M. S. H. QURESHI, J.-This appeal by leave of the Court involves the interpretation of subsection (6) of section 25-A of the Industrial Relations Ordinance (XXIII of 1969).
2. Iftikhar Elahi appellant, a workman under the respondent firm, was by order dated 13-2-1973 dismissed from service with effect from 3-2-1973. He challenged the dismissal by an application filed on 20-3-1973 under sub--section (6) of section 25-A before the Junior Labour Court. The Court held that as the respondent firm did not employ more than 49 workers, the provision of S. O. No. 15 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), did not apply and as such the respondent could not dismiss the appellant. The Court, therefore, directed that the dismissal of the appellant be treated as termination from service and he be given one month's pay in lieu of notice in addition to other dues. The Labour Court, in the appeal preferred by the appellant, reversed the finding of the Junior Labour Court that the Standing Orders Ordinance was not applicable to the case and consequently allowed the appeal declaring that the appellant was entitled to re-instatement with back benefits. The respondent, thereupon, invoked the constitutional jurisdiction to challenge the order of the Labour Court. The learned Judge of the High Court held that the view taken by the Labour Court as to the applicability of the Standing Orders Ordinance was not open to exception and that the only question that remained to be examined was "whether, in the absence of a grievance procedure, the application filed by the respondent No. 2 (appellant) before the Junior Labour Court was maintainable at all".
The learned Judge answered the 14uestion by observing that "subsection (6) of section 25-A of the Industrial Relations Ordinance, 1969, dispenses with the procedure prescribed under subsections (1) to (4) in regard to the workers aggrieved by the termination of their employment as a result of retrenchment, dismissal, discharge, lay out, etc.", but finding that as "the dismissal of the respondent No. 2 (appellant) does not fall within two months preceding the promulgation of the said Ordinance", he held that the case of the appellant was not covered by subsection (6) and as such the Labour Court had no jurisdic--tion. For this he relied on his own earlier decision reported as Karachi Development Authority v. Presiding Officer (1) and another Single Bench judgment in Karachi Shipyard do Engineering Works Ltd. v. II-Sind Labour Court (2). In the result, he quashed the order of the Labour Court by the impugned judgment dated 5-10-1976. A review petition filed by the appellant on the ground that he had in fact served grievance notice, was dismissed by the High Court as withdrawn, on 14-10-1976.
3. Leave was granted to consider the true interpretation of subsec--tion (6) of section 25-A of the Industrial Relations Ordinance, particularly in view of the divergence of opinion among the High Courts on the point.
4. It will be of help to briefly deal with the history of the relevant legislation. Section 25-A was inserted for the first time in the Industrial Relations Ordinance, 1969, on 13-a-1972, by the Labour Laws (Amendment) Ordinance (IX of 1972) but the section so inserted comprised only subsec-- tions (1) to (5). The intention was to enable a worker to seek redress of his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement. The procedure prescribed was that he should first give notice to his employer in respect of the grievance within three months ; the employer was to communicate his decision in writing within seven days of the grievance being brought to his notice and if the employer failed to communicate his decision during this period, or if the worker was dissatisfied with the decision communicated, he might take the matter to the Labour Court within two months from the date of communica--tion from the employer or the expiry of the prescribed period of service of the grievance, notice. With this procedure arid remedy having been provided, Ordinance IX of 1972 deleted S. O. 18 of the West Pakistan Industrial ands Commercial Employment (Standing Orders) Ordinance (VI of 1968), which had contained a parallel procedure in respect of a grievance, service of notice of the grievance by the worker on the employer and the remedy thereof by making a complaint to the Industrial Court.
The Ordinance also amended S. O. 12 which dealt with termination of service by substituting its clauses (PLD 1975 Kar. 716) and (PLD 1975 Kar. 719) by a new provision which required that the termination of the service of a workman or his removal, discharge or dismissal from service could not be done except by an order in writing which shall explicitly state the reasons for the action. With the omission of S. O. 18, which had provided the procedure and remedy also for termination of service under S. O. 12, no provision remained in the Standing Orders Ordinance for the purpose. This created a gap, which was sought to be filled on 24-5-1972 by the Labour Laws (Second Amendment) Ordinance (XXIII of 1972), which was later made into Labour Laws (Amendment) Act (V of 1572) enacted on 7-9-1972. By this Ordinance the entire S. O. 12 was substituted. Clause (3) of the substituting provision provided that "In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may bring his grievance to the notice of his employer in the manner laid down in section 25-A of the Industrial Relations Ordinance, 1969, and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance". Thus while for grievance arising from termination of service the provision of section 25-A of the Industrial Relations Ordinance was incorporated by reference into S. O. 12, there was no specific provision in the Industrial Relations Ordinance itself for dealing with such grievance.
The workman could invoke the grievance procedure of S. O. 12 as amended, before moving the Labour Court or move that Court directly under section 34 without recourse to that procedure.
5. To remove, the anomaly, Industrial Relations (Amendment) Ordinance (XLVIII of 1972) was enacted on 6-11-1972, whereby subsection (6) was added to section 25-A, which reads :- "(6) Notwithstanding anything contained in subsections (1) to (5), any workman aggrieved by the termination of his employment as a result of retrenchment, dismissal, discharge, lay off, lock-out or otherwise after the commencement of this Ordinance, may make an application to a Junior Labour Court having jurisdiction in the area in which the establishment is situated."
Junior Labour Courts were also introduced for the first time by this Ordinance as the original Courts in place of the Labour Courts and the latter Courts were made the Appellate Courts from the decisions of the Junior Labour Courts by the new provision contained in section 36-D. The Ordinance also amended section 34 by omitting the words "a workman" so that the remedy of the workman was now only under subsection (6) of section 25-A. But this conflicted with the provision of S. O. 12 whereunder recourse had still to be made to the grievance procedure by reference to the provision of subsections (1) to (4) of section 25-A. The defect was sought to be removed by substituting the words "bring his grievance to the notice of his employer in the manner laid down in" by the words "take action in accordance with the provisions of" "in S. O. 12 by the West Pakistan Industrial and Commercial Employment (Standing Orders) (Amendment) Ordinance LI of 1972) enacted on 14-11-1972 which was later made into Act XXIII of 1973 on 9-2-1973. The workman could now take action under S. O. 12 without recourse to the grievance procedure.
6. The situation was, however, not yet free from difficulties inasmuch as the Ordinance XLVIII of 1.972 did not specify whether termination of service made prior to its enactment could be taken to Court under subsec--tion (6) and if so how far prior. Subsection (6) also did not prescribe any period of limitation. These gaps were removed when converting the Ordinance into Act XXIX of 1973 on 9-2- 1973. By the Act, subsection (6) was substituted by the following and a new subsection (7) was also added "(6) Notwithstanding anything contained in subsections (1) to (4) any worker aggrieved by the termination of his employment as a result of retrenchment, dismissal, discharge, lay off; lock-out, or otherwise not earlier than two months preceding the commencement of the Industrial Relations (Amendment) Ordinance, 1972, may, within a period of two months from the commencement of the Industrial Relations (Amendment) Act, 1973, or the termination of the employment, whichever is later, either himself or through his Shop Steward or Trade Union, take the matter directly to a Junior Labour Court having jurisdiction in the area in which the establishment is situated."
"(7) Where a matter is taken to the Junior Labour Court under sub--section (6) the Junior Labour Court shall give its decision thereon in the manner laid down in subsections (4) and (5). "
The intention in bringing the new provision was not only to extend the benefit retrospectively by two months but also to fix the period of limitation. By the new provision, a termination of employment which had taken place "not earlier than two months" preceding 6-11-1972 when Ordinance XLVIII of 1972 had been enacted, could be directly taken to Junior Labour Court notwithstanding the procedure `in subsections. (1) to (4). It also provided two periods of limitation, that is-
(1) two months from the commencement of Act XXIX of 1973, i. e., from 9-2-1973, or
(2) two months from the termination of the employment;whichever was later.
7. In interpreting the above provision of subsection (6), IV Labour Court Sind in Abdul Hamid Khan v.
AI-Hassan Silk Mills Ltd. (1975 PLC 514), decided on 20-2-1975, held that--- "* * * The words `or the termination of the, employment whichever is later' occurring in subsection
(6) construe o cover causes of action accrued in between period from 11-9-1972 (not earlier than two months, preceding the commencement of Industrial Relations Amendment Ordinance, 1972 dated 10-11-1972) to 8-4-1973 (within a period of two months from 'the commencement of the Industrial Relations Amend--ment Act, 1973 dated 9-2-1973).
Plain reading of subsection (6) of section 25-A shows that the Legislature has placed an embargo against entertainment of an application in respect to a cause of action accruing prior to 11-9-1972 and subsequent to 8-4-1973. * * * "
A learned Single Judge of the Sind High Court in Karachi Shipyard & Eng--ineering Works Ltd. v. II- Sind Labour Court, decided on 19-5-1975, expressed the view that subsection (6) as enacted on 9- 2-1973, "revived the right which had been extinguished under the earlier law (Ordinance 1X of 1972 of 13-4-1972) and made a provision for the hearing of cases which had arisen during the said period".
He then extended the scope of subsection (6) to cover orders even passed earlier than two months of Ordinance XLVIII of 1972 of 6-I1-1972. The same learned Judge in Hotel Inter-Continental v. Vth Sind Labour Court (PLD 1976 Kar. 301), decided on 9-12-1975, however, tried to curtail this period by observing: - "* * * Subsection (6), therefore, provides for a particular category of cases, and for those cases for which this provision had been enacted it be dispensed with the requirement of abiding by the provisions of subsections (1) to (4) of the section 25-A. In all other cases, which did not arise within the period which has been mentioned in subsec--tion (6) itself the procedure laid down in subsections (1) to (4) of section 25--A of Industrial Relations Ordinance, 1969, is mand--atory * * * - -- In the case in hand, the High Court had held that as the dismissal of the appellant did not fall within two months preceding the promulgation of Ordinance XLVIII of 1972, the case of the appellant was not covered by subsection (6).
8. This interpretation, by which the scope of subsection (6) was limited to the period of two months, i. e., from 7-9-1972 to 6-1I-1972, was not accepted by the Lahore High Court, where a learned Single Judge in Crescent Sugar Mills Ltd. v. Haji Muhammad (PLD 1976 Lah.1176), decided on 17-5-1976, held that by the amended subsection (6) not only all cases of termination which had taken place not earlier than two months before 6.11-1972, but also those which had taken place on any date thereafter can be taken to the Junior Labour Court within two months of the termination of the service or within two months of the enforcement (9-2-1973) of the Act, whichever happens to be later.
9. No light is thrown in the Karachi judgments as to why subsection (6), as enforced on 9-2-1973, was clothed with retrospectivity limited to two months before the commencement of Ordinance XLVIII of 1972. But the Lahore judgment says: - "* * This specification of the period is not without significance. Keeping the law as it existed on 5-11- 1972, a maximum period of five and a half months was available to a worker aggrieved by his dismissal for resort to the grievance procedure before going to the Labour Court. The minimum could be two months. Therefore, on 9-2-1973, when to a prospective procedural law retrospectivity was conferred, it was limited only to those causes which may not have been by then instituted and the right to institute them had not been lost. Only those grievances were brought into the fold of the Junior Labour Court, which may not have by then been instituted, but the right to institute them existed. The earlier grievances in the ordinary course should have been taken to the Labour Courts before this date and it was not the intention to revive past and closed transactions but only to provide the altered remedy for causes then living but not instituted. * * *"
Under the law as, it existed before 6-11-1972, the workman after com--pleting the grievance procedure had two months' time to move the Labour Court. If the grievance procedure was to be dispensed with, he would, under that arrangement, have two months' time to move the Court. The remedy for a cause which had arisen within two months before the enactment of the first subsection (6) on 6-11-1972 was not yet lost and the Legislature bad most likely intended to cover all such cases by giving the law a retros--pective effect by two months.
10. Be that as it may, the interpretation of the Sind High Court that subsection (6) applies only to those causes as had arisen within the period of two months preceding the enactment of Ordinance XLVIII of 1972 on 6-11-1972 is neither supportable by the words "not earlier than two months" used in the subsection nor accords with the alternative periods of limitation provided therein. If the intention was not to cover termination of service made after 6-11-1972, then there was no point in providing the alternative period of limitation by two months from the date of the termination if the same be later. For, all terminations of service made within that period of two months would be covered by one of the periods of limitation, that is two months from the enactment (9-2-1973). The other period of limitation can have a place in the statute only if it Includes causes arising after 6-11-1972.
11. In the light of the above discussion, the view taken by the Sind High Court cannot be accepted.
The correct view is the one taken by the Lahore High Court in the Crescent Sugar Mills' case.
12. Mr. Fazl-e-Ghani Khan, appearing for the respondent before us, contended that the impugned judgment had also proceeded upon the view that in the absence of a grievance procedure prescribe) in subsections (1) to (4), the application before the Junior Labour Court was not maintainable. No doubt, the learned Judge had observed that that was the only question before him but he had, as already stated, disposed of the point by observing that sub section (6) "dispenses with the procedure prescribed under sections (1) to (4)". It would, therefore, not be correct to say that the learned Judge had also held that the grievance procedure laid down in subsections (1) to (4) was attracted to a matter falling under subsection (6). Even otherwise, we are quite clear in our mind that, that procedure did not apply to a case of termination of service governed by subsection (6). This is not only because of the non obstante clause in subsection (6) but also because the subsection provides a period of limitation different from that in subsections
(1) to (4). Subsection (6) is, therefore, independent of the preceding subsections.
13. The impugned judgment is, therefore, liable to be set aside. Mr. Fazl-e-Ghani Khan, however, submitted that in that event, the matter ought to be remitted so that the constitutional petition be decided on merits con--cerning the grant by the Labour Court of the back benefits to the appellants. We find that no such ground had been taken by the respondent in its constitu--tional petition nor had the same been urged during the hearing of that petition. For, after disposing of the objection as to the applicability of the Standing Orders Ordinance, the learned Judge had expressly mentioned that there was only one question remaining to be decided which was the applicability of the grievance procedure. That being so, the question of remand does not arise. The appeal is, therefore, allowed and the impugned judgment of the High Court is set aside.