The petitioner challenges the order dated 7th August, 1978, of the Punjab Labour Appellate Tribunal (hereinafter referred to as the Tribunal), whereby the appeal filed. By respondent No. 2, an employee of the petitioner, was accepted and he was re-instated in service with back benefits.
2. Briefly, the facts leading to this petition are that respondent No. 2 was appointed as an Officer in the Finance Department of the petitioner on 18th February, 1975 (Annexure'A'). He was designated as Liaison Officer and placed in Group VII. On 22nd January, 1976 (Annexure 'C') he applied for promotion to Group VIII, in view of his achievements and some understanding given to him at the time of his appointment. His application was recommended by two of his superiors but the Manager, Funds Management, instead, advised abolition of the post, vide his report dated 11th August, 1917 (Annexure 'D'). His views found favour with the higher authority with the result that the post of respondent No. 2 was abolished. A letter dated 21st August, 1977, informing respondent No. 2 of this decision was also sent and he was paid one month's pay in lieu of notice.
3. On 30th August, 1977, respondent No. 2 sent a notice of grievance under section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter called the Industrial Relations Ordinance). The petitioner, however, extended no favourable response. Consequently, respondent No. 2 filed a petition under section 25-A of the Industrial Relations Ordinance before the Labour Court on 10th October, 1977 (Annexure "G'). The petitioner, in its reply dated 21st January, 1978, challenged the jurisdiction of the Labour Court and controverted the allegation of respondent No. 2 that he was a workman entitled to the guarantees contained in Standing Order (hereinafter referred to as S. Os.
12 and 15 of the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 (hereinafter referred to as the Standing Order - Ordinance). The Labour Court recorded evidence and vide its order dated 30th January, 1978, dismissed the petition holding that as respondent No. 2 eras not a workman, he had no rights guaranteed to him under the Standing Orders Ordinance.
4. Respondent No. 2 - took an appeal before the Tribunal who vide his order dated 7th August, 1978, accepted the same and ordered his re-instatement. The Tribunal also rejected the objection of the petitioner that it had no jurisdiction or that respondent No. 2 was not a workman. The petitioner has now come to this Court invoking its constitutional jurisdiction.
5. The learned counsel for the petitioner raised the following legal points :
(I) That respondent No. 2 was not a workman and therefore, neither respondent No. 1, nor did the Labour Court have any jurisdiction to hear and decide his grievance petition ;
(2) that no appeal before the Tribunal was available to respondent No. 2 as S. O. 12 under which proceedings had been taken; adopted by reference only section 25-A of the Industrial Relations Ordinance and not its appeal provision in section 37 (3) ;
(3) that in any case; respondent No. 2 had no right of appeal before the Tribunal in view of the notification dated 9th September, 1976, issued by the Federal Government under powers vesting in it by virtue of section 1 (3) of the Industrial Relations Ordinance excluding operation of the Industrial Relations Ordinance in favour of such persons who were drawing wages in groups V to X of the P. I: A. Corporation.
6. The learned counsel for respondent No. 2 had also raised a preliminary objection, which may be dealt with first. It was contended that as the petitioner did not object to the jurisdiction of the Labour Court and rather applied for the transfer of the case before it to another Labour Court, the petitioner shall be deemed to have acquiesced in its jurisdiction. The argument was that if the petitioner had any objection to the jurisdiction of any of the two authorities, it would not have asked the Tribunal to transfer the case to another Labour Court. This objection is, however, not sound.
Firstly the learned counsel for the petitioner did challenge the jurisdiction under section 25-A.
Reference be made to para. 2 of the preliminary objections. It is also clear from para. 3 of the order of the Labour Court that objection was raised before it during hearing also. Secondly, the petitioner was a respondent before the Labour Court and, therefore, this objection cannot succeed in view of the law laid down by the Supreme Court in Muhammad Afzal v. Board of Revenue (PLD1967SC 314).
The objection is, therefore, not sustained.
7. As for the first legal point, that respondent No. 2 was not a workman as defined in the Standing Orders Ordinance and that his case could not be entertained and adjudicated upon by those Courts, reliance was placed by the learned counsel for the petitioner, on the duties assigned to the respondent at the time of his appointment, which are as under
(1) Recovery of all P. I. A. Dues against all Ministries of the Government of Pakistan and other Government Departments/Officer by personal visits, correspondence and other means of communications.
(2) Expedite recovery of P. I. A. Dues from all Foreign Missions at Islamabad in the manner aforesaid.
(3) Actively follow-up with the above offices and deal with all queries raised by any office, in accordance with the laid down procedure.
(4) Assisting Station Accountant P. I. A., Rawalpindi in maintaining a complete and up to date file of all outstanding dues recoverable from all category of debtors.
(5) Follow-up with the Department concerned any matter referred to by the Head Office.
(6) Submission of a fortnight report of recovery showing the name of the Department, invoice and amount realised, to Credit Control Section through Station Accountant, Rawalpindi.
Reference was also made to the representation dated 27th January, 1978, made by respondent No. 2 for promotion to group VII. He stated in para. 2 thereof : . ....And accordingly I took over my assignment to show my capabilities, initiative and drive.
The learned counsel also went through the cross-examination of respondent No. 2 before tide Labour Court, and stated that the respondent had a much higher status as he was given a car for his official duties, he could entertain people at the expense of the petitioner, he used to go to Lahore, Karachi and Peshawar in connection with his duties to meet officers. He also used to go to the Ministry of Finance, other Ministries and Embassies for Credit. Respondent No. 2 also admitted to be in possession of an Apron Pass issued to him by the P. I. A.
8. An organisational chart had also been produced, under the directions of this Court showing the position of respondent No. 2 vis-a-vis various other categories of officials/officers as under Sr. No.Category of Officials/Officers Pay group
1. Junior Assistant/typists and Accounts Assistants. III
2. Accounts Supervisors.IV
3. Junior Accounts Officers.V
4. Accounts Managers/Assistant Accounts Managers (outstations) Assistant Accounts Officers Head Office Karachi. VI District Managers, District Sales Managers, Assistant District Managers, etc., have been placed in group VII in which the respondent was also placed. According to the above chart the status of the respondent is four steps higher than Accounts Assistants. He is three status above the Accounts Supervisors, two steps higher than Junior Accounts Officers, one step higher than outstation Accounts Managers and at par with the District Managers and Station Managers etc. He had also been recommended for group VIII by two of his superiors.
9. The learned counsel for the respondent, however, submitted that the respondent was a workman. He referred to his notice under section 25-A of the Industrial Relations Ordinance, his petition under the same provision of law to the Labour Court as well as his statement made before that Court to say that his ~ duties were such that he was covered by the definition of the workman as given in the Standing Orders Ordinance. He also cited a few judgments to support his plea.
According to the notice under section 25-A and the petition under the same provision, the duties of the respondent were to make recoveries and collect debts arnounting to crore of rupees. He has also to see that the burden of taxes on the Corporation was reduced and its financial stability improved.
10. Apart from his normal duties as a Liaison Officer respondent No. 2 performed other extra duties of conducting Departmental Inquiries. In his statement before the Labour Court, however, respondent No. 2 stated his duties as under :-
(1) To maintain a ledger ;
(2) to write letters in order to recover credits from various establishments ;
(3) to prepare invoice ;
(4) to maintain thirty files and six registers.
He, however, denied that he had any managerial or supervisory duties and stated that he neither had any subordinate nor did he have any power to engage or discharge any employee.
11. The precise question requiring determination is whether it could be inferred in law on the basis of the factual position as given above, that respondent No. 2, was a workman. It is now well established under the authority of the Supreme Court in Brooke Bond (Pakistan) Ltd. v. Conciliator (PLD1977 SC 237) that the definitions of 'workers' or 'workmen' as given in the Industrial Relations Ordinance and Standing Orders Ordinance are substantially different. The definition of 'worker' in the Industrial Relations Ordinance is more comprehensive and it includes all persons other than the employer. This effect was brought about by an amending Act in 1973. The change made is so radical that though the Supreme Court approved its previous view and a finding of the High Court that a salesman was not a 'workman' under the Standing Orders Ordinance, yet their Lordships while comparing the two definitions held that a salesman was a workman under the Industrial Relations Ordinance. The discussion is at page 271 of the judgment referred to above. In the. Case in band respondent No. 2, had applied to the Labour Court in respect of his rights under S. O. 12 (3) of the Standing Orders Ordinance. It is, therefore, the definition under the Standing Orders Ordinance and not that of the Industrial Relations Ordinance that is to be considered. It has also been held in a very well-considered judgment in the case of I. E. Saleh v. International Laboratories Ltd. (PLD 1975 Kar. 279) that it is the definition of 'workman' as given in Standing Orders Ordinance that applies to a person who is seeking relief under S. O. 12 (3) and not the one given in Industrial Relations Ordinance. It may be noted here that his Lordship considered practically the entire relevant case-law on the point to hold that view. There are important observations to the same effect made in the case of Bashir A. Malik v. Punjab Labour Court (PLD 1973 Lah. 594) at page 599- B which may be reproduced below with advantage : "The definition in this section does not contain any reference to supervisory capacity. Wherever the Legislature wanted to exclude people in supervisory capacity from the plea of workman it specifically said so as it has done in the case of West Pakistan Trade Unions Ordinance V of 1968 where persons employed in managerial or administrative capacity have been excluded from the definition. In the Industrial Relations Ordinance XXIII of 1969 'any person responsible for the management, supervision and control of the establishment' has been excluded from the definition of 'worker' and 'workman'. The mere fact, therefore, that a person who is otherwise covered by the definition of 'workman' as given in Ordinance V1 of 1968, also performs supervisory function would not be operative to exclude him from the definition of 'workman'."
12. The workman under the Standing Orders Ordinance 'means any person employed in any industrial or commercial concern to do any skilled or unskilled, manual or clerical work for hire or reward. The scope of this provision has been considered in a few cases which are referred to hereinafter. It may, however, be noted that the definition of 'workman' under the Industrial Disputes Act, 1947, and the Industrial Disputes Ordinance, 1959, had the similar import and scope as given to it in the Standing Orders Ordinance. In Chairman, Brooke Bond (Pakistan) Ltd. v. General Secretary, Union Karkanane Brooke Bond Pakistan Ltd. (PLD 1969 Lah. 717) a Division Bench of this Court laid down a criteria to ascertain if a person is or is not a 'workman'. The relevant observations are : "According to this definition a" workman is employed in an industry to do skilled or unskilled work which is manual or clerical' Manual Work entails physical exertion to distinguish from the mental or intellectual exertion involved in the clerical work. But both the manual and clerical work, in the sense these terms are used here, connotes that it is more or less a routine work, not requiring any great amount of initiative, imagination, direction, control and supervision in discharging the same.
The true nature of the duties performed by the employee is the determining factor in ascertaining if he was a workman or not within this definition. In case the manual work forms only a small and an auxiliary part of his responsibilities or he is incidentally required to prepare a statement, maintain a register or submit a report, he cannot be considered to be a workman if otherwise his main and primary duties do not belong to this category. The true test, therefore, is to look to the direct, immediate and the substantial part of the work for which he is employed and not to the sundry duties incidentally performed by him."
13. Their Lordships relied on the judgment of the Supreme Court in Pakistan Tobacco Co. Ltd. v.
Pakistan Tobacco Co. Employees' Union (PLD 1961 SC 403) in which practically the same definition of the workman as contained in section 2 (5) of the Industrial Disputes Art, 1947, was interpreted.
The relevant observations of their Lordships of the Supreme Court at page 407 are as under : " I consider that it admits of no doubt, that persons who are engaged exclusively in the field of distribution through proper agencies of the products of the Company, are not assimilable either to the group of workers whose manual labour contributes to that product, or those of the clerical establishment who perform the paper work connected with the operations of the Company. The work of salesmen is in a wholly different category from manual work or clerical work, and feel no hesitation in agreeing with the decision of the Tribunal upon this point, namely, that salesmen do not fall within the definition of workmen?'
14. The learned counsel for respondent No. 2, had relied upon the judgment in Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani (1979 SCMR 304) and referred to the following observation in support of his submissions : "We have examined the chart of duties of the respondent. It is also clear from the statement in his affidavit that he had no supervisory function at all after he was asked to act on the instructions from Farid Khan."
His plea is that as the respondent also had not supervisory functions to perform his duties he was - workman. Similar observations made in another illuminating judgment in the case of Bashir A. Malik were also cited. It was held in that case that "The mere fact, therefore, that a person who is otherwise covered by the definition of 'workman' as given in Ordinance VI of 1968, also performs supervisory functions would not be operative to exclude him from the definition of workman."
Reference was also made to the case of Dost Muhammad Cotton Mills Ltd. v. Muhammad Ablul Ghani (PLD 1975 Kar. 342). It may be of advantage to reproduce the relevant portion of the judgment which is as under : "Additionally, Mr. Mansoor Ahmed Khan has urged that the respondent was Chief Accountant and getting a salary of Rs. 1,100 per month. On the other hand the case of the respondent is that in spite of his being styled as a Chief Accountant; his duties were clerical and skilled in their nature. The further contentions is that he had to seek instructions from Mr. Fareed Khan and not from the owner.
In my view, neither the designation nor the salary is a factor for determination of the status of the 'employee'. The only criterion is the work that an employee has to do and the answerability for the performance. These contentions of Mr. Mansoor Ahmad Khan are misconceived.
I must also record a further contention of Mr. Naimuddin to the effect that the respondent, if he was to be held to occupy a position of supervision or control, could not be termed to be supervising or controlling the entire establishment but only a branch or Department of this establishment and for such reason could not be said to be covered by the definition of 'employer' as stated in section 2
(c) (iii) of the Ordinance. I am inclined to agree with such contention but it is not necessary to pursue the point any further.
15. It is well established that in order to determine the status of a employee, his main duties, and not those which are either incidental to the main duties or those which are minor or of insignificant importance, are B to be taken into consideration. Reference be again made to the Supreme Court judgment in Brooke Bond case and other cases cited above. The status of the respondent as stated in para. 8 above, was equivalent to Accounts Officer, Head Office Karachi and Assistant Accounts Manager, Accounts Manager at the outstations. In the other Department his rank could be equated with the Station Manager etc. According to his own version in his application under section 25-A', the respondent had been, assigned the job of collecting arrears worth crores of rupees from Ministries and Embassies. He had to see that burden of taxes was reduced on the Corporation ; he had to keep an eye on the financial stability of the petitioner Corporation and he was also required to occasionally conduct departmental inquiries. In view of his cross-examination before the Labour Court, the respondent was given a car and could entertain people at the cost of the petitioner. He could go to Lahore, Karachi and Peshawar to meet officers in the Ministries and Embassies and bad also an 'Apron Pass' probably to receive such officers. May be the respondent was thus maintaining some accounts etc. But the question is that if the job of the respondent was only to maintain accounts, ledgers, credit jackets and other similar documents in addition to going from office to office to seek recoveries of outstanding amounts as stated by his learned counsel, then why did the petitioner not depute any ordinary official from groups III-VI and why did it engage a man in group VII for this 'clerical' work. No suitable and convincing reply to this aspect of the case was furnished on behalf of the. Respondent. However, the 'minute I' prepared by the respondent and now placed on record as Annexure'C dated 27th January, 1976, offers an answer.
The respondent had taken over this job not for doing some clerical or manual work but he took over that assignment to show his capabilities,, initiative and drive. Further, the job entrusted to respondent No. 2 was to recover crones of rupees from Government Ministries and Foreign Missions by personal contacts. Obviously, it was a very important and a sensitive job. The respondent apparently had not only to recover the outstanding debts but, would have been required to see that the recoveries were effected not at the cost of business or good relations. A Laision Officer, therefore, appointed for the purpose, required much more tact, initiative, capability and drive than that required of a good salesman. A salesman would have been sent out by the petitioner to secure more business or sell more seats. The respondent had to recover substantial amounts and ensure that the clients of the petitioner did so amicably. Had not that been the intention they would have appointed rather a lawyer for the purpose. He was provided with a car when on his duty, an apron pass, actual entertainment expenses and pay in group VII. Such a status with all those facilities cannot be given to a mere clerical worker. Had that been intended an Accounts Assistant in group III would have been sufficient. Therefore, any clerical work that the respondent may be doing must be just incidental to the main work of employing tact, initiative and drive to recover those crores of rupees without losing the business and good-will. I have, therefore, no doubt that the respondent, as he was then placed in the petitioner' establishment, could not, even for a moment, be considered to be doing mainly a manual, clerical, skilled or unskilled job. He was, therefore, not a workman.
16. As for the second point, it will be advantageous to survey the legislative history of the relevant provision to understand the import and impact of the objection. Standing Orders Ordinance as promulgated originally provided in S. O. 12 (3), for the termination of services of a workman by giving him one month notice in writing or pay in lieu thereof. It further provided that if termination was due to misconduct procedure in S. O. 15 was to be followed. S. O. 18 stipulated that if a workman, whose services were terminated happened to be an office-bearer of a Trade Union, he could take his grievance to an Industrial Court established under the West Pakistan Industrial Disputes Ordinance, 1968. The Industrial Relations Ordinance which repealed the West Pakistan Industrial Disputes Ordinance was promulgated on 13th November, 1969, as Ordinance No. XXIII of 1969. Section 35 of this Ordinance authorised the Provincial Government to establish Labour Courts to adjudicate upon and determine an industrial dispute.
17. On 13th April, 1972, Ordinance No. IX of 1972, was promulgated to amend the Standing Orders Ordinance of 1968 as well as the Industrial Relations Ordinance. In Standing Orders Ordinance, S. O.
12 (3) was amended to provide that an order in writing with reasons shall have to be made for the termination etc. Of services of a workman. S. O. 18 was omitted. Section 25-A was inserted in the Industrial Relations Ordinance. It provided for a right to every worker to represent to his employer and to take to a Labour Court any 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. Section 37 (3) of the Industrial Relations Ordinance was. Also amended to make an order under section 25-A appealable before the Labour Appellate Tribunal.
18. S. O. 12 (3) was recast by Ordinance XVIII of 1972 with effect from 24th May, 1972. The important change made was that the remedy under section 25-A' of the Industrial Relations Ordinance was applied by reference to the right created under S. O. 12 (3); so that the worker 'may bring his grievance to the notice of his employer in the manner laid down in section 25-A of the Industrial Relations Ordinance and thereupon the provisions of the said section shall apply as they apply to the redress of individual grievances. ' S. O. 12 (3) was again amended and for the words 'bring his grievance to the notice of his employer in the manner laid down in' the words `take action in accordance with the provisions of were substituted. This was done in view of Ordinance XXIII of 1973 with effect from 9th February, 1973. Section 25-A of the Industrial Relations Ordinance was also amended by Ordinance XLVIII of 1172 whereby the words 'Labour Court' were substituted by the words `Junior Labour Court' with effect from 6th November, 1972.
19. Subsections (1), (2), (3), (4) and (5) of section 25-A of the Industrial Relations Ordinance and S. O. 12 (3) have not undergone any material change till today except that vide Act XI of 1976, enforced on 12th April, 1976, all cases pending immediately before 16th January, 1976. In a Junior Labour Court under section 25-A of the Industrial Relations Ordinance were transferred to the Labour Court. The words 'Junior Labour Court' in section 25-A were substituted by the words 'Labour Court' and `Trade Union' by the words 'Collective Bargaining Agent'. Subsections (6) and (7) were introduced in section 25-A of the Industrial Relations Ordinance vide amendment Act XXIII of 1973, but this amendment was later omitted by Ordinance IX of 1977, as those provisions were of transitory nature. Subsections (8), (9) and (10) of section 25-A were also added for the first time by Act XI of 1976. The significant aspect brought out by the above survey was that a worker could as a matter of right pursue the remedy under section 25-A of the Industrial Relations Ordinance and any order passed by the Labour Court was subject to appeal, as section 37 (3) of the Industrial ,Relations Ordinance was applicable ipso facto from 13th April, 1972 to 24th May, 1972, when section 25-A was incorporated in S. O. 12 (3).
20. As said above, finally amended S. O. 12 (3) provided that 'in case a workman is aggrieved by the termination of his services or removal etc., he can take action in accordance with the provisions of section 25-A of the industrial Relations Ordinance and thereupon the said previsions of the said section shall apply to the redress of an individual grievance. It was contended by the learned counsel for the petitioner that the remedy provided to an aggrieved worker is to move by a petition the Labour Court after exhausting his remedy with the employer. It was argued that an appeal is a creation of a statute and must be expressly provided before it can be availed by an aggrieved person. It is correct that there is no express provision to apply section 37 (3) of the Industrial Relations Ordinance to the rights created in and reference made under S. O. 12 (3). Thus the point to be considered is whether the reference to section 25-A in S. O. 12 (3) would attract application of the provisions of section 37 (3) as well.
21. S. O. 12 (3) confers a right on an aggrieved workman to take action in accordance with section 25-A of the Industrial Relations Ordinance and it provides that thereupon the said section shall apply as it would apply to the redress of individual grievance. This adoption of provisions of earlier statutes by reference while enacting a later law is generally called legislation by reference or by incorporation. The rules of interpretation with regard to such a way of legislation have attracted considerable attention of the Judges and text-book writers and it will be of interest and advantage if we may refer to and draw upon the views expressed by them. The first case relied upon by the learned counsel for petitioner was M. S. Faruki v. The Province of Punjab (PLD 1973 Lah. 195). The position of that case was of that section 29 of the Municipal Administration Ordinance enacted that provisions of Chapter VIII of Part II of the Basic Democracies Order shall apply mutatis mutandis in relation to the servants of the Municipal Committees as if the said provisions had been enacted in the Ordinance and any reference to the Local Council was a reference to a Municipal Committee.
Later, the Basic Democracies Order was amended vide Act XVI of 1965, and the words 'prescribed authority' were substituted by 'controlling authority'. The question arose whether it is the 'prescribed authority' or the 'controlling authority' which could exercise power in case of the servants of a Municipal Committee. The Court held : "When certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectively without the addition. Any subsequent change in Article 45 of the B. D. O. Therefore, would not automatically form part of the M. A. O."
Their Lordships borrowed with approval the above dicta from the Secretary of State v. Hindustan Co-operative Insurance Society (AIR 1931 PC 149).
22. The same point as above came up before Supreme Court in State v. Muhammad Riazul Haq (PLD 1964 SC 434). The observation of Kaikaus, J. Who delivered the judgment of the Court, was that "It is a simple case of legislation by reference. According to section 29, Chapter VIII. Part 11 of the Basic Democracies, Order is to be read with certain adaptations in the Municipal Administration Ordinance. The effect of these provisions is the same as if Chapter VIII were in fact put in the Municipal Administration Ordinance with the relevant adaptations."
His Lordships also noted that the word 'order' in Chapter VIII of the Basic Democracies Order shall be read as Ordinance by adaptation, with the Municipal Administration Ordinance and remarked that : It was not the Basic Democracies Order that was to govern the appointments, dismissal etc. Under the Municipal Administration Ordinance. Only instead of putting some provisions in the Municipal Administration Ordinance, the Legislature thought fit to refer to similar provisions in another law for the purposes of incorporating those provisions in this Ordinance.
23. The High Court of Australia is Commission of Government Transport v. Deacon (97 C L R Australia 535) observed that subsections (2) to (7) of section 10 of the Workmen's Compensation Act, 1926-42 are incorporated as part of section 124 (3) in the terms in which they are expressed at the time when such latter subsection was enacted and are to be applied in its operation without regard to amendments thereto made subsequent to its enactment.
24. In M. Jamil Chaudhry v. M. Hanif Chaudhry (PLD 1975 Lah. 379) the point coming up for resolution was that could there still be an Intra-Court appeal after clause 10 of the Letters Patent providing for an appeal against the judgment of a Single Judge, was omitted by Law Reforms Ordinance, 1972. The view expressed by a Division Bench of this Court is as under :- "The legislation by incorporation is of common occurrence and has a useful purpose to serve. It is for avoiding the necessity of repeating such provisions in subsequent Acts dealing with the same matter. By the High Court of West Pakistan (Establishment) Order, 1955, the High Court of Judicature at Lahore ceased to exist. Therefore, all the laws by which any original, appellate and other jurisdiction, power or authority in respect of the areas for which it was established was conferred, lost their efficacy and could not operate. They were for the High Court of Judicature at Lahore and there being no such Court those laws could not remain operative. Since, however, it was intended that the provisions of the Letters Patent which were applicable should, in future, apply to the High Court of West Pakistan, the Legislature should have either enacted a Law containing all those provisions to apply to such newly-ccnstituted High Courts, or it could, by reference incorporate the same provisions. The Legislature adopted the latter course, because it was convenient to do so. It is well established by authority that if an Act incorporates by reference provisions of a former Act the legal effect of that is as if the new Act has come into force containing all those provisions. In re : Wood (1) Lord Esher observed. 'If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act just as if they had been actually written in it with the pen or pencil printed in it and the moment you have those clauses in the later Act you have no occasion to refer to the former Act at all."
25. It is quite clear from the above that whenever there is a legislation by reference in the terms of 'mutads mutandis' "application of certain other provisions of law or if other provisions of law have been incorporated as if enacted in the later Act", the subsequent changes in the previous Act would bring in no change with regard to the applicability of the earlier provisions in the original form to the later Act. But, there came up a different situation in the Commissioner of Income-tax v.
Messrs Kohinoor Industries Ltd. (PLD 1977 Lah. 96). In that case provisions of a number of sections of the Income-tax Act, 1922, were incorporated in the Business Profit Tax Act, by virtue of its section 19 (1). Section 19 (2) reads as under : "19 (2) Any reference in this Act to the Income-tax Act, 1922, shall, in relation to the profits of any chargeable accounting period and to the state of affairs and all circumstances necessary to determine the charge to business profits tax, mean the said Act as in force in the relevant period."
(The underlining* is by me).
In that case the learned counsel for the petitioner did not dispute that when some provisions of an earlier Act, are incorporated in a later Act, the incorporated provisions for all practical purposes, become part and parcel of the later Act and no subsequent change in the earlier Act, even though retrospective in its application, shall apply to the incorporated provisions of the later Act unless the same had been made applicable expressly or by necessary intendment. It was, however, found by the Division Bench, on the basis of the intention of the Legislature as it was clear from the wording of that provision that the subsequent amendments would be applicable and the provisions applicable would be those that existed in the relevant accounting period.
26. It is to be noted that if there is a simple case of legislation by reference, the provisions referred to become part of the adopting law and any adaptation that is necessary to make it function effectively, is allowed. Similarly, subsequent amendments may also be operative if there is expressed, in the adopting statute, a clear intention to that effect. But sometimes one statute may adopt such provisions of another 'as are applicable'. The Court in determining the applicable provisions must construe into the adopting statute only such provisions of the prior Act as will give force and effect to the later Act. When the subsequent legislation incorporates pre-existing laws 'in so far as same are applicable' the Court has to harmonise the adopted provisions to the situation in the later Act. However, when Legislature in adopting the procedural provisions of another Act, made substitutions in certain instances, it will be inferred that in matters not specified no substitution was intended.
27. So what we understand from the above is that although ordinarily the adopted provisions become part of later Act as if they had actually been enacted therein yet it is not true in each and every case. The best rule is to see as to what - did the Legislature intend to be adopted or incorporated. It is thus the very language of the adopting statute and the intention of the Legislature therein that will determine the scope of the adopted legislation. It may not be irrelevant in this regard to refer here also to some other views on the point. In Crawford on Statutory Construction (Interpretation of Laws) at page 439, para. 234, dealt with this aspect as under "234. Adopted statute.--A statute may adopt all or only a part of another statute by express reference, or by re-enactment of the former in verbatim or in substantially the same language.
Where this is true, the adopted provisions become a part of the adopting statute. Similarly, a statute may adopt the provisions of another statute by what is known as descriptive reference. In this case, the adopted provisions become a part of the adopting statute but only those provisions which relate to the new statute's subject."
28. In Corpus Juris Secundum, Vol. 82, at pages 846 to 848 the subject is discussed as under : "370, Construction with Statute adopted by reference in general.-Where a statute adopts a part or all of another statute by a specific and descriptive reference thereto, as it may do in accordance with the rules stated supra, paras. 70-72, the effect is the same as if the statute or part thereof adopted had been written into the adopting statute. Where, however, the adopted statute is referred to merely by words describing its general character, only those parts of it which are of a general nature, or particularly relate to the subject of the adopting statute, will be considered as incorporated into the later---------------------------..When the Legislature in adopting the procedural provisions of another act, made substitutes in certain instances it will be inferred that, on matters not specified, no substitutions were intended.
In dealing with cases of legislation by reference, the primary consideration to be kept in view is the general scope and object of the amending legislation, and, in determining whether a reference adopted or included a particular clause of the first act, neither statute should be subject to a strained constructions.
Effect of modification of adopted statute.-The question whether one statute absorbing or incorporating by proper reference provisions of another will be affected by amendments made to the latter is one of legislative intent and purpose. As a rule the adoption of the statute by reference is construed as an adoption of the law as it existed at the time the adopting statute was passed, and, therefore, is not affected by any subsequent modification of the statute adopted unless an intention to the contrary is clearly manifested, but, where the legislative intent to do so clearly appears, the adopting statute will include subsequent modifications of the original act.
A well-established exception to, or qualification of the general rule exists where the reference in an adopting statute is to the law generally which governs the particular subject, and not to any specific statute or part thereof : in such case the reference will be held to include the law as it stands at the time it is sought to be applied, with all the changes made from time to time at least as far as the changes are consistent with the purpose of the adopting statute."
According to para. 72 of the above book the- "Incorporation may be effected by reference to particular sections of the former act that are to be incorporated, or to the procedure prescribed by such act, or by a general reference to the whole, act, or body of statutes or laws concerning a particular subject, in so far as the provisions are applicable, or not conflicting or are not subsequently amended. Subsequent additions or modifications of the statute referred to may or may not become applicable, pending on the nature of the reference made and the construction and operation of the statute referred to as modified."
29. In the American Jurisprudence 2nd Edn., Vol. 73 at pages 284-286 the comments are as follow : "28. General.- The adoption of an earlier statute by reference makes it as such a part of the later act as though it had been incorporated at full length. .
29. Effect of subsequent amendment or repeal of adopted statute.- It is a general rule that when a statute adopts a part or all of another statute, domestic or foreign, general or local, by a specific and descriptive reference thereto, the adoption takes the statute as it exists at this time, and does not include subsequent additions or modifications of the adopted statute, where it is not expressly so declared. But when the adopting statute makes no reference to any particular statute or part of statute by its title or otherwise, but refers to the law generally which governs a particular subject, the reference in such a case includes not only the law in force at the date of the adopting act, but also all subsequent laws on the particular subject referred to, in so far at least as they are consistent with the adopting act. Indeed, there is even authority that when the reference is general, the referring statute takes the law referred, to not only in its contemporary form, but also as it may be subjected to elimination altogether by repeal.
30. The learned counsel for respondent No. 2 referred to Halabury's Laws of England, 3rd. Edn., Vol. 36, page 404, which deals with the same subject in the following words : "611. Express incorporation of earlier provisions.-Where a statute incorporates by reference the whole or any part of an earlier statute, the provisions so incorporated are in general to be construed as they would be if set out in full in the later statute. . . -.
Where particular sections of an earlier statute are expressly incorporated into a later statute, there is a conflict of authority as to whether other parts of the earlier statute which are not incorporated may or may not be referred to in construing the sections which are incorporated ; it seems probable that, on the principles already referred to in connection with earlier statutes in pari materia they may be referred to, but only where there is an ambiguity or obscurity in the incorporated sections which cannot otherwise be resolved."
31. The learned counsel argued on the basis of the above that the strict rule of interpretation with regard to the legislation by reference cannot be applied to each and every case without ascertaining the intention of the Legislature from the adopting statute. He also traced the legislative changes brought about in section 25-A of the Industrial Relations Ordinance and argued that if a strict interpretation as suggested by the learned counsel for the petitioner was to be allowed then a workman would be having no forum available to him for the redress of his grievance under S. O. 12 (3). He submitted that contemporaneously with the adoption of section 25-A in S. O. 12 (3) there was a Junior Labour Court as the forum available to a workman for the redress of his grievances under that section, but it was later abolished leaving the field vacant. This submission is, however, factually incorrect as the adoption took place on 24th May, 1971", while the "Junior Labour Court' was substituted for `Labour Court' with effect from 6th November, 1972. The learned counsel further urged that subsections (8), (9) and (10) which were later enacted on 12th April, 1976, in section 25-A would also apply in order to let the entire section function effectively. The argument is that as subsection (8) of section 25-A provides for implementation of an order passed in appeal, the remedy of appeal as provided in section 37 (3) would also be attracted to complete the remedy. The adopting provisions only entitled a worker to take action in accordance with section 25-A. He, therefore, would be entitled to get implemented an order in appeal if there is one already in his favour. That, however, is not the case here. No provision is there in section 25-A by which a worker could be allowed to file an appeal. Subsection (8), therefore, would not apply as such.
32. The learned counsel also referred to section 8 of the General Clauses Act, which reads as under : "8. Construction of the references to repealed enactments.-(I) Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactments or in any instrument to the provisions so repealed shall, unless a different intention appears, be construed as reference to the provision so re-enacted."
The above provision, however, even on face of it, does not have any application to the case in hand. It would be attracted only if the adopted statute is not only repealed but also re-enacted with or without modification subject, of course, to a contrary intention being statutorily expressed. It is in that case that the re-enacted provision would apply to the adopting law. Reliance is placed on the view taken in Moosa Kazimi v. K. M. Sharif (AIR 1959 Mad. 542). It may be useful to reproduce the relevant portion as it is applicable to the entire question under consideration : "The rule then is that if the provisions of a statute are incorporated by reference to a second statute and the earlier statute is repealed the second statute would continue to be in force with the incorporated provision of the repealed statute being treated in force as a part of it. But if the earlier statute had not been merely repealed but repealed and re-enacted, it is the re-enacted provision that would take the place of the corresponding provision in the repealed enactment, in so far as the incorporation in the second statute is concerned. This is subject of course to a contrary intention being statutorily expressed. If therefore, the Factories Act, 1934, had been simply repealed, then, notwithstanding the repeal, the payment of Wages Act would operate with the definition of the term `factory' as it occurred in the repealed enactment. But as the Factories Act, 1934 had been repealed and re-enacted, -there being no contrary intention expressed in any of the enactments, then by the force of the provisions of section 8 (1) of the General Clauses Act, the re-enacted provisions would be deemed to have been incorporated in the Payment of Wages Act, 1936, notwithstanding that reference was made to the Factories Act of 1934 in the definition of the term `factory'."
However, if the adopted law is repealed but not re-enacted the repealed provision would nonetheless form part of the adopting statute and unless different intention appears the adopting statute would continue to be in force with the incorporated provisions of the repealed statute, being treated in force as part of it. Reference be made to Muhammad Shariff v. S. R. Rehmatullah (PLD 1968 Lah. 897) in which another passage of the opinion of the Privy Council in Hindustan Cooperative Insurance Society was quoted with approval. The passage goes. As follows : "Where, however, subsequent interference with the incorporated enactments amounts to less than their total repeal there are further considerations to betaken into account in determining its effect on them as incorporated at any rate if the case is one of incorporation by refer.-price. In the first place, if the enactments are merely repealed in part, or modified by the addition or alteration of words, the question arises whether it might not have been the intention of the incorporating statute to adopt them as for the time being in force ; and secondly, if they are repealed and re-enacted with or without modifications, there is a statutory presumption in aid of the view that are thenceforth to be regarded as incorporated in their new form."
33. As discussed above, the situation envisaged in section 8 referred to above, is not available in the present case. Here a passage from interpretation of Statutes by Bindra at page 604; 3rd Edn., 1961, can also be quoted in support "It is well-settled provision of law that the repeal of a statute does not repeal such portions of the statute as have been incorporated into another statute. If the original Act is repealed the incorporated section or sections still operate in the latter Act. It seems no less logical to hold that where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition. Maxwell in Interpretation of Statutes states ; where the provisions of one statute are, by reference, incorporated in another and the earlier statute is afterwards repealed the provisions so incorporated obviously continue in force so far as they form part of the second enactment."
34. The following passage from the Maxwell on Interpretation of Statutes 11th Edn., page 33 was also cited in support of the plea that section 37 (3) of the Industrial Relations Ordinance would also apply in view of S. O. 12 (3) :- "Where a single section of an Act is introduced into another statute, it must be read in the sense which it bore in the original Act from which it is taken, and consequently it is legitimate to .Refer to all the rest of that Act to ascertain what the section means, although one section only is incorporated in the new Act."
This passage, however, falls in line with the views quoted above and does not suggest any departure therefrom. The learned counsel also referred .To pages 110 and 111 of the Crawford's Statutory construction but that too concerns only the amended provisions as a part of the original Act and not with regard to its applicability to the adopting statute.
35. The consistent position to be deduced from the above material is that it is the intent disclosed in the adopting _ statute that is to be complied with. The other provisions of the adopted statute can, however, be referred to only if the meaning of the adopted provision cannot be Ascertained without ambiguity and obscurity.
36. The adopting provision, in the case in hand, only entitles taking of an action in accordance with section 25-A and not 37 (3). The intention of the Legislature thus never was to- adopt the entire section 25-A. Only that worker would be entitled to take an action under subsection (8) who already had an appellate order in his favour and not every one. There is no other provision is section 25-A necessitating a reference to section 37 (3) and so the above rule in Maxwell will not apply to, this case.
37. The rule of interpretation to be inferred from all the references quoted above is:
(a) When a statute adopts a part or all of another statute by specific or descriptive reference the, adoption takes the statute as it exists at that time and the adopted , provisions with necessary adaptations if any became a part of the adopting statute as if it was written down in it;
(b) any subsequent addition to or modification of the adopted statute, can be included in the - adopting statute only if so expressly or impliedly provided in the adopting statute;
(c) When particular sections of an earlier statute are expressly incorporated into a later statute the other sections of the earlier statute may be referred to in order to resolve any ambiguity or obscurity that may arise in its interpretation of that section;
(d) When the adopting statute refers to law generally which governs a particular subject, the reference in such a case includes not only the law in force at the date of adopting act but all subsequent laws on the particular subject referred to, in so far as they are consistent with the adopting law;
(e) When Legislature in adopting the procedural provisions of another Act, made substitutions in certain instances, it will be inferred that in matters not specified no substitutions were intended.
38. If 1 may place the contentions of the learned counsel under any of the above rules, then according to the learned counsel for the petitioner, rule (a) applied whereas in view of the position taken on behalf of respondent No. 2, rule (d) would apply. The best rule, however, is to fulfil the intention of the Legislature. In that context I think rules (d) and (e) only would be attracted. The facts given above show that originally S. O. 18 contained a remedy for any violation of S. O. 12(3).
Both the provisions were amended by Ordinance 1X of 1972. S. O. 18 was repealed. S. O. 12(3) was extended to all the workers, with better rights. A remedy was, however provided under the Industrial Relations Ordinance. Under section 25-A which was inserted simultaneously in the Industrial Relations Ordinance an aggrieved workman could approach, directly or indirectly, his employer as well as the Labour Court. He could also challenge the order of the Labour Court in appeal before the Tribunal under section 37(3), which was also amended by Ordinance IX of 1972. Later, on 24th May, 1972, the above arrangement was upset and the provisions under consideration were enacted by adoption in S. O. 12(3). The result was that a worker could have a resort to a remedy referred to ' in section 25-A not because of his right generally but only because of and to the extent it was so allowed by S. O. 12(?). Further, being a particular remedy in a special statute it naturally excluded the general remedy. The relevant provisions of S. O. 12(3), stated that an aggrieved worker may take action in accordance with provisions of section 25-A of the Industral Relations Ordinance. 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance. Had the Legislature intended to continue the right of appeal it would not have brought any amendment at all. The fact, that there was an amendment and that too about a month and a half after the previous statutory arrangement providing an appeal, clearly goes to show that the Legislature wanted to go back to the scope of the remedy as previously provided to a class of workmen in S. O.
18. Further, a comparison of the import of the provision as it existed before 24th May, 1972, and thereafter would leave no manner of doubt that the Legislature was substituting one remedy for two already existing. Again, as section 37(3) was already there providing an appeal against the order of the Labour Court, the Legislature could say so expressly, if the intention was to make that section applicable to such cases also. So rule (d) applied in this respect.
39. Further, a careful perusal of the above provisions makes it clew that the intention of the Legislature by saying 'may take action in accordance with provisions of section 25-A was to entitle a worker to avail the remedies provided only in section 25-A. The other reference that 'the said section shall apply as it applied to the redress of individual grievance', was meant to apply to those procedural provisions of section 25-A of the Industrial Relations Ordinance which are attracted normally in deciding cases of individual grievance by the Labour Court. A perusal of section 25-A, would show that the first part of the reference may attract subsection (1) and first part of (4) while subsections (2), (3) second part of (4) and (5) will apply to the second -part. The only obscurity that may arise in the amended section 25-A, (1-5) is in respect of two terms i. e. 'Labour Court' and 'Collective Bargaining Agent'. The obscurity in respect of the first may be about its constitution if it is now different from the one as it existed at the time of adoption. The second is a new phrase and was substituted for the 'Trade Union'. The argument of the learned counsel would, therefore, permit only to find out the meaning, or identification of the two, from the other provisions of the Industrial Relations Ordinance but nothing more. It will also be seen that what the adopting statute intended to provide was a remedy to an aggrieved workman against his unlawful or unjustified termination of or removal etc. From service and also a manner in which .The proceedings can be taken. One may, therefore, refer to other provisions of the Industrial Relations Ordinance or even the rules, if any, thereunder to end out the same. Rule (d) referred to above would apply in that regard and to that extent.
40. The above discussion makes it further clear that he remedy~ provided is contemporaneous, not with the adopting statute, but with the stage at which the' worker becomes entitled to take action.
The general rule of interpretation applicable. To 'legislation by reference', therefore, would not apply to the present case. The rule at (d) and '(e) referred to above would apply with the .Result -that the subsequent amendments shall apply but only to the extent as they would be applicable to taking any action in accordance with section 25-A and as they would apply to cases of individual grievances at the time when the proceedings are initiated.
41. The contention of the learned counsel for respondent No. 2 cannot be accepted also for two other important reasons. Firstly, the intention of the Legislature that it 'never wanted to provide an appeal is quite clear from omission of a reference to section 37(3), in the adopting provision. Had the Legislature wanted to do so it would have certainly done so by employing suitable words therein or by just adding section 37(3), to the phrase to say that thereupon the said section and section 37(3) shall apply to . . . . Secondly, the appeal is a substantive right and is always expressly provided. The Legislature knows the state of law and she views of the Courts that a right to appeal is created by law and can neither be inferred nor is it inherent in respect of any forum. Reliance is placed on Hart Meah v. State (PLD 1959 SC Pak. 307) where it was held that -a right of appeal must be inferred from the express provisions. The Supreme Court in Muhammad Farid Jan v.
Colonization officer (PLD 1965 SC 399) observed that an appeal is a creation of statute and must be confined within the limits imposed by the relevant statute. The learned counsel for respondent No. 2 relied on Kamaraju v. Secy., State for India ((1888) 11 Mad. 309) National Telephone Company Limited v. His Majesty.'s Postmaster General (108 L T R 539) and The Secretary of State for India in Council v. Sri Rajah Chelikani Ram Rao and others (20,C W N 1311) to argue that whenever a procedure is adopted it is the complete procedural scheme which has to be applied and not the adopted section in isolation. In the cases noted above it was held that as the procedure allowed at one or the other stage included a Court under the Civil Procedure Code, therefore, the appeal available against the order of that Court could be restored to. The proposition as it is being laid out is not incorrect. The Court has, however, to see if the remedy provided in a particular statute is under the general scheme of the statute or only a particular forum therein was being designated for the purpose. I may here refer to judgment of the Full Bench of this Court in Aziz Begum v. Nur Muhammad (PLD 1962 Lah. 887) in which the District Judge notified under section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959, was held to be a persona designate and not a Presiding Officer of a principal Civil Court of the District. The same view was taken by the Supreme Court in Khadlm Mohyuddin v. Rehmat Ali Nagra (PLD 1965 SC 459) in respect of the same provision of law. It is quite clear from the above two judgments that it is the language of law in each case that will show the intention of the Legislature and that no general view is to be followed.
42. As regards the third point, it may be noted that the provisions of the Industrial Relations Ordinance as . Such are applicable to the petitioner in view of a notification issued by the Central Government under section 1(3) of the Industrial Relations Ordinance. The effect of that notification is that the Industrial Relations Ordinance applies only to pay groups other than V to X of the P. I. A.
The learned counsel for respondent No. 2 pleaded that the above notification was illegal inasmuch as it deprived the respondent an appeal under the Industrial Relations Ordinance while the same remedy to the employer remained intact. It was urged that the notification is discriminatory and so unlawful. The learned counsel, however, failed to show how the notification was not valid.
Admittedly, it has been issued by a competent authority under a valid law. The question of inequality between the employer and employee would not make this notification ultra vires or void unless it could be shown that the Fundamental Right of equality before law is available. Further there are legislative instances that right of appeal is given for example to a wife if her suit for dissolution of marriage is - dismissed but no right of appeal is available to a husband if the suit is decreed. Therefore, in the absence of lack of power to issue the notification and without showing that the notification is ultra vires, I cannot accept the contention of the learned counsel for the respondent.
43. The last question raised was that in any case the petitioner should not be allowed any relief as it would amount to advancing the cause of injustice. Reliance was placed on a Division Bench judgment of this Court in General Manager v. Mamoon A. Kazi, Senior Member (PLD .1977 Lah. 998) in which I was one of the members. Relief was refused to a petitioner in that case even though it was found that the order impugned before the Court was without lawful authority. The reason that persuaded the Court to take that view of the matter was that the order that was sought to be revived by the petitioner was also void and any relief to the petitioner in that situation would have amounted to perpetuation of a void order. The rule followed in the above case had in fact been laid down by their Lordships of the Supreme Court in the case of Muhammad Tufail (PLD 1958 SC (Pak.)
201). In that case their Lordships quoted with approval a passage from the opinion of the Judicial Committee of the Privy Council that a void order must be set aside lest it may become a precedent. Their Lordships had also refused to grant relief in the Case of Muhammad Yusuf (PLD 1969 SC 153) holding that as the jurisdiction conferred on the High Court under Article 98 of the Constitution is discretionary in nature and designed to enforce the laws of the land, the High Court should not pass an order which is calculated to facilitate breach of any law or to defeat the ends of justice. In Chief Settlement Commissioner v. Muhammad Fazil (PLD 1975 SC 331) the Supreme Court held that the jurisdiction of the High Court cannot be invoked in aid of injustice and to retain ill- gotten gains. The position in the case in hand is, however, the reverse of what the learned counsel for the respondent had attempted to advance. For the view that I have taken above the refusal of the relief to the petitioner would rather amount to letting respondent No. 2 to retain illegal gains which the Supreme Court did not permit in the case of Wall Muhammad v. Sakhi Muhammad (PLD 1974 SC 106). In that case, the order of the High Court, amounting to letting the respondent retain the ill-gotten gains, was recalled.
For the reasons given above, the impugned order of the Tribunal is declared to have been passed without lawful authority and of no legal effect. As the question was not free from difficulty, there will be not order as to costs.