This is an application under section 38 (3-A) of the Industrial Relations Ordinance, 1969 as amended by Labour Laws (Amendment) Ordinance No. IX of 1977, in which the prayer clause is that this Hon'ble Tribunal may be pleased to call the record and proceedings of Case No. 216/76 under section ZS-A of the Industrial Relations Ordinance, 1969, from the Vth Sind Labqur Court and after examining the correctness, legality or propriety of the orders dated 17th March, 1976 and 12th April, 1976, remand the case back for proper adjudication in accordance with Law.
2. The brief facts giving rise to this matter are that the applicant Mr. Muhammad Javed Iqbal who was working as a Senior Assistant from the year 1968, with Messrs Norwich Union Fire Insurance Society Ltd., respondents, was dismissed for misconduct on 27th February 1975 His misconduct is alleged to have consisted of 3 offensive letters he addressed to the Management in his capacity as the President of a Labour Union founded by him in January, 1975. After the usual grievance notice, the applicant presented an application under section 25-A of the Industrial Relations Ordinance, 1969, before the Junior Labour Court on 11th May, 1975 from where after being examined and partly cross-examined his case was transferred in January, 1976 to the Vth Sind Labour Court and numbered as Case No. 216/76. In January, 1976, the Applicant proceeded on assignment to Saudi Arabia but before going, he on 4th January, 1976, executed a General Power of Attorney in favour of his brother Mr. Rasheed Ahmad Khan. The Vth Sind Labour Court issued a summons to the applicant to appear before it in Case No. 216/76 on 17th March, 1976, which summons was only delivered at the Applicant's home address on the evening of 16th March 1976. The original summons appears at page 185 of the Lower Court record and there is, upon it, an endorsement in ink by one Mst. Iqbal Jehan, said to be the applicant's mother in these words "received at 7 p.m. On 16th March, 1976. Applicant is out of Karachi. Next date may kindly be granted for his appearance Iqbal Jehan. There is also an endorsement in Urdu by the Summons Server on the reverse of this summons reading "both parties have been served in this case (1) Clerk received the notice on 4th March 1976 on behalf of the Company, (2) 1 went at the address of the worker on 16th March 1966 and I met with members of his family and they received the notice and also wrote some thing on the notice. Whatsoever, stated above, is correct and true. Sol. Qamaruddin. Inspite of these endorsements appearing on the original summons, the learned Presiding Officer of Sind Labour Court No. V who, obviously, does not appear to have seen this original summons, called up this case in his Court on 17th March, 1976 and passed an order in these words "applicant absent though served. Application dismissed." It is urged by Mr. Malik Muhammad Saeed appearing on behalf of the applicant that on 17th March 1976, the applicant's brother and duly appointed Attorney Mr. Rasheed Ahmad appeared before Sind Labour Court No. V and moved an application for adjournment but the Presiding officer took no notice of him and it is further alleged that this application though placed on file is now no more there. On 26th March, 1976, the Advocate for the applicant filed an application for restoration which was fixed for hearing on 12th April, 1976.
However, on that date, a second order of dismissal for non-prosecution was passed by the learned lower Court in these words 1`Applicant and his Advocate called absent. Application dismissed for non-prosecution." This application for restoration together with the supporting affidavit of Mr. Rasheed Ahmad Khan brother and Attorney of the applicant appears at pages 191 to 193 of the lower Court record, and it fully sets out the details of what happened on 17th March 1976 when this Attorney on account of the absence of his brother in Saudi Arabia moved an application on the same day for adjournment requesting time to engage a counsel. It also mentions how there is no mention of this application for adjournment moved by him in the Court's order of 17th March, 1976.
However, as mentioned above, the main Application No. 216/76 was again dismissed for non- prosecution on 12th April 1976. It is urged that on that date, the Attorney Rasheed Ahmad Khan was present in Court, but appears not to have been observed or noticed by the Presiding Officer. On behalf of the applicant, then, an Appeal under section 37(3) of the Industrial Relations Ordinance, 1969, was presented before this Tribunal which was summarily rejected by my learned predecessor on 14th October, 1976 on the ground that no Appeal lies against the impugned order. A Constitutional Writ Petition No. D-214/77 was then filed on behalf of the applicant in the High Court, Karachi, where at a hearing on 1st June, 1977, before the Divisional Bench of Mr. Abdul Qadir Sheikh, Chief Justice and Mr. S. A. Nusrat Judge, it was held in view of the newly added Sub-clause (3-A) to section 38 of the Industrial Relations Ordinance, 1969 of Labour Laws (Amend--ment) Ordinance No. IX of 1977, this petition is dismissed as withdrawn but it will be open to the petitioner to approach this Court afresh on the same cause of action in case necessity arises after he has availed of the statutory remedy. Hence, the present Revision Petition now before me.
3. I have heard Mr. Malik Mohammad Saeed on behalf of the petitioner/applicant and he has taken me through the facts as set out in the above Paragraph. He has stressed that the summons to his Client for appearance in the lower Court on 17th March, 1976 were only delivered at his residence at 7-00 p. m. On the previous evening and were received by his mother contrary to the provisions of Order V, rule 15, C. P. C., which demands that such service shall only be made upon an adult male member of the family. I have also heard Mr. Syed Iqbal Ahmad Barrister on behalf of the respondents. He has endeavoured to show me how the applicant has been negligent in attending the hearnings even earlier before the Junior Labour Court ; he has contended that an Attorney has no locus standi in proceedings under section 25-A of the Industrial Relations Ordinance, 1969 ; thirdly he urged a point of importance namely that the provisions of the newly added sub-clause (3-A) to section 38 of the Industrial Relations Ordinance, 1969 cannot have retrospective effect ; and he relied upon case law in support of this contention.
4. It seems to me after having heard both the counsel in this case, that the main question for consideration before me is whether section 38(3-A) of the Industrial Relations Ordinance, can be considered to have retrospective effect. For a determination of this question, the ancillary question is as whether the provisions of the newly amended sub-clause (3-A) to section 38 relates to the field of Procedural or to the field of substantive law. It is a well known Maxim of Law that Substantive Law operates prospectively whereas procedural law is an exception to this rule and can operate retrospectively. Having given my close attention to this point, I have reached the conclusion that this newly ridded sub-clause (3-A) to, section 38 relates to the field of procedural and not the substantive law. This power given to the Tribunal under a procedural or remedial measure enhancing the jurisdiction of the Tribunal and, therefore, it falls under the head of procedural and not substantive law. In this connection, I would refer to a case of our Karachi High Court reported in PLD 1962 Kar. 21 where it was held that "a provision of a statute dealing with matters of' procedure may property have retrospective effect unless that construction be textually inadmissible. Nobody has any vested right to particular procedure and therefore, normally it is the procedure, in force at the time of the trial or the disposal of the suit which must be applied. The Court cannot refuse to exercise jurisdiction if it has got it when the case comes up for trial upon the ground that it did not have such jurisdiction when the suit was instituted".
5. In the result, then, I am of the opinion that I have jurisdiction to revise the 2 orders dated 17th March, 1976 and 12th April, 1976 of the with Sind Labour Court Karachi in its Case No. 216/76; to set aside these 2 orders and to remand the case back for proper adjudication in accordance with Law and I hereby order accordingly.