This is an appeal under section 37 (3) of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance), against an order of the learned Chairman of the West Pakistan Industrial Court (Northern Zone), Lahore, dated 29th November 1969. The impugned order was passed on an application under section 33 of the West Pakistan Industrial Disputes Ordinance, 1968 (hereinafter called the repealed Ordinance). The learned Court in a short order disposed of as many at 47 applications under section 38 of the repealed Ordinance,-- including the application of the appellant. It would be useful, in order to avoid any misunderstanding, to mention that I treat this appeal only by Abbas Ali Shah and not by the other 46 persons. The other 46 persons `have not filed any appeal against the impugned order. Mr. Nazir Ahmad Naz, however, submitted that as the - learned Court disposed of all the appli--cations by a common order, therefore, the appeal by Abbas Ali Shah may be treated on behalf of all the other 46 persons. This cannot be done. All the 47 persons had individual rights and had to file separate applications under section 38 of the repealed Ordinance. The mere fact that the Labour Court disposed of all the applications by one order does not confer any right on Abbas Ali Shah to file appeals on behalf of the others. Abbas Ali Shah alone has filed an appeal and the other 46 persons have not even been impleaded as party in any capacity.
2. The facts necessary for the disposal' 6f the appeal of Abbas Ali Shah are these. Abbas Ali Shah made an application under section 38 of the repealed Ordinance against the West Pakistan Water and Power Development Authority, its Chief Engineer and the Works Manager for his re- instatement. The case of the respon--dent eras that the appellants services were terminated with effect from 1st of November 1968, on the ground that there was not sufficient work. It was contended that the excuse to terminate the services of the appellant was baseless and that his services could not be terminated without the permission of the Industrial Court during the pendency of the Industrial Dispute in which the appellant war interested.
3: The learned Chairman of the Industrial Court, relying on section 67 (2)(b) of the Ordinance, which came into effect from 13ih November 1969, arrived at the conclusion that there being no corresponding provision to section 38, of the repealed Ordinance in the present Ordinance, the application did not lie. In the second place, the learned Court came to the conclusion that the application of Abbas Ali Shah could not be treated to be an application under section-34 of the Ordinance, inasmuch as, an application under section 34 of the Ordinance was maintainable only by a "party" to an industrial dispute, i.e. by a "Collective Bargaining Agent", and not by an indi-- vidual.
4. Mr. Naz, the learned Representative for the appellant, has raised two points before me, namely,
(1) that the appellant had a vested right in sections 37 and 38 of the repealed Ordinance, and (2) that the provision of section 34 of the Ordinance is a corresponding provision to section 38 of the repealed Ordinance and, therefore, the appellant's application is maintainable. I propose .to dispose of these contentions separately.
5. The question that requires consideration., in the first place, is as to what is a "vested right". In this connection, a passage from the Interpretation of Statutes and General Clauses Acts by Bindra, 1961 Edn. at p. 741, may be usefully repro--duced- "Now what exactly is a `vested right which cannot be taken away even by the Legislature unless it manifests its intention of doing so in express terms or by necessary and distinct implication? A right is said to be vested when the right to enjoyment present, or prospective, has become the property of some particular person or persons as a present interest, independent of a contingency. It is a right which cannot be taken away without the consent of the owner. Vested rights can arise from contracts, from statutes and from operation of law. A person, for example, who enters into a con-- tract with another acquires a vested right in the performance of the contract and is entitled to claim that the contract should be performed in accordance with the terms thereof. Again a right to compensation for property, actually taken for public use and a right or title to property acquired by adverse possession are vested rights which cannot be impaired by subsequent legislation unless the statute contains clear words to that effect. Again, a right of action conferred by a particular statute is said to be a vested right . . . . ."
6. In the light of what is reproduced above as to what is meant by a vested right, I would proceed to examine briefly sections 37 and 38 of the repealed Ordinance. Under sectio7t 37 of the repealed Ordinance a workman, who was not an officer of a registered Trade Union, had been given two protections during the pendency of conciliation proceedings or proceedings before a Court or Tribunal, namely,(1) that the condition of his service could not be changed or altered to his prejudice, and, (2) that he could not be dismissed or discharged or otherwise punished for misconduct connected with the dispute, except with the permission of the Conciliation Officer, during the pendency of conciliation proceedings, or with the permission of the Court or the Tribunal, during the pendency of the proceedings before them, as the case may be. Under section 38 of the repealed Ordinance, if the employer acted in contravention of the provisions of section 37 of the repealed Ordinance, the workman aggrieved may make a complaint to the Court which shall adjudicate upon the complaint, as if it were an industrial dispute.
7. On a consideration of what is meant by a `vested right' I have no doubt that a workman has a vested right under the provisions of sections 37 and 38 of the repealed Ordinance. In the present case, according to the appellant, the employer violated the provisions of section 37 of the repealed Ordinance on 1st November 1968, much before the promulgation of the present Ordinance, which came into effect from 13th November 1969.
8. The next question that requires consideration, in this connection, is as to whether the present Ordinance has been given retrospective effect, so as to take away a vested right of the appellant.
In this connection reference nay be made to section 67 of the Ordinance. Under section 67 of the Ordinance, the West Pakistan Industrial Disputes Ordinance, 1968, has been repealed. The relevant provision of section 67 of the Ordinance, which requires interpretation, is as under:--
(1) --- --- --- --- --- --- --- --- --- --- --- ---
(a) --- --- --- --- --- --- --- --- --- --- --- ---
(b) --- --- --- --- --- --- --- --- --- --- --- ---
(e) --- --- --- --- --- --- --- --- --- --- --- ---
(d) --- --- --- --- --- --- --- --- --- --- --- ---
(2) Notwithstanding the repeal of any law by subsection (1), and without prejudice to the provisions of section 24 of the General Clauses Act, 1897 (X of 1897)
(a) --- --- --- --- --- --- --- ---
(b) anything done, rules made, notification or order issued, officer appointed, Court constituted, notice given, proceedings commenced or other actions taken under any law shall be deemed to have been done, made, issued, appointed, con--stituted, given, commenced or taken, as the case may, under the corresponding provisions of this Ordinance, to the extent of consistency therewith."
9. "There is a presumption against the taking away of a vested right by any fresh legislation and a construction, which involves the taking away of vested rights ought not to be adopted if the words of the enactment are open t0 any other construction". Bindra on Interpretation of Statutes and General Clauses Acts, 1961 Edition, page 154. Then again at the same page appears- "Lord Back burn in Gardner v. Lucas stated: Now, the general rule, not merely of England and Scotland but I believe of every civilised nation, is expressed in the maxim, 'Nova constitution . . . . .' .any new law that is made affects future transactions, not past onces . . . . . ."
10. An enactment can take away vested rights only if it says so or by necessary intendment. It was contended by Mr. Mahmud Zaman, the learned Advocate for the respondent, that sub--section (2)
(b) of section 67 of the Ordinance took away the vested right of the appellant by necessary intendment. In this connection, it was contended that inasmuch as, proceedings R under section 38 of the repealed Ordinance could not be continued under any provision of the present Ordinance by an individual workman, it should be deemed to have abated. All that subsection (2) (b) of section 67, lays, down is that the proceedings, which had commenced prior to the repeal of the enactment (West Pakistan Industrial Disputes Ordinance, 1968), should continue under similar provision of the present Ordinance. It does not lay down that proceedings, which commenced prior to 13th November 1969, in respect of vested rights under the repealed Ordinance should abate. If the intention of the Legislature was to close the proceedings already commenced, it would have so mentioned in subsection (2) (b) of section 67 of the Ordinance. All that bad been clarified is that wherever a similar provision exists, as in the repealed Ordinance, the same will be continued under the existing provisions of law. The idea was to avoid confusion. I cannot read the intention on the part of the Legislature to do away by with hundred of applications that are pending in the Industrial Courts in respect of various vested rights under the repealed ordinance.
11. I would hold, for the reasons given, that the appellant Mould continue with his application under section 38 of the repealed Ordinance.
12. Considering the importance of the question as to what is the meaning of "any party" to an industrial dispute in section 34 of the Ordinance, I asked some Advocates and Representatives to address me on the question. I appreciate the assistance that they have given. Section 34 of the Ordinance reads as under "Any party to an industrial dispute relating to a matter arising out of any right guaranteed secured to an employer or workman by or under any law for the time being in force or an award or settlement may apply to the Labour Court for adjudication of the dispute."
13. On a fair analysis of the above provision of law three things must exist before the Labour Court can be moved, namely, (1) any party to an industrial dispute, (2) an industrial dispute and (3) the industrial dispute must relate to any right guaranteed or secured under any law or an award- or settlement to an employer or workman.
14. The rule of interpretation as laid down in Maxwell's Interpretation of Statutes, 1969 Edn. is as under ". . . . . the function of a Court -is to interpret that document which is presented to it . . . . . according to the intent of them that made it . . . . . . the, words of a statute must not. be overruled by the Judges, but reform of the law must be left in the hands of Parliament."
15. The expression that requires interpretation is as to whether "any party" to an industrial dispute means an "individual workman" to an industrial dispute. The question depends on the definition as to what an "industrial dispute" means. Industrial dispute is defined under section 2 (x) of the Ordinance. It runs as under: - " 'Industrial Dispute' means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen which is con--nected with the employment or non-employment or the ' terms of employment or the conditions of work of any person;"
16. One thing is very clear, if literal interpretation is give to the definition, an industrial dispute must be between employers and workmen. There cannot be an industrial dispute as would appear from the definition, between an employer on the on hand and an individual workman on the other hand.
In this connection, however, reliance was placed, by Mr. Obaidurrehman; the learned Advocate, Mr. A. Majeed; and Mr. Wahid Basher, the learned Representatives for the workmen, who supported the contention, that "any party" to an industrial dispute means an "individual workman" to an industrial dispute, on section 13 of the General Clauses Act. It reads as under:- "In all (Central Acts) and Regulations, unless there is anything repugnant in the subject or context,-
(1) --- --- --- --- --- --- --- ---
(2) words in the singular shall, include the plural, and vice versa."
17. It was, there fore, argued that the words "employers" and "workmen" must b8 construed as including also "employer" and "workman". According to the tenor of the definition it is manifest that it applies only if there is nothing repugnant in the subject or context. Mr. M. A. Khan, the learned Advocate, who contended that "workmen" in the definition means workmen, reed on a Division Bench case of the West Pakistan High Court Jalal Din v. Orient Match Company Limited, Shahdara; Lahore (1968 PLC 137). The point for consideration eras as to the meaning of the word "workmen" in the definition of the expression "industrial dispute" in the Industrial Disputes Ordinance, 1959 (LV of 1959). The definition of "industrial dispute--" in the said Ordinance was just the same as in the, present Ordinance. I may mention here that the definition of "industrial dispute" continues to be the same as it was in the Industrial Disputes Act of 1947 (XIV of 1947). Sardar Muhammad Iqbal, J. in a very elaborate judgment, if I may say so with respect, came to the conclusion after relying on the Authorities of tae Supreme Court of Pakistan, English Court decisions and the views of the learned Chairman of the Industrial Courts that section 13 of the General Clauses Act did not apply to the definition of "industrial dispute". The case of Jalal Din furnishes a useful study. The Bench, after considering the principles laid down in the authorities and decisions, carne to the conclusion that the dispute regarding the discharge or dismissal of an individual workman is not an industrial dispute and that such dispute can become the subject --matter of an industrial dispute only if the body of the workmen in general represented through the Union or by a considerable number of them take up his case. The conclusion was arrived at not only on the language of the definition, but also taking it view the object of the Industrial Disputes Ordinance. I may usefully reproduce some passages from the judgment:-- "In Pakistan Tobacco Company Limited v. Employees' Union Cornelius, C. J. in dealing with the purpose and the scope of such legislation observed . . . . . `The individual workman cannot on the basis of personal grievance initiate proceedings under the Ordinance'.
18 In the present Ordinance Trade Unions have been given greater importance than in the past legislations on the subject of industrial dispute. That this is so, would appear froth para. 15, Chapter I of the Labour Policy of the Government of Pakistan published in July 1969, by the Ministry of Health, Labour and Family Planning (Labour and Social Welfare Division). It runs as under.
"The most important incentive for the growth of Trade Unions will undoubtedly be their success in obtaining, solutions to the problems of workers. This can only be achieved by a strengthening bilateral collective bargaining. For developing of, the machinery of bilateral collective bargaining, perhaps, the Tri most important factor other than an internal system of accountability is to ensure that Unions are representative. To deal with this, a Union will be required to make possible for any worker of its establishment to join it freely without any restrictions.. If one Union exists in an establishment it alone will be the bargaining agent in. respect of that establishment. Where more than one Union exists in the same establishment, a referendum will be held through secret ballot among all workers of the establishment to determine their bargaining agent. The bargaining agent alone will be entitled to the facilities of check-off, representation on the Boards of Trustees of workers profit sharing and provident funds, and on the Works Councils. The right to bargaining collectively, and to serve a notice of or call for a strike will also be enjoyed by the bargaining agent alone. The bargaining agent once determined will continue to be treated as the worker's sole representative for a minimum period of one year, and thereafter till' it is challenged."
19. The intention of the framers of the Ordinance appears to be to completely merge the identity of the individual workman into the Trade Unions, which are for all intent and purposes "Collective Bargaining Agents". An individual workman played a v9ry insignificant role in all Industrial Disputes Legislations. In the Industrial Dispute Act, 1947, the only right that was given to an individual workman under section 33-A of the Act was to apply to the Labour Court for redress if the conditions mentioned in section 33, were violated. Similarly, under section 31 of the Industrial Disputes Ordinance, 1959 and under section 38 of the West Pakistan Industrial Disputes Ordinance, 1968, an individual workman could claim redress from the Court if the conditions mentioned in sections 30 and 37, respectively, were violated. The Legislature, in order to further strengthen the Trade Unions took away even this right of an individual workman. The workman by this change in law did not suffer. The Trade Union (Collective Bargaining Agent) could take up the cause of the individual workman under section 34 of the Ordinance on behalf of workmen. The underlying principle under all Industrial Disputes Legislations was to settle disputes through Collective Bargaining. The individual had no right except under section 33-A of the Act of 1947, or similar provisions under later enactments. It is important to note at this stage that in the Industrial Enactments of 1947, 1959 and 1968, the individual workman was not covered by the definition of "Industrial dispute" and could not raise an industrial dispute. That this was so, is clear from section 33-A of 1947-Act, section 31 of 1959-Ordinance and section 38 of 1968-Ordinance. In all these sections on the complaint of the individual workman the Court had to "adjudicate upon the complaint as if it were an industrial dispute." It was only through a fiction of law that a workman's complaint could be dealt with as an industrial dispute. The Commission of the expression, in section 34 of the Ordinance, "as if it were an industrial dispute", occurring in section 33-A of the Industrial Disputes Act, 1947, in section 31 of the Industrial Disputes Ordinance, 1959, and in section 38 of the West Pakistan Industrial Disputes Ordinance, 1968, is very significant. The intention of the Legislature under section 34 of the Ordinance appears to be to take away the exception to the general rule that it is only workmen collectively who could raise an industrial dispute. No hardship is caused to a workman if his cause is to be taken up by the Bargaining Agent. On the other hand, the workman is saved so much worry and expense.
20. An individual workman cannot raise an industrial dispute under the Ordinance. It is only a Collective Bargaining Agent who can raise an industrial dispute. That this is so, would appear from section 43 of the Ordinance which reads as under:- "No industrial dispute shall be deemed to exist unless it ass been raised in the prescribed manner by a collective bargaining agent."
21. A Labour Court can under section 35 of the Ordinance adjudicate and determine an industrial dispute. The Court can adjudicate only if there is an industrial dispute. If there is no dispute, the question of adjudication does not arise. An industrial dispute can exist only if it is raised by Collective Bargaining Agent. It follows, therefore, that the dispute must be raised by Collective - Bargaining Agent and not by an individual workmen.
22. The next question is as to what is the meaning of "any party" to an industrial dispute. I have come to the conclusion that "any party" to an industrial dispute means some of the employers on the one side and the workmen on the other side, or some of the workmen on the one side and the other workmen on the other side. "Any party" to an industrial dispute has reference to the parties mentioned in the definition of "industrial dispute". "Any party" is not indefinite but it is definite and is confined to the persons mentioned in the definition of the expression "industrial dispute".
23. The definition of industrial dispute is very wide. On-- the other hand, an application under section 34 of the Ordinance can be made to the Labour Court for adjudication not in respect of all industrial disputes, but only in respect of industrial dispute relating to any right guaranteed or secured to as employer or workman by or under any law for the time being in force or an award or settlement. The scope of adjudication in respect of (industrial dispute under section-34 of the Ordinance by Labour Court is limited to the extent of right. guaranteed under any law or an award or settlement.
24. Under section 34 of the Ordinance, for the reasons Ai that I have already given, I have come to the conclusion that the any party means either the employers or the workmen, as the w case may be, section 34 of the Ordinance, as it stands, gives a -right to the employers or the workmen, as the case may be, to I make an application for adjudication in respect of any right guaranteed or secured under any law for the time being in force; or an award or settlement. Section 34 of the Ordinance, however, has to be read along with section 43 of the Ordinance.
25. A Collective Bargaining Agent is defined in section 2 (v) of the Ordinance. It reads as under:- "`Collective Bargaining Agent' in relation to an establishment or industry, means the Trade Union of workmen which, under section 22, is the agent of the workmen in the establishment or, as the case may, be, industry in the matter of collective bargaining;"
26. I have come to the conclusion, reading sections 34 and 43 of the Ordinance, together that an application under section 34 of the Ordinance must be made by Collective Bargaining Agent in order that Labour Court may adjudicate the dispute.
27. I now propose to dispose of the contention of Mr. Obaidurrehman, the learned Advocate and Messrs A. Majeed and Wahid Bashir, who supported the point that an individual workman can make an application under section 34 of the Industrial Relations Ordinance, 1969, I propose to deal with all these points separately.
28. It was contended, in the first place, that the tenor and object of the present Ordinance is same what different than the previous legislation on the subject In this connection, the learned Advocate relied on the preamble of the Ordinance and laid emphasis on the word "avoidance". It was submitted that in the Industrial Disputes Act, 1947, the object was to make provision for the investigation and settlement of industrial disputes. The object mentioned in the Act of 1947, was kept in view in the Industrial Disputes Ordinance, 1959, and in Industrial Disputes Ordinance, 1969. It is only in the present Ordinance that it was considered expedient to amend and consolidate the Law relating to the formation of Trade Unions, the regulation of relations between employers and workmen 'and the avoidance and settlement of any differences or disputes arising between them or matters connected therewith and ancillary thereto. It was submitted that the object underlying section 34 of the Ordinance is to avoid disputes. An individual, it is submitted, has been given a right to go to the Court of Law in order to avoid disputes. The contention has no force. If an individual goes to Court of Law for adjudication of a dispute, he cannot be said to avoid the dispute. He has raised the dispute and it has to be adjudicated upon.
29. In the second place, it was submitted that there is no provision similar to section 38 of the West Pakistan Industrial Disputes Ordinance, 1968 in the present Ordinance. It i8 only under section 34 of the Ordinance that a workman who has been dismissed in violation of the provision contained under section 47 of the Ordinance, that he can apply for redress of his grievance. There is not much force in this contention. The Commission seems to be deliberate. The Collective Bargaining Agent alone is to take up the cause of the individuals.
30. It was contended that under section 22 (6) (c) of the Ordinance a Collective Bargaining Agent can represent all or any of the workman in any proceedings. The suggestion is that the Ordinance pre-supposes a proceeding in which a workman can be a party. The conclusion is drawn that an individual workman can make an application under section 34 of the Ordinance, Section 34 of the Ordinance is very clear. Assistance can be taken for its interpretation from other provisions of the enact--ment only, if it is vague in any respect.
31. It was submitted that the Ordinance provides mode of settlement of disputes through dialogue, conciliation and arbitration through the agency of Collective Bargaining Agent; while section 34 of the Ordinance provides for redress of grievance by an individual workman. It is' submitted that the two are independent methods, one through the Collective Bargaining Agent and the other through an individual workman. There is not much force in this contention. It would not be necessary to repeat the reasoning that unless there is an industrial dispute, section 34 of the Ordinance could not come into operation and, therefore, an individual workman cannot have recourse to the same.
32. It was submitted that under subsection (5) (a) of section 35 of the. Ordinance a distinction has -been made in adjudication of an industrial dispute and a matter in respect of which an application is made to the Court under section 34 of the Ordinance. The submission is that an application made under section 34 of the Ordinance may relate to a matter and, not to an industrial dispute. There is no force in this contention. An application under section 34 of the Ordinance can be made for adjudication only in respect of an industrial dispute relating to a matter mentioned in section 34 of the Ordinance.
33. It was submitted that section 39 (b) and section 39 (d) of the Ordinance contemplate proceedings where a Collective Bargaining Agent may not be party. The suggestion is that these proceedings can: be initiated by an individual workman. Section 34 of the Ordinance, as I have already observed, requires the existence of an industrial dispute. In the absence of an industrial dispute, no individual workman can make an application.
34. It was very strenuously contended that section 34 of the Ordinance contemplates a situation where an industrial dispute had been, settled through the agency of Collective Bargaining Agent through an award or settlement and thereby conferring a right on workman. Under the award, for instance, a workman becomes entitled to bonus for a particular year. It is contended that if an individual workman does not get the bonus for that year, he can make an application under section 34 of the Ordinance. In this connection, it was also submitted that section 43 of the Ordinance refers to the existing industrial disputes, and not to what had already been settled. There is rio force in these contentions. Section 34 of the Ordinance contemplates an industrial dispute and also an existing industrial dispute.
35. It has been submitted that remedy is provided, so far as individual workman is concerned, under section 34 of the Ordinance against any violation of sections 46, 47 and 48 of the Ordinance.
Section 46 of the Ordinance only defines as to when a strike or lock-out can be said to be illegal.
Section 47 of the Ordinance lays down that the conditions of service of workmen will remain un- changed while industrial dispute is pending. If there is a violation of section 47 of the Ordinance, the Collective Bargaining Agent can take up the cause on behalf of the aggrieved workman. So far as section! 48 of the Ordinance is concerned. it is not quite clear. It is, however, not necessary for the purpose of this case to interpret this provision of law.
36. Lastly, it was submitted that section 49 of the Ordinance contemplates that a workman can be a party to an industrial dispute. He can, therefore, make an application under section 34 of the Ordinance. There is not much force in this contention. Section 49 of the Ordinance deals with representation of parties. It does not govern the scope of section 34 of the Ordinance.
37. To sum up, I have come to the conclusion, in the first place, relying on Mal Din v. Orient Match Company Limited, Shahdara Lahore, Rex v. National Arbitration Tribunal and another Ex parte: South Shields Corporation ((1952) 1 K B (sic)) and Regina v. Industrial Disputes Tribunal and another Exparte: Queen Marry College University of London. ((1957) 2 Q B 483) that the whole tenor of the Industrial Relation Ordinance indicates the intentional that section 13 of the General Clauses Act does not apply to' the word "Workmen" to make it include the singular; in the second place, "any party" has reference to the parties mentioned in the definition of the expression "industrial dispute" and lastly that an application under section 34 of the Ordinance can b made only by a Collective Bargaining Agent and not by an individual workman.
38. In the result, the appeal of Abbas Ali Shah is, allowed. This learned Chairman to dispose of his application on merit as if it was an application under section 38 of the repealed Ordinance.