SARDAR MUHAMMAD IQBAL, J.--Respondents 2 to 5 as the, representatives of the employees of the Colony Textile Mills Ltd., Civil & Military Gazette Building, 48-The Shahra-i-Quaid-i-Azam,. Lahore, served a strike notice on the company on the 20th of September 1963 raising a number of demands. The. Assistant Director, Labour Welfare (Conciliation), Lahore Region, initiated on the 21st of September 1.963 the conciliation' proceedings under section 5 of the Industrial Disputes Ordinance 1959 to bring about settlement between the patties. The conciliation proceedings failed and consequently the Conciliation Officer issued on the 18th Of October 1963 a Failure Certificate under section 5(4) Of the Ordinance. Respondents 2, to 5, on, the basis of the certificate, filed a petition under section 5(5) of the Ordinance before the Industrial Court for adjudication and determination of the industrial dispute. The case has a chequered history thereafter, but since they are not relevant for the purposes of disposal of this petition, we would not advert to those facts. The case was still pending when the West Pakistan. Industrial Disputes Ordinance IV of 1968 was enforced on the 8th of March 1968. Learned counsel admits that by virtue of section 46, the proceedings initiated under the Repealed Ordinance continued as if they were proceedings initiated under the Repealing Ordinance. The Ordinance of 1968 was also short-lived and was repealed by the Industrial Relations Ordinance, 1969 with effect from the 13th of November 1969.
The petitioner-company applied on the 8th of December 1969, before the Labour Court of West Pakistan alleging that the proceedings initiated under the earlier Ordinance had abated and the Court, therefore, had no jurisdiction to hear the dispute. The Court, by its order dated the 4th of March 1970, overruled the objection and decided to proceed with the case. The petitioner has moved this petition under Article 98 of the Constitution of the Islamic Republic of Pakistan, 1962 with the prayer that the respondent-Court be directed to refrain from proceeding with the adjudication and determination of the dispute on the ground that it has no jurisdiction in the matter.
2. The single question presented by this motion is whether the "Industrial Court" which was constituted prior to the enforcement of the Ordinance of 1969 and was seized of the industrial dispute pending before it raised under the earlier Ordinance can proceed with the industrial dispute and adjudicate upon it.
The proceedings initiated before the Industrial Court on the issuance of a Failure Certificate under subsection (5) of section 5. of the. 1959-Ordinance and continued under the 1968- Ordinance were wholly dependent on the respective enactments. They were commenced not to enforce any vested right having its origin in common law or any other statutory law. The concept of the industrial dispute was conceived by the Ordinance and it is the Ordinance again which provided for the forum and the method of its determination, The industrial dispute and the forum both are the creatures of the Ordinance. The Ordinance was repealed. With its repeal the industrial disputes and all agencies created under it ceased to exist ipso facto. The effect of repeal is to terminate the statute completely. It not only ceases to be operative but in law its position is as if it had never come into existence except for the matters which stood concluded under it before the repeal. The dictum of Tindal, Chief Justice, in Kay v. Goodwin which is quoted with approval in subsequent decisions, is stated to be : "I take the effect of repealing a statute to be, to obliterate it as completely from the records of the parliament as if it had never been passed; and, it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted, and concluded,--whilst it was an existing law". It was observed in Lemim v. Mitchell that the Repealed Act ceases to be operative unless there is any clause in the new Statute preserving old Statute, the underlying principle being that there cannot be two inconsistent codes in the same matter, and that it the previous statute has to be preserved, that must be done expressly.
Thus, if by the repeal of a Statute it is deemed to be completely taken away from the records of the Legislature its obvious implication is that if the action or proceeding itself is the one which is provided in the Statute then by the repeal of the Statute no proceedings can be pursued under the repealed Statute. Unless such proceeding be authorised under a special clause in the repealing Act. It is well-settled that if a law conferring jurisdiction is repealed without any reservation as to pending cases, all such cases fall with the law. It was held in Insurance Co. v. Ritchie that no judgment could be rendered in a suit after the repeal of the Act under which it was brought and prosecuted. In Flanigan v. Sierra Country the view taken was that as a general rule powers derived wholly from a statute are extinguished by its repeal, and it follows that no proceedings can be pursued under the repealed statute, though begun before the repeal, unless such proceedings be authorised under a special clause in the repealing Act. It is, therefore, only by a saving clause that existing rights under the repealed statute can be protected under the repealing enactment. This rule has since been changed by the General Clauses Act, 1897, and can be applied only to those Acts or laws to which section 6 of that Act (we are referring only to the Central General Clauses Act) does not apply or to which its provision has not been made applicable. Section 6 aforesaid is to the following effect :- "6. Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitnerto made or hereafter to be made, then, unless a different intention appears, the repeal shall not--
(a) revive anything not in force or existing at the time at which the repeal takes effect; or (b)affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder ; or1 2 3 4 (c)affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d)affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e)affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."
By virtue of this provision, the Industrial Court constituted under the repealed Ordinance would have continued to exercise jurisdiction and it was competent to decide the industrial dispute pending before it under Ordinance IV of 1968. By subsection (1) of section 67 of Ordinance XXIII of 1969, the West Pakistan Industrial Disputes Ordnance, 1968 (W. P. Ordinance IV of 1968) was repealed, but it was at the same time provided in subsection (2) of section 67 : "Notwithstanding the repeal of any law by subsection (1) (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, constituted, given, commenced or taken, as the case may, under the corresponding provisions of this Ordinance, to the extent of consistency therewith". The intention of the law-makers is manifested by this provision that they did not want to interfere with the pending proceedings or the Courts which were already constituted. The object was to leave proceedings under the old Ordinance intact by the repealing Ordinance only so far as they had proceeded leaving thereafter progress to be regulated by the procedure in force after the repeal. The repeal of the Ordinance, therefore, did not affect the Industrial Court which had already been constituted and also the industrial dispute about which the proceedings had been commenced before the Industrial Court prior to the repeal.
3. Learned counsel submitted that subsection (2) of section 67 of the 1969-Ordinance saved only the proceedings commenced or actions taken under the West Pakistan Industrial Disputes Ordinance IV of 1968 if the same had not been inconsistent with the corresponding provisions of the Industrial Relations Ordinance XXIII of 1969, and that since the procedure provided in the latter Ordinance for the adjudication of industrial dispute was entirely different from the one provided in Ordinance IV of 1968, the proceedings pending before the Industrial Court abated ipso facto. The procedure provided in Ordinance IV of 1968, which is to Le adopted before the industrial dispute is taken to the Court, is entirely different from the procedure laid down in Ordinance XXIII of 1969. If the word "proceedings" in clause (b) of subsection (2) of section 67 of the 1969-Ordinance is interpreted to consist of all the steps which are taken from the time there is a likelihood of an industrial dispute till such time the dispute is raised before the Court and its ultimate decision, then in virtue of subsection (2) the proceedings shall not be deemed to be pending before the Court, for the reason that the steps precedent to the raising of the dispute before the Industrial Court under bosh the Ordinances are different. This, however, is not the case here. The proceedings before the Court are distinct from the proceedings which may take place before the dispute is raised there.
Section 41 of the 1969-Ordinance itself divides the proceedings into two parts, viz. (1) conciliation proceedings, and (2) proceedings before a Labour Court. The conciliation proceedings under subsection (1) of section 41 are deemed to have commenced on the date on which a notice of strike or lock-out is received by the Conciliator under section 28. Their conclusion is deemed (a) where a settlement is arrived at, on the date on which a memorandum of settlement is signed by the parties to the dispute; and (b) where no settlement is arrived at--(i) if the dispute is referred to an arbitrator under section 31, on the date on which the arbitrator has given his award ; or otherwise (ii) on the date on which the period of the notice of strike or lockout expires. So far as the proceedings before a Labour Court are concerned, they are deemed to have commenced--(a) in relation to an industrial dispute, on the date on which an application has been made under section 34, or on the date on which it is referred to the Labour Court by the Provincial Government under section 32 or section 33; and (b) in relation to any other matter, on the date on which it is referred to the Labour Court. They are deemed to have concluded on the date on which the award or decision is delivered under subsection (1) of section 37. There was a similar provision in section 22 of Ordinance IV of 1968 providing for two stages of proceedings one in the form of conciliation and the other before the Court. The proceedings before a Court in an industrial dispute have been considered both under the old as well as the new law to be quite separate and distinct from they, conciliation proceedings. It is, therefore, wrong to suggest that the proceedings before the Labour Court should be so interpreted as to include the conciliation proceedings. There may be some inconsistency in the repealed and the present Ordinance so far as the procedure of conciliation proceedings, or in other words, the proceedings prior to the raising or commencement of an industrial dispute before the Court, is concerned, but such inconsistency does not affect the present proceedings. The conciliation proceedings in the instant case have concluded and they are saved by the repealing and the saving clause. The question before us is whether or not the proceedings which commenced before the Industrial Court regarding the industrial disputes are saved. Our attention has not been drawn to any inconsistency in that behalf. The industrial dispute as is defined in clause (i) of section 2 of Ordinance IV of 1968 is identical in terms to an industrial dispute as defined in clause (xiii) of section 2 of Ordinance XXIII of 1969. The functions of the Industrial Court under section 11 of Ordinance IV of 1968 are also identical with the functions of the Labour Court under the present Ordinance. We, therefore, fir d the contention of the learned counsel that the industrial dispute has abated for reasons of inconsistency in the provisions of the two Ordinances, to be untenable.
4. Learned counsel attempted to submit that the Industrial Court constituted under Ordinance IV of 1968 cannot be deemed to be a Labour Court under the present Ordinance. Under the repealed Ordinance, the Industrial Court was to consist of a Chairman and two members to advise the Chairman, one of the members to represent the employers and the other to represent the workmen, all being appointed by the Government. There is a similar provision in subsection (2) of section 35 of the present Ordinance. The provisions being consistent, the Industrial Court from the date Ordinance XXIII of 1969 came into force is deemed to be a Labour Court.
It was, however, contended that the two Members of the Court, namely, Muhammad Ishaq and Khurshid Ahmad were reappointed under subsection (4) of section 35 for a period of three months, but there was no notification about the Chairman. We have already observed that the Industrial Court already constituted became ipso facto a Labour Court with effect from the 13th of November 1969 when Ordinance XXIII of 1969 came into force. The Chairman and Members of the Industrial Court, by virtue of subsection (2) of section 67 are deemed to have been appointed as Chairman and the Members of the Labour Court constituted under the 1969-Ordinance. If the term of any of its members expired subsequently, the Government could under subsection (4) of section 35 make a fresh appointment. This is what it has done. Since the term of the Chairman might not have expired, there was no question of issuing any notification of his appointment.
5. We find no merit in this petition which is dismissed in limine. 130 E R 1403 1912 A C 400 72 U S 540 USSCR 49 Law Edn. 5971 2 3 4