P L D 1975 Karachi 312 (PLP)

4. The respondent‑workman filed an appeal which was allowed by the Sind Labour Court and the employer was directed to re‑instate the respondent workman and also pay the dues of the workman. On the point of maintainability of the application the Labour Court held that the latter had proceeded on leave and such leave was granted verbally. A contention had been raised by the employer that the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordi nance, 1968, did not apply to his mills as the number of employees in his concern did not exceed 49, and on such contention the finding of the Labour Court was that the number of employees was 30, and for such reason all such Standing Orders appearing in the Schedule to the West Pakistan Industrial and Commercial Establishment (Standing Orders) Ordinance; barring such as are referred to in proviso to section I of the said Ordinance, specifically stated to be not applicable, would apply. The Labour Court held that the workman had not left or deserted his employment and for such reasons the appeal was accepted.

5. The contentions raised by Mr. Hassan A. Shaikh, the learned Advocate for the employer‑petitioner are as follows:‑ (i) That grievance procedure as laid down in section 25‑A, Industrial Relations Ordinance had not been complied with by the workman respondent as he had not made the grievance petition to the employer "himself" but through Advocate. (ii) That the workman having deserted his job, the procedure detailed in Standing Order 12 is not applicable to his case. (iii) That, if it is assumed that the services of the workman had been terminated, the same had accrued more than 3 months before the date of grievance petition, and for such reason the grievance petition was not within time as stipulated tinder section 25‑A (1) of Industrial Relations Ordinance. (iv) That since the number of workmen in the mills of the employer was less than 50, Standing Orders 12 and 15 did not apply in the case.

6. In regard to the first contention the facts are clear and admitted. The workman had given a notice to the employer through Mr. Abdul Latif Shaikh, Advocate on 6‑12‑1973, making a grievance that after return from leave on 6‑9‑1973, he was allowed to work for 2 or 3 days and thereafter the employer terminated his services. Mr. Hassan A. Shaikh, has contended that under section 25‑A of Industrial Relations Ordinance, a grievance of the workman has to be brought to the notice of employer by the workman himself or through his shop steward or Trade Union. The learned Advocate contends that the word "himself" excludes agency of Advocate and the only other agency contemplated by the statute is the shop steward or Trade Union and since agency of Advocate is not specifically mentioned, it should be deemed to be excluded by implication. In support of the contention reliance has been placed on an order of the Sind Labour Appellate Tribunal in the case of Russain Textile Mills v. Mohammad Ishaque being Appeal No. KAR‑440 of 1973. A photostat of a certified copy of the said order has been placed on record and the order of Junior Labour Court also makes a reference to the said order. The passage in the order on which reliance is placed is reproduced below: "Under section 25‑A of the Ordinance, the Labour Courts would have jurisdiction only where the worker himself or his shop steward or Trade Union, has given grievance notice. It is well‑settled proposition of law that where a certain thing is to be done by a certain person, it must be done by him and by no other person. The intention of the Legislature under section 25‑A of the Ordinance appears to redress the grievance of the workmen as quickly as possible. The Labour Courts were directed to give their decisions within 20 days. The intention of the Legislature appears to be to avoid legal quibbles, which are likely to occur if the assistance of Advocates and Legal Practitioners are permitted. A `workman himself' under subsection (2) of section 25‑A of the Ordinance cannot mean `worker himself or through his agent'. I would hold that the notice under section 25‑A of the Ordinance was not competent by an Advocate of the workman." In such context it has to be noticed that the Statute does not specifically bar notice by or through Advocates; and I cannot overlook several Statute specifically providing for exclusion of Advocates in representation of parties before the Tribunals created by such Statutes. Even under section 36‑B or 49 of Industrial Relations Ordinance a party to an industrial dispute is not entitled to be represented by a legal practitioner in any conciliation proceedings. This would show that whenever the Legislature has intended exclusion of repre sentation by a legal practitioner, such intention has been manifest explicitly. On the other hand such inference cannot be lightly countenanced by mere process of induction. The learned Advocate has argued that since section 25‑A(l) of Industrial Relations Ordinance specifically referred to representation by shop steward or Trade Union it should be inferred that representation by any other agency including Advocate was barred. Such contention is also fallacious because a shop steward or Trade Union would not be able to represent worker, but for such recognition in the Statute. The case of an Advocate representing, stands on an entirely different principle. A person always has a right to be represented by an Advocate of his choice and such right cannot be lightly defeated by the mere fact that the person also has a choice of being represented by agencies other than Advocates. What is more that pro ceedings under the Industrial Relations Ordinance being of a civil nature, the representation by an Advocate is inherent in the system unless barred specifi cally. Whenever an Advocate represents a party, a presumption arises that he acts on the instructions of his client and in such circumstances the voice of the Advocate is deemed by law to be the word, wish and welfare of the client. There is a further reason which has persuaded me to come to the conclusion that notice by Advocate is sufficient compliance of provisions of section 25‑A, Industrial Relations Ordinance. In the society in which we live enormous illiteracy prevails, and most of the workmen employed in industrial concerns are illiterate. On the state of complicated legal machinery or legal require ments it would seem that an illiterate worker would never be able to submit his grievances, because the statute requires such grievance in writing. The only argument advanced before me was that in such case the shop steward and Trade Union come to the assistance of the workman, but what if there is no Trade Union. It is not necessary that every concern must have a Trade Union. Would it then mean that the workman cannot avail of the services of an Advocate, in spite of peril to his rights. Moreover, section 25‑A of Industrial Relations Ordinance is a beneficial enactment which was introduced by the Legislature to safeguard the rights of workmen, and to exact them. Such enactments have as of necessity to be construed liberally so as to advance the remedy. In such cases provisions requiring something to be done by a person are to be so construed as may include the doing of that thing by another. Maxwell on "Interpretation of Statutes", Tenth Edition, at page 74 has stated the case thus : "A statute which requires something to be done by a person would, except in cases subject to the principle that `delegatus non potest delegare', be complied with, in general if the thing were done by another on his behalf and by his authority, for it would be presumed that there was no intention to prevent the application of the general principle of the law that `qui facit per alium facit per se' unless there was some thing in either language or the object of the statute which showed that a personal act was intended. On this ground, an Act of Parliament which requires that notice of appeal shall be given by churchwardens is complied with if given by their solicitor." The above proposition enunciated by the learned author is based on enormous case‑law cited by him at the foot of page 74 at point (h). I may also state that Mr. Hassan A. Shaikh has not attempted to argue that notice by Advocate had in any manner prejudiced the case of the employer, who, I must state, even replied to the notice. I may in this context also state that the reason of avoidance of "legal quibbles" as stated by the Labour Appellate Tribunal in the case relied on by the Advocate for the petitioner has not impressed me, for if a legal question or quibble does indeed exist, justice requires effective dealing with it rather than avoiding the same. I am therefore clear in my mind that the word "himself" appearing in section 25‑A(1) of Industrial Relations Ordinance includes notice by Advocate e and does not exclude the same.

7. The next contention of Mr. Hassan A. Shaikh is that the workman had deserted his job, and for such reason. the provisions of Standing Order No. 12 were not applicable to his case. I will while dealing with the point also deal with the contention of the Advocate for petitioner that the provision of the test Pakistan Industrial and Commercial Establishments (Standing Orders) Ordinance were not attracted to the case of the workman. In such case the learned Advocate has relied on the finding in the impugned order that the number of workmen in the establishment of the employer was less then fifty. For appreciating the point fully the second proviso to section 1(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance is relevant. It reads as follows: "Provided further that the provisions of Standing Orders 10‑B and 11, clauses (6) and (8) of Standing Order 12 and Standing Order 15 shall not apply, in the first instance, to any industrial establishment wherein not more than forty‑nine persons were employed on any day during the preceding twelve months but Government may, by notification in the official Gazette, extend all or any of the said provisions to any such industrial establishment or any class of such establishment." The position is patent that it is not the entire Standing Order No. 12 that becomes inapplicable if the number of workmen are less than 50, but only clauses (6) and (8) of the said Standing Order. These clauses relate to Payment of Gratuity to such workmen whose services are terminated. In the instant case the point is not relevant. It would thus seem that clause (3) o Standing Order 12 will apply even to cases where the number of workmen in an establishment is less than fifty. I will advert to this point later. In regard to desertion the cases of the petitioner and respondent‑workman present conflict on facts. The Junior Labour Court has not considered the case on that point but the Labour Court has recorded a finding of fact on such point in favour of the workman. The employer has admitted that he kept no record of leave of workmen and he further admitted that even on previous occasions the workman had left and on his return he was re‑employed. The employer had produced the register of attendance of workmen for the months of June and July, 1973. Photostat copies are available on the record of the Junior Labour Court. I find that in the sheet maintained for month of June, 1973, the workman is stated to be present till 8‑6‑1973, and in the column meant for recording the total attendance of the workman "during the month, it is mentioned against the name of the respondent‑workman that he had "left/deserted employment". But, curiously, the register of attendance for the month of July also, carries the name of the respondent‑workman, who is shown to be absent throughout the month, and once again in the column meant for recording the total attendance the same words have been repeated, as in the sheet for the month of June 1973. I fail to see why the name of the workman was at all carried forward to the month of July, 1973, when he had "left or deserted services" in June, 1973. In such circumstances the impugned order states as follows: "According to him if he really left the employment, as he has been saying in his reply statement, then his name would have been struck off on that day, when he left on 8‑6‑1973 or on the following day. On the one hand, he speaks of desertion and on the other hand he says that he left the employment of his own accord. ‑ It shows that there was understanding between the Employer and the Employee that he will go home and come again and resume duty. There is no leave register maintained to enter the leave on the written application but verbal understanding." I can possibly find no fault with this process of reasoning and I must state that the Labour Court has considered the case in all its aspects and recorded findings of fact which cannot be called perverse or unsubstantiated. It is as such not a case of desertion by the workman.

8. I now come to the contention if notice of termination was necessary in this case. Since the workman had not deserted his job the only point for consideration is whether his services were terminated; and if so, legally. On such point the workman had stated in his evidence that even during the period of strike he was on duty on one day. Such assertion was denied by the employer. On the other hand if the workman had absented himself wilfully the act would constitute "misconduct" within the meaning of Standing Order No. 15. , However, even if the employer condoned misconduct, so as to punish the workman by simple termination of service rather than dismissal still such termination order together with reasons had to be communicated to the workman. It is admitted case that no show‑cause notice was given to the workman and no order of termination was passed. The provisions of Stand ing Order No. 12(3) therefore have not been complied with. Mr. Hassan A. Shaikh for the petitioner has urged that such order was not necessary in case of voluntary desertion or resignation but in the present case the facts abundantly show that the workman was not guilty of desertion,

9. The last point is in regard to limitation, and has been sought to be built up on the premises that grievance petition that had to be made by workman within 3 months of the date of cause of action had been made after limitation had run out. In such regard the words "within three months of the day on which cause of such grievance arises" as appearing in section 25‑A(l) of the Industrial Relations Ordinance assume significance. The grievance in the instant case is in regard to termination of service of the workman. Admittedly, no order of termination exists and in that context all that Mr. Hassan A. Shaikh could point out was the insertion of the words "left/deserted employment" appearing in the attendance registers for the months of June and July, 1973. The question that then arises is whether such words sufficiently comply with the requirements of Standing Order No.

12. Clause 3 of the Standing Order reads as follows: "(3) The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termina tion of his services or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of section 25‑A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance." It would appear that the termination order has to be in writing and that it must disclose the cause of termination. I must also state that although the Provision does not explicitly state that the order of termination has to be communicated to the workman, such provision has as of necessity to be read as a requirement; for, in the alternative the order of termination would not be effective. In the present case there was no order of termination nor have the reasons been assigned, nor has the same been communicated to the workman. All that Mr. Hassan A. Shaikh could state in such regard was the same argument that the workman had deserted. Even if that is so although the findings of fact of the Labour Court are to the contrary, still the order had to be drawn up and communicated to the workman. Alternatively Mr. Hassan A. Shaikh has urged that the workman may be deemed to have resigned, by leaving his job. On such point also the findings of the Labour Court are against the petitioner‑employer. Morever, in para. 6 of the reply statement filed by the employer in Junior Labour Court it was stated that the workman "went to his native place in a hurry leaving/deserting the employment". It is further stated that the workman did not collect his salary for the 8 days of June, 1973, during which period he had worked. Such circumstance negatives the contention that the workman had resigned or had left or deserted his job, because, in case the workman was voluntarily leaving or deserting or resigning his job, he would at least collect his accrued salary and other benefits. The respondent‑workman has on the other hand stated i his evidence that he had proceeded on leave. In the application made under section 25‑A filed by the workman, the stand was the same. It is then his case that after the strike, he was not allowed to resume work. Admittedly, P the strike continued until 26‑9‑1973. The period of limitation started running from that point of time and for such reason the grievance petition was in time. The learned Advocate for the petitioner‑employer has placed reliance on the Division Bench judgment of this Court in the case of Messrs Saleemsons Ltd. v. The Second Sind Labour Court, Karachi (P L D 1973 Kar. 1) to sustain an argument that the provisions of limitations as provided in the statute have to be strictly construed. I am of the view that tile case is not relevant in the circumstances of this case on the view of the peculiar circumstances, inasmuch as there is no order of termination, and such termination was never communicated to the workman. In the result I agree with the Labour Court that the workman had pro ceeded on leave and employment was refused to him on his return.

10. For all such reasons I see no substance in this petition which is dismissed with costs in favour of the contesting respondent Hazrat Mohammad Yousuf. S. A. H. Petition dismissed.