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Constitutional Petition No. S.-94 of 1985, decided on 28th July, 1987.

---S.47--Scope of S.47 relating to embargo on employer not to alter to disadvantage of any workman, his conditions of service during pendency of industrial dispute--Leasing out a department of mill to contractor whether prohibited by S.47 of Industrial Relations Ordinance--Word "disadvantage" used in S.47(1) of Industrial Relations Ordinance--Connotation.

A close look at section 47 of the Ordinance indicates that it consists of three parts. Firstly, it places embargo on the employer not to alter to the disadvantage of any workman concerned in an industrial dispute, his conditions of service, during the pendency of such dispute; secondly, it restricts the freedom of the employer to discharge, dismiss or otherwise punish any workman during the pendency of such dispute save with the permission of the conciliator while any conciliation proceeding is pending or save with the permission of the Arbitrator, the Labour Court or Tribunal, while any proceeding is pending before either of them, barring cases of misconduct not connected with such industrial dispute; and lastly, it prohibits the employer to discharge, dismiss or otherwise punish any officer of a registered trade union, except with prior permission of the Labour Court, during the pendency of any proceeding. The provisions of section 47, Industrial Relations Ordinance, clearly indicate that case of discharge or dismissal from service of a workman or an officer of a registered trade union are specifically covered either by the second part of section 47(1) or by section 47(2) of the Ordinance and not by the first part of section 47(1). The first part of section 47(1) which deals with change or alteration of conditions of service of workmen concerned in an industrial dispute during the pendency of such dispute refers to persons who are still employed in service. In fact, the question of alteration of conditions of service of workmen can hardly arise in case of persons who have severed their connections with the establishment concerned after their discharge or dismissal from service. Moreover, mere leasing out of a department in the mill to a contractor cannot ipso facto attract the provisions of section 47(1) unless it is shown that conditions of service of workmen have been altered to their disadvantage during the pendency of an industrial dispute. The use of the word "disadvantage" in section 47.(1) clearly contemplates imposition of conditions of service which are less favourable to the workmen concerned.

--- Intention of legislature to be gathered from the language it uses in the statute.

Narayana Swami v. Emperor A I R 1939 P C 47 and New Piece Goods Bazar Co. Ltd. v. Commissioner of Income Tax Bombay A I R 1950 S C 165 ref.

---S.47--Scope and object of S.47--Object of legislation behind enacting S.47 of the Ordinance is to provide protection to workmen and officers of a registered trade union against taking of any arbitrary action by employers to their disadvantage consequent upon raising by them an industrial dispute.

---S.47--Words "discharged", "dismissal" or "otherwise punished"- Import, meaning and limitation--Scope of restrictions on the power of employer to discharge or dismiss workmen or officers of trade union stated.

A plain reading of subsections (1) and (2) of section 47 of the Ordinance XXIII of 1969 clearly indicates that the restrictions placed thereby on the powers of the employer to discharge or dismiss workmen or officers of a registered trade union relate only to such cases where services of a workman or an officer of a registered trade union have been terminated as a result of punishment. This is clearly indicated by the words "or otherwise punished" occurring in both the subsections. Although it is true that ordinarily the word "discharge" as distinguished from "dismissal" does not denote termination of employment as a measure of punishment, but the language used by the Legislature in section 47 of the Ordinance does not admit of any other construction. Any other interpretation would lead to absurdities, as, it cannot be assumed that a workman cannot be discharged on account of superannuation or on becoming surplus, during the pendency of an industrial dispute.

Zeal Pak Cement Factory Ltd. v. Chairman, West Pakistan Industrial Court P L D 1965 S C 420 and Chairman, Lal Seth v. State of Uttar Pardesh A I R 1957 All. 241 rel.

---S.47--Discharge of workman from service without punishment whether falls within purview of S.47--Simple discharge of workman from service without any element of punishment, held, would not fall within purview of S.47(1) or 47(2).

---S.47--Criminal Procedure Code (V of 1898), S.249-A--Constitution of Pakistan (1973), Art.199--Termination of services of employee- Discharge without any element of punishment--Effect--Permission of Labour Court, held, wits riot required before terminating services of workmen as per requirement of S.47, Industrial Relations Ordinance--No offence having been committed by employer under S.60 of the Ordinance, such employer was rightly acquitted by Labour Court- Constitutional petition against termination of services and against acquittal of employer from criminal offence being devoid of merit was dismissed by High Court.

Muhammad Shafiq Qureshi for Petitioner.

Ali Amjad for Respondents Nos. 1 to 3.

Date of hearing: 23rd November, 1986.

This petition was dismissed by a short order, dated 23-11-1986, for reasons to be recorded later. I now propose to record the reasons, but first of all the circumstances under which this petition has arisen may be stated as follows:-

2. The petitioner was employed with the respondent No.l as a permanent workman and was also the General Secretary of the C. B. A. Union. It appears that the mill of the respondents Nos.2 to 3 was continuously running in loss and consequently, the Board of Directors of the first respondent decided to hand over the entire work of its Ring Department to a contractor. As a consequence of this, notices were served on all the workmen working in the Ring Department of the mill, including the petitioner with a view to terminate their services in the mill. The petitioners, as it appears, then approached the National Industrial Relations Commission which first granted stay but later vacated the same as according to it the petitioner had failed to establish that closure of the mill had been effected in order to remove the office-bearers of the union. Consequently, by notice, dated 26-3-1985, the services of the petitioner and other workmen were terminated by the respondents. The petitioner then filed a complaint under section 60 of the Industrial Relations Ordinance, 1969 (hereinafter referred to as "the Ordinance") against respondents Nos.1, 2 and 3 as his services had been terminated by the respondents at the time when an industrial dispute was pending for adjudication under section 32(1-A) of the Ordinance which, according, to the petitioner, tantamounted to contravention of section 47 of the Ordinance. Both sections 47 and 60 of the Ordinance of reference are reproduced as follows:-

"47. Conditions of service to remain unchanged while proceedings pending.--(1) No employer shall, while any conciliation proceedings or proceedings before an Arbitrator, a Labour Court or Tribunal in respect of an industrial dispute are pending, alter to the disadvantage of any workman concerned in such dispute, the conditions of service applicable to him before the commencement of the conciliation proceedings or of the proceedings before the Arbitrator, the Labour Court or Tribunal, as the case may be, nor shall he-

(a) save with the permission of the Conciliator, while any conciliation proceedings are pending, or

(b) save with the permission of the Arbitrator, the Labour Court or Tribunal, while any proceedings before the Arbitrator, Labour Court or Tribunal are pending, discharge, dismiss or otherwise punish any workman except for misconduct not connected with such dispute.

(2) Notwithstanding anything contained in subsection (1) an officer of a registered trade union shall not, during the pendency of any proceedings referred to in subsection (1) be discharged, dismissed or otherwise punished for misconduct, except with the previous permission of the Labour Court.

"60. Penalty for discharging Officer of trade union in certain circumstances, etc.--Any employer who contravenes the provisions of section 47 shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both."

3. The complaint of the petitioner was first entertained by the learned Third Sind Labour Court, respondent No.4 in this petition, but later, on an application filed by the respondents Nos.1, 2 and 3 under section 249-A, Cr.P.C. the respondents were acquitted as the learned Labour Court came to the conclusion that the case of the petitioner did not fall within the purview of section 47 of the Ordinance and consequently the charge against the respondents was groundless. Under such circumstances this petition has been filed.

4. I have heard Mr. Muhammad Shafiq Qureshi, learned counsel for the petitioner and Mr. Ali Amjad, learned counsel for the respondents Nos.1, 2 and 3. None has appeared on behalf of the learned Labour Court, the respondent No.4 in the case.

5. The first contention of Mr. Shafiq Qureshi is that leasing of the Ring Department of the mill to the contractor tantamounts to contravention of the provisions of the first part of section 47(1) of the Ordinance inasmush as the same constitutes alteration of the conditions of service of the petitioner. However, this argument appears to be fallacious. A close look at section 47 of the Ordinance indicates that it consists of three parts. Firstly, it places embargo on the employer not to alter to the disadvantage of any workman concerned in an industrial dispute, his conditions of service, during the pendency of such dispute; secondly, it restricts the freedom of the employer to discharge dismiss or otherwise punish any workman during the pendency of such dispute save with the permission of the conciliator while any conciliation proceeding is pending or save with the permission of the Arbitrator, the Labour Court or Tribunal, while any proceeding is pending before either of them, barring cases of misconduct not; connected with such industrial dispute; and lastly, it prohibits the employer to discharge, dismiss or otherwise punish any officers of a registered trade union, except with prior permission of the Labour Court, during the pendency of any proceeding referred to above. The provisions of clearly indicate that case of discharge or dismissal from service of a workman or an officer of a registered trade union are specifically covered either by the second part of section 47(1) or by section 47(2) of the Ordinance and not by the first part of: section 47(1) . The first part of section 47(1) which deals with change or alteration of conditions of service of workmen concerned in an industrial dispute during the pendency of such dispute; it appears, refers to persons who are still employed in service. In fact, the question of alteration of conditions of service of workmen can hardly arise in case of persons who have severed their connections with the establishment concerned after their discharge or dismissal from service. Moreover, mere leasing out of a department in the mill to a contractor cannot ipso facto attract the provisions of section 47(1) unless it is shown that conditions of service of workmen have been altered to their disadvantage during the pendency of an industrial dispute. The use of the word "disadvantage" in section 47(1) clearly contemplates imposition of conditions of service which are less favourable to the workmen concerned and admittedly, no such allegations have been made by the petitioner in his complaint before the learned Labour Court. The first argument of Mr. Shafiq Qureshi, therefore, fails to impress.

6. The next argument of Mr. Shafiq Qureshi is that as the petitioner is an officer of a registered trade union, his case is governed by section 47(2) of the Ordinance which completely restricts the employer from discharging or dismissing from service such officer, except by permission of the Labour Court. The learned counsel has argued that the word "discharge" appearing both in sections 47(1) and 47(2) of the Ordinance as distinguished from "dismissal", cannot be used with reference to punishment, and consequently a case of discharge from service otherwise than by way of punishment is also clearly covered by subsection (2) of section 47 of the Ordinance. According to the learned counsel, the Ordinance gives a right of strike to the workers, therefore, section 47(2) has been inserted in the Ordinance to provide protection to the union office-bearers and consequently, it imposes a complete embargo on the power of the employer to terminate the service of office-bearers in any manner, whether by way of punishment or otherwise. The argument of Mr. Ali Amjad, on the other hand, has been that both the words "discharge" as well as "dismiss" used in section 47 have reference to punishment and cases of simple discharge without any element of punishment are not contemplated by the section.

7. No doubt, the object of the Legislature behind enacting section 47 of the Ordinance appears to be to provide protection to workmen and officers of a registered trade union against taking of any arbitrary action by the employer to their disadvantage consequent upon raising by them an industrial dispute, but the intention of the Legislature is to be gathered from the language it uses in the statute. Lord Atkin in Narayana Swami v. Emperor A I R 1939 P C 47 observed: "But in truth when the meaning of words is plain it is not the duty of Courts to busy themselves with supposed intentions." In New Piece Goods Bazar Co. Ltd. v. Commissioner of Income Tax Bombay A I R 1950 S C 165, it was held by the Supreme Court of India that: "it is an elementary duty of a Court to give effect to the intention of the Legislature as expressed in the words used by it and no outside consideration can be called in aid to find that intention." A plain reading of subsections (1) and (2) of section 47 of the Ordinance clearly indicates that the restrictions placed thereby on the powers of the employer to discharge or dismiss workmen or officers of a registered trade union relate only to such cases where services of a workman or an officer of a registered trade union have been terminated as a result of punishment. This is clearly indicated by the words "or otherwise punished" occurring in both the subsections. Although it is true that ordinarily the word "discharge" as distinguished from "dismissal" does not denote termination of employment as a measure of punishment, but the language used by the Legislature in section 47 of the Ordinance does not admit of any other construction. Any other interpretation, in my opinion, would lead to absurdities, as it cannot be assumed that a workman cannot be discharged on account of superannuation or on becoming surplus, during the pendency of an industrial dispute. Reference in this respect may also be made to the Judgment of the Supreme Court in the case of Zeal Pak Cement Factory Ltd. v. Chairman, West Pakistan Industrial Court P L D 1965 S C 420 wherein the Supreme Court while interpreting similar provisions of section 30 of the Industrial Disputes Ordinance, 1959 came to the same conclusion. In that case, surplus staff of the petitioner therein had been discharged from service. Mr. Shafiq Qureshi has, however, argued that the case decided by the Supreme Court is distinguishable as there is no provision corresponding to subsection (2) of section 47 of the Ordinance in section 30 of the Industrial Disputes Ordinance, 1959. Although it is true that alike of section 47(2) cannot be found in the Industrial Disputes Ordinance, but I find that the case decided by the Supreme Court is still attracted to the facts of the present case as the words "discharged, dismissed or otherwise punished" have been used in the same context in sections 30 and 47 of the two Ordinances. In any case, it would be wrong to assume that "discharge" always has reference to termination of employment otherwise than by way of punishment. In this connection I would like to quote from the judgment of the Allahabad High Court in Chaman Lal Seth v. State of Uttar Pardesh A I R 1957 All. 241 as it was held in that case as under:

"Where an order in terms states that the Government servant is discharged from service, the use of the word 'discharged' is not conclusive. It is the substance of the matter which must be looked at and if in fact the servant had been removed by Government from its service as a punishment, the use of the word 'discharged' would amount to dismissal or removal."

Consequently, I am unable to agree with Mr. Shafiq Qureshi that a case of simple discharge without any element of punishment therein would fall within the purview of section 47(1) or 47(2).

9. I am therefore, clearly of the view, that respondents Nos.1, 2 and 3 were under no obligation to obtain permission of the Labour Court before terminating the services of the petitioner or other workmen as contemplated by section 47 of the Ordinance and as such no offence under section 60 of the Ordinance was committed by them. Under the circumstances the learned Labour Court has rightly invoked section 249-A of the Code of Criminal Procedure to acquit them.

10. For the aforesaid reasons, this petition is dismissed, but with no order as to costs.

A. A. / M-2181 K

Petition dismissed.

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