This appeal is under section 12 (5) of the Industrial Disputes Ordinance, 1959 (LVI of 1959). This Ordinance was repealed by the West Pakistan Industrial Disputes Ordinance, 1968, which Ordinance was in its turn repealed and replaced by the Industrial Relations Ordinance, 1969. It is stated at the bar that the provisions of the Industrial Disputes Ordinance, 1959, substan--tially correspond to the provisions of the Industrial Relations Ordinance, 1969. The present appeal questions the award dated 9th November 1967, given by the Second West Pakistan Industrial Court at Karachi. This award has been published in the Gazette of West Pakistan (Extraordinary Issue) of 1st Decem--ber 1967.
2. The facts which form the background of the award are these. The appellant was a workman employed as a Turner, Class I, with the respondents. Another employee of the respondents, namely, Muhammad Ashraf, was dismissed by the respondents on the allegation of some misconduct. The Pakistan Cables Employees' Union, the Union which represents the workmen employed with the respondents, took exception to this dismissal and consequently gave notice of strike on 20th June 1965. Upon Such notice, the conciliation proceedings commenced on the same date, but failed on 29th July 1965, and certificate of failure was issued on 16th August 1965. Accordingly that dispute was taken to the Industrial Court in I. D. No. 72 of 1965, which was decided on 21st September 1966, and under which decision the dismissal of Muhammad Ashraf was set aside. This award was challenged in the High Court in Misc. Civil Appeal No. 131 of 1966, but this appeal was dismissed some time in 1968. Before the award was given in I. D. No. 72 of 1965, the respondents dismissed, on 4th May 1966, the present appellant, again on the allegation of some misconduct. Consequently, the appellant moved an application before the Industrial Court on 6th June 1966, claiming that his dismissal was in contravention of section 30 (1) of the Industrial Disputes Ordinance, 1959. The appellant also made allegations to his application of malice against the Management, failure on the part of the Management to give opportunity to the appellant to show cause against the action proposed to be taken against him and failure on the Management's part to hold due and proper enquiry. The Management, that is, the respondents, in their reply, contested these allegations and took the further plea that section 30 (1) of the Industrial Disputes Ordinance, 1959, was not at all attracted, as the appellant could not be said to a workman "concerned in the dispute" with regard to the dismissal of Muhammad Ashraf and that he was dismissed for misconduct not connected with the dispute, and therefore permission of the Industrial Court for his dismissal was not necessary. However, the Industrial Court confined its decision only to one point, that is, whether the appellant could be said to have been concerned in the dispute, which was the subject-matter of I.
D. No. 72 of 1965, then pending before the Industrial Court and which related to the dismissal of another employee, namely, Muhammad Ashraf. The Industrial Court came to the conclusion that the appellant could not be said to be a person concerned with the dispute relating to the dismissal of Muhammad Ashraf, and therefore dismissed the appellant's application made under section 30
(1) of the industrial Disputes Ordinance, 1959.
3. The question before me is as to what is the meaning of the expression "workmen concerned fn such dispute" appearing in section 30 (1) of the Ordinance. Mr. Saleem Akhtar, the learned Advocate for the respondents, contends that the word "concerned" connotes a kind of specific and direct interest, and, In-a given legal or quasi-legal proceedings, it implies a direct and personal interest which a party to the proceedings would have in the result of those proceedings. For this view, Mr. Saleem Akhtar placed reliance on a Bombay decision, The New Jehangir Vukil Mills Ltd. v.
N. L. Vyas and others (AIR, 1959 Bom. 248). But Mr. Abdul Mejeed, who represents the appellant before me, brought to my notice the decision of the Supreme Court of India in New India Motors (Private) Ltd. v. K. T. Morris (1961 PLC 46) in which the Bombay view has been overruled.
4. In my opinion, the expression "concerned" appearing in subsection (1) of section 30 of the Industrial Disputes Ordinance, 1959 (which corresponds to section 47 of the Industrial Relations Ordinance, 1969, presently in force In this country) should be construed in the context of the other relevant provisions of the Ordinance of 1959. I would first refer to the definition of `industrial dispute" in section 2 (h) of the Ordinance, which provides that this expression means any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment, or the terms of employ--ment or with the conditions of work, of any person (the underlining` is mice). In section 2 (n) of the Ordinance, the workman is defined to mean any person including an apprentice employed in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes, for the purposes of any proceedings under this Ordinance in relation to an industrial dispute, a workman discharged during that dispute but does not Include any person employed in the police or armed forces of Pakistan. Section 13 (1) provides that a settlement arrived at in the course of conciliation proceedings or an award published under subsection (2) or subsection (2-B) of section 12 shall be binding on-
(a) all parties to the industrial dispute;
(b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Court records the opinion that they were so summoned without proper cause;
(c) where a party referred to in clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates;
(d) where a party referred to in clause (a) or clause (b) is composed of workmen, all persons who were employed fn the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part.
Section 18 of the Ordinance relates to public utility services and contains the provision, amongst others, that no employee shall go on strike, and no employer shall lock-out any of his workmen during the pendency of any conciliation proceedings and, if no settlement is arrived at in the course of such proceed--ings, before an application for adjudication has been made to the Industrial Court. Under section 19, no workman is permitted to go on strike, nor any employer to declare a lock-out, during the pendency of conciliation proceedings or proceeding in an industrial dispute before the Industrial Court or proceedings in appeal before the High Court or during the period in which a settlement or award is in operation, in respect of any of the matters covered by the settlement or award, and, under section 21, a strike or lock-out in breach of the provisions of sections 18 and 19 is declared to be illegal. Under section 22, no person shall knowingly expend or apply any money in direct furtherance or support of any illegal strike or lock-out. Section 23 provides for prosecution and punishment with imprisonment for a term up to six months for illegal strikes or lock-outs. Sections 24, 25 and 26 provide for prosecution and punishment for instigation of illegal strikes or lock-outs or spending or applying of any money in furtherance or support of any illegal strike or lock-out or for breach of settlement arrived at during the conciliation proceedings or of the award of the Industrial Court. Next I may refer to section 30, under which an employer may not during the pendency of conciliation proceedings or proceedings before the Court in respect of an industrial dispute or during the period between the conclusion of the conciliation proceedings and commencement of the proceedings before the Court, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to theta immediately before the COMto0eement of conciliation proceeding, or except with the permission of the Conciliation Officer or of the Industrial Court, discharge, dismiss or otherwise punish any such workman except for misconduct not connected with such dispute. The breach of the provisions of section 30 is made punishable under section 28 of the Ordinance. Section 31 enables an employee to have recourse to the Industrial Court where an employer contravenes the provisions of section 30.
5. Turning to the present case, it has been noted above that the dismissal of Muhammad Ashraf was objected to by the workmen of the respondents, and consequently the workmen, through their Union, served notice of strike on the respondents on 28th June 1965. On the same date, conciliation proceedings commenced. But they failed on 29th July 11965, and a certificate of failure was issued on 16th August 1965, under section 5 (5 of the Industrial Disputes Ordinance, 1959, whereafter the case went to the Industrial Court under I. D. No. 72 of 1965. Thus, all the workmen became "concerned" in this way with the dismissal of Muhammad Ashraf. The question is whether the award in Muhammad Ashraf's case, that is, I. D. No. 72 of 1965, was not binding on other workmen of the respondents, parti--cularly in view of the fact that these very workmen had given, notice of strike against Muhammad Ashraf's dismissal? Another question is, whether the workmen of the respondents, other than Muhammad Ashraf, could agitate against Muhammad Ashraf's dismissal by way of strike either during the pendency of the industrial dispute relating to this dismissal, or after the award was made in this dispute. Suppose the award of the Industrial Court was against Muhammad Ashraf, in that it had upheld his dismissal by the respondents, could then the workmen protest against this award by serving another notice of strike and then going on strike in pursuance of this notice? In my opinion, the award against Muhammad Ashraf would have been binding on all the workmen and another strike by the workmen would be in contravention of sections 18 and 19 of the Ordinance of 1959, which would have made the workmen subject to the penalty of prosecution and punishment under section 23 of this Ordinance, and any person who was found inciting or aiding with money such strike would likewise have been subject to prosecution and punishment under sections 24 and 25 of the Ordinance. Further, such strike would have been in breach of the award and the workmen would also have become liable for prosecution and punishment under section 26 of the Ordinance. In my view, it would be unreasonable to construe the expression "concerned" in subsection (1) of section 30 of the Ordinance in the strict meaning which Mr. Saleem Akhtar wants me to adopt, because such construction would lead to the defeat of the provisions of the Industrial Disputes Ordinance, 1959, which I have referred, to above. Such construction would enable the workmen to defy the award and, in such defiance, resort to strike again as a protest against the Industrial Court's award. This would be the necessary consequence of the strict construction of the word "concerned", because the workmen's stand would be that though they were party to the notice of strike and they would have gone on strike if conciliation proceedings had not commenced, and dispute had not gone to the Industrial Court, the settlement, arrived at during the conciliation proceedings, or the award of the Industrial Court, was not binding on them, as they were not the persons "concerned" in the dispute. Let me go back to the definition section of the Ordinance. In the foregoing discussion, I have referred to the definition of "industrial dispute" in section 2 (h) of the Ordinance. "Industrial dispute" would include any dispute or difference between employers and workmen, which is connected with the employment or non--employment or the terms of employment or with the conditions of work, of any person. Now what A as in effect the dispute with regard to Muhammad Ashraf and who were the parties therein? The parties to that dispute were Muhammad Ashraf and the other workmen of the respondents on the one hand, and the respondents as employers on the other, and the dispute was the employment or non- employment of Muhammad Ashraf. Thus, the dispute in the Instant case was between workmen as a whole on one side, and the respondents as employers on the other. In this view of the matter, not only the present appellant, but all other workmen of the respondents were "concerned" in the dispute relating to the employment or non-employment of Muhammad Ashraf, and, according to the definition of "workman" in section 2 (n), a workman discharged during the industrial dispute is also a workman within the purview of the provisions of the Industrial Disputes Ordinance, 1959.
Further, we must keep in mind the object of section 30 of the Industrial Disputes Ordinance of 1959.
By this section, it was intended to maintain accord and status quo in the industrial establishment during the pendency of the dispute, so that the enquiry of the dispute should be fair and undisturbed by any action either of the workmen or of the employers. If Mr. Saleem Akhtar's interpretation was accepted, then, in that case, the very purpose of the Ordinance could be evaded. Thus, it is not possible for me to accept the rigid con--struction which Mr. Saleem Akhtar has placed on the word "concerned" and for which construction he places reliance on the Bombay decision, that is, The New Jehangir Vakil Mills Ltd. v. N. L. Vyas and others.
6. I may once again refer to the decision of the Supreme Court of India in New India Motors Private Ltd. v. R. T. Morris, which was cited at the Bar by Mr. Abdul Majeed. In that case one Mr. K. T. Morris was dismissed during the pendency before the Industrial Tribunal of an industrial dispute relating to the dismissal of seven apprentices. A plea was taken by the employers that Mr. Morris was not "concerned" with this dispute, as it did not effect him in any way. But this plea was rejected by the Supreme Court of India and Gajendragadkar, J. Giving the opinion of tile Court. Held that a liberal interpretation should be placed on the word "concerned", because such interpretation alone would be consistent, with the other provisions of the Indian Industrial Disputes Act, 1947 (which in substance corresponds with the provisions of the Industrial Disputes Ordinance, 1959) and, further, if a rigid construction was adopted, then, in that case, the settlement or award could not be binding on the other workmen, who would be at liberty to resort to strike. Proceeding further, the learned Judge observed that the very object of the Act and section 33 thereof (which corresponds to section 30 of the Industrial Disputes Ordinance, 1959) would be defeated as it would then not be possible to hold enquiry into an industrial dispute undisturbed by the actions of the employers or the workmen or to maintain accord and status quo in the industrial establishment during the pendency of such dispute. In this very case, the Bombay decision In The New Jehangir Vakil Mills Ltd. v. N. L. Vyas and others, placing a narrow construction on the word "concerned" was overruled, but some other decisions, those of the Madras High Court, Newtone Studios Ltd. v. Ethirajulu (T. R) and others ((1958) 1 L L J 63) and Pudukottah Textiles Ltd. v. Subramanian (A) and others ((1958) 1 L L 174), adopting a construction were approved. I may also refer here to a Pakistan case, that is, Muzafar Hussain and others v. Batala Engineering Company (Pakistan) Ltd., Lahore (1969 PLC 699), decided by the Industrial Appellate Tribunal of West Pakistan. The learned Appellate Tribunal held that the words "concerned in the dispute" should be given a liberal interpretation, and that to take a limited and narrow view of this expression would result in the frustration of the object of the Legislation. This view was taken in a case where Officers of the Labour Union were dismissed during the pendency of an industrial dispute relating to the dismissal of 230 workmen. However, in my view, the same consideration would apply to dismissal of workmen other than Officers of the Union.
I have already at length discussed as to bow all the workmen in the respondents' Industrial establishment become "concerned" in the dispute relating to the dismissal of Muhammad Ashraf. I remain unconvinced that the view taken by the Appellate Tribunal in the foregoing discussion should be restricted only to cases of the officers of the Union dismissed during the pendency of an industrial dispute. Mr. Saleem Akhtar then contended that a liberal interpretation of the expression "concerned in the dispute" may lead to rather drastic consequence, in that the employers would be unable to dismiss or terminate the services of a workman, howsoever grossly wrongful his misconduct may be. But, in my opinion, these fears are without substance, because section 30 itself contains an exception with regard to those employees who are dismissed for misconduct not connected with the industrial dispute, and, in cases of such employees, even the permission of the Industrial Court is not necessary.
7. In view of the foregoing discussion, the award of the Industrial Court, impugned before me, cannot be sustained and is, therefore, quashed, and it is held that the appellant was "concerned" in the industrial dispute relating to the dismissal of Muhammad Ashraf. Mr. Abdul Majeed says that the case should be sent back to the Industrial Court for decision of the appellant's application under section 30 of the Industrial Disputes Ordinance, 1959, on merits. I accordingly do so, and, in addition, I order that the appellant shall have costs of the proceedings before the Industrial Court which resulted in the impugned award and the costs of the proceedings in this appeal.
A. E.