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Constitutional Petition No. 29 of 1976, decided on 4th October 1976.

S. 36‑B(4) read with S. 25‑A‑Re‑instatement of dismissed work man‑Expression "Junior Labour Court may direct re‑instatement of workman and allow consequential benefits to him in S. 36‑B(4) Word "and" used in expression‑Held, conjunctive‑Provision while giving discretion to Labour Court to order re‑instatement of a work man couples it with a duty to order consequential benefits‑Sec tion 36‑13(4) making special provision controls general provision of S 25‑A‑"Just and proper order" envisaged by S. 25‑A(5)‑Held, would include an order of re‑instatement coupled with consequential benefits‑Order of re‑instatement with direction for non‑payment of back benefits‑Labour Court, held, acted without lawful authority in passing such order.

Pakistan v. Mrs. A. Y. Issacs P L D 1970 S C 415 ; Divisional Superinten dent, P. W. R. v. Bashir Ahmed P L D 1.973 S C 589 ; Divisional Superintendent N.‑W. R., Lahore v. Muhammad Sharif P L D 1963 S C 340 and Malloch v. Aberdeen Corporation (1971) 2 A11 E R 1278 ref.

Commerce Bank v. Ahmed Ali Memon 1975 P L C 180(1) ; pousu Textile Mills v. Karimunnissa 1975 P L C 401 ; Government Transport v. Faqir Muhammad 1971 P L C 132 and Muhammad Aslam v. Road Transport Corporation 1969 P L C 545 not approved.

‑‑ Words "and" ; " or" in statute‑Word "and" conjunctive and word "or" disjunctive‑Word "or" sometimes read in place of "and" and vice versa to carry out intention of Legislature.

Maxwell on Interpretation of Statutes rel.

‑‑‑ Special provision‑Always controls provisions of general nature Meaning of a section may be controlled by other individual section in same Act.

Maxwell on Interpretation of Statutes, p. 59 ref.

S. 25‑A‑Dismissal of workman after holding inquiry‑Labour Court. held, competent under S. 25‑A to give direction for holding fresh inquiry.

Glaxo Laboratories (Pak.) Ltd. v. Pakistan P L D 1962 S C 60 ref.

S. A. de Smith on Judicial Review of Administrative Action, 1973 Edn.p. 273 not applicable.

Shahenshah Hussain for Appellant.

Munawar Ghani for Respondent No. 1.

Dates of hearing : 22nd, 29th and 30th September 1976.

Petitioner Mohammad Arshad Khan was appointed as a Convasser by respondent No. 1 on 17th January, 1972. Although confirmed subsequently he was charge‑sheeted on 25th November 1974, for non performance of his duties etc. His reply was not considered satisfactory and an inquiry was instituted. As a result he was dismissed and his services were terminated with effect from 11‑12‑1974. After serving with a grievance notice the petitioner moved an application under section 25‑A of the Industrial Relations Ordinance 1969 (hereinafter called the Ordinance). The Junior Labour Court set aside the dismissal mainly on the ground that the respondent‑Company had failed to prove if the petitioner had participated in the inquiry and if he was aforded an opportunity to be heard. It was therefore ordered that a fresh inquiry should be held. The request for back benefits was not accepted. It was however, ordered that his salary for November and December, 1974, be paid and for the rest of the period 50 % of his pay etc. should be paid alongwith bonus. Regarding the remainder of his dues, it was ordered that only if the inquiry is not proved against, and he is consequently reinstated, that he should be paid the balance of 50 % of his dues.

Both the parties challenged this decision in appeal. Assuming the orders of the Junior Labour Court to be orders of re‑instatement the Management challenged it on the ground that the petitioner worker had participated in the inquiry and therefore, he was rightly dismissed. On the other hand the worker challenged it with respect to the refusal of back benefits and the fresh inquiry. The learned presiding officer of the Labour Court confirmed the findings of the Junior Labour Court as to the absence of opportunity to the worker to be heard and to defend himself. But considered the grant of those benefits as were allowed by the Junior Labour Court as erroneous. The challenge to the order of fresh inquiry was found untenable. He decided that the payment of back benefits would be dependent upon the result of the fresh inquiry.

The petitioner has challenged such decision on three‑fold grounds:‑

(a) In the event of the order of dismissal having been set aside and re‑instatement ordered the back benefits could not be withheld

(b) Directions regarding fresh inquiry could not be issued in law; and

(c) If such a direction could ever be issued the direction to make the payment of back benefits contingent upon the result of such inquiry would render the inquiry prejudicial.

In the cases where dismissal has been held to be illegal and set aside the effect is that such dismissal exists no more and the position obtaining before such order of dismissal was passed, is restored. This is true, o dismissals which are set aside as a result of different finding of fact as to the guilt of the person dismissed, or because of certain defect in the observance of procedural provisions. Once the dismissal is declared illegal the person concerned becomes entitled to the wages; because his deprivation from sac wages was purely as a result of such illegal dismissal. This is the view hold by the Supreme Court in case of the civil servants as enunciated in Pakistan v. Mrs. A. V. Issacs (P L D 1970 S C 415). Similar view has been expressed in the case of workmen employed by the railways in Divisional Superintendent P. W. R. v. Bashir Ahmed (P L D 1973 S C 589) and Divisional Superintendent N. W. R. Lahore v. Mohammad Sharif (P L D 1963 S C 340). The principle laid down is that where an employee is willing to render service but the employer does not give opportunity to the employee to render such service he is entitled to the wages for such period when ordered by the Court to be re‑instated. In Sharif's case, cited above, the Supreme Court had confirmed the view of the High Court in the same case which is reported as 1960 P L C 214.

Mr. Shahinshah Hussain has however gone a step further from this proposition and, while relying upon the opinion of Lord Reid in Malloch v. Aberdeen Corporation ((1971) 2 All E R 1278) has contended that the effect of not affording an opportunity to be heard renders the decision of dismissal a nullity in the eyes of law. In view of the law, as laid down by the Supreme Court, as to the effects of setting aside an illegal dismissal, is so clear T need not advert upon this proposition. But I must point out that the opinion of Lord Reid on the point is the sole opinion, none of the other law Lords have expressed any such opinion.

The language of subsection (4) of section 36‑B of the Ordinance is very explicit on the point when it says that a Junior Labour Court ma direct the re‑instatement of the workman and allow consequential benefits g to him. Once the Labour Court decides to re‑instate a workman it is, bound to order the consequential benefits, which according to the learned counsel would include wages for the period since the illegal dismissal. The contention is based on the ground that the word 'and' used in the above‑quoted phrase is conjuctive and therefore the later part of the provision must automatically operate once the Court decides to exercise C the discretion of ordering the reinstatement of the worker. Maxwell on Interpretation of Statutes says that in ordinary usage "and" is conjunctive, an 'or' disjunctive. But some times, to carry out the intention of the Legislature it becomes necessary to read 'or' in place of 'and' and vice versa. But such o intention of the Legislature has to be evident from the language of the statute itself. If we were to read 'or' in subsection (4) of section 36‑B of the Ordinance an anomalous situation would arise. Then the Labour Court would have the power either to order re‑instatement or to allow consequential benefits. Allowing consequential benefits without ordering re‑instatement would lead to an absurd situation. And the benefits are of consequential nature; consequent upon what The subsection itself provides the answer. They are to be consequent upon re‑instatement only. Therefore it is correct to contend that 'and' used in this subsection is conjunctive. This provision. while giving discretion to the Labour Court to order reinstatement of workman, couples it with a duty to order consequential benefits.

Once. the first step is taken the second must follow.

Mr. Munawar Ghani, the learned counsel for the respondent firm, on the other hand relies upon the language of subsection (5) of section 25‑A of the Ordinance which empowers the Labour Court to pass such orders as maybe just and proper in the circumstances of the case; and contends that the Labour Court acted perfectly within the bounds of law when it directed that the back benefits be withheld till inquiry is completed. Section 36‑B makes special provisions with respect to cases of dismissal or removal from service, while section 25‑A makes a general provision dealing with case of all types of grievances. It is a well‑settled principle of construction of statutes that a special provision always controls the provisions of general nature. The principle is fully extended to different provisions in the same statute. Maxwell on Statutes says (at page 59) that the meaning of a section may be controlled by other individual sections in the same act. An example given is:

"If one section of an Act, for instance required that "notice" should be ; given", a verbal notice would generally be sufficient: but if another action provided that it should be "served" on a person, or "left" with him, or in a particular manner or place it would obviously show that a written notice was intended."

Provision of section 36‑B (4) would therefore always control the provisions of section 25‑A., whenever there is a dismissal or termination from service involved in a case. In this view of the matter it is clear that the 'just and proper order' envisaged by subsection (5) of section 25‑A would include, in such cases an order of re‑instatement coupled with consequential benefits. In such cases it cannot be claimed that a direction to withheld back benefits is covered by section 25‑A (5), because it is not subsection (5) of section 25‑A. which is the controlling section, but subsection (4) of section 36‑B.

The learned counsel for the respondent has relied upon Commerce Bank v. Ahmed Ali Memon (1975 P L C 180 (1)) ; Yousaf Textile Mills v. Karimunnisa (1975 P L C 401) in support of the proposition that back benefits are not to be granted where fresh inquiry is ordered. These Judgments, apart from being in conflict with the views expressed by the tribunal itself in Government Transport v. Faqir Mohammad (1971 P L C 132) and Mohammad Aslam v. Roast Transport Corporation (1969 P L C 545) have not taken into account the effect of the provisions of subsection (4) of section 3i‑B of the Ordinance: nor do they refer to any law or authority in support the proposition. They therefore do not lay down the correct law.

I would therefore hold that the Labour Court acted without lawful authority when it directed non‑payment of back benefits, while ordering re‑instatement of the petitioner.

The contention regarding direction of fresh inquiry are that they are beyond the sc ape of section 25‑A of section 36‑8 of the Ordinance. In this connection Mr. Hussain concedes that is terms of Glaxo Laboratories (Pak.) Ltd. v. Pakistan (PLD1962SC60) the direction for re‑instatement of worker does not destroy the right of the Management to proceed afresh against him in accordance with the mode permitted by law. But his contention is that it its a matter within the exclusive discretion of the Management to hold or not to hold an inquiry, which discretion has to be exercised unfettered, and without any external dictation. In this connection the learned counsel relies upon S. A. de Smith, who in his book 'Judicial Review of Administrative Action' (1973 Edition) at page 273 says that an authority entrusted with a discretion must not, in the exercise of discretion, act under the dictation of another body or person. The point is further illustrated by the learned author when he says that it is enough to show that a decision which ought to have been based on the exercise of independent judgment was dictated by those, not entrusted with the power to decide. This amounts to saying that a person directing the exercise of discretion also lays down the lines on which such discretion ought to be exercised. None of such things has been done by the Labour Courts in the present case. The Courts have merely recognised the facts that the Management in the instant case has decided to hold an inquiry. This is also evident from the fact that the initial charge‑sheet, which formed the basis of the inquiry has not been demolished and is still in the field. The Management in these circumstances, is directed to hold a fresh inquiry. Even if the intention of the Management to hold an inquiry had not been so patent from the facts of the case, the Labour Court could always give such direction. This is the import of section 25‑A and is also recognised by S. A. de Smith at p. 252 of his above‑referred book when he says that the authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in a particular manner.

The third ground taken is that the direction to make the pay ment of back benefits is contingent upon the result of the inquiry. would result in a biased inquiry. The contention is that the fear of having to make payment of such big amount will always weigh heavily against an impartial inquiry. In this context the learned counsel relies upon the observations of Paul Jackson in his book "Natural Justice" (1973 Edition) where he says that 'any direct pecuniary interest, however small, is sufficient to disqualify a person acting as a Judge', and again that where the disqualifying element is a pecuniar interest "the law does nit allow any further inquiry as to whether or not the mind was actually biased by the pecuniary interest". These are the observations made in explaining the principle Nemo Judex, In Re Sua, no man can be a judge in his own cause. In the present case the pecuniary interest, if any, would be that of the Management while the inquiry will not be held by it. If the inquiry officer himself had any pecuniary interest involved in the result of the inquiry, the objection taken would be valid. But not in the present case. And it would be creating an undue disability if the principle were to amply even in cases of the present type merely on the ground that ultimate decision to dismiss or retain in service has to be made by the Management. In any case the point has lost any bearing in view of my findings on the ,Question of entitlement of the petitioner to back benefits.

In view of the above discussion I would hold that the orders of the' Labour Courts suffer from only one illegality and that is that having declared, the dismissal illegal the orders of re‑instatement and consequential benefits could not be withheld. Writ to issue accordingly. Costs upon the respondent.

S. Q. Petition accepted

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