All these appeals are by the P.I.A. Management against the decisions of the Punjab Labour Court, Northern Zone, Lahore passed under section 25-A of the Industrial Relations Ordinance1969. Since in all these appeals the points of law raised are common and the appellant is the same, all these appeals with the request of the learned counsel for both the parties were consolidated and will be disposed of together by this order.
2. The facts in each of the cases are that in Appeal No. LHR-89/72, the respondents were appointed as Junior Traffic Assistants on 30-12-1970 but that their services were terminated on 25-11-1971 without notice on the ground of retrenchment made for the reason that emergency had been declared, in Appeal No. LHR-90/72, the respondents services were terminated on account of retrenchment, in Appeal No. LHR-96/72, the respondents were appointed as Junior Sales Assistants on 30-12-1970 but their services were terminated on 4-12-1971 without notice on the ground of retrenchment made for the reason that emergency had been declared, in Appeal No. LHR-97/72, the respondents were appointed as Senior Accounts Assistants on 30-12-1970 but their services were terminated or 2-1971 without notice on the ground of retrenchment '' the reason that emergency had been declared, in appeal No. LHR-98/72. Muhammad Siddique, respondent, was employed in September 1970 on the monthly pay of Rs. 90 but his services were terminated in 1971.
Qamar Din respondent was appointed as a Loader on 20-12-1970 at the monthly salary of Rs. 90 but his services were terminated on 30 12-1971 without notice and Nazar Hussain, respondent, was employed on z3-9-1970 at the monthly salary of Rs. 90 but his services were' terminated on 31-8- 1971 without notice, in Appeal No. LHR-106/72. Ali Harder, respondent, was appointed as Junior Cargo Assistant on 30-12-1970 at the monthly salary of Rs. 260 but his services were terminated on 3-12-1971, in Appeal No. LHR-l14/72. Talat Pervaz, respondent, was employed on 5-11-1570 as a peon at the monthly salary of Rs. lU5 but his services were terminated on 7-1-1972 without notice, in Appeal No. LHR-115/72. Ghulam Akbar, respondent, was employed on30-12-1970 at the monthly salary of Rs. 210 but on 27-11-1971,his services were orally terminated on account of outbreak of war, in Appeal No. LHR-116/72. The respondents were appointed as Canteen Assistants on 3-12-1970 but their services were terminated on 3-12-1971 without notice on the ground of retrenchment made for the reason that emergency had been declared, and in Appeal No. LHR-117/72. Mushtaq Ahmad, respondent, was appointed as a Loader on 17-9-1970 but hisservices were terminated on 5-9-1971 on account of emergency and want of work. All these respondents brought an application before the Arbitrator under Martial Law Order No. 235 and secured award dated 21-3-1972. The respondents preferred are, review petition against the award but it was dismissed on 3-4-1972 and, thereafter, the respondents reported for duty but they wire given duty on 13-4-1972. On 25-4-1972 the services of the respondents were again terminated on account of retrench--ment. They, however, were given one month salary in spite of the fact that one month's notice in writing had been given to them. Aggrieved by the order terminating their services on 21-4-1972, they after complying with all the necessary formalities, filed applications under section 25-A, Industrial Relations Ordinance. IY69 in the Punjab Labour Court, Northern Zone, Lahore. The learned Labour Court accepted their application declaring them to be permanent- employees and 'directed the appellant to re-employ them immediately. Against these orders these ten appeals have been filed separately in this Tribunal.
3. The learned counsel for the appellant raised soma legal objections, which will be taken up one by one.
4. Ist objection.-(a) That tire respondents are not workers either within the definition given in section 2(xxviii), Industrial Relations Ordinance, 1969, or as given in section 2(i) of the West-Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
Section 2(xxviii), Industrial Relations Ordinance, 1969, read as follows:-- ---'Worker' and 'workman' mean any person not falling within the definition--of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be expressed or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute include a person who has been dismissed, discharged; retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off, or removal has led to that dispute.
(Explanation.-'Supervisor' means a worker immediately above the lowest level of workers in an establishment or industry who has supervisory duties but no power to engage or remove or take any other disciplinary action against another worker by his own authority)."
Section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968, reads as follows:-- "'Workman' means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical labour for hire or reward."
5. The learned counsel .for the appellant contended that since the respondents were no longer workers as their services had already been terminated, they are not workers within the definitions given in the aforementioned enactments. --- According to him a worker means an existing worker and not the worker whose services have been terminated. Therefore, the worker who hat either been reduced in rank or has been fined can only have his grievance redressed under section 25-A, Industrial Relations Ordinance, 1969 and not a worker who has been dismissed. . In other words, the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and Industrial Relations Ordinance, 1969 are not applicable to him. About this proposition the least ~ that can be said is that is absolutely fantastic.
6. The learned counsel for the appellant also contended that since the grievance of the respondents has no relation toindustrial dispute, they are not workers within the meaning of section 25-A, Industrial Relations Ordinance, 1969.
7. The Legislature has given statutory protection to respondents by specifically investing them with a right to get their grievance redressed because the provisions of Standing order 14 had not been complied with.
8. In all these cases the services of the respondents were retrenched as provided under Standing Order 13 of the West Pakistan Industrial add Commercial Employment, (Standing Orders)
Ordinance, 1968, Therefore the notices fop retrench--ment given to them were legal. Since under Standing- Order 14, no notice by registered post with A(D had been sent to the h respondents for re-employment, they are still entitled to be re-employed. In view of the aforementioned protection they to be considered Workers and not ex-workers. Now the point for determination is her any new appointments were made after the services respondents had been terminated.
9. Saeed Ahmad siddiqui, respondent's owe witness, is cross-examination admitted that after 21-4- 1972 when the services of the petitioners: (now respondents in appeal) were terminated, 20 to 25 new appointments were made. In other words, without compliance of the provisions of Standing Order 14, the appellant made new appointments.
In Col. Bashir Hussain and 10 others v. Land Acquisition Collector, Lahore improvement Trust, Lahore and 2 others (PLD 1970 Lab. 321), it was herd:- "It is an accepted principle of law that if a statute requires something to be done and also prescribes the mode for doing it the requirements of law can be fulfilled by the act in the manner prescribed."
In Nasir Ahmad v. King-Emperor (AIR 1936 P C 253), it was observed "The rule which applies is a - different and not less well recognised rule, namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all -other methods of performance are necessarily forbidden."
In Ghulam Abbas v. State (PLD 1968 Lab. 1Q1), it was held:- "It is well settled that where a pourer is given' to a particular person to do a certain thing in a certain way, the thing must be done in that way or not at all; other methods of performance are necessarily forbidden."
In the case, Muhammad Sharif v. Sh. Muhammad Rafiq, Settlement and Rehabilitation Commissioner, Lahore and 2 others (PLD 1968 Lab. 263), it vans held:-- "That when a particular act is directed by the Legislature to be done in a particular manner it should be done by that and that manner alone."
In the case, Chairman, Evacuee Trust Property, West Pakistan, Lahore v. Muhammad Din and another (PLD 1971 Lab. 217), it was held:- "Whenever a statute limits a thing to tie done in a particular manner it necessarily includes in itself a negative, via., that the thing shall not be done otherwise."
In the case, MO. Sardar Begum v. Lahore Improvement Trust, Lahore (PLD 1972 Lab. 458), it was held that sections 9. 11 and 16 of Land Acquisition Act I of 1894 requiring particular thing to be done in a particular way, the provision of such Law must be complied with. Failure to do so renders proceedings invalid. In the present case, the provisions of Standing Order 14 were grossly violated, therefore, the respondents a- titled to re-employ--ment.
10. The learned counsel for the appellant, further contended that P.I.A. Organisation either commercial non industrial establishment as defined in section 7(b) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, therefore the respondents had no locus stands to file their applications before the Labour Court. On section 2(f) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, Industrial Establishment is defined as follows:- (i)
(ii) a factory as defined in clause (i) of section 2 of the Factories Act, 1934 (XXV of 1934), or (iii)
(iv)
Section 2(j) of the Factories Act, 1934, reads as follows:- "---Factory' means any premises, including the precincts thereof, whereon 20 or more workers are working, or were working on any day of the preceding 12 months, and in any part of which a 'manufacturing process is being carried on with the aid of power or is ordinarily carried on, but does not include a mine subject to the operation of the Mines Act (IV of 1923)."
Section 2(g)"of the Factories Act defines 'manufacturing process' as under:- "'manufacturing process' means any process:-
(i) for making, altering, repairing, ornamenting, finishing or packing of otherwise treating any, article its substance with a view to its use, sale, transport, delivery or disposal, or (ii)
(iii)
P.I.A. has workshops where planes are ,repaired and over hauled.
In view of the-above it cannot be said that P.I.A. Is not an Industrial Establishment.
11. The learned counsel also argued that section 2S-A, industrial Relations Ordinance; 1969 was not applicable to the respondents bee-4use their grievance had no relation to an Industrial Dispute.
This argument cannot be accepted because In subclause (4) of section 2S-A, industrial Relations Ordinance, 1969, it is clearly mentioned that where the matter is taken to the e Labour Court it will give a decision as if such, matter were ' an industrial dispute.
In the result these objections, raised by the appellant, bra" no force and ate rejected accordingly.
2nd objection.-That since the Labour Court had not given the decision withiw20 days as prescribed in section 25-:1(4), Industrial Relations Ordinance, 1969, the decision was invalid.
Section 25-A(4) reads as follows:- "If the employer falls to communicate a decision within the period specified in subsection (2) or, as the case may be, subsection (3), or if the worker is dissatisfied with such decision, the worker or Shop Steward may take the matter to his Trade Union or the Labour Court, or as the case may be, the Trade Union may take the matter to the Labour Court, and, where the matter is taken to the Labour Court, it shall give a decision within twenty days from the date of the matter being brought before it a9 if such matter were an industrial dispute.--- The learned counsel for the appellant relied on the decision in the case, Brendra Mohan Das v.- Amin-ud Din Malik represented by 3 others (1970 B C M R 304), wherein it was observed:- "when action is taken under a special statute it must fulfil the condition of that statute to gain validity.--- This decision, in my view, applies only to a mandatory part o the statute and not to the directory part. The direction that the decision should be given within twenty days, in my view is directory because there is no penalising clause in case of F violation. I am fortified In this view by the judgment of the; Supreme Court in the case, Sutlej Cotton Mills Limited, Okara v. Industrial Court, West Pakistan, Lahore (PLD 1966 g C 472). At pages 476 and 417 it is observed:- "As regards the first point it is pointed out that under subsection (4) of section 5 of the Industrial Disputes Ordinance, 1959, if no settlement is arrived at before a conciliation officer, In the case of a public utility service within 14 days and in any other cast within 28 days of the commencement of the conciliation ' proceedings, the conciliation officer shall at the close of the said period, issue a certificate to the parties to that effect, provided that the period of conciliation proceedings may be extended by the I mutual consent ' of the parties to this dispute. There was no such extension by mutual consent in this case and, as such, it is contended that under the above provisions the Failure Certificate had to be issued within 14 days of the failure. In the present case the failure admittedly took plate on the 27th February 1961, but the certificate was not issued until the 16th of March 1961. -It is, therefore, argued that the failure to issue -the certificate in time invalidated the entire reference to the Industrial Court. We are unable to find anything in section s to indicate that the failure of the conciliation officer to comply with the direction contained in subsection (4) with regard to the Issuance of the Failure Certificate necessarily renders the reference incompetent, for all that -subsection (5) of the said section says is that party to whom a certificate has been issued under subsection (4) may make an application to a Court for adjudication and determination of the industrial dispute or any matter constituting such dispute.
This section does not itself provide the consequence of such failure on the part of the conciliation officer nor have the parties before the conciliation any control over his actions. In the circumstance action in the statute as to the time within which conciliation officer is to perform a public duty cannot be regarded as a mandatory provision." In view of the above I find no force-in this objection, which is accordingly rejected: 3rd objection.-That the West Pakistan. Industrial and Com--mercial Employment (Standing Orders)
Ordinance, 1968, has no application to P.I.A. because P.I.A. has their own statutory rules of service in existence.
In this connection proviso to subsection (4) of section 1 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, may be reproduced. It read as follows:- "Provided that nothing in this Ordinance shah apply to Industrial and commercial establishment carried on by or under the authority of the Central or any Provincial Govern--ment, where statutory rules of service, conduct or- discipline are applicable to the workmen therein."
The learned counsel for the appellant argued that P. I. A. was established by the Central Government under section 3 of the Pakistan international 'Airlines Corporation Act (XIX of 1956). He, therefore, contended that under section 10 of the said Act, P. I. A. has its own law for its labour under which there was no obligation to give notice to the respondents after their services had been terminated. Section 10 of the said Act reads as follows:- "The Corporation may appoint such officers, advisers and employees as it considers necessary for the efficient per--formance pf its functions on such terms and conditions as it may see fit."
In my view this contents on has no force because section 10 only empowers P. I. A. to lay down their own terms and conditions of service.
In the proviso to subsection (4) of section 1 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the emphasis is on the words `statutory rules' service. It appears that the -learned counsel for the appellant forgot the existence of sections 29, 30 and 31 of the Pakistan International Airlines Corporation Act, 1956 when he raised this objection.
Section 29 of the said Act reads as follows:--- "The Central Government may make rues not inconsistent with this Act for the purpose of giving effect to the provisions of this Act and where the rules made under this section are inconsistent with the regulations made under the next succeeding section the rules shall prevail.".
"The Board may with the previous sanction of the Central Government, make regulations not in consistent with this Act to provide for all matters for which provision is necessary or expedient for the purpose of-giving effect to the provisions of this Act."
Section 31 of the Act reads as follows:- "All rules and regulations made under this Act shall be published in the official Gazette, and shall come into force upon such publication and shall be laid thereafter as soon as may be before the National Assembly."
The provisions of sections 29, 30 and 31 reproduced above have not been complied with and, therefore, cannot be said that P. I: A. has its own statutory rules pf service. In view of the above, the proviso to subsection (4) of section 1 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordi--nance, 1968 will not apply. I accordingly, find no merit in this objection, which is accordingly rejected.
12. 4th objection.-That the respondents were temporary and not permanent, therefore, it was not necessary to comply with the provisions of Standing Order 14 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordi--nance, 1968. Standing Order 1(b) of the above Ordinance lays down: "A permanent workman' is a workman who has been engaged on work of permanent nature likely to last more than nine months and has satisfactorily completed a probationary period of three months in the same or another occupation in the industrial or commercial establishment, including breaks due to sickness, accidents leave, lock-out, strike (not being an illegal lock-out or strike) or involuntary closure of the establishment.--- According to Standing Order 1 (e) of the aforementioned Ordinance, temporary workman is a workman who has been engaged for work which is of an essentially temporary nature likely to be finished within a period 'not exceeding nine months. They, as a matter of fact, had been in service for a period of one year or more and had completed their probationary period of three months in service in such service. Therefore, it cannot be said that they are temporary and not permanent. In view of the above, I find no force in this objection, which is hereby rejected.
13. 5th objection.-That the Labour Court could not have directed the Management of P. I. A. to employ the respondents immediately after holding that the original notice given to the respondents for terminating their services was legal.
The notice in question was given under Standing Order 13 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which, reads as follows:- "Procedure for retrenchment.-Where any workman is to be retrenched and he belongs to a particular category of workmen, the employer shall retrench the workman who is the last person employed in that category."
That action in the prevailing circumstances, in my view, was correct and therefore, the learned Labour Court rightly held that the said notice was legal. In this cash, I find that when the appellant had given notice under Sanding Order 13, he had to comply with the provision of Standing Order 14, which reads as follows:-7 "Re-employment of retrenched workmen.- Where any number of workmen are retrenched and the employer proposes to take into his employ any person within a period of one year from the date of such retrenchment, he shall give an opportunity to the retrenched workmen belonging to the category concerned, by sending a notice by registered post to their last known addresses to offer themselves for re-employment, and they shall have preference over other persons, each having priority according to the length of his service, under the employer."
Since the appellant totally ignored the provisions of Standing Order 14, the learned Labour Court rightly directed that the respondents should be re-employed.
In view of the above this objection is rejected.
In the result, 1, find no merit in these appeals, which are hereby dismissed.