of wives and children, disputes over immovable property in which there is an apprehension of a breach of the peace and public nuisance, to mention only a few. But, even disregarding such special, jurisdiction conferred by the Code, how is the procedure of trial of offences to be adopted by a Labour Code ? Who is to be regarded as the accused and who Is the complainant or prosecutor ? Despite these difficulties, created by obviously bad draftsmanship, it is nevertheless the duty of the Court to give effect to the will of the Legislature and to derive that will from the words it has used. Chapter 11 of Maxwell's "Interpretation of Statutes", 12th, Edition starts at page 228 with this paragraph :‑ "

1. Modification of the language to meet the intention.- Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by department from the rule of grammar. by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the Legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning. Where the main object and intention of a statute are clear, it must not be reduced to nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. Lord Reid has said that he prefers to see a mistake on the part of the draftsman in doing his revision rather than a deliberate attempt to introduce an irrational rule: "the canons of construction are not so rigid as to prevent a realistic solution."

9. With this principle in mind, I think the only true meaning I can give to subsection (1) is to hold that it lays down the procedure generally for the Labour Courts ; subsections (21 and (3) lay down procedure and powers specifically for certain kinds of proceedings before such Court. None, however, of the powers conferred by the Criminal Procedure Code on Criminal Courts engaged in summary procedure trials with be available to the Labour Court, unless indeed in regard to a given power, it may be said it is strictly and necessarily a part of procedure. For example it would not have the power of directing the arrest and production before itself of a reluctant witness, though if subsections (21 and (3) did not specifically provide for such power in necessary cases, it might have been possible and even obligatory to read such a power in subsection (1) : Sections of a statute are not interpreted in isolation but in the context of the entirety of an enactment.

10. What I am emphasising at the moment is that the words "powers" and "procedure" are not synonymous though of necessity they may overlap. Although the section is headed "Procedure and powers of a Labour Court" it does not therefore follow that every power given by a Code, which provides for procedure, is necessarily attracted to a tribunal whose procedure for a given purpose is defined by reference to another tribunal to which that Code expressly refers. That section 36 does not really deal with the powers of a Labour Court is made amply clear, I think, by the fact that its main power is conferred be section 35(5) and not section 36 ; the reference to powers in section 36 Is incidental and closely bound up with procedure. It is in subsections (2) and (3) that section 36 makes more careful provision for procedure and powers in two different jurisdictions in (2) while adjudicating and determining an industrial dispute and in (3) while trying an offence under the Ordinance. I am, therefore, of the view that subsection (2) does not confer upon a Labour Court, while adjudicating and determining an industrial dispute, all the powers of a civil Court under the Civil Procedure Code but only such of them as may be described as procedural, ice such as are required "for the purpose" of adjudication and determination. Now, it is clearly not necessary in order to be able to adjudicate or determine a dispute, that pending the adjudication or determination, a party be restrained from giving effect to the kind of she order of which respondent No. 2 complained to the Labour Court.

11. This view is, I think, further supported by the express ,conferment of three powers enumerated in this subsection. This was wholly unnecessary it all the powers available to a civil Court under the Civil Procedure Code had already been conferred. Even without these powers I should have been inclined to hold that the Labour Court has these powers as I think they are clearly "procedural powers" in the sense in which I have used that phrase a little earlier. But the matter could have been in some doubt and, it is in order‑ to avoid that doubt, that the Legislature has, I think, expressly conferred these powers, using care at the same time, by employing the words "including the powers of", not to prejudice the generality of powers already conferred.

12. Learned counsel for the respondent No. 2, Mr. Ali Amjad, in the course of an able address, attempted to dissuade us from this view by pointing out that after the words "civil Court" appear the words "and shall". In other words the Labour Court was (1) for the purpose stated to be deemed a civil Court and (2) was to have powers vested by the Civil Procedure Code in a cavil Court. AS a matter of pure grammar, Mr. Ali Amjad is undoubtedly right and, if there had been no other consideration involved, I should have agreed with him without hesitation. But bad drafting is a feature of this .Ordinance ; I have already given one example and could give others and this has teen noticed in other judicial pronouncements as well : See for instance the observation of Mohammad Iqbal, J. in Abdul Jamil v. Registrar, Trade Unions (P L D 1969 Lah. 220). Apart from this, however, acceptance of Mr. Ali Amjad's argument would render entirely superfluous all the words in subsection (2) following "civil Court". If the Labour Court is to be deemed a civil Court for all purposes while engaged in the determination and adjudication of industrial disputes, a reference to the Civil Procedure Code would be wholly unnecessary. 12‑A. As a result of the conclusion I have reached on this point, I would hold that the Labour Court had no authority to pass the impugned order. In view of this I think it neither necessary nor desirable to discuss the larger issue whether the Labour Court could entertain this dispute, although both learned counsel took pains to bring to our notice all the relevant provisions and made a careful presentation of their respective cases. The validity of the entire proceedings is, however, not attacked in this petition, argument on the point being advanced only in support of or opposition to the attack on the order under Order XXXIX, rules 1 and 2 of the Civil Procedure Code. 'The question, if raised, would not be free from difficulty and this is, therefore, not the proper occasion to attempt to decide it.

13. I would, therefore, allow this petition and make an order declaring that the order of the Second Sind Labour Court elated 10‑4‑1972 in application 152/72 : Mohammed Ishaq v. Brooke Bond (Pakistan) Ltd. is without lawful authority and of no legal effect and directing it to refrain from enforcing it. The question involved in this petition was not free from difficulty and does not appear to have been raised in the Labour Court ; besides the main matter still awaits adjudication. In view of these circumstances I would make no order as to costs. FAKHRUDDIN G. EBRAHIM, J.‑I agree. K. B. A. Petition accepted.