KHUDA BAKSH MARRI, J.-Constitutional Petitions Nos. 200 and 201 of 1969 filed by Messrs Fazal Shafiq Textile Mills Ltd., Karachi against their employees Rehmat Khan and Faizullah, purport to challenge the order of I West Pakistan Industrial Court, Karachi dated 18th February 1969, whereby the learned Industrial Court while Interpreting Standing Order 12 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter will be called as `Ordinance VI of 1968') with regards to the question of entitlement to gratuity of a permanent workman at the the of his voluntary resignation, came to the conclusion that- "Suffice it to say that there is nothing in Standing Order 12 (5) which would go to prove that gratuity was not payable on resignation. In Standing Order 12 (1), it is stated that the services of the permanent workmen can be terminated by either party by giving one month's notice. Standing Order 12(5) provides that where the services of a permanent workman are terminated for reasons other than misconduct, he shall, in addition to the wages payable to him under clause (1), be paid gratuity equivalent to fifteen days wages for every completed year of service or any part thereof in excess of six months." and thereupon it held that the workmen are entitled to gratuity.
2. Constitutional Petitions Nos. 91 of 1969 and 157 of 1969 filed by Messrs Indus Glass Works Limited, Hyderabad and Hussein Textile Mills, Karachi, against their workmen Abdul Rashid and Channu Khan, challenging the orders of II West Pakistan Industrial Court, Karachi dated 2nd November 1968 and of West Pakistan Industrial Appellate Tribunal, Karachi, dated 24-12-1968 (in Petition No. 91/69) and order of II West Pakistan Industrial Court, Karachi dated 19th February 1969, whereby the learned Industrial Court in the above cases held that, permanent workman is entitled to gratuity under Order 12 of Ordinance VI of 1968, even, at the the of his voluntary resignation.
3. The admitted position with regards to Petitions Nos. 91, 200 and 201 of 1969, is that the resignations tendered by the workman were accepted by the petitioners (the employers). With regards to Petition No. 157 of 1969, the resignations tendered by the workman on the ground of ill- health after 14 years was allegedly not accepted by the petitioner vide letter dated 3-10-1968 Exh.
'C' and he was asked to resume duty, this being a question of fact and the learned Industrial Court had amply gone into and came to a conclusion, that the resignation was proper and thereby it held the workman entitled to gratuity, we therefore, refrain to go into the factum or the propriety of the resignations at this stage. We may at the outset point out that all the workmen, in these cases are permanent workmen under the relevant law, their services ranging from 3 to 14 years.
4. We have heard Mr. Fakhruddin, Mr. M. Faseehuddin and Mr. Mansoor Ahmed Khan, Advocates for the petitioners and Mr. Wasiullah Qureshi Attorney (Pet. 91/69 for respondent. No. 1 at great length.
The principal grounds of attack on behalf of all the petitioners against the orders of Industrial Courts being common in nature, may be summarised as under:
(1) That the learned Industrial Court erred in holding that under Order 12 of Ordinance VI of 1968, the gratuity was also payable on voluntary resignation of an employee. It is submitted that the gratuity under law is payable only when the services are terminated by the employer because under clause (1) of Standing Order 12, the reference is (for termina--tion of employment) whereas in Clause 5 of this Order, relating to gratuity, the reference is for (termination of services) the former refers to acts of both employer and employee for the termination of employment; while the later (clause 5) refers to acts to the employer only for termination of services the entitlement of a permanent workman to gratuity benefits.
(2) That the learned Industrial Court failed to appreciate that the claims of workmen for gratuity were the-barred under provisions of Standing Order 18 (a) of Ordinance VI of 1968 because the workmen (respondents) did not bring their grievances to the notice of their respective employers (the petitioners) within 15 days of the occurrence.
5. Before proceeding further, it is appropriate hat we may make a passing reference to the history of this branch of Legislation. In the year 1946, the then Government of India promulgated the Industrial Employment (Standing Orders) Act XX of 1946, to regulate the relationship of the employer and the employee and provided for the service conditions, in general, of workmen. Under this Act certain rules were later on framed and duly notified. On 3rd February 1960, Ordinance III of 1960 called `Industrial and Commercial Employment (Standing Orders) Ordinance, 1960 was promulgated by the Central Government. This being an Ordinance to repeal and with certain amendments re-enact the Industrial Employment (Standing Orders) Act, 1946. The scheme of this Ordinance is in many respects different than that of Act XX of 1946, as Instead of rules, a schedule containing standing orders made under section 2 (f) of the Ordinance has been attached which contains classification of workmen, publication of working the, holidays and pay days and wage rates, attendance and late coming, leave, stoppage of work, payment of wages, termination of employment, complaints arising out of employment and certificate of termination of service. Now this Central Ordinance III of 1960 was replaced by Ordinance VI of 1968, namely. West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which is an Ordinance to amend and consolidate the law relating to industrial Employment in the Province of West Pakistan, coming into force on 22nd May 1968. As regards to East Pakistan Ordinance III of 1960, was replaced by Act 3 of 1965 called "The East Pakistan Employment of Labour (Standing Orders) Act, 1965 this also in the preamble states to be an Act, to repeal and with certain amendments re- enact the Industrial and Commercial Employment (Standing Orders) Ordinance, 1960 and this Act came into force on the 12th August 1965.
6. As is apparent West Pakistan Ordinance VI of 1968 and East Pakistan Act VIII of 1965 are consolidating and amending statutes. It has been held in Re: Budgett Cooper v. Adams (1)
(Interpretation of Documents by Sir Roland Burrows, K. C. Second Edition, 1946, page 101) that- "It is legitimate to examine the former statutes in order to ascertain the existing law which the amending statute is altering."
Applying the above principle it is necessary to examine the provisions as regards to "termination of employment" in all the four statutes referred above. Termination of employment is provided, in rule 13 of the Industrial Employment (Standing Orders) Central Rules, 1946 as under:- "13. Termination of employment.-( (1894) 2 Ch. 557) For terminating employment of a permanent workman, notice in writing shall be given either by the employer, or the workman-one month's notice in the case of monthly-rated workman and to weeks' notice in the case of workmen; one month's or to weeks' pay, as the case may be, may be paid in lieu of notice.
(2) No temporary workman whether monthly-rated, weekly---rated or piece-rated and no probationer or Badli shall be entitled to any notice or pay in lieu thereof if his services are terminated, but the services of a temporary workman shall not be terminated as a punishment unless he has been given an opportunity of explaining the charges of misconduct alleged against him in the manner prescribed in para--graph 14.
(3) Where the employment of any workman is terminated, the wages earned by him and other dues, if any, shall be paid before the expiry of the second working day from the day on which his employment its terminated."
While in Central Ordinance III of 1960, it is provided in section 12 of the Schedule as under: "12. Termination of employment.-For terminating employment of a permanent workman, notice in writing shall be given either by the employer or the workman-one month's notice in the case of monthly-rated workmen and to weeks' notice in the case of other workmen, one month's or to weeks' pay, as the case may be, may be paid in lieu of notice.
(2) No temporary workman whether monthly-rated, weekly---rated or piece-rated and no probationer or Badli shall be entitled to any notice or pay in lieu thereof if his services are terminated, but the service of a temporary workman shall not be terminated as a punishment unless he has been given an opportunity of explaining the charges of mis--conduct alleged against him in the manner prescribed in paragraph 13.
(3) Where the employment of any workman is terminated, the wages earned by him and other dues, if any shall be paid before the expiry of the second working day from the day on which his employment is terminated."
As regards to East Pakistan Employment of Labour (Standing Orders) Act. 1965, termination of employment is very comprehensively provided in section 19 as follows :- "19. Termination of employment.-(1) For terminating the employment of a permanent worker by the employer, otherwise than in the manner provided elsewhere in this Act, ninety days' notice in the case of monthly-rated workers and forty-five days' notice in the case of other workers, in writing, shall be given by the employer: Provided that wages for ninety days or forty-five days, as the case may be, may be paid in lieu of such notice: Provided further that the worker whose employment is so terminated, shall be paid by the employer compensation at the rate of fourteen days' wages for every completed year of service or for any part thereof in excess of six months, in addition to any other benefit to which he may be entitled under this Act or any other law for the the being in force.
Explanation.-For the purpose of calculation of wages under this subsection, wages shall mean the average of the basic wages and dearness allowance, if any, paid. To the worker during the period of twelve months immediately preceding the date of termination.
(2) If a permanent worker desires to terminate his employment one-month's notice in the case of monthly-rated workers, and fourteen days notice in the case of other workers in writing, shall be given by him to his employer Provided that a worker who terminates his employment under this subsection shall not be entitled to the payment of any com--pensation mentioned in subsection (1) but he shall not be entitled to other benefits, if any, under this Act or under any other law for the the being in force.
(3) For terminating the employment of temporary worker by the employer, otherwise than in the manner provided elsewhere in this Act, and if it is not due to the completion, cessation, abolition or discontinuance of the temporary work which he was appointed to perform, one month's notice in the case of monthly-rated workers, and fourteen days' notice in other cases, in writing, shall be given by the employer ;- Provided that wages for one month or fourteen days, as the case may be, may be paid in lieu of such notice."
As noted above, the Provisions of termination of service in West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 is provided in Order 12 of the attached Schedule, which may be reproduced as under :-- "12. Termination of employment.-(1) For "terminating employment" of a "permanent workman," one month's notice in writing shall be given either by the employer or the workman, one month's wages calculated on the basis of average of wages earned by the workman during the last three months shall be paid in lieu of notice.
(2) No temporary workman, whether monthly-rated, weekly-rated, daily-rated or piece-rated and no probationer or Badli shall be entitled to any notice or pay fn lieu thereof, "if his services are terminated". '
(3) Whether the "employment of any workman is terminated", the wages earned by him and other dues, if any; shall be paid before the expiry of the second working day from the day on which his employment is terminated.
(4) The services of a "permanent or temporary workman shall not be terminated" on grounds of misconduct otherwise thaw in the manner prescribed in Standing Order 15.
(5) Where the services of a permanent workman are terminated 'for reasons other than misconduct", he shall, in addition to the wages payable to him under clause (1), be paid gratuity equivalent to fifteen days' wages for every completed year of service or any part thereof in excess of six months; provided that no such gratuity shall be payable in case where the employer has established a Provident Fund to which workman is a contributor, and the contribution of the employer to such Fund is not less than the contribution made by the workman.
(6) The provisions of clause: (5) shall apply to any permanent workman whose services were terminated within a period of three months immediately before the coming into force of this Ordinance."
7. It has been vehemently argued on behalf of the petitioners that the words 'terminating the employment' and 'termination of services' of a permanent workman are quite distinct as used in clauses (1) and (5) of Order 12 of Ordinance VI of 1968, respectively, which are not interchangeable, as a result it was urged that a workman cannot terminate his own services, termina--tion of services as provided in clause (5) must result by an at of the employer, then and only then a workman can be said to be entitled to gratuity as provided in subsection (5) of Order 12 of the Ordinance VI, 1968. The entire case of the petitioners in fact was based on this argument, though novel in nature that a workman is incapable in law to terminate his services by resigna--tion, has not been advanced for the first the from the Bar, and it was advanced yet repelled in the case of Ganesh Ramchandra Gadgil v. G. I. P: Railway Company ((1900) 2 B L R 790) wherein Sir Lawrence Jenkins, Knight, Chief Justice held that- "Now a contract of service is continuing in its nature, and its continuance and the obligations under it can only be terminated in certain defined modes. Mere resignation obviously is not enough unless it be assented to, or unless it comply with those terms which the law implies or the prior agreement of the par--ties may permit."
As pointed out earlier, in all these petitions, resignations have been accepted by the employers which therefore, in law, brings to an end the contract of service. The facts in the cited case were simple, where an employee of the G. I. P. Railway Company went on leave without pay and before the expiry of leave, sent a letter stating "I am unwilling to serve any longer, please accept resignation with 24 hours' notice." He was to report for duty on 14th May, on which date he did not turn up and all the Railway Company did was to dismiss him from service for not reporting in the, in other words his resignation was not accepted or otherwise could not have been accepted within 24 hours' notice under the relevant Railway Rules. The result was that his claim against the Company was rejected by the Court. Yet this ruling lays down that a workman can terminate his services by resigna--tion, particularly so when it is accepted by the other side. We are further supported in our this view by the case of Abraham Ruben v. The Karachi Municipality (1131 C 387) a decision of Sind Judicial Commissioner Court wherein it was held by Mr. Lobo, Assistants Judicial Commissioner, that: "The test to determine whether a person has resigned his service or has been dismissed there from is whether the acts and conduct of such person evince an intention no longer to be bound by the contract of service ; on the other hand, if the conduct of the employer amounts to a basic refusal to continue the servant on the agreed terms of employment, then there is at once a wrongful dismissal and a repudiation of the contract, even if the servant leaves service in pursuance of a request to resign. The use of polite, instead of peremptory, language does not alter the fact."
8. To further repeal the arguments of counsel for the petitioners that "a workman can not terminate his services we may better refer to Article 87 of the Book "The Law of Master and Servant" by A. S. Diamond, II Edn., 1946, under sub-heading "Servant's Right to Depart Without Notice" as under :- "A servant is entitled to terminate the service without notice for any failure by the master to fulfil a condition precedent expressed or implied in the contract.
A servant is entitled to terminate the service where there is an immediately threatening danger to the person by violence or disease such as he did not by his contract undertake to run."
This goes to show that the servant or the workman has in law the capacity to terminate the services or the employment which in fact, means the termination of service or contract of service or employment, and we are aware of no law where the workman is deprived of his this basic right.
Even otherwise the argument advanced offends basic commonsense and logic because there is no law at least to our knowledge under which an unwilling worker can be compelled by any device to work because as old saying goes that "you may take a horse to the water but you cannot make him to drink".
9. We may also quote with advantage the law relating to service in India Vol. I Master and Servant by N. Barwell, M. C., M. A. And S. S. Kar., M.A. B.L., page 351, wherein the circum--stances and the contingencies are fully explained as regards to determination or termination of services between Master and Servant. The learned author at pages 351 to 356 states :- "Determination.-As already explained for the benefit of the ordinary reader the words to determine in the language of lawyers, mean 'to bring to an end to make an end of. There are many ways in which a contract of the service may be brought to an end. For example, it may be brought to an end by operation of law. Such is the case where contract in its inception lawful becomes later unlawful by reason of some statutory provision. It may come to an end also by the compulsory transfer of a man's service to the State, such as arises when a servant is lawfully called upon for service with the Armed Forces either by conscription or for duty as a servist; or, again, by virtue of some statutory enactment by which the concern in which the man is working is taken over under a scheme of nationalization whereby all the concern's own employees are transferred to the new management with effect from a particular date.
A contract of service, because of its personal nature, is automatically determined, in the above sense, by the death of either of the parties and in the case of a firm by dissolution of partnership. It will also come to an end by efflux of the. That happens where the contract is for a term certain, and the period named has run out. It comes to an end, also, where its due performance has become impossible through circum--stances over which neither party has control. No one is required by law to do the impossible.
There remain to be considered in rather more detail certain other ways in which a Contract of Service may be brought to an end. These are (a) by resignation on the part of the servant; (b) by the servant's discharge ; (c) by one or other of the parties rescinding the contract ; and (d) lastly by the master dismissing the servant. These particular topics will be found separately discussed in the following pages.
Resignation.--The word 'resignation" is not a Term of Art. It only means 'give up' Resignation by a servant does not operate as discharging the contract by bringing it lawfully to an end, unless such resignation be accepted by the master. When that is the case, the parties have, by agreement, determined the contract from the date of the master's acceptance. But if the resignation be not accepted, the servant remains bound, and should he choose to withhold his services, his conduct will be a breach of the contract entitling the master to damages, unless, though speaking of his action as one of resignation, the servant is in fact mentioning a date for it to take effect which would bring his conduct within what the contract requires as a proper Notice to determine it"
"Discharge.- . . . . . . But the word 'discharge' should, it is submitted, be restricted to the discharge by the master of such part of the contract between him and his servant as relates to terminating it by giving the agreed amount of notice or by giving reasonable notice, or, again, by a payment and acceptance of money in lieu of notice; for thus the contract is brought to an end by a method contemplated by the contracting parties. So to terminate the contract may use--fully be distinguished from dismissal', which really means sending the servant away; and represents a summary method of terminating the relationship of master and man, so as to prevent the servant from resuming work; whereas, by virtue of a discharge on proper notice the servant voluntarily withdraws from further labour."
10. Apart from the above authorities, a glance of section 19, -subsection (2) of East Pakistan Employment of Labour (Standing Orders) Act, 1965, quoted above, clearly goes to show that a worker is entitled in certain contingencies to terminate his employment, therefore, the argument that a worker cannot terminate his employment or services by resignation or otherwise, is not acceptable to us, which must be repelled.
11. A plain reading of Order 12 of West Pakistan Ordinance VI of 1968, goes to show that under subsection (1) the employment of a permanent workman can be terminated on one month's notice in writing either by the employer or the workman and in case the workman does not give the requisite notice, he loses one month's wages and if the employer wants to dispense with the services of the workman without notice, he has to pay a month's wages to the workman. It is very interesting to note that in, subsection (2) a temporary workman is not entitled to any notice or pay in lieu thereof (if his services are terminated). In subsection (3) instead of (service) again the words 'termination of employment' has been used. In subsection (4) we see again a change to termination of services of a permanent or temporary workmen instead of 'employment' used in subsection (1) and subsection (3). In subsection (5) which is the main subsection for interpretation before us, the Legislature used the words `termination of services" instead of "employ--ment" and the same term is used in subsection (b) as well. It is therefore, apparent that the terms 'termination of employment --and 'termination of services' used by the Legislature in various subsections of Order 12 have one and the same meaning and are interchangeable and this recourse by the, lace- makers is clearly adopted to avoid the monotony by use of repeatedly the same terms. Where the intention is otherwise, then the Legislature specifically adds a proviso or a clause to that effect which however, is not provided in Order 12. The result is we have no other course but to give the words of Order 12 their plain and ordinary meaning. Maxwell on the Interpretation of 'Statutes, 11th Edn., page 6- "The golden rule is that the words of a statute must primal facie be given their ordinary meaning.
We must not shrink from an interpretation which will reverse the previous law, for the purpose of a large part of our statute law is to make, lawful that which would not be lawful without the statute, or conversely, to prohibit results which would otherwise follow."
At page 9 while discussing the scope and limits of literal construction of a statute, it is stated- "The Court could not assure a mistake in an Act of Parliament. On the same principle the Court could not assume that there has been a dereliction of duty On the part of an official of Parliament."
"The Wills Ate, 1837 (c. 26), section 9, which requires a testator to sign his will, in the presence of to witnesses has been construed as meaning "the actual visual presence,"
"If an Act provides that orders for committal must be made sin open Court' an order made, 'not in the Court', but in another part of the building which is also open to the public will be invalid."
The same author at page 19 states:- "The true meaning of any passage, it is said, is to be found not merely in the words of that passage, but in comparing it with other parts of the law, ascertaining also what were the circumstances with reference to which the words were used, and what was the object appearing from those circum-- stances which the Legislature had in view. The same, it would teem applies to by-law. Every clause of a statute should be construed with reference to the context and the other clauses of the Act, so as, so far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject-matter."
12. Applying the above principles we cannot but give the ordinary and plain meaning to the terms "termination of employ--ment" and "termination of services" as used in various sub--sections of Order 12. After coming to this conclusion it is not difficult however, now, to say that what is the real import of the words (for reasons other than misconduct) as used in subsection (5) wherein it is clearly stated that where the services of a permanent workman are terminated for reasons other than misconduct, he shall be entitled in addition to the wages payable to him under clause (1), be paid gratuity equivalent to 15 days' wages for every completed year of service or any part thereof in excess of six months. This statutory right of gratuity however, has been clarified by this very subsection (5) by a proviso stating that gratuity will only be paid where there Is no provident fund established by the employer to which he contributes equally to that of the workman. In other words, the workman under this subsection is entitled to gratuity benefits when his services are terminated for any other reasons except misconduct and also subject to the availability of provident fund. If fund is established, according to the rules, then the workman is not (sic) entitled to gratuity but to the contribution both of the employer and employees made in that fund. Admittedly, the petitioners (employers) in all these petitions have not established any provident fund, the result is the workman becomes entitled only to the gratuity benefits under this subsection at the the when his service comes to an end either by resignation or otherwise except misconduct.
13. Standing Orders Ordinance provides certain benefits to the workmen and safeguards their interests. They are entitled to claim gratuity as a right and this right cannot be circumvented or refused on the plea that the service of the workman was not terminated by the employer and the resignation did not amount to termination of his service. It is immaterial as has already been observed that the workman is entitled to gratuity whether he resigns or his service is terminated by the employer for reasons other than the misconduct. The Standing Orders nowhere provide debarring workmen from claiming gratuity on resignation.
In the absence of any such provision it is not possible to hold that the Legislature disentitled workmen to claim gratuity in case he himself leaves the service.
14. As regards the objection raised on behalf of the peti--tioners that the workmen were bound to follow the procedure as provided by Order 18 by bringing their grievance to the notice of the employer in writing within 15 days of the occurrence of the cause of grievance and, therefore, the employer within 30 days bad to make an inquiry into the matter and communicate in writing to the workmen, we see no force in this contention. To dispose of this objection we will take the petitions separately as under.
15. In Writ Petition No. 91/69, it was pleaded that the Industrial Court failed to appreciate and totally ignored that the claim of the respondent for gratuity was the-barred under the provisions of the Standing Order 18 (a) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, because the respondent did not bring his grievance to the notice of the petitioners within 15 days of its occurrence, and it was brought to the notice of the petitioners by way of an application which was received by the petitioner on 5th April 1968, i.e. Beyond the mandatory and statutory period of 15 days. This objection was never raised before the Industrial Court as is clear from the impugned order. The only question that was pressed for decision was whether on resignation by the worker he was entitled to the payment of gratuity or not. It is also observed in the impugned order that there was no objection raised by the petitioners that the application filed by the respondent before the Industrial Court was the-barred. In view of this the objection cannot for the first the be taken in this writ petition, and, therefore, cannot be entertained.
16. In Writ Petition No. 157/69, it was pleaded that no notice under Standing Order No. 18 (a) was given by the respondent to the petitioner, and, therefore, the grievance could not be entertained by the Industrial Court. This objection was also taken before the Industrial Court and it was dispelled by observing after referring to the letter of resignation that the respondent while resigning was definite that his dues including gratuity for 14 years' service, earned leave, bonus and earned wages had to be paid to him within 15 days. It was further observed by the Industrial Court that the law did not lay down that the raising of the grievance should be brought to the notice of the employer by a separate application. So the Industrial Court concluded that the resignation Exh. R W 1/2 and A-3 amounted to resignation and bringing of the grievance to the notice of the employer.
The learned counsel Las failed to assail this finding. This being a question of fact and having been decided by the Industrial Court It cannot be attacked in these proceedings.
17. In Writ Petitions Nos. 2270/69 and 201/69, it was pleaded that the Industrial Court erred in relying on the oral evidence of the respondent as to the submission of the grievance and application to the petitioners and it was further urged that in law it was necessary that the submission of the grievance and the applica--tion of the grievance by the respondent to the petitioner should have been strictly proved. The objection is clearly misconceived. It to a question of fact and appreciation thereof, which cannot be assailed in these proceedings. This Court cannot substitute its own opinion for the opinion expressed by the Industrial Court.
18. The result of the above discussion and the legal position, therefore, is that we are of the considered opinion that a workman who voluntarily resigns and brings to an end hiss employment or services, is entitled to the gratuity benefits under Order 12 of the Ordinance and it cannot be argued now that the gratuity provided by the employer is a bounty, charity or gift for the simple reason that bounty theory has definitely beet, exploded by this statutory sanction. We are also of the opinion that a workman who resigned or whose services are terminated for reasons other than misconduct during three months' period prior to the promulgation of this Ordinance and. Therefore, is entitled to gratuity benefits as provided in subsection (6) for the entire length of his service with the employer. We, therefore, dismiss all these petitions with costs and uphold the orders of Industrial Court.