1976 PLP 379 (PLC)

The petitioners have brought separate applications against the respondent praying that they may be re-instated with all back benefits.

2. The respondent filed his written statement in both the cases taking the common preliminary objection that the petitioner has not followed the procedure prescribed in subsections (1) and (2) of section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the Ordinance) and praying that the petitions be dismissed on this ground. On behalf of the respondent, written arguments in support of this objection have been filed in both the cases. These have been made part of the record. I have also heard the arguments of the learned counsel for the petitioners. Since the point of law involved is common, I propose to dispose of the preliminary objection in case of both the applications by this older.

3. It has been argued on behalf of the respondent that the provisions of section 25-A of the Ordinance are mandatory and non-compliance there with being fatal, the petitions are not maintainable. Reliance has been placed on Saleem Sons Ltd. v. The Second Sind Labour Court Karachi and others (P L D 1973 Kar. 1) and Muhammad Anwar v. U. B. L. Head office (1974 P L C Note 104). In the former it was held that it was well-settled principle of inter pretation of statutes that when a statute created now rights and obligations and prescribed the mode of its enjoyment or enforcement such provisions are considered mandatory and that the Legislature intends compliance of such provisions to be essential to the validity of the act or proceedings. In the latter case, it was inter alia held that the application of an aggrieved person (worker) approaching Labour Court for redress without filing grievance petition with Management was not maintainable. (The note makes mention both of section 25-A and section 34 of the Ordinance, and is not clear in its present form). Although decided on 30-1-1973 it relates to a case of early 1972. The learned counsel for the petitioners, relying upon P L J 1974 Tr. C (Lab.) 134 urged that the cases of the petitioners fell within the purview of subsection (6) of section 25-A of the Ordinance and that they could take the matter directly to the Junior Labour Court without following the grievance procedure laid down in subsection ((1) to (4) ibid.

4. It appears necessary to trace the history of section 25-A of the Ordinance since its introduction to date. Before its enforcement an aggrieved person, having an individual grievance, had available to himself two forums. One was under Standing Order 18 of the West Pakistan Industrial and Commercial Establishment (Standing Orders) Ordinance, 1968 (hereinafter called the S. O. Ordinance) and the other was under section 34 of the Or dinance. With the insertion of word workman in section 34 with effect from 17-10-1970 a vested right became available to an individual work man to seek redress under it. This position remained valid till 10-11-1972 when the word workman was omitted from section 34 with the promulgation of Industrial Relations (Amendment) Ordinance, 1972 (XLVIII of 1972). The S. O. Ordinance had been promulgated on 18-5-1968. When section 25-A of the Ordinance was introduced with effect from 13-4-1972 through Industrial Relations (Amendment) Ordinance, 1972 (1X of 1972), Standing Order 18 was deleted. Section 25-A as enacted originally had only 5 subsections. The position from 13-4-1972 to 9-11-1972 was that if a workman chose to come to a Junior Labour Court, he could do so only after complying with the provisions of subsections (1) to (4) i.e. he should have brought his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing either himself or through his shop steward or Trade Union within three months of the day on which the cause of such grievance arose. The employer was bound to communicate his decision in writing to the workman within 15 days of the grievance having been brought to his notice (within 7 days if the grievance was brought to his notice by the Trade Union). After the expiry of this period or if the reply of the employer was received within the time limit prescribed and the worker was dissatisfied with it, the worker had the right to take the matter to the Junior Labour Court within a period of two months from the date of the com munication of the employer. Until 10-11-1972 when subsection (6) was added to section 25-A, it was open to the aggrieved worker either to adopt the course prescribed under subsections (1) to (4) of section 25-A and go to a Junior Labour Court or to go to the Labour Court directly under section

34. Sub section (6) as originally introduced read as under: - (6) Notwithstanding anything contained in subsections (1) to (5) any workman aggrieved by the termination of his employment as a result of retrenchment, dismissal, discharge, lay-off, lock-out, or otherwise after the commencement of this Ordinance may make an application to Junior Labour Court having jurisdiction in the area in which the establishment is situated. With the introduction of this subsection an individual workman became entitled to make an application to a Junior Labour Court without following the grievance procedure. Above that there was no time limit for filing an application before a Junior Labour Court in cases of termination of employ ment. To remove this lacuna, the substituted version of this subsection was introduced of 9-2-1973 with Industrial Relations (Amendment) Act, 1973. It is still in force and makes the following reading: - (6) Notwithstanding anything contained in subsections (1) to (4) any worker aggrieved by the termination of his employment as a result of retrenchment, dismissal discharge, lay-off, lock-out, or otherwise not earlier than two months preceding the commencement of Industrial Relations (Amendment) Ordinance, 1972 may within a period of two months from the commencement of the Industrial Relations (Amend ment) Act, 1973 or the termination of the employment whichever is lacer either himself or through his shop steward or Trade Union, take the matter directly to Junior Labour Court, having jurisdiction in the area in which the establishment is situated.

5. In P L J 1974 Tr. C. (Lab.) 134, Mr. Abdul Hamid Baloch learned Presiding Officer, IV Labour Court, Sind, had come to the following conclusion: - Expression: Notwithstanding anything contained in subsections (1) to (4) in subsection (6) is to exclude provisions of subsections (1) to (4). The clear effect of these words is to exclude provisions of subsections (1) to (4) and, therefore, grievance procedure under subsections (1) to (4) is not mandatory for a workman who is aggrieved by the termina tion of his employment as a result of retrenchment, dismissal, discharge, etc.; and whose case falls within purview of subsection (6) of section 25-A of

1. R. O. 1969. The learned Presiding Officer has, however, held to the contrary in P L J 1975 Tr. C. (Lab.)

195. He has relied upon P L J 1975 Kar. 80 in which his Lordship Mr. Justice Dorab Patel observed as under: - (A) We have quoted subsection (6) and clearly it confers on the worker the right to prosecute any grievance which might have lapsed under the earlier law. (B) Two conditions precedent continue to be same as thane for Industrial Court under Standing Order 18-Worker must serve his employer with statutory notice of his grievance. Omission to do so disentitles worker to invoke jurisdiction of Junior Labour Court. The learned Presiding Officer, Sind, Labour Court, has concluded as under Subsection (6) is a concessional provision for covering lapsed causes of action. The latest subsection (6) of section 25-A of

1. R. O. of 1969 has placed a restriction of time-limit for making application to Junior Labour Court. The words or the termination of employment which ever is later occurring in subsection (6) can be construed to cover causes of action accrued in between period from 1 1-9-1972 (not earlier than two months preceding the commencement of Industrial Relations (Amendment) Ordinance, 1972 dated 10.11-72 to 8-4-73(within a period of two months from the commencement of Industrial Relations (Amend ment) Act, 1973 dated 9-2-1973). Plain reading of subsection (6) of section 25-A shows that the Legislature has placed an embargo against entertainment of an application in respect to a cause of action accruing prior to 11-9-i2 and subsequent to 8-4-1973. The confusion arises only with the use of the words or after the words "Act, 1973" and before the words "the termination of the employment" as used in subsection (6). Conjunctions "or" and "and" are interchangeable and can be read one for the other to give effect to the legislative intention. The punctuation "comma" and word "or" used in subsection (6) appear conjunctive but not disjunctive. One, construction is that the word "or" so used is conjunctive and has been used in the same context and sequence in which the other conditions of limitation and concession has been enacted. The Courts are also competent to change and will change conjunctions "or" to "and" and vice versa if it leads to anamolies and absurdities."

6. First of all I would like to make the following quotation from the order of his Lordship Mr. Justice Dorab Patel in P L J 1974 Kar. 80 As the 2nd respondent's services were terminated in October, 1972. Mr. Chishti submitted that he was entitled to the benefit of this section be cause his grievance had arisen not earlier than two months preceding the commencement of the Industrial Relations (Amendment) Ordinance, 1972 . This submission is correct, but the tad respondent was required under subsection (6) of section 25-A as substituted to take the matter directly to a Junior Labour Court ; clearly, therefore, he should have filed a fresh application after 9-2-1973 for the redress of his grievance. But he did not do so. The above makes it clear why a grievance notice was considered ,necessary in this case. It is necessary to find out what was the purpose in enacting subsection (6) of section 25-A of the Ordinance. A plain reading of the subsection as originally introduced makes it clear that the intention was to distinguish cases of termination of service from cases of other rights guaranteed under the law, an award or settlement, and since in cases of ter mination of service, the livelihood of a workman is involved, the Legislature meant to eliminate the cumbersome grievance procedure in such cases to alleviate the suffering involved. This subsection did not prescribe any time limit originally. This lacuna needed to be removed. It was with a view to this that substituted version of this subsection was introduced with Industrial Relations (Amendment) Act, 1973.

7. The Ordinance has been held to be biased in favour of the workman. The learned Presiding Officer, Sind Labour Court, has accepted in P L J 19 75 Tr. C. (Lab.) 195 that subsection (6) of section 25-A is a concessional pro vision but for covering lapsed causes of action. He has also held that the word "or" after the words "Act, 1973" and before the words "termination of -employment" as used in subsection (6) is conjunctive and not distinctive. Now if the intention of the Legislature had been to cover lapsed causes of action only, then the purpose was met by the provision that this subsection covered only cases which fell within a period of two months preceding the commencement of the Industrial Relations (Amendment) Act, 1973. As I have observed earlier the purpose in enacting subsection (6) was to alleviate the suffering of the workman who was out of job and it was with a view to cutting short his agony that he was allowed to go to the Junior Labour Court directly to seek redress of his grievance. Bearing these factors in mind the Legislature could never have intended to create a privileged class I amongst the workers to avail of this concession for a limited period only. I respectfully beg to differ with, the learned Presiding Officer, Sind Labour court, in its view about the word "or" as referred to above, because if this were accepted, the workmen whose causes of action arose after 8-4-1973 would be deprived of this concession and that would be a distinction both invidious and untenable. For these reasons I dismiss the preliminary objection of the respondent. The parties are directed to produce evidence on merits.