DECISION This is an appeal under section 3 7(3) of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance), against an order dated March 13, 1971. The impugned order was passed on an application under section 34 of the Ordinance, whereby the learned Court ordered the re- instatement of the respondent "with all the back benefits and continuity of service." The facts giving rise to the appeal briefly put are these.
2. The respondent as employed as a Fitter by the Appel--lant-Company. He was charge-sheeted on 25th August 1969, for go-slow tactics and waste of the. He was found guilty by the Enquiry officer and was dismissed from service on 17th September 1969. Fie made the present application under sec--tion 34 of the Ordinance read with Standing Order No. 18 on 29-11-69.
3. The order of dismissal was challenged on the ground that the respondent was victimized and that the enquiry was a farce.
4. The learned Labour Court came to the conclusion that no case of go-slow, as defined in the Ordinance, had been made out and that the respondent could be guilty of dilatory, careless or wasteful working within the meaning of Standing Order 15(1) (ii) (d) for which the respondent could only be fined and not dismissed from service.
5. The learned Court also came to the conclusion that the application under section 34 of the Ordinance, as amended, was maintainable, as the amended section being procedural can have retrospective effect. In the alternative, the learned Court held that even if the application under section 34 of the Ordinance was not maintainable, the application being under Standing Order 18, was maintainable and the respondent was entitled to the relief he had claimed.
6. Mr. Mahmood A. Ghani, the learned Representative for the appellant very strenuously argued that section 34 of the Ordinance, as amended on 17th October 1970, cannot be given retrospective effect. Mr. Ghani has ably argued out this ques--tion with reference to the Construction of Statute by Crawford Craise and Maxwell that section 34 of the Ordinance, as it stands, cannot be given retrospective effect. It is not necessary to encumber this order by quoting passages from these books as there is a direct authority by Qadeeruddin, J., as he then was. In this connection reference may be made to the case of Pakistan through Secretary, Ministry of Refugees and Rehabilitation and another v. Devchand Muljimal and others (PLD 1968 Kar.. 197). In that case the question for interpretation was "the amended subsections (3), (4) added to section 4, Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) (hereinafter called the Act). These subsections were introduced on 28th December 1964, whereby the question whether an evacuee property yeas attached to a charitable, religious, ed4cational or charitable trust or institution or not was to be referred to the Chief Settlement Commissioner, whose decision thereon was to be final, except that the appeal lay to the High Court. Devchand had filed a Civil Suit prior to 28th December 1964, for Declara--tion that the property in suit belonged to the charitable trust. After the said amendment of the Act, an application was made on behalf of the Chief Settlement Commissioner that the suit should be dismissed, as the civil Court has no jurisdiction to give a declaration as to whether the property was attached to the religious or educational trust or not. Qadeeruddin, J. After considering the question in great detail, if I may say so with respect, came to the conclusion that the amended provision of the Act dealt both with right and procedure and, therefore, it was prospective.
7. An individual had no vested right prior to 17th October 1970, to make an application under section 34 of the Ordinance to the Labour Court. The individual got the right on or after 17th October 1970. I would hold that the respondent's application was not maintainable under section 34 of the Ordinance, as it stood prior to 17th October 1970.
8. Mr. A. Majeed, the learned Representative for the responded-contended that the application as drafted was not only under section 34 of the Ordinance, but it was also under Standing order 18. If the application under section 34 of the Ordinance failed, but was maintainable under Standing Order 18, the order of the learned Labour Court cannot be said to be bad in law. Mr. A. Ghani, the learned Representative for the appellant, however, contended that the application was only under section. 34 of the Ordinance and, therefore, its maintainability under Standing Order 18 did not arise: He relied on the following circumstances in support of his contention that the application was only under section 34 of the Ordinance :-
(1) The heading of the application when filed in Court did not state Standing Order 18.
In support of this allegation, he showed me his copy of the application, which was served on the appellant along with summons. This does not mention Standing Order 18. While the application on the record of the case does mention Standing Order 18, which is in the handwriting of the learned representa--the for the respondent.
(2) That the reference to the grievance procedure namely, Standing Order 18 in the application was made only with a view to make out the ingredients of section 34 of the Ordinance and not that the application was under Standing Order 18.
9. I have considered the contention of Mr. Ghani, the learned Representative for the appellant carefully and come to the conclusion that the application was under Standing Order 18. The Heading of the application reads as under :-- "Application under section 34 of I. R. O., 1969 read with Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and other laws." (I have omitted Standing Order 18, which is in the handwriting of Mr. Majeed).
10. It is clear from the Heading of the application that the respondent intended to move the Court both under sec--tion 34 of the Ordinance, as well as under the Standing Orders. At any rate, even if the Heading of the application did not disclose the provision of the law under which it was made, but the facts disclosed made out the application under a certain provision of the law, it was incumbent on the Court to dispose of the application under that provision of law. In this connection, para. 4 of the application may be usefully reproduced. It runs as under :- "That the applicant in relation to the grievance arising out of arbitrary, capricious, whimsical and vindictive action submitted to the employer a detailed grievance but the "Employer" failed to respond and/or has failed to give an opportunity and hence this complaint seeking re-instatement with full pay and salary in accordance with and in term' of Standing Orders 18(a) and 18(b). "
11. Standing Order 18 prescribes procedure for ventilating a grievance arising out of the Standing Orders Ordinance. A workman was required under Standing Order 18(a) to give a notice within 15 days of the occurrence of the cause of such grievance. The employer was required within 30 days of the receipt of the notice to enquire into the matter, giving the worker an opportunity of being heard, and communicate his decision to the workman. Under Standing Order 18(b) if the employer failed to give his decision within 30 days or if the workman who is dissatisfied with the decision the workman may make a complaint to the Industrial Court within 30 days from the date of the decision or where the employer failed to give a decision within 60 days of the workman bringing the grievance to the notice of the employer. The respondent in support of his application; under Standing Order 18, filed his affidavit before the learned Court on 2nd June 1970. He stated therein that after his dismissal on 17th September 1969, he made a petition to the employer on 30th September 1969, which he sent by registered post and that the employer having failed to take notice of his petition, the respondent was obliged to make the present application on 29th November 1969. The respondent was cross-examined by Mr. Masood Mirza, who was the Representative of the appellant. I have gone through the cross-examination of the respondent. No question had been put to him challenging the statement of the respondent regarding the petition that he had made to the employer after he was dismissed from service. It is, therefore, clear that the application was under Standing Order 18 also. In this connection, a reference may be made to the reply of the appellant to the application under section 34 of the Ordinance. It runs as under :- "It is therefore prayed that this Hon'ble Court may be pleased to dismiss the above said application as misconceived, misdirected and not maintainable within the purview of section 34 of the Industrial Relations Ordinance, 1969 and section 18(b) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968."
12. It would show that the appellant also understood the application to be under section 34 of the Ordinance, as well as under Standing Order 18(b). It could not be said that the appel--lant was taken by surprise.
13. Mr. Ghani, the learned Representative for the appellant, lastly contended that the application should not be deemed to be under Standing Order 18, as the same was not originally intended to be under Standing Order 18(b). It was only after the decision of the appeal of Abbas Ali Shah by this Tribunal that the respondent having realized that an individual could not snake an application under section 34 of the Ordinance that the respondent tried to make out a case through his affidavit dated 2nd June 1970 that the application cuss under Standing Order 18. There is not much force in this submission. So long as the facts stated in the application dated 29th November 1969, make out a case both under section 34 of the Ordinance and Standing Order 18, the question of bona fides of the respondent does not arise. It would hold that the application under Standing Order 18 was maintainable and the learned Court rightly construed the application under that provision of law.
14. The application being under Standing Order 18, no appeal against the impugned order lies to this Tribunal. Under Standing Order 18(d), the order passed by the Labour Court is final.