1982 PLP 499 (PLC(CS))

Maxwell on Interpretation of Statutes, 12th Edn. rel. Mahmood A. Ghani for Applicants. Ali Amjad for Respondent. Date of hearing: 14th December, 1981. Difference between the parties and doubts having arisen as to the interpretation of clause (16) of the Settlement arrived at on 29th March, 1979 between the Hakimsons Chemical Industries Ltd., the applicants herein, and the Collective Bargaining Agent, in their establishment, i.e. the Hakimsons Group Employees Union, the respondents herein, the applicants have preferred this application under section 50, I.R.O., for the interpretation of the said clause in the settlement which reads as follows:- "That the management has agreed to increase the Annual Leave from 16 to 20 days for a year of continuous service as the Union ((11948) 2 All E R 533 (536)) Workers have agreed to avail the festival holidays only in accor dance with those announced by the Government every' year under the Factories Act through Gazette notification. However, if any gazetted holiday falls on our weekly holiday only on Saturday, the following day will be considered as a holiday."

2. The stand of the applicants is that although a substituted holiday is to be given to the workers if a gazetted festival holiday falls on Saturday, their weekly holiday, the substituted holiday is to be on the next following day, i.e. the Sunday following, but if such following day also happens to be or is declared to be a gazetted festival holiday then no substituted holiday would be allowed to the workmen. On the other hand, the claim of the respondents is that as the intention of the parties was that a substituted holiday would be allowed to the workmen in case a gazetted festival holiday falls on the weekly holiday, Saturday, such substituted holidays could only be on a working day and would not be on the following Sunday, if a gazetted festival holiday fell on that Sun day.

3. I have heard Mr. Mahmood A. Ghani, the learned counsel for the applicants, and Mr. Ali Amjad, the learned Advocate for the respon dent C.B.A.

4. Mr. Mahmood Ghani's main contention was that in interpreting the settlement, this Tribunal must act strictly in accordance with the principle enunciated by Lord Green, M. R., in the case of Re A Debtor (i), to the effect that "if there is one rule of construction for statutes and other documents, it is that you must not imply anything in them which is inconsistent with. the words expressly used". The learned counsel accordingly argued that we have to examine the language employed in the aforesaid clause and see whether it is capable of sustaining the inter pretation which is sought to be placed on it by the respondents or clearly and unambiguously supports the contention of the applicants. According to the learned counsel, there are 3 sets of words iii the aforesaid clause which are important and merit particular attention. These sets of words, according to him, are (i) "Festival holidays only in accordance with those announced by the Government," (ii) "if any gazetted holiday falls on a weekly holiday only," (iii) "the following day". The learned counsel sought to argue on the basis of the definitions given in different Dictionaries to the words "only" and "following" that the basic intention of the parties was that festival holidays in the applicants establishment would be given only in accordance with those announced by the Govern ment and the sole exception was that if a gazetted festival holiday fell on Saturday, which was a weekly holiday in the applicants establishment, the next or following day only would be given as a substituted holiday, but there was no provision whatsoever in the settlement to the effect that if such next day also happened to be declared or notified as a gazetted festival holiday, then the substituted holiday would be the next working day, which would not then be on the next day after Saturday i.e., Sunday, but may be on a Monday or even Tuesday. The learned counsel also referred me to the previous settlements between the parties on the subject which have been filed with the affidavit of Muhammad Rafi Hakeem the Managing Director of the applicants, In all 4 previous settlement have been filed with the affidavit of Muhammad Rafi Hakim. These settlements were arrived at respectively on 18th June, 1970, 11th August, 1972, 26th November, 1974 and 10th January, 1977. By the settlement of 18th June, 1970, for the first time alternate Saturdays were declared to be holidays in the applicant establishment. The settlements of 11th August, 1972 and 26th November, 1974, continued the above arrangement. By the settlement of 10th January, 1977, a further concession was given to the workmen and every Saturday was declared to be a weekly holiday. These settlements, in lily opinion, suggest the inference that progressively more holidays were sought to be given in the applicants establishment. They, however, do not throw any light on the difference of opinion which has arisen as to the interpretation of clause (16) of the settlement of 29th March, 1979, with which we are presently concerned. The affidavit of the Managing Director of the applicants, Muhammad Rah Hakim, also does not throw any light as to the intention of the parties in regard to the question whether or when a substituted holiday could be given to the workmen in case a gazetted festival holiday fell not only on Saturday but also on the following Sunday or even on the fact whether the parties contemplated a. situation where a gazetted festival holiday fell not only on Saturday but also on the following day. There is thus no tangible evidence on record or any express word used in the clause in question from which it could be inferred that the parties 'had in contemp lation the situation where gazetted festivals holidays would fall both on Saturday, the weekly holiday to the applicant establishment and also on the following Sunday, much less there being a provision in the settlement for covering such an eventuality.

5. Although no express provision appears to have been made in the settlement to cover the situation referred to in the preceding clause, we have to construe the intention of the parties from the language employed in the proviso as a whole. The basic intention of the parties, as it appears to me, was firstly that the workmen would be entitled to gazetted festival holiday as notified by the Government, and secondly, that there would be a substituted holiday for the weekly Saturday holiday in case gazetted festival holiday fell on Saturday. If there had been express words to the effect that the substituted holiday would only be the next following day or the day immediately following, i.e. Sunday, there would have been no difficulty in holding that if a gazetted festival holiday also happened to fall on such following Sunday, the workmen would not be entitled to any substituted holiday, but since no reference to Sunday has been made and the language in the settlement is that the "following day will be considered as a holiday". I am of opinion that keeping in mind' the real intention of the parties, if gazetted festival holidays, happen to fall both on Saturday and the following Sunday, then the immediately next following working day is to be deemed to be the substituted holiday for the purposes of the settlement. This intention is made clear from the words "the following day will be considered as a holiday". If the following day is already a gazetted festival holiday, it obviously cannot be considered as a holiday, for the word "considered" suggests that although a thing is not really so it is to be reasonably regarded or deemed to be. In interpreting the settlement in the manner in which I have done, I have given due consideration to the principle referred to at page 45 in Maxwell on Interpretation of Statutes, Twelfth edition, that "where alter native constructions are equally open that alternative is to be chosen which will be consistent with the smooth working of the system which the statute/document purports to regulate and that alternative is to be rejected which introduces uncertainty, faction or confusion in the system. The confusion in the instant case arises from the fact that where as on the one hand, the basic intention of the parties appears to be that a substituted holiday is to be given in lieu of the weekly holiday, Saturday, in case a gazetted festival holiday falls thereon, the alternative interpretation advocated by the applicant would deprived the workmen of the right to the substituted holiday in certain cases.

6. I am accordingly of opinion that the proper and correct inter pretation to be placed on clause (16) of the settlement is that if a gazetted festival holiday happens to fall on the weekly Saturday holiday, the next following Sunday would be considered as the substituted weekly holiday, but if such Sunday or any day or days immediately following the Sunday are also declared as gazetted festival holidays, then the day after the said festival holidays is to be deemed to be the substituted holiday. In other words, in the instant case, if 2nd and 3rd of August, 1981 were notified as gazetted festival holidays, the workmen would be entitled to the substituted holiday for the 4th of August, 1981.