This order will dispose of Writ Petitions Nos. 981/78, 1477/78 and 3365/78 as these involve same question of law.
2. Some relevant facts may be noted in the first instance. In the first petition, i.e. W. P. No. 981/78, the petitioner worker was dismissed from service on 15-11-1975. He gave grievance notice as provided for under subsec--tion (1) of section 25-A of the Industrial Relations Ordinance, 1969 on 14-2-1976.
Having received no relief, he filed a petition under section 25-A of the said Ordinance on 3-3- 1976.The petition was accepted by the Labour Court on 5-8-1976. The Management respondent No. 2 filed an appeal which has been allowed by the learned Punjab Labour Appellate Tribunal, Lahore on the ground that from the date of termination of service dated 15-11-1975 the petition filed on 3- 3-1976 was beyond prescribed time of sixty days under sub--section (6) and the time spent for redress of the grievance through notice under subsections (1) to (4) of section 25-A was not to be taken into account. This is vide order dated 3-5-1977. This order is challenged through this Constitutional petition. In W.P. No. 3365/78, the petitioner worker was dismissed from service on 22- 4-1976. According to him, he gave a notice under subsection (1) of sec--tion 25-A for redress of grievance on 11-5-1976. Having got no relief, he sent through registered post a petition under section 25-A on 10-6-1976. He also then submitted a petition before the Labour Court on 28-7-1976.
The petition was dismissed as barred by time on 11-5-1977 and his appeal has also been dismissed by the learned Appellate Tribunal on 16-3-1978. He has filed this Constitutional petition. In W. P. No. 1477/78, the petitioner worker was dismissed from service on 24-6-1975. He gave notice for redress of his griev--ance under subsection (1) of section 25-A on 16-8-1975 but the Management refused to redress the grievance vide order dated 2-9-1975. He, then, filed a petition under section 25-A before the Labour Court on 18-9-1975 He also filed an application for condonation of delay on 6-10- 1976. The Labour Court accepted his petition and directed re-instatement but without back benefits. He as well as the Management respondent No. 3 filed appeals. Petitioner's appeal was dismissed but that of the respondent Management accepted on the ground that against the order of dismissal dated 24-6-1975, the petition filed under subsection (6) of section 25-A on 18-9-19775 was barred by time and the time spent for seeking redress of grievance under subsections (1) to
(4) of section 25-A was not available to the petitioner. Hence, this Constitutional petition.
3. The point involved in these petitions is whether a worker can seek redress of his grievance against termination of service in the domestic jurisdic--tion followed by a petition before the Labour Court as provided for under subsections (1) to (4) of section 25-A, or, he can only file a petition before the Labour Court under subsection (6) of the said section of Industrial Relations Ordinance, 1969. In the first case, the petitioner workers' petitions before the Labour Court were apparently within limitation and they have wrongly been non-suited under the impugned orders. In the alternative, the impugned orders would be valid. The contention of the learned counsel for the petitionersis that not only a worker is obliged to follow domestic procedure for redress of his grievance under subsections (1) to (4) of section 25-A as laid down in various decisions like Pakistan National Centre through its Chairman v. Pre--siding Officer, Punjab Labour Court No. 2, Lahore and another (PLD 1976 Lah. 1085), Hotel Inter---Continental, Karachi v. Vth Sind Labour Court and another (PLD 1976 Kar. 301), Nasim Silk Industries v. Fifth Sind Labour Court etc. (1977 PLC 489) and International Press through its Manager v. Presiding officer, Junior Labour Court No. 4, Karachi and 2 others (1975 SCMR 392), but this is one of the remedies available to the worker and he can avail that too. By following a procedure provided by law and seeking remedy thereunder, the worker cannot be said to have wasted his time. The remedy provided under subsection (6) of section 25-A is an independent remedy in addition to the remedies provided under subsections (1) to (4) of section 25-A. It is also submitted that before subsection (6) was inserted by Act XXIX of 1973, a similar right was available to a worker under section 34 of Ordinance. He had thus two remedies, one under section 25-A (1) to (4) and the other under section 34. By the aforesaid Act, the right of the worker under section 34 was deleted but instead it was provided for by addition of subsection (6) to section 25-A so as to put the entire provisions for redress of grievances of a worker at one place. It was a case of simple transposition, by no means detracting from the pre- existing two remedies. Learned counsel also argued that the relevant law, i.e. Industrial Relations Ordinance, 1969 is meant to secure rights and benefits to the workers and should be so construed as to assist them in redress of their grievances than to be so interpreted that by technicalities or strict construction of equivocal provisions, the workers may be deprived of one of the two remedies. He has relied upon Marker Employees' Union v. Marker Alkaloids Ltd. And others (1976 SCMR 82), Divisional Superintendent, P. W. R. Karachi v. Bashir Ahmad (PLD 1973 SC 589) and Muhammad Siddique v. Sind Labour Appellate Tribunal and another (PLD 1979 Kar. 560).
4. On the other hand, the learned counsel for the contesting respondents has submitted that a worker seeking relief against termination of a service cannot have recourse to the remedies as provided for under subsections (1) to (4) of section 25-A but can only file a petition under subsection (6) of sec--tion 25-A. Learned counsel has submitted that the impugned orders have primarily been passed on the basis of the judgment of this Court in the case of Messrs Crescent Sugar Mills Ltd. v. Haji Muhammad and another (PLD 1976 Lah. 1176) and when on the basis of the impugned orders, other orders were passed by the learned Labour Appellate Tribunal, those were upheld by the same learned Judge while dismissing three Writ Petitions bearing Nos. 1546/77, 1547/77 and 1548/77. He has also submitted that the decision in Writ Petition No. 2210/77, after taking into account the then latest decision in Muhammad Duryab Yousuf Qureshi v. Punjab Labour Appellate Tribunal, Lahore and another (PLD 1979 Lah. 405) has fol--lowed the earlier reported decision.
5. It will be useful at this stage to reproduce the relevant provisions of section 25-A which read as follows:- "Redress of individual grievance.-(1) A worker may 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 Collective Bargaining Agent, within three months of the day on which cause of such grievance arises.
(2) Where a worker himself brings his grievance to the notice of the employer, the employer shall, within fifteen days of grievance being bro--ught to his notice, communicate his decision in writing to the worker.
(3) Where a worker brings his grievance to the notice of his employer through his Shop Steward or Collective Bargaining Agent the employer shall, within seven days of the grievance being brought to his notice, communicate his decision in writing to the Shop Steward, or, as the case may be, the Collective Bargaining Agent.
(4) 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 Shop Ste--ward 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; Provided that a worker who desires to so take the matter to the Labour Court shall do so within a period of two months from the date of the communication of the employer or, as the case may be, from the expiry of the period mentioned in subsection (2) or subsection (3) as the case may be.
(5) ... ... ... ...
(6) Notwithstanding anything contained in subsections (1) to (4) any worker aggrieved by the termination of his employment as a result of retrenchment, dismissal, discharge, lay off, lock out, or otherwise not earlier than two months preceding the commencement of the Indus--trial Relations (Amendment) Ordinance, 1972, may, within a period of two, months from the commencement of the Industrial Relations (Amendment) Act, 1973, or the termination of the employment, which--ever is later, either himself or through his Shop Steward or Collective Bargaining Agent take the matter directly to a Labour Court having jurisdiction in the area in which the establishment is situated."
6. From a perusal of the above, it would appear that under subsec--tions (1) to (4), a worker is allowed to seek redress of his grievance in the do--mestic jurisdiction and in case of inaction on the part of the Management or their refusal to redress the grievance, the worker is entitled to take matter to the Labour Court. Then, comes the subsection (6) which opens out by saying that "Notwithstanding anything contained in subsection (1) to (4), any worker aggrieved by the termination of his employment . . . . . May within a period of two months from the commencement of the Industrial Relations (Amend--ment) Ordinance, 1972 or the termination of employment whichever is later . . . . , . . , take the matter directly to a Labour Court . . . . . .". The crucial word in subsection l6) is "notwithstanding". It is quite often, employed by Legislature. It is sometimes said that "Notwithstanding anything contained in any other law or judgment," it shall be so and so. What it means is not that the laws or judgments are repealed or set aside, these remain! As before, but the Legislature provides that in spite thereof, it shall be so and so. If, on the other hand, the Legislature provides that "notwithstanding anything contained in any other law or judgments", a person may do so, what it is saying is that the laws or judgment remain as these were but the person concerned may do this as well. In no case, pre-existing laws or judgments are annulled, repealed or set aside. These remain intact as these were. The Legislature in spite thereof or notwithstanding provides something else. If the later is mandatory, it has to be followed and nothing else can be done ; if, on the other hand, it is directory, it is discretionary. Therefore, the word "notwithstanding" has to be interpreted in its context. In the case in hand, what is to be seen is whether when it is said in subsection (6) that "notwithstanding" anything contained in subsections
(1) to (a), the worker may take the matter directly to the Labour Court, does it mean that a worker could not have had recourse to subsections (1) to (4)? Now, word "notwith--standing" in the Oxford English Dictionary means "in spite of something', "nevertheless,., still", "yet", "although". If we were to substitute the word "notwithstanding" with its meaning "in spite of", the provision would read that "in spite of anything contained in subsections (1) to (4), any worker aggrieved by the termination of his employment may . . Take the matter directly to the Labour Court." It would clearly mean that a worker could go to the domestic authority under subsections (1) to (4), but in spite thereof, he could come directly to the Labour Court. To put the matter differently, the provision is not that "in stead of" what is contained in sub--sections (1) to (4), subsection (6) shall apply. On the other hand, the provision is that "notwithstanding", or, "in spite" of what is contained in sub--sections (1) to (4), a worker may come to Court directly under subsection (6). Similarly, if the word "notwithstanding" is substituted by its meaning "still," then, subsection (6) in the context of subsections (1) to (4) would mean that a worker may seek redress of his grievance in the domestic jurisdiction under subsections (1) to (4), and still can move a petition under subsection (6) before the Labour Court. So also, if we were to substitute the word "notwithstanding" with its meaning "all the same" in the context of subsections (1) to (4), it would mean that a worker may seek redress of his grievance within the domestic jurisdiction and, "all the same", he may move the Labour Court under subsection (6) In Concise Oxford Dictionary, one of the meanings of word "notwithstanding" given is "not the less for". Thus, if we were to substitute for "notwithstand--ing", the phrase "not the less for", in subsection (6), it would read that "not the less for anything contained in subsections (1) to (4), a worker aggrieved by termination of his service . . . May move the Labour Court." It would be, then, quite clear that a worker may seek redress of grievance under sub--sections (1) to (4), and, `not the less for that, he may move the Labour Court under subsection (6). After giving considerable thought to the point in hand, it appears that when the Legislature added subsection
(6) after subsections (1) to (5) of section 25-A, it was not meant to take away the right to seek redress from domestic forum under subsections (1) to (3) followed by recourse to Labour Court under subsection (4), but a further right was conferred that the worker may take the matter 'directly' to the Labour Court under subsection (6). Employment of word "may" in subsection (6) also leaves a discretion or choice to the worker, either to go to his employer under subsection (1) and follow the procedure under subsec--tions (2) to (4), or, come directly under subsection (6) to the Labour Court. Saying the least, the provisions being not free from ambiguity, the construction has to be in favour of the workers for whose benefit the legislation was primarily enacted.
7. The star judgment relied upon by the learned Labour Appellate Tribunal in the impugned orders is Messrs Crescent Sugar Mills Ltd. v. Maji Muhammad and another (PLD 1976 Lah. 1176), in which the question which required answer in the words of His Lordship at page 1177 was "whether a grievance notice is a necessary requirement where an employee is dismissed and removed from service and seeks recourse to the Junior Labour Court?". His Lordship came to the conclusion that it was not so necessary. Relying on the judgment, the learned Labour Appellate Tribunal came to the conclusion that since no notice for redress of grievance was necessary, therefore, petitions under subsection (6) filed after prescribed time of 60 days thereunder were unmaintainable and be decided some cases accordingly. These were challenged in Writ Petitions Nos. 1546/7'1, 1547/77 and 1548/77 and the petitions were dismissed in limine on 18-7-1977. In the case of Muhammad Duryab Yousuf Qureshi v. Punjab Labour Appellate Tribunal, Lahore and another (PLD 1979 Lah. 404) which came up for decision on 3-2-1979,' it was contended that the Labour Appellate Tribunal erred in law in holding that the case of the petitioner was governed by section 25-A (6). Ac--cording to him, the above provision only allows an alternate remedy but it in no way excludes the one provided under section 25-A (4)." The learned Judge observed that "after hearing both the parties, I find that the submission made by the petitioner is quite correct. Section 25-A(6) comes into play only if a worker does not give a grievance notice to the employer as provided under section 25-A (1) of the Industrial Relations Ordinance. He could in the alternative send a grievance notice within three months of the cause of action to the employer and proceed to file a petition before the Labour Court within two months if there was no favourable response within 15 days after the grievance notice. The petitioner in this case resorted to the remedy in sec--tion 25-A (1) and, therefore, he could give a grievance notice within three months, wait for another 15 days if no reply was given and thereafter file a petition under section 25-A within a further period of two months. The order of the Appellate Tribunal, therefore, is prima facie bad. The Tribunal ought to have considered the other alternative and should have seen if in view of the facts on the record, the petition filed before the Labour Court was within time." Therefore, the question arose in P. W. No. 2210/77 wherein the last mentioned judgment was also taken into account. It was, however, observed that "I am inclined to agree with the interpretation of section 25-A of the Industrial Relations Ordinance and its various subsections as expounded by this Court in Messrs Crescent Sugar Mills Limited v. Haji Muhammad and another and hold that all grievances other than termination of service are to be dealt with under subsections (1) to (4) of section 25-A of Industrial Relations Ordinance, 1969 and that all cases of termination of employment of a workman as a result of retrenchment, dismissal, discharge, lay off, lock--out or otherwise are to be governed by subsection (6) and a workman must, accordingly, move a Labour Court (Junior Labour Court) having jurisdiction in the area in which the establishment is situated within a period of two months." Thus, the basic and leading judgment is PLD 1976 Lah. 1176 and having been delivered by a very learned Judge of this Court for whose learning I have deep regard and respect, it has been difficult to over--come the hesitation and reluctance to come to an opinion, which may appear to be contrary. His Lordship's judgment was relied upon by the learned Labour Appellate Tribunal for a proposition which was not in issue in the judgment but in fairness to him, his decision was upheld, when challenged, by the learned Judge. This interpretation has been accepted on the basis of the leading judgment by another learned Judge. Therefore, it has been very embarassing to come to a contrary conclusion. The only solace, besides support from other cases and a judgment of another learned Judge of this Court in Muhammad Duryab Yousuf Qureshi v. Punjab Labour Appellate Tribunal and another is that I am not differing from the ratio decidendi of the leading judgment. The question involved in the case as formulated by His Lordship at page 1176 of the report PLD 1976 Lah. 1176 was "whether a grievance notice is a necessary requirement where an employee is dismissed or removed from service and seeks recourse to the Junior Labour Courts?" His Lordship's answer was that it was not necessary. I am in respectful agree--ment, as stated above. The case did not involve the question that if a worker does give grievance notice under subsection (1), could he not follow the procedure right through to subsections (2) to (4)? It is the latter question which is in issue in the present cases. Now if a procedure is provided for seeking relief by a Statute and even if it may not be necessary that it be followed but is, in fact, followed, would that amount to that the person had wasted his time, if he pursued the remedy provided to him by law? At this stage, another argument may be adverted to and that is that the procedure under subsections (1) to (4) is for redress of general grievances and for relief against termination of service the only provision is subsection (6). The argument is based on the observation in para. 36 of the leading judgment aforesaid in meeting the argument that if termination of service is excluded from the purview of subsections (1) to (4), what would be the utility thereof? It was observed that "as regards the utility of subsections (1) to (4) by excluding cases of termination of service from the grievance procedure, not all the grievances are excepted.
There may be grievances, other than those, e.g. Grant of statutory bonus, leave, bonus of work, unfair labour practice, short of termination of employment, etc. In which the procedure prescribed in these provisions will have full effect." From the observation, it does not follow that his Lordship was of the view that cases of termination of service were necessarily excluded from the purview of subsections (1) to (4). What his Lordship observed was that even if these were excluded, still there were other grievances which could be sought to be redressed under subsections (1) to (4). The observations in his behalf were to negative the contention that since no notice for redress of grievance as provided for under subsection (1) was given, therefore, petition under subsection (6) was not competent. His Lordship found that no such notice was necessary for moving a petition under subsection (6) and this was the question involved in the case as his Lordship formulated at page 1176 of the report. His Lordship was not considering that if a worker were to give notice under subsection (1) and pursues his remedies under subsections (1) to (4) what would be the effect thereof ? At this stage, it may, however, be noticed that if a general provision is followed by a particular provision, the latter prevails but this happens only when the particular provision is comprehensive enough, leaving nothing which could be covered by the general provision and upon the intention of the Legislature. Now, if we look at the particular provision, I.e., subsection (6), it provides that a worker may take the matter of termination of service directly to the Labour Court.
So far so good. But the general provision in subsec--tion (i) allows the worker to bring his grievance (and certainly termination of service would be a cause of great grievance to the worker) to the notice of his employer "either himself or through his Shop Steward or Trade Union". Here, it is not that the worker can seek redress of grievance by himself but also he can do so through his Shop Steward or Trade Union who can speak on his behalf, point out good points about him, besides explaining the default resulting in termination of service, recommend giving another chance to him, assure his good behaviour in future, or, put their weight behind him, or, some pressure, and I do not mean undue or illegal pressure but legitimate, organized and well-disciplined pressure, which are prerequisites of organized labour. Therefore, it follows that the particular remedy under subsection (6) is not full or total so as to take out the case from the general remedy under subsec- -tion (1). The former leaves the individual worker to fend for himself. The latter allows him to seek redress of his grievance through collective action. It is axiomatic enough that lone individual is more susceptible to injury than in a community. The old story of wood-cutter asking on his death bed his four sons to break the individual sticks which each could do and then asking the sticks to be bundled together and requiring them to break the bundled sticks which none could do to bring home the truth that individually they could be broken but not collectively, is fully applicable to the case of a worker. As against the employer, his individual efforts can only be nominal, but collectively, he may have hope to have some relief. As regards the intention of the Legislature, we know that subsection (6) was added to subsections (1) to (5) of section 25-A in place of section 34 from where similar right was taken away by deletion. Secondly, the intention was not to take away existing rights under subsections (1) to (4) but to add to them by supple--menting provisions of subsection (6) so that immediate relief may be sought if so desired by the worker. Therefore, I am quite clear that the particular remedy provided under subsection (6) is not of the quality and nature that it can be construed to mean that it is the only remedy available to a worker and that he has lost all his rights in the relevant behalf under the general remedies provi--ded by 'subsections
(1) to (4). Rights are not taken away without express and unambiguous language of a Statute, nor, are to be avoided by implication or inferences. The intention of the Legislature was not to do so either. More--over, subsection (6) itself provides that a worker may take the matter of termination of his service direct to the Labour Court. The word "may" leaves a discretion with him. Worker may follow the grievance procedure under subsection (1) etc., or, he may, in terms of subsection (6) take his matter `direct' to the Labour Court. The two procedures are not exclusive of each other.
Both exist in their own places. A worker may choose one or the other.
8. The result of the above discussion is that a worker may seek redress of his grievances under subsections (1) to (4) or he may have recourse to the provisions of subsection (6) of section 25-A of the Industrial Relations Ordinance, 1969. If he follows the procedure under subsections (1) to (4), he is entitled to relief thereunder. On the other hand, if he chooses to follow the procedure under subsection (6), he is to be dealt with accordingly. The cases having not been dealt with in accordance with law, the impugned orders are without lawful authority and of no legal effect.
These are remitted to the learned Labour Appellate Tribunal, Lahore for fresh decision in accord-- ance with law. As the petitions succeed on pure question of law, the parties shall bear their own costs.