P L D 1976 Karachi 177 (PLP)

Date of hearing : 2nd December 1975. This petition is directed against the order dated 15th March, 1974, passed by the Presiding Officer, 2nd Sind Labour Court, Karachi. who set aside the order of the Presiding Officer, Junior Labour Court No. IV, Karachi, dated 30th November, 1973.

2. The facts forming the background of this case are that the petitioner is a small commercial establishment employing only two persons and as such it is governed by the provisions of W. P. Shops and Establishments Ordinance, 1969 (hereinafter called "W. P. Ordinance, 1969").

3. On 17th January, 1973, the first respondent filed an application before the Junior Labour Court alleging that he was working in the organisa tion of the petitioner as a binder on a monthly salary of Rs. 210 for the last about 15 years. On 28th August, 1973 his services were terminated without the payment of termination benefits to him. The petitioner contested this application on the ground that the first respondent was not employed by them as such the relationship of employer and the employee did not exist between the parties and the provisions of section 25-A of Industrial Relations Ordinance, 1969 did not therefore attract this case. The Junior Labour Court dismissed the application of the first respondent on 30th November, 1973.

4. Feeling aggrieved of the order of the Junior Labour Court the first respondent preferred an appeal before the 2nd Sind Labour Court who vide order dated 15th March, 1974 reversed the findings of the Junior Labour Court and allowed the appeal of the first respondent. Hence this petition.

5. The learned counsel for the petitioner has contended that the first respondent not being their employee the provisions of Industrial Relations Ordinance, 1969 did not apply to this case. I am not inclined to agree with this contention because the finding of the Labour Court that the first respon dent was an employee of the petitioner is well-reasoned. He has relied upon documents Exhs. D-1 to D-4 which are vouchers showing that the first respondent purchased papers from various paper merchants for the organisa tion of the petitioner. In case the relationship of employer and employee did not exist between the petitioner and the first respondent he would not have made purchases for the petitioner. No plausible explanation has been given by the petitioner to rebut the proposition that the first respondent made these purchases in the capacity of an employee. I accordingly hold that the first respondent was an employee of the petitioner.

6. The next question which now arises for consideration is whether or not the services of the first respondent were terminated by the petitioner in accordance with law. The petitioner organisation is governed by the W. P. Ordinance, 1969. The provisions of section 19 of the said Ordinance would therefore apply in case of termination of services of the first respondent. Section 19 of the W. Y. Ordinance, 1969 reads as under:

"Section 19 (1). Termination of employment.

For terminating employ ment of a permanent employee, one month's notice in writing shall be given either by the employer or by the employee and in lieu of notice one month's wages calculated on the basis of average wages earned during the preceding three months shall be paid." According to the provisions of this section it was incumbent upon the petitioner to serve the first respondent with one month's notice in writing before terminating his services or else to pay one month's wages in lieu of notice. The learned counsel for the first respondent has contended that if at all it is held that the first respondent was an employee of the petitioner then in case of termination of his services the petitioner's liability would be to give him one month's notice or to pay one month's salary in lieu of notice. According to him the order of re-instatement in service would not be legally justified in case of non-compliance with the provisions of section 19 (1). However, the learned counsel for the first respondent contended that since the provisions of section 19 (1) of W. P. Ordinance, 1969 had not been complied with therefore the result would be that the order of termination of services of the first respondent would be held as a nullity and the first respondent would be entitled to be re-instated in service with full back benefits. I am unable to agree with this contention. The violation of section 19 would give rise only to the payment of compensation to the first respondent to the extent he was entitled under law. At the very) inception the requirement of service of one month's notice could be avoided by making payment of one month's salary. The legal position is that when a statute prescribes a mode to do a particular thing in a particular manner and also lays down a penalty or consequences for non-compliance with that mode then the action in law would remain confined only to the penalty or consequences and would not normally exceed that limit. The learned counsel for the petitioner has relied upon Vallance v. Falle ((1884) 13 Q B D109). In this case action was brought by a seaman to recover from the defendant, who was master of the ship, damages for improperly holding and retaining from the plaintiff a certificate of discharge to which the plaintiff was entitled on the termination of his services on board the ship. The consequences were that in the absence of the said certificate he could not obtain employment on any other ship. Since the Merchant Ship Act, 1854 imposes a penalty for with holding the certificate it was held by Stephen J. that "I do not wish to say anything against the general rule that has been laid down for the construction of statutes in relation to the question whether a penalty is intended to be the only remedy for the breach of statutory duty but I always think that the best way of finding out the meaning of a statute is to read it and to see what it means. I think in this case having regard to the nature of the certificate and the provisions and relation thereto that the only remedy for altering it is by proceeding for the penalty," In the instant case the law provides a compensation in such cases where one month's notice for termination of services was not given. Therefore the action against the petitioner would be confined only to the extent of compensation by ordering payment of one month's salary which they should have paid in the first instance. The petitioner can by no stretch of argument, be asked to re-instate the first respondent in service.' In Craies on Statute Law, 7th Edition. page 241 under the caption ` Basis of Action for Breach of Statutory Duty", it is discussed that "in order to find an action based on a breach of statutory duty it is necessary to ascertain that: (i) the injury suffered was that contemplated by the statute; (ii) that the person injured was within the ambit of the statute; and (iii) that the damage was within the contemplated injury." It appears from the language of the enactment that it is not the inten tion of the Legislature that an action should lie for damage sustained by reason of neglect to perform some duty created by the statute in question, it would be necessary to prove that the damage or loss was of such a character as it was the direct object of the statute to prevent. The intention behind legislating section 19 of W. P. Ordinance, 1969 definitely was that no surprise should be given to an employee in case of termination of his services. On the other hand he should be given sufficient opportunity by way of service of one month's notice to find out any other employment for himself and in case no notice was served upon him one month's salary should be paid to him so that he may be able to sustain himself at least for one month during which period he is normally expected to find out an employment for himself. This being the intention of the Legislature the petitioner cannot be penalized by imposing upon him an order that he should re-instate the first respondent in service and pay him all back benefits. If that is done it would be against the intents and purposes of the statute. I am therefore of the view that the petitioner should have paid one month's salary to the first respondent as he had not served him with a notice and since he had not done so earlier, therefore he should do it now and make payment of one month's salary to the first respondent.

7. In the result subject to above observations I allow the petition and set aside the order of 2nd Sind Labour Court dated 15th March, 1974 but with no orders as to costs. S. A H. Petition allowed.