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Appeal No. KAR‑1 of 1972, decided on 31st March 1972.
S. 34 Workmen of establishment can make common issue to safeguard their future interest‑Dispute raised by Collective Bargaining Agent --A dispute between workmen on one hand and employer on other Collective Bargaining Agent can raise common issue in re‑instatement of an individual workman.
Abbas All Shah's case 1970 P L C 373 and Appeal No. KAR‑660 of 1971 ref.
Subsequent and general enact‑meat‑Not intended to interfere with, or derogate from, special provision, unless such intention clearly manifested.
A general statute will not, in the absence of clear words, be construed as a derogating from special provisions in a previous statute. The presumption is that a subsequent and general enact ment is not intended to interfere with or derogate from the special provision unless the intention so to do is clearly manifested. It is no doubt well‑settled that where the Legislature has given its consent to a separate subject and made provisions for it, the presumption is that a subsequent general enactment is not intend ed to interfere with the special provision unless it manifests that intention very clearly.
Statutory Construction by Crawford, 1940 Edn , p. 526; Crates on Statute Law, p. 247; Maxwell on Interpretation of Statutes, p. 168; Swarup on Interpretation of Indian Statutes, p. 249; A I R 1931 Mad. 152; In re : Corporation of the City of Montreal A I R 1932 P C 252 and A I R 1938 Bom. 372 ref.
------S. 34 read with West Pakistan Industrial and Commercial Employment (Stand ing Orders) Ordinance (VI of 1968), S O. 18‑Scope of sections.
Section 34 of the Industrial Relations Ordinance, 1969, as It now stands, confers a right on a workman to enforce any right guaranteed or secured to him by or law. On the other hand, a special provision has been made to expeditiously dispose of wherever an individual workman has a grievance in respect of any matter under the Standing Orders Ordinance. He can follow the procedure prescribed under Standing Order 18 and get the relief expeditiously, if he is so entitled. The Legislature has provided an elaborate machinery under grievance procedure 18 for expeditious dis posal of the grievance of an individual workman. On the other hand, section 34 of the Ordinance, as amended, is a general section providing redress of grievances in respect of any right guaranteed or secured to him in any law or award or settlement. The general law, though it may cover the grievance in respect of any matter under the Standing Order, but does not prescribe any procedure in respect thereof.
S. 34 read with West Pakistan Industrial and Commercial Employment (Stand ing Orders) Ordinance (VI of 1968), S. O. 18‑Grievance under Standing Orders Ordinance ‑Remedy prescribed under Standing Order 18 to be followed and not under S. 34 of Industrial Relations Ordinance, 1969.
S. 34 Termination of service‑No inquiry held against workman nor any opportunity given to produce defence evidence‑Workman a con firmed employee‑Held, could not be removed from service without proper inquiry‑Workman re‑instated with full pay for inquiry period but not back benefits‑Workman although cannot claim resumption of duty as a matter of right yet employer at liberty to ask workman to, perform any duty failing within terms of employment‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. O. 18.
A. Majeed for Appellants.
Masood Mirza for Respondent.
M. A. Khan, Mahmood A. Ghana, Shaukat A. Nanji, S. M. Yaqoob, Fakhruddin Farooqi, A. A. Shareef, All Amjad, Shafiq and Wasi Ahmed: Amicus curiae.
Date of hearing: 15th March 1972.
This is an appeal against an award of the learned Second Sind Labour Court, Karachi, dated December 31, 1971, whereby the learned Court dismissed the application of the Fisherman's Co‑operative Society and Company Employees' Union (hereinafter called the Collective Bargaining Agent). under section 34 of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance). The facts giving rise to the appeal briefly put are these.
2. It was alleged by the Collective Bargaining Agent that one Majeed was employed as an Accountant on 30th June 1966, by the Fishermen's Co‑operative Society Limited (hereinafter called the Management). The services of Majeed were terminated on 26th August 1969. Majeed was dismissed, according to the Collective Bargaining Agent, without being given an opportunity to be heard and that no proper enquiry was held against him. The application under section 34 of the Ordinance was made, in short, on the ground that there was violation of the mandatory provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the Standing Orders Ordinance). The Management denied these facts and maintained that Majeed was dismissed only after proper enquiry.
3. The learned Court in an elaborate order held (1) That there was no industrial dispute and, therefore, the application under section 34 of the Ordinance was not maintainable, and (2) That Majeed having not followed the procedure laid down under Standing Order 18 of the Standing Orders Ordinance, the application under section 34 of the Ordinance was not maintain able. I propose to dispose of these two grounds separately.
4. What I held in Abbas Ali Shah's case (1970 PLC 373), was that an individual dispute cannot be said to be an industrial dispute. I decided in that case that in order a dispute may be an industrial dispute, it must be between an employer and workmen within the meaning of the definition given of the term "industrial dispute" in the Ordinance. I have, however, modified this view in Appeal No. KAR‑660 of 1971. At any rate, even if what I decided in Abbas All Shah's case was to be correct view, in the present case the dispute was raised by the Collective Bargaining Agent and, therefore, it was a dispute between the workmen on the one hand and the employer on the other hand Wherever the Collective Bargaining Agent raises a dispute it is on behalf of all the workmen. The award given in such a case is binding under section 39 of the Ordinance on all the workmen who are employed in the establishment or industry to which the industrial dispute relates. 1n the present case, the dispute was raised by the Collective Bargaining Agent and not by the individual workman. The dispute no doubt relates to the re‑instatement of an individual workman, but the workmen of the establishment can make a common issue to safeguard their future interest, so that no one is dismissed without proper enquiry and without being given an opportunity to be heard.
5. An important issue is involved in this appeal. The question arose as to whether the workman having not followed the procedure prescribed under Standing Order 18, the application under section 34 of the Ordinance was maintainable. In view of the importance of the question, I had asked the Registrar to issue notices to some of the Representatives on behalf of the Management and some on behalf of the Labour, to appear as amicus curiae in this appeal. I had the assistance of Messrs M. A. Khan, Mahmood A. Ghani, Shaukat Ali A. Nanji, S. M. Yaqoob and Fakhruddin Farooqui, who supported the proposition that the application under section 34 of the Ordinance should be dismissed as the workmen had not followed the procedure prescribed in Standing Order 18. While Messrs Ali Amjad, Shafiq and A. A. Shared, supported Mr. A. Majeed, that the application was maintainable.
6. It was contended by the learned Representatives supporting the proposition that the workman having not followed the procedure prescribed under Standing Order 18, the application under section 34 of the Ordinance should be dismissed, that a general statute will not, in the absence of clear words, be construed as a derogating from special provisions in a previous statute. The presumption is that a subsequent and general enactment is not intended to interfere with or derogate from the special provision unless the intention so to do is clearly manifested. It is not necessary to refer in detail to various decisions and the books referred to in support of this proposition. A reference was made to Statutory Construction by Crawford, 1940 Edition, 526, Craies on Statute Law, p. 247, Maxwell on Interpretation of Statues, p. 168, Swarup on Interpretation of Indian Statutes, p. 249, A I R 1931 Mad. 152, A I R 1932 P C 252 and A I R 1938 Bom. 372. It is no doubt well‑settled that where the Legislature has given its consent to a separate subject and made provisions for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless It manifests that intention very clearly. It was observed in the case of Corporation of the City of Montreal (A I R 1932 P C 252). that each enactment must be construed according to its own subject‑matter and its own terms. The question in the present appeal is not of the individual making an application under the general law‑ in preference to the special law which confers a certain right and remedy on the individual workman. The question here is quite different and distinct. The question is as to whether the Collective Bargaining Agent is deprived of its right under section 34 of the Ordinance as it stood prior to its amendment on 17th October 1970 to make common cause with the individual workman. Standing Order 18, no doubt confers a right and remedy on the individual workman, but there is nothing to deprive the Collective Bargaining Agent to raise common Issue in the matter of re‑instatement of an individual workman. The Ordinance is a latter enactment framed by the Centre. It is well‑settled law that where a certain right is conferred upon a body, it can be taken away only by express words or by clear implication. The learned Representatives have not pointed out that the Collective Bargaining Agent has been deprived of its right to make a common cause about the discharge or dismissal from service of an individual workman. This it may do to safeguard the interest of workman for the future.
7. The Legislature is expected to know the current law, The Legislature being aware of the decision in Abbas All Shah's case, that an individual could not raise an industrial dispute changed the law and conferred separate rights on Collective Bargaining Agent and workman. The amended section 34 of the Ordinance as published in the Gazette on 17th October 1970, reads as under:‑
"Any Collective bargaining agent or any employer or workman may apply to the Labour Court for the enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement:"
8. I consider it necessary, in the light of the arguments that I have heard and also to avoid future unnecessary litigation, to interpret section 34 of the Ordinance, as it now stands in relation to Standing Order 18 of the Standing Orders Ordinance.
9. Section 34 of the Ordinance, as it now stands, confers right on a workman to enforce any right guaranteed or secured to him by or under any law. On the other hand, a special provision has been made to expeditiously dispose of wherever an individual workman has a grievance in respect of any matter under the Standing Orders Ordinance. He can follow the procedure prescribed under Standing Order 18 and get the relief expeditiously, if he is so entitled. The Legislature has provided an elaborate machinery under grievance procedure 18 for expeditious disposal of the grievance of an individual workman. On the other hand, section 34 of the Ordinance, as amended, is a general section providing redress of grievances in respect of any right guaranteed or secured to him in any law or award or settlement. The general law, though it may cover the grievance m respect of any matter under the Standing Order, but does not prescribe any procedure in respect thereof. I would hold that wherever an individual workman has a 'grievance .in respect of any matter under Standing Orders Ordinance, he must follow the remedy prescribed under Standing Order 18 and not under section 34 of the Ordinance, as it now stands.
10. It appears to me that section 34 of the Ordinance, as it now stands, confers distinct right on the Collective Bargaining Agent on the one hand and s workman on the other. The Collective Bargaining Agent can apply for redress of its grievance wherever any right guaranteed or secured to it under any law or any award or settlement has been violated. It does not confer any right on the Collective Bargaining Agent to take up the grievance of an individual workman. As I have not heard the learned Representatives appearing for both the sides on this point, I keep this issue open for discussion in another appeal The Labour Courts can take their own view so far as this, question is concerned.
11. On the merit of the case the contention of Mr. A. Majid the learned Representative for the Collective Bargaining Agent, was that Majeed was a workman and that the principle of natural justice was not observed in the present case and, therefore, the dismissal of the appellant was unwarranted in law. Majeed appeared before the learned Labour Court. He stated fn his examination‑in. chief as under:‑
"I had been served with a charge ‑sheet and I had given a reply but there was no enquiry at all. I was not provided any chance to lead defence either. I produce the charge‑sheet as Exh. A. W. 1/4 and the reply as Exh. A. W. 1/5."
The cross‑examination of Majeed reads as under:‑
"I was employed in the grade of Rs. 820.00 up to Rs. 900.00. There was no mention in my letter of appointment whether I belong to any class or category. I had not collected any dues from the Society after termination of my services. I had made a representation to the Society. I see my appointment letter which bears my signature. I produce it as Exh. R‑1."
13. This is all the cross‑examination of Majeed. It is clear from the cross‑examination that the Society did not challenge the statement of Majeed that no enquiry was held against him or that he was given an opportunity to produce defence witnesses. In that view of the matter, there was a clear violation of the principle of natural justice. Moreover, under the term of appointment dated 30th June 1966, Majeed was to be on probation for a period of six months, extendable to two years. Majeed was admittedly appointed on 30th June 1966 and he was removed from service on 26th August 1969, i.e. much after the period of two years. Majeed was, therefore for all intent and purposes a confirmed employee. He could not be removed from service without proper enquiry
14. I would set aside the award dated 31st December 1971 and order that Majeed be re‑instated. The Society will be entitled to hold a proper enquiry against Majeed, if it so desires. During the period of enquiry Majeed will be entitled to full pay but not back benefits, cannot claim as a matter of right to resume duty. It would, however, be open to the Society to ask him to perform such duties which fall within the terms of his employment. Mr. A. Majeed, the learned Representative for the appellant, to receive Rs. 100.00 (Rupees one hundred only) as cost of the appeal within one week.
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