These are appeals against the order dated 24-7-73 of Punjab Labour Court No. 2 passed under section 25-A of Industrial Relations Ordinance, 1969 whereby the petitions of all the 8 respondents were accepted and they were ordered to be re-instated with full back benefits within a week from the date of the orders.
Since all these appeals arise out of the same judgment they will be disposed of together by this order.
2. The respondents were the employees of Gammon (Pakistan) Ltd., which is a construction company. Their services were terminated with effect from 2-9-72 vide letter dated 13-9-72. They filed separate petitions under section 25-A of Industrial Relations Ordinance, 1969 for their reinstatement and consequential benefits alleging that they were dismissed by Gammon (Pakistan) Ltd., on account of Trade Union activities. These petitions were returned to the respondents for presentation before the National Industrial Relations Commission, because vide section 22-A(8)(g) the Commission alone had jurisdiction to deal with cases of unfair labour practice on the part of the employer or workman. The respondents presented these petitions before the Commission and the same were referred to the Labour Court for disposal under section 22-At10)(c) of Industrial Relations Ordinance, 1969. The Labour Court then proceeded to bear those petitions. Gammon (Pakistan) Ltd. Raised preliminary objections to the effect that the provisions of Industrial Relations Ordinance were not applicable in the case of the respondents as they were employed to work in Pakistan Ordnance Factory Project, which is purely a defence project and is covered by subsection (3) of section 1 of Industrial Relations Ordinance, 1969. It was also alleged that since the respondents were engaged in Construction Industry West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 did not apply to them at the relevant time, therefore the provisions of section 25-A of Industrial Relations Ordinance, 1969 were not attracted in the case of respondents and as such the Labour Court had 110 jurisdiction to entertain and try the petitions. The Labour Court over--ruled these objections and accepted the petitions re- instating the respondents with full back benefits.
3. In appeal the respondents raised preliminary objection to the effect that this appeal was not competent in view of Industrial Relations Amendment Act, 1973 which was assented on 9-2-73.
Section 37 of the said Act reads as follows :-- "37. Savings.--Nothing in this Ordinance or any other law shall be deemed to- "(a) require the transfer to the Junior Labour Court of any matter under subsection (4) of section 25-A, which was pending before a Labour Court immediately before the commencement of the Industrial Relations (Amendment) Ordinance, 1972 (XLVIII of 1972).
(b) affect any appeal from an order of a Labour Court which was pending before a Tribunal immediately before such commencement."
4. From the above it is clear that the petitions under section 25-A. Which were already pending immediately before the Ordinance of 1972, were saved but the appeals against the decisions of the Labour Court under section 25-A could only be heard by the Labour Appellate Tribunal, if the)` were pending before the commencement of the Amending Ordinance. In other words it would appear that the appeals against the decisions of the Labour Court under section 25-A after 10-11-72, when the Amending Ordinance came into force, could not be heard by the Labour Appellate Tribunal.
5. This proposition does not appear to be correct, because a right of appeal is a substantative right and accrues when the lit commences, unless it is taken away expressly or by necessary intendment by the subsequent enactment. I am fortified in this view by the judgment of the Supreme Court (India) in the case, Garikpati Veeraya v. N. Subbia Choudhry (PLD 1957 SC (Ind.)
448), wherein it was observed:- "The right of appeal is not a mere matter of procedure but is a substan--tive right. The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.
The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lit commences although it may be actually exercised when the adverse ad-judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise."
The same view was held by the Full Bench of the High Court in the case, Ghazi and others v. The State and another (PLD 1962 Lah. 662) wherein it was observed; "The right of appeal is not a matter of procedure but is a substantive right and there is no vested right in procedure. A right of appeal existing on a day on which a proceeding lit commences or prosecution is alleged, is a vested right and that right is governed by the law prevailing on that day and not the law prevailing on the date of its decision. This vested right can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.
Our Supreme Court in the case Sona and another v. The State and 3 others(PLD 1970 SC 264) observed:- "One of the effects of the repeal is that it shall not affect any investi--gation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act or Regulation had not been passed. It is, therefore, quite clear that all the investigations or proceedings which are contemplated or to con--tinue as if the Repealing Act or Regulations had not been passed. On this language it is quite clear that the trial of criminal cases has to be in accordance with rules of procedure in force at the commence--ment of the trial and the same procedure has to be followed."
The Sind Labour Appellate Tribunal in the case Pakistan Security Press Employees' Union v. Pakistan Security Printing Corporation Limited (PLJ 1973 Tra. Co 85) held: "It is settled law that unless Legislature had taken away, either specifically or impliedly, the right of appeal against certain provisions of law, it will continue if the order under that provision of law was appealable. The right of appeal came to vest from the date that the application under section 25A of the Ordinance was made. I would hold that the appeal lies."
5. In the present case the petitions were originally filed by the respondents on 10-10-72. The Labour Court No. 2 vide order dated 24-2-73 held that it had no jurisdiction to entertain these petitions and the same were returned to the respondents for presentation to the proper forum. The National Industrial Relations Commission vide order dated 10-3-73 referred the petitions to the Labour Court for disposal, The Labour Court announced its decision on 24-7-73 after the promulgation of the Amending Ordinance, which does not either expressly or by necessary intendment takes away the right of appeal to the Labour Appellate Tribunal. Since at the time when the petitions were originally filed before the Labour Court, there was a right of appeal to the Labour Appellate Tribunal, I hold that the appeals against the decision in question would still lie to this Tribunal. The preliminary objection is, therefore, overruled.
6. The respondents also raised another preliminary objection that since these petitions had been referred by the National Industrial Relations Commission under section 22-A(10)(c) of Industrial Relations Ordinance, 1969, the decision should have been sent back to the Commission and as such this Tribunal had no jurisdiction to entertain these appeals.
7. Section 22-A(10)(c) reads as follows:-- "For the purpose of dealing with a case of unfair labour practice of which the Commission is seized, the Commission may---
(a) ... ...
(b) ... ...
(c) refer the case to a Junior Labour Court or Labour Court with whose jurisdiction the case has occurred or is likely to occur, either, for report or for disposal."
Subsection (10)(a) of section 22-A reads as follows:- "The Junior Labour Court or Labour Court to whom the case is so referred, shall enquire into it and, if the ease was referred to it for report, forward its report thereon to the Com--missioner if the case was referred to it for disposal, continue the proceedings and dispose of the case as if the proceedings had originally commenced before it."
8.On Merits: The learned counsel for the appellant contended that at the time when the services of the respondents were terminated they were serving at Wall site building an Ordnance Factory, which is a defence project, therefore the provisions of Industrial Relations Ordinance, 1969, in view of subsection (3) of section 1, were not applicable.
9. Subsection (3) of section 1 of Industrial Relations Ordinance, 1969 read as, follows:-- "It shall not apply to any person employed in the police or any of the Defence Services of Pakistan and any services or installations connected with or incidental to the Armed Forces of Pakistan including an Ordinance Factory maintained by the Central Govern--ment or to any person employed in the Administration of the State other than those employed as workmen by the Railways, Posts, Telegraph and Telephone Department."
10. According to the learned counsel for the appellant the respondents at the time when their services were terminated were employed in the construction of an Ordnance Factory and therefore. Industrial Relations Ordinance, 1969 would not apply in their case.
The learned counsel for the respondents, on the other hand, contended that Gammon (Pakistan)
Ltd. Is an Independent Company and the respon--dents were its employees, therefore they were neither employees of Defence Services nor the work in which they were employed was connected with or incidental to the Armed Forces of Pakistan.
11. This contention has no force because it does not matter who employed the respondents. As long as they were employed in the construction of an Ordnance Factory which is an installation connected with or incidental to the Armed Forces of Pakistan their case is covered by the aforementioned subsection (3) of section 1 of the Ordinance. Whenever an Ordnance Factory is to be, built a contract is invariably given to a private construction company. If the workers engaged in the construction of an installation connected with or incidental to the Armed Forces of Pakistani including an Ordnance Factory go on strike, the consequences would be very serious and that is why subsection (3) of section 1 of Industrial Relations Ordinance, 1969 has been enacted.
12. The learned counsel for the appellant further contended that the respondents were engaged by a construction industry and therefore the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 did not apply to them at the relevant time and as such the provision of section 2 5-A were not attracted and the learned Labour Court had no jurisdiction to try the petitions.
13. The services of the respondents were terminated on account of misconduct vide letter dated 13- 9-72, with effect from 2-9-72 at that time subsection (bb) of section 2 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 had not been enacted.
The said subsection reads as follows--- "(bb) `construction industry' means an industry engaged in the construction, reconstruction, maintenance, repair, alteration or demolition of any building, railway, tram way, harbour, dock, pier canal, inland waterway, road, tunnel, bridge, dam, viaduct, sewer, drain, water-work, bell, telegraphic or telephonic installation, electrical undertaking gas work, or other work of construction as well as the preparation for, or laying the foundation of, any such work or structure."
This amendment came into force on 15-11-1972.
14. According to the learned counsel for the appellant, at the time when the services of the respondents were terminated, the appellant-Company was out of the definition of the Industrial Establishment. The learned counsel for the respondent on the other hand contended, that the appellant-Company in any case was Industrial Establishment within the meaning of section 2(f)
(iv), which reads as follows:- "1 (iv) The establishment of a contractor who, directly or indirectly, employs workmen it connection with the execution of a contract to which he is a party, and includes the premises in which, or the site at which, any process connected with such execution is carried on."
If that was so, there was no need to enact section 2(bb) and Standing Order 14-A which is a speck provision for construction workers. Standing Order 14-A reads as follows.- ---14-A. Special provision for construction workers.---Where any workman is retrenched or discharged by a contractor or any employer engaged in the construction industry due to completion, cessation or discontinuance of work, he shall be given preference for employ--ment in any other similar work undertaken by the contractor or employer within a period of one year from the date of such retrench--ment or discharge:- Provided that where a workman is re-employed within one month of his retrenchment or discharge, he shall be deemed to have been in continuous service of the contractor or, employer notwithstanding the interruption caused by his retrenchment or discharge but no wages shall be paid to him for the period of interruption."
I, therefore, hold that section 2(f)(iv) of West Pakistan Industrial a Commercial Employment (Standing Orders) Ordinance, 1968 does not apply p to workers of the construction company. This objection, is, therefore, also upheld