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MANAGER, POLYPROPLENE PACKAGES LTD. INDUSTRIAL STATE, MULTAN

Petition No. 61 of 1984, decided on 18th February, 1985.

-- Ss. 25-A (4) & 49(3)-Grievance petition-Presentation before Labour Court can be presented by either (1) worker himself, (2) Shop Steward, (3) Collective Bargaining Agent-Petition presented by counsel-Presence of petitioner at time of presentation of petition before Labour Court not proved-Objection raised by respondent during pendency of petition that having been presented by counsel same was not competent and not maintainable---Argument that S. 49(3) bars legal practitioners from appearing in an industrial dispute and not otherwise and definition of "industrial dispute" in S. 2(xiii) does not cover individual cases under S. 25-A-Section 49, held, relates to cases already pending and permission is possible only when dispute is already in Court whereas petition under S. 25-A cannot be presented by a counsel and further S. 25-A gives form of industrial dispute to every individual case because same is to be adjudicated as if such matter were an industrial dispute--- Argument further that (1) case was going on without any objection by Court and in the silence of respondent, therefore, it should be presumed that permission was duly granted by the Court and (2) objection being merely of technical nature it can be overlooked to meet ends of justice - Plea rejected - Held: Objection touches indirectly jurisdiction of Labour Court hence can be raised at any stage of proceedings and law being so no estopple can be held and neither silence of respondent nor of Labour Court can rectify such defect and the scheme of law applicable to Labour Court as well as to parties is biased against legal practitioners the point being of deep policy and not of mere technical nature is to be complied in letter and spirit -Objection upheld and petition dismissed.

Gulistan v. Pakistan Railways 1981 P L C 760 ; Sabir Ali v. Dandot Cement Company Ltd. and another 1984 P L C 931 ; Syed Muhammad Hussain v. Messrs Pakistan Tobacco Company Ltd. and another P L D 1980 S C 80 ; P L D 1961 S C 57 ; Rashid Ahmad v. State P L D 1972 S C 271 ; Mansab Ali v. Amir and 3 others P L D 1971 S C 124 and Settlement and Rehabilitation Commissioner, Hyderabad Division, Karachi and another v. Mannu Khan and 3 others 1973 S C M R 62 rel.

Qamar-ua-Zaman for Petitioner.

Mehmood Abdul Ghani, assisted by Syed Iqbal Ahmad Gilani and Ch. Altaf Hussain for Respondents.

Date of Institution: 19th November. 1983.

This judgment will dispose of an application, moved by the respon dent, through his representative, on 2nd February, 1985 alleging that the grievance petition pending on behalf of his opponent under section 25-A of the Industrial Relations Ordinance, 1969, is incompetent for want of proper presentation before the Court. For that matter the grievance petition may be dismissed without going into the merits of the case.

2. The facts of the case, in the background briefly, revolve, around interception of the petitioner's services by the respondent, allegedly on account of his trade union activities. Feeling aggrieved by the same a grievance petition was moved by him under section 25-A of the Industrial Relations Ordinance, 1969, for his reinstatement in service with back benefits. While this petition was in progress, the respondent came forward with application under consideration, stating that the grievance petition has been filed by a legal practitioner and not by the petitioner himself, a Shop Steward or the collective bargaining agent. The law, as laid down in section 25-A (4) of the Industrial Relations Ordinance, 1969, does not empower a legal practitioner to make any presentation, therefore, the grievance petition is badly hit by the same. On that account, it is prayed that it may be dismissed outright.

3. The petitioner has hotly contested this application. In his reply to it, he stated that he was present at the time of institution alongwith his counsel. His presence could not be marked by the Court inadvertently as such for the fault committed by the Court the petitioner cannot be punished. He has further stated that the application has been moved quite at a late stage, therefore, it is mala fide. Moreover, it revolves around mere technicalities which cannot be given any importance at the cost of justice.

4. I have, for the sake of reaching at a conclusion to resolve the controversy, gone through the record and heard the arguments. In accordance with the facts and law-both statutory as well as that one which has been laid down by the superior Courts, I am of the opinion that the respondent's version is quite true. Factually speaking, the record does not signify the petitioner's presence in the Court at the time of presenta tion. To prove that the petitioner was present there on that date, he has submitted an affidavit but without any inspiration as to his presence. The petition was originally instituted in Punjab Labour Court No. 8, Bahawalpur, which is quite of a senior calibre. It cannot be expected from that forum to neglect the petitioner's presence knowing that the same is quite material. The learned counsel for petitioner has been marked present by name meaning thereby the Court ,was quite pertinent to this fact otherwise it could simply say routine that the "application had been presented by the counsel". If at all the affidavit has got any value, it has been contradicted by a counter-affidavit submitted in support of his application by the respondent.

5. After location of the fault, I now turn to determine its place in the eye of law applicable to both the parties. Section 25-A (4) of the Ordinance runs as under :-

If the employer fails to communicate a decision within the period specified in subsection (2) or, as the case may be, subsection (3), or if the worker is dissatisfied with such decision, the worker or the Shop Steward may take the matter to his collective bargaining agent or the Labour Court or, as the case may be, the collective bargaining agent may take the matter to the Labour Court, and where the matter is taken to the Labour Court, it shall give a decision within seven days from the date of the matter being brought before it as if such matter were an industrial dispute."

This subsection in the light of its analysis empowers the following persons to make presentation before the Labour Court and none else :-

(i) the worker ;

(ii) the Shop Steward ;

(iii) the collective bargaining agent.

Admittedly, the learned counsel for the petitioner, who instituted the grievance petition, had no such status. He came before the Court as a legal practitioner who has been clearly debarred to appear before the Labour Court under section 49(3) of the Ordinance.

6. The view that a legal practitioner cannot have recourse to the Labour Court at the time of presentation of any grievance petition was taken up by the worthy Sind Labour Appellate Tribunal in Gulistan v. Pakistan Railways (1981 P L C 760). The worthy Chairman of the Tribunal, while giving his opinion on the issue observed as under :-

Muhammad Ahmad, however, submitted that whereas the grievance notice is required to be served by the worker, himself, in sub section (4) the important word himself' is missing. Because of this omission, he wanted this Tribunal to infer that grievance petition can be filed by the worker through his Attorney. I regret that I see no force in this contention. The mere fact that word himself' has not been used in subsection (4), in my opinion makes no material difference. As I construe from subsection (4) it is only the three parties specifically mentioned in the said subsection which are entitled to file and maintain grievance petitions. The provisions of subsection (4) must be read in harmony with those of sub-section (l). If the intention of the Lagislature is that the grievance notice must be given by the worker himself, as a necessary con sequence grievance petition must also be filed by the worker himself or his Shop Steward or the Collective Bargaining Agent, as provided in section 25-A.

As in the instant case, admittedly, the grievance petition has not been filed by the aggrieved worker, his Shop Steward or the Collective Bargaining Agent, the grievance petition was not maintainable by the Labour Court and was rightly dismissed. I accordingly dismiss the appeal in limine."

This view was fully followed by the learned VIth Labour Court Punjab in Sabir Ali v. Dandot Cement Company Ltd. and another (1984 P L C 931). The said learned Labour Court held as under :-

"In this connection the learned counsel for the respondent relied on an authority of Sind Labour Appellate Tribunal, reported as 1981 P L C 670 wherein it has been held that grievance petition before Labour Court through an attorney is not maintainable. In the precedent case the application was not made by the worker himself but it was filed by the lawfully constituted attorney. It was held that application could not be presented nor it could be maintained in the Labour Court. Relying, on this authority I also hold that this application is not maintainable and the same is hereby dismissed."

7. There are not the sole instances in support of my humble view. The observations of their Lordships of Honourable Supreme Court of Pakistan, in Syed Muhammad Hussain v. Messrs Pakistan Tobaco Company Ltd. and another (P L D 1980 S C 80) are quite significant. Their Lordships observed as under :-

Now looking at subsection (1) of section 25-A of the Ordinance, I find that the word himself' is prefixed by the word either' and coupled with the words "or through his Shop Steward or Trade Union". The word either' means "one or the other" and the word through' denotes the concept of agency. Therefore, in construing the word himself' the words either and through' cannot be overlooked. The former refers to the alternatives while the latter means a medium of agency. The word "himself" means the emphatic form of he, him in his real character'. Clearly, therefore, in using the word either' the Lagislature provided alternatives to the workman or his agent such as the Shop Steward or the Trade Union and if the concept of agency is to be regarded as inherent in the word 'himself' then plainly it would be against its real meaning and this could not be the intention of the Lagislature which has purposely used this word to avoid legal quibbles as rightly held in Hussain Textile Mills v. Muhammad Ishaq. The lagislatve intent seems to be to avoid interference by any other outside agency. It would appear from the scheme of the legislation that the appearance through legal practitioners is restricted and wherever he is eligible to appear it has been so enacted. Section 49 of the Ordinance makes this instant obvious and in this view of the matter it would be anomalous to introduce the concept of agency in the word 'himself' for in that eventuality the object of the law can easily be defeated.

It would also be inapt to, introduce the consideration of illiteracy or the existence or non-existence of the alternatives while construing the word himself' as it is the principle of interpretation to give to the word its ordinary meaning for that is the only way to find out the intent of the Lagislature. Therefore, this consideration is wholly irrelevant Mr. Khuda Bakhsh Marri, J. was accordingly, correct in holding that having regard to the language of the sub. section it is not a case where the word conveys different meanings to require a beneficial- construction. The learned Judge has supported his view by referring to English cases such as Monks v. Jaksen (1) and Queen v. Mansel Jones (2) in which the implication of the word himself' was considered and the meaning given to this Court in Karachi Union of Employers and others v. The Indus trial Court, Karachi and others also leads considerable assistance to the interpretation of the word, 'himself'.

Comparable instances are furnished by rule 5 of Order XXXIII and rule I of Order XLIV, C. P. C. where the presentation of the appli cation has to be made by the applicant himself although in Order III of the C. P. C. it is provided that parties can be represented by recognised agents. (See Munuswami Goundar v. Nottayya Koundan and others (3)."

The negation of agency in the shape of legal practitioner can be fully gathered from the overall observations quoted above. Although, the point of presentation through legal practitioner was not involved directly before their Lordships yet the point came under consideration as a logical sequence of discussion and that is equally binding because of its flow from a forum of such highest altitude.

8. In 1961 P L D S C " the Honourable Supreme Court took the point of appearance of legal practitioners in Karachi Union of Employers and others v. The Industrial Court,. Karachi and others. Although, the point of presentation was not involved directly, yet the trend of their Lord ships was quite in favour of the proposition replied by my humble self. affirmatively. Their Lordships observed as under: -

"Obviously, the Legislature regarded the appearance of legal practi tioners (except in cases where all parties consent) in proceedings before Industrial Courts undesirable for what reason it is not necessary to go into. It cannot be contended that the defect in the legal practitioners would disappear if at the same time he happened to be an office-bearer of an association and if the defect does not disappear than the interpretation for which learned counsel for the petitioners contends will not be consistent with the object which the Legislature had in view in disallowing a legal practitioner from appearing in an industrial dispute.

Another reason for not accepting the interpretation contended for by the petitioners is that the law could be easily defeated if we accept it. There is no bar to the legal practitioners being appointed honorary office-bearers of unions of associations and in all cases legal practitioners could without any difficulty be introduced in proceedings before the Industrial Court in the guise of office. bearers. We understand from M. Fazlul Rehman who appears in some of these cases that the office-bearers by whom they wanted to be represented were honorary office-bearers.

We hold that legal practitioners who are office-bearers of associations or unions were not entitled to appear before the Industrial Court and that the orders of Industrial Court refusing to allow them to represent parties before them were justified in law."

9. The truth of the idea is confirmed by the fact that the other systems of law also recommend ouster of the legal practitioners from the industrial Courts.. Industrial Court Act, 1919, promulgated in England and then Industrial Relations Act, 1971 in the same country provides that "except, as provided by rules, no person shall be entitled to appear in such proceedings by counsel or solicitor except with the permission of the Court."

10. The industrial law, in India, namely, Industrial Disputes (Appellate Tribunal) Act, 1950 lays a restriction similar to that. It is for that reason that Supreme Court of India in Paradip Port Trust and their workmen and in management of Keonjhar Central Co-operative Bank Ltd. and their Workmen (copy of judgment attached with the file) held the same.

11. During the course of arguments, the learned counsel for petitioner tried to distinguish his case with reference to definition of industrial dispute. According to him, section 49(3) of the Ordinance bars a legal practitioner from appearing in an industrial dispute and not otherwise The definition of industrial dispute, given in section 2(xiii) does not cove the individual cases under section 25-A of the Ordinance. On that account, provisions of section 49(3) shall not be attracted. 1n my view, this objection does not arise for the simple reason that section 49 relates to cases already pending in the Labour Courts. From its careful perusal one can duly gather that permission is possible when the dispute already in the Court. If there is no dispute, there is no need to apply for permission. If at all we abide by the definition of industrial dispute, even then we are protected in our view. Section 25-A gives the form or industrial dispute to every individual case by providing that 'as if such matter were an industrial dispute'.

12. It has been further urged by the learned counsel for petitioner that the case is going on. since long without any objection by the respon dent. From the silence of the respondent and in the absence of any objection by this Court it shall be presumed that permission was duly granted by the Court. This view is again not plausible. The issue under decision indirectly touches jurisdiction of this Court and the point of jurisdiction can be raised at any time. In support of my view I rely upon the judgment of Honourable Supreme Court of Pakistan delivered in Rashid Ahmad v. State (P L D 1972 S C 271). It says that question relating to jurisdiction can be raised at any stage of the proceedings. The law being so, there fore, no estopple can be held against the same. Neither silence by the respondent nor of this Court can rectify the defect. Secondly, the basis of an action being unlawful cannot be rectified by the silence of the Court or the respondent. An illegal action remains so for all time to come. Thirdly, the point in dispute, relates to presentation and not representation. The permission presupposes existence of a dispute before the Court. Same is to be considered quite material after the commencement of the dispute. If at all the silence of the Court or the respondent can amount to permission or consent it can amount only after the commence ment or presentation and not previous to that. As a principle of law, similar to that in band, Honourable Supreme Court of Pakistan while deciding Mansab Ali v. Amir and 3 others (P L D 1971 S C 124) observed as under :-

"It is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, Tribunal or authority is not fulfilled then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction."

The Honourable Supreme Court of Pakistan further observed in Settlement and Rehabilitation Commissioner Hyderabad Division, Karachi and another v. Munnu Khan and 3 others (1973 S C M R 62) as under :-

"A Tribunal's jurisdiction is determinable at the commencement and not at the conclusion of proceeding."

From these observations, what has been done uptil now is rather unlawful for want of jurisdiction what to say of silence by this Court or the respondent.

12. Lastly, the learned counsel for the petitioner says that objection is merely of technical nature, consequently, it can be overlooked in order to meet the ends of justice. For the discussion, held above, weakness of plea taken by the learned counsel is quite evident. The scheme of law applicable to this Court as well as to the parties is biased against the legal practitioners. There is wealth of law in support of this scheme. Again and again it has been held that legal practitioners are barred from appearance unless allowed specifically. That being the situation, it cannot be held that it is merely a technical matter. It is a point of deep policy hence is to be complied in letter and spirit.

14. For what has been discussed above, the application succeeds which is as such hereby accepted. As a consequence to that, the grievance petition fails which is as such dismissed.

A. E.

Petition dismissed.

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