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Appeals Nos. LHR-152 and LHR-153 of 1972-Punjab, decided on 30th October 1972.

West Pakistan Industrial and Commercial Employment (Stand ing Orders) Ordinance (VI of 1968),

S. O. 18 read with Industrial Relations. Ordinance (XXIII of 1969), S. 67 and S. 25-A [as insert ed by Labour Laws (Amendment) Ordinance (IX of 1972)] and General Clauses Act (X o1 1897), S. 6-Provisions of S. 67, indus trial Relations Ordinance, 1969 applicable only to enactments repealed by Ordinance itself and nut to those repealed by Labour Laws (Amendment) Ordinance, 1972-Provisions of S. 25-A, insert ed by Labour Laws (Amendment) Ordinance, 1972 neither retros pective nor corresponding to but quite different from provisions of S. O. 18, West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 - Proceedings, started under S. O. 18, West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, held, kept alive by virtue of S. 6, General Clauses Act, 1897 even after its repeal by Labour Laws (Amendment) Ordinance, 1972-Ordir passed in such proceedings, held, not appeal able as no right of appeal provided in S. O. 18.

Usman Khan and 14 others v. Messrs General Tyre & Rubber Co. (Pakistan) Limited 1969 P L C 584 ref.

Garikapati Veeraya v. M. Subbish Chowdhry and others P L D 1957 S C (Ind.) 448 and Ghazi and others v. State and another P L D 1.962 Lab. 662 fol.

Appeal No. LHLI-152 of 1972-Punjab

Hafeez Qureshi for Appellant.

Mahboob Ahmad for Respondent.

Appeal No. LHR-153 of 1972-Punjab

Nazir Ahmad Naz for Appellant.

Saadullah Mumtaz for Respondents.

Date of hearing: 10th October 1972.

These are appeals against the orders of Punjab Labour Court. Northern Zone, Lahore, passed under Standing Order 18 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, whereby the petitions filed by both the appellants were dismissed. In both these appeals, before going into the merits of each case, the point for determina tion is as to whether the impugned orders are appeal able because under Standing Order 18 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, no appeals are provided. Since this point is common in both these appeals they will be disposed of together by this order.

2. Mr. Nazir Ahmad, Representative of Muhammad Siddique in Appeal No. 153/72-Punjab contended that the order passed under section 30121 of Industrial Disputes Ordinance, 1959 was not appeal able but subsequently on 8-3-1968 when West Pakistan Industrial Dispute Ordinance, 1968 was promulgated. its section 37 which was corresponding to section 30,2) of the repealed Ordinance was made appeal able and, therefore, the proceedings starting under section 1)(2) of the repealed Ordinance deemed to continue under section 37 of the Ordinance of 1968 and as such the order passed thereon became appeal able is support of his contention he relied on the judgement of the Industrial Appellate Tribunal, West Pakistan in the case, Usmart Khan and 14 others v. Messrs Genera Tyre & Rubber Co. (Pakistan) Limited (1969 P L C 594), wherein it was observed:-

"It is clear from the above that the proceedings commenced under section 30(2) of the repealed Ordinance would be deemed to continue under section 37 of the present Ordinance of 1968. In that view of the matter the definition of 'employer', as it stands under the Ordinance of 1968 can be taken into con sideration. The Ce4nition as it stands, is wide enough to include the Personnel Manager to be an 'employer'. The application under section 30(2) of the repealed Ordinance or under section 37 of the present Ordinance of 1968, cannot be held to be bad in law."

Mr. Nazir Ahmad Naz also cited two or three other judgments of the Industrial Appellate Tribunal, West Pakistan, on the same point. In all these judgments, I find that no where the learned Chairman of the Industrial Appellate Tribunal had given any reasons for holding that such order had become appeal able in view of the promulgation of 1968-Ordinance, but on the other hand it was taken for granted that the said orders were appeal able. In view of the above, these judgments are of no avail to the appellant.

3. Mr. Hafeez Qureshi, counsel for Muhammad Riaz Khan, appellant, in Appeal No. LHR-152/72, contended that the pro ceedings had started under Standing Order 18 of vie West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and while they were still pending, Standing Order was repealed by the Labour Laws (Amendment) Ordinance, 1972 and in its place section 25-A of Industrial Relations Ordi nance, 1969 was introduced which is appeal able. Therefore, it is obvious that the intention of the law-makers was to provide the same remedy by way of section 25-A and the case pending under Standing Order 18 was to continue under section 25-A of Industrial Relations Ordinance, 1969. In support of his conten tion he relied ore section 24 of the General Clauses Act which reads as follows:-

"Continuation of orders, etc. issued under enactments repealed and re-enacted without modification, then unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form or bye la N made or issued under the repealed Act or Regulation, shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the pro visions so re-enacted, unless and until it is superseded by any appointment, notification, order, scheme, rule, form or bye-law, made or issued under the provisions so re enacted and when any Central Act or Regulation, which, by a notification under section 5 or 5-A of the Schedule Districts Act, 1874 (XIV of 1874), or any like law, has been extended to any local area, has, by a subsequent modification been withdrawn from and re-extended to such area or any part thereof the provisions of such Actor Regulation shall be deemed to have been repeated and re-enacted in such area or part within the meaning of this section."

This section refers to orders etc. passed under the repealed act. In the present cases, no orders were passed under the repealed Ordinance and, therefore, this section will not apply. The learned counsel also relied on section 67(21(b) of Industrial Relations Ordinance, 1968, which reads as follows:

"Anything done, rules made, notification or order issued, Officer appointed, Court constituted, notice given, proceedings commenced or other actions taken under any law shall be deemed to have been done, made, issued, appointed, constituted, given, commenced pr taken, as the case may be, under the corresponding provisions of this Ordinance."

According to the learned counsel, section 25-A of the present Ordinance Is corresponding section to Standing Order 18 and, therefore, he argued that proceedings started under Standing Order 18 would be deemed to have been done under section 25-A of the present Ordinance and since it has been made appeal able, the present appeals are competent.

4. The point for consideration is as to whether section 25-A of the present Ordinance is a corresponding section to Standing Order 18. Under Standing Order 18 any individual workman who had a grievance in respect of any matter under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 could seek redress and had to give to his employer a notice In writing within 15 days of the grievance or the cause of such grievance, whereas under section 25-A a worker can bring 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 o, the day on which cause of such grievance arises. From the above it is clear that provisions of Standing Order 18 are quite different to the provisions of section 25-A and the procedure mention ad under Standing Order18 with regard to the bringing of the grievance to the notice of the employer is also different to the procedure mentioned. In section 25-A. The proceedings once started are kept alive after its repeal by virtue of section 6 of the General Clauses Act which reads as follows:_

Effect of repeal.--V1 here this Act, or any Central Act or Regulation inane after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repast shall not--

(a) revive anything not in force or existing at the time at which the repeal takes " effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder : or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of say offence committed against any enactment so repealed, or ,

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid;

Any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation bad not been passed."

It does not give any new remedy but keeps the old proceedings alive.

5. Further on reading the whole section 67 of industrial Relations Ordinance, 1964, 1 find that this section only applies where any enactment is repealed by Industrial 1ZCIJddn11 Ordinance, 1969 and not cases of repeal by any other law. In the present CABO the repeal was affected by Labour Laws (Amend Mat) Ordinance, 1972 and not by Industrial Relation Ordinance, 1969. In view of the above, I t-old that section 25-A of Industrial relations ordinance, 1969 is not a corresponding section td Striding order 18 9f the West Pakistan Industrial and Commercial Employment (standing orders) ordinance, 1968 were kept alive even after the repeal and therefore, the impugned orders were pa4sed tinder standing order 18 and not under section 25-A of Industrial Relations Ordinance, 1969. No appeal Is provided under Standing Order 18, and, therefore, the impugned orders tire not appeal able, In the case, Garikapati Veeraya v. M. Subbish Choudhry and others (P L D 19:7 S C (Ind.) 448), it was held:--

The right of appeal is not a mete matter of procedure but is substantive right.

The institution of the suit carries with it the Implication that all rights of appeal then inforce are preserved to the patties thereto till the rest of the Caveat of the suit.

The right of appeal is a vested right and as such a right to enter the superior Court accrues to the litigants and exists as on and from the date of the lis commences and although it may be actually exercised when the adverse judgment is pro nounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal."

This view was followed by Full Bench of our High Court in the case, Ghazi and others v. State and another (P L D 1962 Lab. 662), wherein it was observed:-

"A right of appeal existed on a day on which a proceeding -or lis commences or prosecution is lodged; is a vested right and that right is-governed by the law prevailing on that day and not the law prevailing on the date of its decision.

This vested right can be taken away only by subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise."

Under Standing Order 18 no appeals were provided and since section 25-A of Industrial Relations Ordinance, 1969, has no retrospective effect, it cannot be said that the impugned orders are appeal able.

I, accordingly, find no merit in these appeals, which are hereby dismissed.

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