1981 PLP 898 (PLC)

(2) That the respondent No. 1 had no jurisdiction to entertain the application of respondent No. 2. (3) That Industrial Relations Ordinance, in view of its amendment dated 5th April, 1979 was not applicable to the petitioner's establishment and as such petitioners are not entitled to file appeal, before Labour Tribunal and as such the above petition is only remedy available to the petitioners. (4) In case of dismissal, the S. O Ordinance, 1968, being specific, a special law, it would apply if the applicant was a workman under the said Ordinance and since the said Ordinance is a self contained law, no course could be had to the Industrial Relations Ordinance, beyond the provisions of section 25‑A thereof, as the application of section 25‑A of I. R. O. to the proceedings under S. O. 12 (3) of the West Pakistan Standing Orders Ordinance, 1968 is legislation by reference and as such that part of I.R.O. which is specifically mentioned in S. O. 12 (3) of West Pakistan S. O. Ordinance, 1968 would only apply. (5) That the order dated 13th September, 1980 of the respondent No. 1 is illegal and without jurisdiction and, therefore, of no legal effect. (6) The learned counsel for the petitioners in addition to the above grounds submitted that grievance notice under section 25‑A dated 18th September, 1979 was not a proper notice and further sub mitted that the provisions of appeal under section 37 (3) of I.R.O., was not available to the petitioners on the following grounds; (a) That S. O. 12 (3) of the (S. O.) Ordinance, 1968 does not give the right of appeal. (b) Industrial Relations Ordinance is not applicable to the petitioners establishment in view of section 1 (3) of Ordinance XXI of 1979. (c) Since Industrial Relations Ordinance, did not apply to the petitioners establishment on the date when respondent No. 2 filed proceedings before respondent No. 1 and as such he had no legal right to go to the Labour Court (respondent No. I). In support of his contentions on ground No. 1 the learned counsel for the petitioners submitted that the respondent No. 2 was not workman under the definition of workmen as given in the S. O. Ordinance, 1968 and in support of this contention the learned counsel for the petitioners relied on cases reported in P L D 1969 Lah. 717; P L D 1975 Kar. 279, 1970 P L C 135 and 137, 1976, P L C 196 and P L D 1961 S C

403. The learned counsel for the petitioners further submitted, that case reported in 1977 S C M R 103 does not apply to respondent No. 2's case as the finding in the said authority, that Chowkidar was a workman, is given under the definition of I.R.O. and not under the S. O. Ordinance, 1968 and he further submitted, that it is clear from the judgment in question, that the attention of the Hon'ble Supreme Court was not drawn to the difference of the defini tion of the "Workmen" as given in I.R.O. and S. O. Ordinance, 1968. The learned counsel for the petitioners in respect of grievance notice under section 25‑A dated 18th September, 1979, submitted that the said notice was not proper, as according to S. O. Ordinance. 1968 an employer in relation to factories, means Manager, under section 9 (e) of the Factories Act and since the grievance of the respondent No. 2 was under section 12 (3) of the S. O. Ordinance, 1.968, the employer of the respondent No. 2 was Factory Manager and was not a Managing Director and as such the grievance notice was wrongly given and as such proceedings initiated were not legal and maintainable, In this connection, the learned counsel for the petitioners relied on 1980 P L C 234 and

421. The learned counsel for the petitioners further submitted that provi sions of appeal under section 37 (3) of I.R.O. were not available to the petitioners as S. O. 12 (3) of the Standing Orders Ordinance. 1968 does not give right of appeal and further in view of section 1 (3) of Ordinance XXI of 1979, I.R.O is not applicable to petitioners' establishment. He further submitted that application of section 25‑A of I.R.O., to proceedings under S. O. 12 (2) of West Pakistan S. O. Ordinance, 1968 was a legislation by reference and as such provisions of section 37 (3) of I.R.O. did not apply to such proceedings ipso facto. In this connection the learned counsel for the petitioners relied on Interpretation of Statutes, para. 13, Chapter 31 of Bindra, III Edition, p. 636 and Maxwell, 10th Edition, p 406 and cases reported in P L D 1979 Lab. 748 and P L D 1979 Lah.

415. The learned counsel for the respondent on the other hand submitted, that definition of workmen and employer applicable to the present case is the one mentioned in the Standing Orders Ordinance, 1968. He urged that the case reported in 1977 S C M R 103 has given the definition of a workman which is more or less same as one given under section 2 (1) of the Standing Orders Ordinance, 1968 and by this the Supreme Court has held Chowkidar to be a workman. Regarding contention of the learned counsel for petitioner that notice of grievance under section 25‑A was not proper, the learned counsel for the respondent submitted that the said notice was properly addressed to the Managing Director as the petitioners are industrial establishment and as such the Head of the Department, i.e. Managing Director is a person responsible to the owners and as such he was employer. It is for the first time that the petitioners, in this petition, have stated that they are factory and as such under section 9(e) of the Factories Act, Manager of the factory is an employer and as such notice under sec tion 25‑A has been wrongly addressed and this argument of the learned counsel for the petitioners is based on additional evidence produced by him with his affidavit‑in‑rejoinder and as such cannot be taken into consideration. He further submitted that cases reported in 1980 P L C 234 and 421 are based on different facts and are not applicable to present case. The last submissions made by the learned counsel for the respondent before me was that the petition is not maintainable as relief by way of appeal under section 37(3) is available to the petitioners, which was not availed of by the petitioners. However, the petitioners after the filing of the above petition have filed appeal under section 37(3) of I. R. O. which is pending and has been kept in obeyance at the request of the petitioners. In this connection the learned counsel for the respondent relied on P L J 1979 Lah. 363 and 1979 P L C

424. The learned counsel for the respondents further submitted that respondents' case fall under S. O. 12(3) of the Standing Orders Ordinance and the procedure of section 25‑A of I. R. O. was only made available for going before the Labour Court and as such, the decision of the Labour Court could be challenged by appeal, under section 37(3) by the petitioners and as such the petition is not maintainable at this stage. The learned counsel for the respondents submitted that applicability of section 25‑A of I. R. O. to S. O. 12(3) of the West Pakistan Standing Orders Ordinance, 1968, was no legislation by reference as submitted by the learn ed counsel for the petitioners and in this connection he relied on 1980 P L C 620 and P LJ 1979 Lah. 363 and 1979 P L C 424 and para. 14 of the unreported judgment of Sind Labour Appellate Tribunal at Karachi given in Appeal No. KAR.‑590 of 1979, Syed Mujahid Hussain v Pakistan Security Printing Corporation Ltd. dated 22nd October, 1980. He further relied on another judgment dated 29th February, 1980 of Sind Labour Appellate Tribunal at Karachi given in Appeal No. KAR‑13/80 Muhammad Yasin v. Pakistan Security Printing Corporation Limited according to which promulgation Ordinance XXI of 1979, by which I.R.O. 1969 was made inapplicable to petitioners, in view of section 6 of the General Clauses Act, did not prevent the employee of Pakistan Security Printing Corporation pursue the remedy provided under section 25‑A of I. R. O. under S. O. 12 (3) of West Pakistan Standing Orders Ordinance, 1968. I would first consider the preliminary objection of the learned counsel for respondent No. 2 about the maintainability of above peti tion on the ground that petitioners have come to this Court without availing of remedy of appeal under section 37(3) of I. R. O., 1969 and as such the above petition is premature and not maintainable. I have carefully considered the arguments advanced before me by both the learned counsel in respect of above preliminary objection and have carefully gone through the various authorities and books cited by them in this connection. The contention of the learned counsel for the petitioners is that Incorporation of section 25‑A of I. R. O., in S. O. 12 (3) of West Pakistan (Standing Orders) Ordinance, 1968, is legislation by reference and as such the provisions of section 25‑A of I, R. O., 1969 is only available for proceedings initiated under S. O. 12 (3) of West Pakistan (Standing Orders) Ordinance, 1968 and the provisions of appeal provided under section 37 (3) of I. R. O., 1969, do not apply to such proceedings and for this purpose the learned counsel for the petitioners relied before me on case reported in P L D 1979 Lah. 415 as well as be relied on Maxwell on Interpretation of Statutes, 10th Edition, p. 406 where it is stated as under :‑‑ "Where the provisions of one statute are, by reference, incorporates in another and earlier statute afterward, repealed the provisions so incorporated obviously continue in force so far as they former part of the section amended." as well as commentary given by Bindra in his 3rd Edition on page 33E Ch. 31, 1973, 3rd Edition, page 795, para. (13). The learned counsel for the respondent No. 2 on the other hand relied on cases reported i0 P L J 1979 Lah. 363 and 1979 P L C 424 and unreported decision of the Sind Labour Appellate Tribunal at Karachi in Appeal No. KAR‑590/79 dated 22nd October, 1980. I have carefully considered above‑mentioned citations as well as the authorities quoted by both the learned counsel for the parties and I am inclined to agree with the reasonings given in P L J 1979 Lah. 369, 1979 P L C 424 and by the Sind Labour Appellate Tribunal of Karachi given in Appeal No. KAR‑590/79. that the remedy by way of appeal under section 37 (3) of I. R. O., 1969 is available in cases initiated under Standing Order 12 (3) of the West Pakistan (Standing Order) Ordinance, 1968 by virtue of the amendment of S. O. 12 (3) of the Standing Orders Ordinance, 1968 by Act XXIII of 1973, in view of the wording of S. O. 12 (3) of the West Pakistan (Standing Orders) Ordi nance, 1968 after the amendment in question, as in my opinion legislator by the amendment in question did not only incorporate section 25‑A I. R. O., 1969 in S. O. 12 (3) of the Standing Orders Ordinance, 1908 but gave a right to a workman, who was aggrieved by the termination of his services to apply to the Labour Court for redress under Section 25‑A of I. R. O., 1969 in the same manner as worker under the latter enactment is entitled to do, in respect of right secured to him under any law, award by settlement. The wording of amendment brought in S. O. 12 (3) of West Pakistan (Standing Orders) Ordinance, 1968 by Act XXIII of 1973 clearly suggests that entire procedure available under I. R. O., 1969 for adjudication of grievance of worker under section 258 of I.R. O., 1969, has been made available to worker who under S. O. 12 (3) of West Pakistan (Standing Orders) Ordinance, 1968 takes is matter to the Labour Court under section 25‑A of I. R. O., 1969 which obviously includes right of appeal as has been held by the various authorities cited by the learned counsel for the respondent No. 1 entirely agree with the reasonings given in the said authorities, which are based on cogent reasons, after consideration of various case‑law which was cited before them. If the legislator did not intend that toe provisions of section 37 (3) of I.R.O., 1969 be available to the workman in respect of his grievance under S. O. 12 (3) of West Pakistan (Staring Orders) Ordinance, 1968 it could have clearly mentioned so, will amending S. O. 12 (3) of the Standing Orders Ordinance, 1968. do view of this conclusion arrived at by rye, I hold that the provisions of section 37 (3) of I. R. O., 1969 are available to the proceedings initiated under S. O. 12 (3) of the Standing Orders Ordinance, 1968 before the Labour Court and as such the petitioners have and had a right of appeal against the order dated 13th September, 1980 of respondent No. 4, under section 37 (3) of I. R. O. 1969 in spite of section 1 (3) of Order XXI of 1979. The second contention of the learned counsel for the petitioners that in view of the fact that the provisions of I.R.O., 1969 are not applicable to the petitioners' establishment on account of section 1 (3) of Ordinance XXI of 1979 with effect from 5th April, 1979 the respondent No. 1 had no jurisdiction to entertain application of respondent No. 2 which was definitely filed in respect of grievance which was after the promulgation of the Ordinance XXI of 1979, has also not at all impressed me as in my opinion, by virtue of section 6 of the General Clauses Act, respondent No. 2 was entitled to pursue the remedy provided to him under S. O. 12 (3) of Standing Orders Ordinance 1968 under sec tion 25‑A of I.R.O., 1969, as no amendment at all has been made in S. O. 12 (3) of Standing Orders Ordinance, 1968 regarding the forum and the procedure available to the workman who has a grievance there under after the promulgation of Ordinance XI of 1979. If the arguments of the learned counsel for the petitioners are accepted, it would mean that the remedy provided to the workman under S. O. 12 (3) of the Standing Orders Ordinance, 1968 has been taken away, which 'would amount to taking away of substantive right guaranteed to the workman, under the said section and as such, the same cannot be taken away by implication only. In my opinion the effect of sec tion 1 (3) of Ordinance XXI of 1979, is that the other provisions unconnected with the provisions relating to remedy made available to the worker under section 25‑A of I.R.O., 1969, which otherwise may have been applicable to the petitioner apply establishment no longer on account of the above Ordinance XXI of 1979, will apply to the petitioner's establishment. This view of mine is supported the findings of Sind Labour Appellate Tribunal at Karachi, given in Appeal No. KAR‑13/80 dated 19th February, 1980 and I agree with the reasonings of the Sind Appellate Tribunal at Karachi given on the point in Appeal No. KAR 13/80, dated 19th February, 1980 which reasoning is not only cogent but learned Sind Labour Appellate Tribunal has considered various authorities which were cited before it for and against the said proposition. In view of my above findings, I hold that since the petitioners have come to this Court before exercising their right of appeal under sec tion 37 (3) of I R. O., 1969 the above petition is not maintainable and is premature and consequently the same is dismissed with no order as to costs in view of the circumstances and facts of the above petition. In view of this order of mine, I have refrained, from expressing my opinion, on the other ground raised by the petitioners in the above petition, in respect of order dated 13th September, 1980 of respondent No. 1, as the appeal already filed by the petitioners before Sind Labour Appellate Tribunal at Karachi is still pending: Petition dismissed.