FAKHRUDDIN G. EBRAHIM, J.-By order dated 30-8-1972 we allowed this petition with no order as to costs for reasons to be recorded later. Our reasons are as follows :-
2. This petition challenges the order dated 1-2-71 made by the Second Sind Labour Court, Karachi, on an application made by respondent No. 2 under the Standing Order No. 18 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 by which order the said Labour Court,,, respondent No. 1 herein, ordered re-instatement of respondent: No. 2 !n the service of the petitioner-company.
2-A. In the application under Standing Order No. 18, respondent No. 2 alleged that since 31-5-1967 be was employed as a Bill Clerk in the petitioner-company and that his services were confirmed on 1-12-1967. On 30-5-1969, he received one month's notice of the termination of his services, to be effective from 30-6-1969. He protested against this termination, as he was a senior employee, in consequence whereof, the petitioner changed their decision, but again informed him, in the last week of June 1969, that his services will be terminated with effect from 30-6-1969. Respondent No. 2, it is alleged, made a representation to the Martial Law Authority on 30-6-1969 and the petitioner, on receipt of its copy, withdrew the letter dated 30-5-1969, but later revised the decision and illegally terminated his services with effect from 16-9-1969, ignoring his seniority and length of service. By letter dated 30-10-1969, the respondent No. 2 protested to the petitioner, against his illegal termination to which no reply was made and he, accordingly, on 28-11-1969 filed his application under the said Standing Order No. 18 in which his termination of service by the petitioner was challenged on the ground that it was in violation of Standing Order No. 13 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
3. The Labour Court, the respondent No. 1 herein, by the impugned order dated 1-2-1971 allowed the application under Standing Order No. 18 and directed the re-instatement of respondent No. 2 and that he will be entitled to the pay of the intervening period and all other benefits due to him.
4. The case of the petitioner is that by letter dated 30-5-1969, the respondent No. 2 was informed that on account of slackness in business resulting from reduced imports, the respondent No. 2 was found surplus for their requirements and accordingly, the petitioner was compelled to give notice of termination of his service from the after-noon of 30-6-1969. On 30-6-1969, the petitioner by a letter of the same date informed the respondent No. 2, that while condition of their overall business continued to remain slack, a temporary vacancy had arisen in the Accounts Department for a duration of two months and a half as another member of the staff in that Department was proceeding on leave, and they would like to accommodate the respondent No. 2, who had already worked for them for past two years, in the said vacancy and accordingly they were "pleased to extend his services for another 2J months up to 15-9-1969". By letter dated 17-9-1969 the petitioner informed the respondent No. 2 that the member of the staff in whose vacancy he was temporarily retained, had already joined duty and, accordingly the services of respondent No. 2 had become surplus to their requirements as per their previous letter dated 30-6-1969. The respondent No. 2 was finally advised that "his services will stand terminated as from 16th" and that he may collect his dues and clear his account from the Cashier. The respondent No. 2, it may be noted, does not deny the receipt of letters dated 30-6-1969 and 17-9-1969.
5. The learned counsel for the petitioner before us has challenged the above order on the ground that the application filed by respondent No. 2 was not maintainable under Standing Order No. 18 inasmach as the respondent No. 2 had failed to strictly comply with its requirements. It was further contended that no complaint could be entertained in respect of termination of employment of the respondent No. 2, as he was neither an office-bearer of a registered Trade Union nor had he been deprived of the benefits accruing to him under the said Ordinance.
6. Standing Order No. 18 reads as follows ---.- "18. Grievance Procedure.-Any individual workman who has a grievance in respect of any matter under this Ordinance and intends to seek redress thereof, shall observe the following procedure ;-
(a) the workman concerned shall bring his grievance to the notice of his employer, in writing, within 15 days of the occurrence of the cause of such grievance and the employer shall within 30 days of such grievance being brought to his notice, inquire into the matter, giving the workman concerned an opportunity of being heard, and communicate his decision, in writing, to the said workman ;
(b) if the employer fails to give a decision within the period specified in clause (a), or if the workman is dissatisfied with such decision, the workman may make a complaint to the Industrial Court having jurisdiction, within 30 days from the date of the decision, or where the employer fails to give a decision, within sixty days of the workman bringing the grievance to the notice of the employer, unless the grievance has already been raised or has otherwise been taken cognizance of an industrial dispute under the provisions of the West Pakistan Industrial Disputes Ordinance, 1968 ; Provided that no complaint shall lie against an order of termination of employment of a workman unless the workman concerned is an officer of a registered Trade Union and his employment is alleged to have been terminated for his Trade Union activities or unless the workman concerned, whether an officer of a registered Trade Union or not, has been deprived of the benefits accruing to him under this Ordinance ;
(c) on receipt of any complaint under clause (b), the Court, after giving notice to the employer concerned and giving the parties an opportunity of being heard may decide the matter in ,such summary way as it deems fit ;
(d) in deciding the matter, the Court may pass such orders; including orders regarding costs, as it may deem just and proper and it may", in appropriate cases, require by such order, the re- instatement complaint, and such order shall be final:
7. As is apparent from the plain reading of Standing Order No. 18, the employee must bring his grievance to the notice of his master, In writing within 15 days of the occurrence of the grievance; within 30 days of such grievance being brought to his notice, the employer is required to inquire into the grievance, and after giving the workman concerned an opportunity of being heard, communicate his decision to the workman. If the employer fails to communicate his decision within the said period of 30 days, the workman is at liberty to make a complaint within 60 days of the workman bringing grievance to the notice of the employer.
8. It appears that the grievance of the respondent No. 2, in his application under Standing Order 18, was two-fold, namely termination of his employment on 30-5-69 with effect from 30-6-69, and again on 16-9-69, when he alleges, his services were terminated by ignoring his alleged seniority and length of service. The Labour Court has also based its decision on consideration of both the grievances. In so far as first grievance is concerned the petitioner did not bring this grievance to the notice of his employer, and no such written notice has been produced. Furthermore, a complaint in respect of this grievance should have been brought before the Labour Court within 60 days of the workman bringing the grievance to the notice of the employer. This grievance became subject-matter of a complaint, before the Labour Court, for the first time on 28-11-1969, i.e., one and a half years after its occurrence. As regards the grievance relating to the termination of his service on 16-11-1969, the same was not brought to the notice of the employer until 3-10-1969, while the period of 15 days, prescribing in para. (a) of the Standing Order 18, expired on 1-10-1969.
9. The question for consideration therefore is whether the provisions contained in paras. (a) and
(b) of the Standing Order No. 18, are directory or mandatory; for if it is former its disregard will not invalidate the consequences arising thereof, while in the latter case, its disobedience will result in nullification of the consequences. It is not always easy to determine whether a particular statute is mandatory or directory. As pointed out by Mohammad A.I Sayeed, J., in the case of Tanzeem-e- Mulazamin Baldiya v. Government of West Pakistan (PLD 1971 Kar. 535) the use of the words such as `may' or `shall' as representing the permissive or compulsive nature respectively of the act intended to be done has long ceased to be a conclusive and unerring index to the intention of the Legislature. To ascertain the real intention of the Legislature it is necessary to examine the subject- matter, the scope and the object of the enactment , whether the act creates public duties or confers private rights ; whether any injury will result from ignoring it ; whether it requires some antecedent and pre-requisite conditions to the performance of an act or taking of a proceeding in order to invest it with validity.
10. An examination of the West Pakistan Industrial and Com--mercial Employment (Standing Orders) Ordinance, 1968, would show that it is special statute dealing with the special subject, namely relationship between Master and Servant ; It provides that .& the conditions of the employment of workmen in the specified industrial and commercial establishments shall be regulated in accordance with the Standing Orders. The Standing Orders, among other things, create new rights and obligations between Master and Servant and prescribe mode of its enforcement and enjoyment.
11. It is a well-settled principle of interpretation of statutes that when a statute creates now rights and obligations and prescribes the mode of its enjoyment or enforcement, such provisions are considered mandatory and that the Legislature intends compliance of such provisions to be essential to the validity of the act or proceedings.
Maxwell on Interpretation of Statutes (Eleventh Edition) at page 364 observed as follows: "Where powers, rights or immunities are granted with a direction that certain regulations, formalities or conditions shall be complied with, it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred, and it is therefore probable that such was the intention of the Legislature."
Crawford on Statutory Construction at page 526 observed as follows :- "A statute which creates a new right, privileges or immunity, and regulates the manner of its exercise, will be construed as mandatory. In other words, the right can be exercised only in the manner and within the time prescribed. Similarly, when a statute gives a new right and prescribes a particular remedy for its recovery, such remedy must be strictly pursued ; though it is otherwise where a statute gives a right without prescribing a remedy."
12. Applying then the foregoing principles of interpretation, we are of the view that provisions in paras. (a) and (b) of the Standing Order No. 18, are mandatory and therefore no application under Standing Order No. 18, will lie unless the applicant strictly complies with its requirements.
13. Respondent No. 2 having not strictly complied with the Standing Order 18, the respondent No. 1 had no jurisdiction to entertain the complaint made by the respondent No. 2 in respect of either of two grievances dated 30-5-1969 and dated 16-9-69.
14. We are further of the opinion that the learned Labour Court did not apply its mind to the proviso to the Standing Order No. 18 inasmuch as no complaint will lie against an order of termination of employment of a workman unless such a workman is an office-bearer of a registered Trade Union or he has been deprived of benefits accruing to him under the said Ordinance. The learned Labour Court has not even referred to the benefits allegedly denied to the respondent No. 2 which entitled the latter to make a grievance of the order of termina--petition of his service. On being informed of this position, the learned counsel for the respondent No. 2 stated that his client was deprived of the benefits available to him under Standing Order No. 13, inasmuch as, his client was in fact retrenched when his services were terminated by letter dated 30-5-1969 and the principle of last in first out was not followed. Even if this -vas so, the grievance was neither brought to the notice of the employer nor a complaint filed in respect of the same within the time prescribed. As regards termination of service vide letter dated 17-9-1969, the learned counsel did not draw our attention to any benefits allegedly denied to his client, though in the application under Standing Order No. 18 it is stated that his seniority and length of service were ignored. In my opinion, the letter dated 17-9- 69 merely brought to an end an express temporary assignment and thereby no benefits under the said Ordinance were denied to the respondent No. 2.
15. For the reasons aforesaid we have come to the conclusion that respondent No. I had no jurisdiction to entertain 1the application made by respondent No. 2, under Standing Order No. 18, and the impugned order dated 1-2-1971, is clearly illegal and is therefore set aside.