TUFAIL ALI A. RAHMAN, C. J. In all these petitions the petitioner is a person against*whom criminal proceedings are pending before the National, Industrial Relations Commission, hereinafter referred to as the Commission, and the Commission as well as the person who has initiated the proceedings are the respondents. A common question which arises in all these matters relates to the legality of the proceedings which are now pending and this question in turn depends upon the jurisdiction of the Commission and ancillary questions, we have, therefore, found it convenient to hear these matter together so as to have the advantage of the arguments of all the counsel appearing in these cases since these questions, all of which are questions of law, will largely determine the fate of these petitions. This judgement new, will, therefore, dispose of all these petitions.
2. The principal argument that is raised on behalf of the petitioners in this cave is that proceedings can be initiated before the Commission not by individuals but only by "industry-were Trade Unions, federations of such Trade Unions and federations of the national level" and this is based upon subsection of section 22-A of the Industrial Relations Ordinance, 1969, which reads as follows: "Only industry-were Trade Unions, federations of such Trade Unions and federations at the national level shall be entitled to initiate proceedings, or to appear before, the Commission Provided that the Commission may also--
(a) of its own motion take action with regard to any matter relating to its functions ; and
(b) of its own motion, or on the application of a party, withdraw from a Junior Labour Court or Labour Court any application, proceedings or appeal relating to unfair labour practice."
It is therefore, upon an interpretation, principally, of this subsection that the questions arising in this case will have to be determined and that construction, I think, must be the result not only of examining the sub--section in the context of the entire Ordinance but also of examining the law as it stood immediately before section 22-A was enacted. It is one of the most important principles of construction "to consider how the laws stood when the statute to be construed was passed, what the mischief was for which the old law did not provide, and the remedy provided by the statute to cure that mischief". (Maxwell on the Interpretation of Statutes, 12th Edition, page 40. This rule, although laid down as early as 1584, still holds the field and continues to be quoted in very modern cases as being a matter of prime importance. Now although the Industrial Relations Ordinance is one of 1969, section 22-A and some of the sections which immediately follow it were introduced only in 1972 and not only have there been in between a large number of amendments in the Ordinance but the Ordinance itself is only the latest law in a series of Acts and Ordinances, which have repealed, consolidated and amended the law on the subject from time to time since the year 1947. I, therefore, think it would be convenient to commence a consideration of this case with a brief history of the legislation up-to-date.
3. The first piece of legislation promulgated in this Sub-continent affecting the relations between employer and employees in the industrial field, which were till then regulated by the ordinary law of master and servant, would seem to be the Industrial Disputes Act, Act XIV of 1947,1 a Central pre- Partition Act. It is unnecessary to refer to the provisions of this in any detail beyond saying that, for the first time, it seems to have been recognised that workers as such had rights other than those conferred by mere contract. This Act held the field until the Industrial Disputes Ordinance, Central Ordinance LVI of 1959 which repealed the earlier Act and the overall scheme of this statute was that, in cases of industrial disputes, the first step that was to be taken was an attempt at conciliation and, only when conciliation officers who were to be appointed under the provisions of the Ordinance certified that a settlement of the matter in dispute could not be reached as a matter of conciliation, that it could be adjudicated and determined by an Industrial Court which was set up under the statute and which, among other things, also had power t7 try certain offences created thereunder, It is of some interest to note the definition of the expression "industrial dispute" which was define a in section 2 (h)as meaning: " `industrial dispute' means any dispute or difference between employers and employees or between employers and workmen, or between workmen 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."
It will be noticed that the concept of an industrial dispute was not the dispute between any individual employee and his employer but the essence of the dispute was a difference between the employers and the employees as groups or even between workmen and workmen. This is not necessarily to mean that an individual grievance could not become the subject-matter of an industrial dispute inasmuch as that particular grievance might be, taken up by the employees or the workmen collectively as an issue but, until s4 taken up, it was not an industrial dispute. I emphasise this for I think this distinction between an individual grievance and a dispute raised by a Trade Union is one which h4s persisted throughout the history of legislation on the subject and it is not until much lacer that it became open to an individual to take his grievance to one of the tribunals constituted under the relevant law from time to time in force. It is, therefore of importance not to confuse the idea of an individual grievance with a dispute necessarily outside the purview of an industrial dispute for, being taken up as a common cause, the individual grievance might become in industrial dispute; it is of only that the grievance individually as such could not taken to Court (meaning a Court set tip under the labour law, by the individual unless it was, as it were, sponsored as an issue of principle, by the workmen or employees as a body. In other words it was not so much a question whether the grievance was individual the proceedings were initiated by an individual that mattered.
4. A provision, which it is think, worth noticing in this Ordinance is section 32 which reads: "32. Cognizance of offences.----(1) No Court shall take cognizance of any offence punishable under this Ordinance or of the abetment of any such offence save on complaint made by or under the authority of the appropriate Government.
(2) No Court inferior to that of a Magistrate of the first class shall try any offence punishable under this Ordinance.
(3) Nothing in this section shall apply to a Court constituted under this Ordinance which shall have exclusive jurisdiction to try an offence under section 26 or section 28.--- As I understand the provision this means that the offences in question were tribal even by Courts not set up finder the Ordinance but in that case they could not be taken cognizance of save on complaints made by or under the authority of the appropriate Government; concurrently with the ordinary Courts the Courts constituted under the Ordinance had also jurisdiction to try those offences, apart from exclusive jurisdiction to try two such offences, and as to these there was no restriction by way of condition precedent to the taking of cognizance.
5. The next piece of legislation that applied only in West Pakistan was the West Pakistan Industrial Disputes Ordinance, 1968, Ordinance IV of 1:968, which repealed, in its application to West Pakistan, the Industrial Disputes Ordinance of 1959. In the meantime the scheme of this Ordinance is much the same that of the Ordinance which it repeals and, as far as I van see, the principal and significant change lay in the fact that an appellant body was set up for the first time. It is of particular importance to notice that the expression ---industrial dispute" is defined in this Ordinance in language which is identical with the definition which was incorporated in the earlier Central Ordinance. All that I have said, therefore, as to the implications of that definition apply just as much to this Ordinance they do to the Central Ordinance. The functions of an industrial Court under section 11 of the Ordinance correspond closely to those of the Court under section 10 of the earlier Ordinance. The limitations on the taking of cognizance are also precisely the same.
6. Finally comes the Industrial Relations Ordinance, which is Central Ordinance XXIII of 1969, which is the Ordinance, which is still in force though it has been amended significantly a number of times.
Radical departure, were made by means of this Ordinance even as it originally stood and still more important changes have been made in the subsequent amendment but, at the outset, let it be noticed that the words ---industrial dispute--- still continued to be defined inn precisely the same fashion as in the earlier statutes. In the form in which the Ordinance stood as originally promulgated certain matter; are, I think, worthy of notice. For the first time, for instance, the - expression, "collective bargaining agent" was defined to mean the Trade Union., of workmen which would, under section 22 of the Ordinance, function as the agent of the workmen in the establishment or industry concerned for the purpose of "collective bargain--ing", which last phrase itself was defined as meaning a negotiation with a view to arriving at a collective agreement.
Conciliation proceedings were still a part of the statute but, under section 35, Labour Courts were established and their powers and functions were defined in subsections (5) and (6) of section 35.
"35. (5) A Labour shall-
(a) adjudicate and determine an, industrial dispute which has been referred to it under section 32 or section 33 or relating to a matter in respect of which art application is made to it under section 34 ;
(b) enquire into and adjudicate any matter relating to the implementation or violation of a settlement which is referred to it by the Provincial Government;
(c) try offences under this Ordinance ; and
(d) exercise and perform such other powers and functions as are or mad' be conferred upon or assigned to it by or under this Ordinance.
(6) Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (VII of 1923) or the Payment of Wages Act, 1936 (1V of 1936), the Provincial Government may, by notification in the official Gazette, appoint, a Labour Court to be, or confer upon it any power or function `of, any authority under any of the said Acts, and, upon such notification, the Labour Court shall be deemed to be such authority and shall exercise the powers and perform tile functions of such authority under the relevant Act."
7. A functionary to be called the Registrar was also created and his main functions were the registration of Trade Unions and the determination of questions as to which Trade Union was entitled to be certified as a collective bargaining agent besides lodging complaints with the Labour Courts for actions against Trade Unions for any offence or any unfair labour practice or violation of a provision of the Ordinance. In some details, unfair labour practices both on the part of the employers and the employees were defined, or rather enumerated, in sections 15 and 16: "15. Unfair Labour Practices on the part of employers. (1) No employer or Trade Union of employers and no person acting on behalf of either shall-
(a) impose any condition in a contract of employment seeking to restrain the right of a person who is a party to such contract to join a Trade Union or continue his membership of a Trade Union; or
(b) refuse to employ or refuse to continue to employ any person on the ground that such person is, or is not, a member or officer of a Trade Union; or
(c) discriminate against any person in regard to any employment, pro--motion, condition of employment or working condition on the ground that such person is, or is not, a member or officer of a Trade Union; or
(d) dismiss, discharge, remove from employment or threaten or dismiss, discharge, or remove from employment a working or injure or threaten to injure him in respect of his employment by reason that the workman-
(i) is or proposes to become, or seeks to persuade any other person to become, a member or officer of a Trade Union; or
(ii) participates in the promotion, formation, or activities of a Trade . Union;
(e) induce any person to refrain from becoming, or to cease to be a member or officer of a Trade Union, by conferring or offering to confer any advantage on, or by procuring or offering to procure any advantage for such person or any other person;
(f) compel any officer of the collective bargaining agent to sign a memo--randum or settlement by using intimidation, coercion, pressure, threat, confinement to a place, physical injury, disconnection of water, power and telephone facilities and such other methods; or
(g) interfere with, or in any way influence balloting provided for in section 22.
(2) Nothing in subsection (1) shall be deemed to preclude an employer from requiring that a person upon his appointment or promotion to managerial position shall cease to be, and shall be disqualified from being, a member or officer of a Trade Union of workmen.
16. Unfair Labour Practices on the part f workmen.-(1) No workman or Trade Union of workmen and no person acting on behalf of such Trade Union shall-
(a) persuade a workman to join or refrain from joining a Trade Union during working hours; or
(b) intimidate any person to become, or refrain from becoming, or to continue to be, or to cease to be a member or officer of a Trade Union; or
(c) induce any person to refrain from becoming or cease to be a member or officer of a Trade Union, by conferring or offering to confer any advantage on, or by procuring or offering to procure any advantage. For, such person or any other person; or
(d) compel the employer to sign a memorandum of settlement by using intermediation, coercion, pressure, threat, confinement to a place, physical injury, disconnection of telephone, water and power facilities and such other methods.
(2) It shall be an unfair practice for a Trade Union to interfere with a ballot held under section 22 by the exercise of undue influence, intimi--dation, impersonation or bribery through its executive or through any person acting on its behalf."
8. A Labour Appellate Tribunal was also set up under section 38 as an appellate body over the Labour Courts. The statute itself provided that the member of the Tribunal shall be a person who is or has been a Judge of a. High Court; this would have been of interest in dealing with a question which was debated before us as to the qualifications of members of the commission. This question I have, however, found it unnecessary to decide. In the ordinance as it then stood, therefore, the highest Tribunal created for the purposes, generally of settlement and adjudication of disputes concerned with the relations between employers and workmen was this Labour Appellate Tribunal.
9. In view of the arguments which have been addressed to us it is of interest to note two provisions in the Ordinance, namely, sections 32-A and 32-B which, as far as I can see, are the first attempt to deal with such establishments as are situated in more Provinces than one and even industrial organizations established in Pakistan some of whose workmen are operating at a place outside Pakistan. These two provisions read thus: "32-A. Industrial disputes involving more than one establishment.---Where an industrial dispute relates to or involves an industrial organi--zation that has more than one establishment, then-
(a) where the subject-matter of the dispute extends to more than one establishment situated in a Province while the headquarters office of the industrial organisation is in another Province, the negotiations provided by section 26 shall be conducted at a place in that Province to be nominated by the Provincial Government and the Conciliator having jurisdiction at such place under section 27 shall have jurisdiction to act further in the matter in respect of all such establishments. In any consequential proceedings under section 31, the arbitrator may be appointed, in respect of the dispute as affecting all the establishments, from the panel maintained by the Provincial Government or may be any other person;
(b) where the subject-matter of the dispute extends to places in more than one Province, the negotiations provided by section 26 shall be conducted at the place where the headquarters office of the industrial organization having establishments in such Provinces is situated, and the Conciliator having jurisdiction at such place under section 27 shall have jurisdiction to act further in the matter. In case no settle--ment is reached, the parties shall have power to appoint an arbitrator under section 31, who may be a person whose name is borne on the panel maintained by one of the Provincial Governments involved, or any other person.
32-B. Industrial disputes involving Pakistani workmen employed abroad by organisations established in Pakistan.-Where an industrial dispute arises between an industrial organisation established in Pakistan and its workmen employed in any establishment operating at a place outside Pakistan, then, in respect of such of the workmen involved who are nationals of Pakistan the industrial dispute shall be deemed to have arisen at the place in Pakistan where the headquarters office of such industrial organisation is situated, and the procedures for nego--tiations, conciliation, arbitration and reference to the Labour Court, shall apply accordingly," (the manner in which these two sections are ,numbered is more in accord with amendments made later but it seems that they were a part of the Ordinance as originally promulgated; possibly the change may have been made in the course of drafting and !t may not have been considered advisable to alter the entire numbering of the various provisions."
10. For the first time also a right was given to a party to an industrial dispute to apply directly to a Labour Court (section 34); 1 think this clearly means that an individual could approach the Court despite the definition of an "industrial dispute". Even though this remained unchanged, a party to such a dispute, which, as has been seen, could include an individual grievance, might be an individual. In the conclusion that an individual can now approach a Labour Court directly I am fortified, I think, by the fact that section 49 of the Ordinance entitled "a workman who is a party to an industrial dispute" to be entitled to be presented. My conclusion, therefore, is, that in ' such cases the workman is a party though he could be represented if at all only by an officer of the collective bargaining agent, or could appear and plead his own cause in person.
11. As to offences the provision in the Ordinance was comparatively simple and prescribed merely that no Court other than a Labour Court or a Magistrate of the first class would have jurisdiction to try offences punish--able under the Ordinance. This might be particularly noted inasmuch as this section still is a part of the Ordinance because of an argument sub--sequently raised before us as to the exclusive jurisdiction of the National Industrial Relations Commission and this section makes it plain that neither within the system of the Labour Courts themselves nor in relation to the ordinary Courts, is the jurisdiction of an exclusive character.
12. The Ordinance was then amended by Central Ordinance XIX of 1970 but, important though many of the amendments thereby made are, for our present purposes none are material. It would be as well to notice, however, that a section was inserted immediately after section 22 and numbered section 22-A, which reads thus "22-A. Collective bargaining agent for institutions with more than one establishment. (1) Where an employer carrying on an industry has, for the purpose of that industry more establishments than one, any regis--tered Trade Union which fulfils such conditions as may be prescribed in this behalf may make "an application in such manner and to such authority as may be prescribed for being declared as the collective bargaining agent in relation to all such establishments and, upon such an application, there shall be determined in the prescribed manner a collective bargaining agent for such establishments.
(2) Where a collective bargaining agent has been determined under subsection (1) for the establishments referred to therein, the collective bargaining agent determined, if any, under section 22 for any one or more of such establishments shall not undertake collective bargaining in respect of matters relating to the terms and conditions of employ--ment applicable to workmen employed in any of such establish--ments."
I mention it only because in the present cases we are concerned mainly with section 22-A, as it now stands, but the present section is not the one which was inserted by this Amending Ordinance and has no relation, whatever, to it, the only thing in common between the two provisions being the numerological order in which they stand.
13. We now come to the most important of the amendments made in the Ordinance, though by no means the last. This was Ordinance IX of 1972 and amended a number of statutes of which those which are material for our present purposes are section 22-A, as it now stands, and section 23-B which read thus "22-A. National Industrial Relations Commission (1) The Central Government shall constitute a National Industrial Relations Commission, hereafter in this section referred to as the Commission.
(2) The Commission shall consist of not less than seven members, including the Chairman..
(3) The qualification for appointment as a member or as the Chairman of the Commission shall be such as may be determined by the Central Government.
(4) The Chairman and other members of the Commission shall be appointed by the Central Government.
(5). Two of the members shall be appointed in the prescribed manner to advise the Chairman, one to represent the employers and the other to represent industry-were Trade Unions, federations of such Trade Unions and Federations at the national level.
(6) The Chairman of the Commission may, in addition to the representatives of workers appointed to the Commission, co-opt, in cases when he deems it necessary, from amongst workers belonging to federations at the national level such representatives of workers as he may deem fit.
(7) The workers' representative co-opted under subsection (6) shall be entitled to such honorarium as the Central Government may, on the advice of the Chairman of the Commission, determine.
(8) The following shall be the functions of the Commission, namely---
(a) to promote the formation of Trade Unions of Workers within the same industry whether-'in establishments within a Province or in more than one Province and federations of such Trade Unions ;
(b) to promote the formation of federations at the national level ;
(c) to adjudicate and determine an industrial dispute to which an industry-were Trade Union or a federation of Trade Unions is a party and any other industrial dispute which is, in the: opinion of the Central Government, of national importance and is referred to it by that Government ;
(d) to register industry-were Trade Unions, .Federations of such Trade Unions and federations at the national level ;
(e) to determine the collective bargaining agents amongst industry-were trade Unions, federations of such Trade Unions and federations at the national level.
(f ) to try offences in respect of matters relating to any of its functions ;
(g) to deal with cases of unfair labour practices on the part of employers or workmen, whether individually or collectively, and to initiate, in such manner as may be prescribed, proceedings calculated to prevent an employer or workman from committing an unfair labour practice ;
(h) to advise Government, industry-were Trade Unions and federations is respect to the education of workers in the essentials of Trade Unionism, including education in respect of their rights and obligations, and to secure the provision of facilities required therefore, and to apportion the cost thereof between the Provincial and Central Governments, industry-were Trade Unions, federations of such Trade Unions and federations at the national level, and the employers, in such manner as may be considered equitable by the Commission ; and .
(i) such other powers and functions as the Central Government way, by notification in the official Gazette, assign to *it from time to time.
(9) Only industry-were Trade Unions; federations of such Trade Unions and federations at the national level shall be entitled to initiate proceedings, or to appear before, the Commission Provided that the Commission may also, of its own motion, take action with regard to any matter relating to its functions.
(10) For the purpose of dealing with the cases of unfair labour practice, the Commission may either proceed directly or ask the Registrar within whose jurisdiction the case has occurred or is likely to occur to enquire into and submit a report.
(11) Save as provided in subsection (10), no Registrar, Labour Court or Tribunal shall take any action, or entertain any application or proceedings, in respect of any matter, which falls within the jurisdiction of the Commission.
(12) For the discharge of its functions, the Commission shall have the same powers as are vested in the Registrar or the Labour Court under this Ordinance, and, in relation to the discharge of those functions, a reference in this Ordinance to "registrar" or, as the case may be, "Labour Court" shall be deemed to be a reference to the Commis--sion.
(13) The Commission may, with the prior approval- of the Central Government, make such regulations relating to its procedure and the performance of its functions as it may deem fit.
Explanation. In this section and in section 34-A, the expressions `industry-were trade Union' 'federation of such Trade Unions' and 'federation at the national level' refer to a Trade Union the member--ship of which extends to establishments in more than one Province and a federation of Trade Unions whose membership' extends to registered Trade Unions in more than one Province.
23-B. Workers' participation in management (1) In every factory employing fifty persons or more there shall be elected workers' representatives to participate to the extent of twenty per cent. In the management of the factory: Provided that there shall be elected at least one worker's representative to participate in the management of such a factory: Provided further that, for the purpose of determining the number of workers' representatives in the management of a factory: fractions equal to, or greater than, one-half shall be regarded as one and lesser fractions shall be ignored.
(2) The workers' representatives shall be workmen employed in the same factory and shall be elected by simple majority by a secret ballot by all workmen employed in the factory.
(3) The election of workers representatives shall be held by the collective bargaining agent in the manner provided, for in its constitution.
(4) The workers' representatives shall hold office for a period of two years from the date of their election.
(5) The workers' representatives shall participate in all the meetings of the management at the factory level.
(6) The management shall not take any decision in the following matters without the advice in writing of the workers' representatives, namely
(i) framing of service rules and policy about promotion and discipline of workers;
(ii) changing physical working conditions in the factory; (i.e) in service training of workers ; and;
(iv) recreation and welfare of workers.
(7) The workers' representatives may on their own initiative give advice in writing concerning the matters specified to subsection (6) and, where they do so, the management shall convene a meeting within two weeks of the receipt of the advice to discuss its merits with them.
(8) The management shall give reply to the workers' representatives within six weeks of the receipt of their advice given under sub--section (6) or (7) and any such advice shall not be rejected except by the person holding the highest position in the management of the factory.
(9) Tin case the advice of the worker's representatives is rejected by the management of the factory, the matter shall, within fifteen days of the advice being so rejected be taken up by the collective bargain--ing agent in the Works Council for bilateral negotiations and there--upon the provisions of section 26 shall apply as they apply to the settlement of an industrial dispute in relation to which the views of the employer or the collective bargaining agent have been communicat--ed to the Works Council under subsection (1) of that section. 44.
(10) The collective bargaining agent for an establishment which is a factory the number of workers employed in which in any shift at any time during a year is fifty or more may, once during the period in which it is such collective bargaining agent, apply to the Provincial Government to nominate an auditor to audit the accounts of the factory relating to the period of the term only once and for that purpose to inspect the accounts, record, premises and stores of the factory on one occasion.
(11) An application under subsection (10) shall be accompanied by a panel of five persons who are chartered accountants within the mean--ing of the Chartered Accountants Ordinance, 1961 (X of 1961) and on receipt of such an application, the Provincial Government shall appoint one of such persons to be an auditor for the purposes of that sub--section.
(12) The fee of an auditor appointed under subsection (11) shall be determined by the Provincial Government and paid by the manage--ment of the factory who shall also afford him all facilities necessary for the discharge of his functions.
(13) This section shall have effect notwithstanding anything contained in the Companies Act, 1913 (VII of 1913), or any other law for the time being in force Win any agreement or contract or memorandum or articles of association.
(14) In this section,
(a) factory' has the same meaning as in the Factories Act, 194 (XXV of 1934), but does not include a factory run or maintained by --- or under the authority of-
(a) at Government ; (b) a local authority ;
(c) a railway ;
(d) a corporation established or constituted by any law ; or
(e) a corporation established with the aid of the revenues of the Centre or of a Province ;
(f) 'management' means the employer."
It is largely upon the provisions of subsection (9) of section 22-A that the present cases depend.
14. There followed soon after the Labour Laws (Second Amendment) Ordinance, 1972 (Ordinance XVIII of .1972) which is material only for one purpose, that is, in section 22-A (8)(c) after the word "party" were inserted the words "and which is not confined to matters of purely local nature" so that the entire clause .Now reads "to adjudicate and determine an industrial dispute to which an industry-were Trade Union or a federation of Trade Unions is a party and which is not confined to matters of purely local nature and any other industrial dispute which is, in the opinion of the Central Government, of national importance and is referred to it by that Govern--ment." The Ordinance was again amended by Central Ordinance XLVIII of 1972 whereby sections 36-A to 36-F were added the purpose of which was the creation of an entirely new class of Courts called the Junior Labour Courts. The amendment is, otherwise, not material for our present purpose.
15. Finally the Ordinance has been amended by the Industrial, Relations Amendment Act XXIX of 1973 and by this Act three sets of important amend--ments have been made. In the first place in subsection (9) of section 22-A for the then existing proviso the following were substituted: "Provided that the Commission may also,
(a) of its own motion, take action with regard to any matter relating to its functions; and
(b) of its own motion, or on the application of a party, withdraw from a Junior Labour Court or Labour Court any application, proceedings or appeal relating to unfair labour practice."
16. Subsection (10) was also entirely recast and the new subsection (10)which is still in force reads thus: "(10) For the purpose of dealing with a case of unfair labour practice of which the Commission is seized, the Commission may----
(a) proceed directly with the case, or
(b) ask the Registrar within whose jurisdiction the case has occurred or is likely to occur to enquire into it and submit a report, or
(c) refer the case to a Junior Labour Court or Labour Court within whose jurisdiction the case has occurred or is likely to occur, either for report or for disposal."
The second important amendment that was made was the addition of sections 22-B to 22-F. These relate to the composition of the Benches of the Commission, certain additional powers conferred upon the Commission, the power of the Commission to make regulations and the immunity of the orders of the Commission from challenge in any Court or other authority. I do not consider it necessary to quote these in full just now but shall refer to some portions of them at a later stage.
17. Finally sections 36-A to 36-F, which it will be recalled, created C Junior Labour Courts were entirely re-cast.
18. This then is the entire history of the Legislation upon which we are called upon to determine the legality of the proceedings pending before the Commission. Now admittedly in the case of each of the proceedings the maintainability of which is challenged before us the complainant is an indivi-- dual and the reliance of the petitioners, therefore is upon subsection (9) of section 22-A which clearly provides that "only industry-were Trade Unions, federations of such Trade Unions and federation at the national level shall be entitled to initiate proceedings or to appear before the Commission (at the moment I take no notice of the proviso which was originally attached to this subsection and which has since been replaced by two provisos that I have earlier mentioned ; with the effect of these I shall deal later). The language of the subsection is in clear and unambiguous terms and the first word on the subsection emphasises strongly the exclusive right of the bodies therein mentioned to initiate proceedings. Unless, therefore, it can be shown that for some reason subsection (9) must be understood not in its plain grammati--cal and ordinary meaning but in some artificial sense the proceedings which are challenged are clearly not maintainable. The respondents claim that such is the case and that is why I stated in an earlier part of this judgment that it would be necessary to look at the state of the law as it existed before the statute came into force and to understand what was the mischief which the Legislature was trying to prevent. Even as to this, however, it is to be re--membered that section 22-A came in by an amendment at the entire statute itself is a statute of 1969; if, therefore, one sets out to examine the state of the law as it stood before the Ordinance was passed in 19691 think one is liable to fall into error inasmuch as the Amending Ordinance is of 1970 and, regard being had to the very important amendments then made, I think the proper course is to examine the state of the law just before the amendment rather than just before the statute in general. Even so, it is to be remembered that we are after all dealing with an amending statute and that, therefore, the provisions that are inserted by means of the amendment become integral parts of the statute itself and it is the duty of the Courts to attempt to interpret the statute as a whole so as to avoid conflict between its various provi--sions.
Where that is utterly impossible the English rule is that the later section is to prevail (Maxwell on the Interpretation of Statutes, 12th Edition page 187); I am inclined to thick, however, that should be driven to the necessity of choosing between the provisions of the Amending Act and the provisions of the statute as they stood before the Amending Act it would b, l the Amending Act which should prevail though the Courts will not be assiduous m looking for a conflict but on the contrary lean heavily against a repeal by implication. This I say because the English rule is after all, if I may so with respect, -somewhat artificial inasmuch as it assumes that the latter section incorporates the parliament's latest will while, in the case of an amending statute, there can be no question but that the amending statute does in fact incorporate the latest intention of the Legislature. Even so, there must be a difference between an amending statute and an entirely separate statute; differences between the latter would necessarily have to be resolved in favour of the later act, while in the case of an amending statute, the presumption heavily is that the amending statute does not repeal any part of the Act except of course such parts as it expressly purports to repeal or amend.
19. Now before these amendments came into force there was no machinery to encourage the formation bf Trade Unions of workers within the same industry in more provinces than one nor a national body, which could deal with matters at a national or inter-provincial level. It is also to be remembered that although the Industrial Relations Ordinance, 1969 was a Central Ordinance it replaced a West Pakistan Ordinance which in turn had replaced, so far as West Pakistan is concerned, a Central Ordinance and one purpose at least of the 1969 Ordinance was to make the law in both the Provinces uniform. By 1972, however, the position had radically changed. West Pakistan was no longer one province and consisted now of 4 provinces: true it is that the country still consisted of two provinces, the other being East Pakistan, but for historical and tragic reasons, the existence of that province has lost much of its practical significance.
20. The history of legislation upon the subject clearly is a movement towards the statutory determination of industrial disputes and the growing modification of the law from one of pure master and servant to suit the needs of a nation getting progressively industrialised in which the relationship between the workmen and the employers must, by reference to conditions all over the world, rest more and more upon collective bargaining and the power of workmen to enforce their rights by means of strikes, conciliation proceed--ings and even adjudication before special forums. These considerations so far from limiting the ordinary meaning of subsection (9) seem to me to em--phasise them all the more inasmuch as all other kinds of disputes were already provided for adequately by the creation of the Labour Court and the Labour Appellate Tribunal and it seems reasonable, therefore, to assume that even though the Commission might be given special powers of interference even with ether matters its main purpose was to provide for matters in regard to which adequate provision was not already made.
21. I turn now to a consideration of the proviso to subsection (9) as it originally stood and as later amended. The original proviso merely stated, "provided that the Commission may also. Of its own motion, take action with regard to any matter relating to its functions". The later amendment sub-- stitutes two provisos for this, proviso (a) being in the same terms and proviso (b) reading "of its own motion, or on the application of a party, withdraw from a Junior Labour Court or Labour Court any application, proceedings or appeal relating to unfair labour practice". It was argued before us, in the first place, that this proviso although appearing immediately after subsection (9) and before subsection (10) is not a proviso to subsection (9) only but to the entire section, but I confess that I am entirely unable to see, how this can be made out. Clearly neither the language of the proviso nor its location supports the argument. Nor indeed do I think it is of any great importance, whether its application is limited to subsection or not. So far a: proviso (c:) is con--cerned it uses the words "take action with regard to any matter relating to its functions and clause (g) of subsection (8) does indeed make it one of the functions of the Commission to deal with cases of unfair labour practices. Now the expressions "take action" and "deal with" no doubt appear to be expressions of were import but are also, it I m .y say so with respect, of somewhat imprecise definition. I am unable to read either of them as mean--ing and including a power to try offences and certainly not a power to create offences and then to proceed to try them. There are various ways in which a Commission whose function is not purely judicial and which includes even advising Government in matters may be called upon to "deal with" cases or to "take action" and I should be most reluctant to hold that the power to taken criminal proceedings and to punish people for offences can be con--ferred by expressions of such generality. I think a power of this kind must be expressly conferred and I know of as other statute, which has been inter--preted to confer such a power without express language.
22: Both sides in this case described the Commission as standing at the apex -of a system of tribunals proceeding from that proposition to draw inferences favourable to their own interpretation of the provisions. The petitioners emphasised this to justify tire argument that it was no part of the Commissioner's powers or functions to deal with minor matters which the Junior Labour Courts themselves could' adjudicate upon while the respondents claimed that the Commission, standing at the apex of this system of Tribunals, had a general power of interference and that every thing that could be done by any other Tribunal set up under the Ordinance war, of necessity, within the power of the Commission itself. I regret I am unable to agree with either contention, both seeming to me to be using the word "apex" in different senses and then proceeding to draw conclusions, which am entirely unwarranted.
23. If by the expression. "apex" is meant merely the highest position in a system of Tribunals then perhaps the description of the Commission as standing at the apex of these Tribunals is justified.
But I do not see what inference can then be drawn from that position. Its powers cannot be derived from its mere position as the highest, ranking body but from the statute itself. There might be more to be said i: the Commission stood at the apex of the system in the sense in which the High Court stands at the apex of the judicial system for that Court is the ultimate Court of appeal and revision to which any case may eventually come though it must do so in accordance with set procedures.
Even so, it is to be remembered that the High Court can transfer to itself any case pending in any of the subordinate Courts; the fact that it can do so, however, does not mean that it may itself take cognizance of a case in which a far inferior Court is authorised to do so. For instance a criminal complaint can be taken cognizance of only by a Magistrate and not by the High Court but the High Court may transfer the case to itself or may even quash it. It thus has a complete and pervasive power over all judicial proceedings and all the Courts subordinate to it. In describing the High Court as being at the apex of the judicial system I am not unmindful of the fact that the High Court is itself subject to the appellate jurisdiction of the Supreme Court and it is out of no lack of respect rte that august Tribunal that I have used these expressions. . The Supreme Court entertains appeals only from decisions of ~he High Court and cannot otherwise interfere with decisions of-subordinate Courts and it has no power of transfer except one quite recently conferred which is confined to transfer from one High Court to another. But even if I have wrongly described the High Court as being at the apex of this system and should have reserved that expression for the Supreme Court, that really makes no difference to the argument which I am considering and which is that the Commission cannot pretend to any such were power as this.
24. Now turning to the provisos to subsection (9) so far as the first is concerned I have already stated that in my opinion the words "take action" do not include prosecution. So far as proviso (b) is concerned it is no doubt true that it may transfer to itself any matter from a Junior Labour Court or a Labour Court either on its own motion or on the application of a party provided that it relates to an unfair labour practice. I should normally have been willing to assume that what can be done by a body of its own motion may also be done upon the application of a party but the provisos seem to make a distinction and it is, therefore argued on behalf of the respondents that the Commission could, even on the application of a party have transferred to itself, the proceedings Which we are considering and which admittedly relate to unfair labour practice. I am entirely unimpressed by the argument. There is a material difference between transferring to itself a matter already pending in another Tribunal and permitting the initiation thereof before itself. F have already given the instance of the High Court being able to transfer to itself a case pending in the Court of a Magistrate although it cannot have originally taken cognizance of the same. The mere fact, therefore, that the Commission could have transferred to itself a matter validly initiated before a Junior Labour Court makes no difference at all; the question which is before us for consideration is whether the proceedings have been validly initiated inasmuch as they were brought to the Commission direct and seemingly indistinct violation of the prohibition under subsection (9) of section 22-A.
25. Reliance was then placed by the respondents under section 22-F which authorises the Commission to make regulations, and to Regulation 20 which it has made in pursuance of this power and which reads thus: "20. Postponement of issue of process.-(1) The Commission, on receipt of a complaint of an offence of which it is authorised to take cognizance, may, :f it thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either require into the case itself or direct an inquiry or investigation to be made by a Labour Court, a Junior Labour Court, a Magistrate, a Police Officer, or such other person as it thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint.
(2) If any inquiry or investigation under this regulation is made by a person not being a Magistrate or a Police Officer, such person shall exercise all the powers conferred by the Code of Criminal Procedure, 1898 (Act Y of 1898), or an officer incharge of a Police Station, except that he shall not have power to arrest without warrant.
(3) Any Court inquiring into a case under this regulation, may, if it thinks tit, take evidence of witnesses on bath."
Now in the first place section 22-F gives power only to "make such regulations relating to its procedure and the performance of its functions as it may deem fit". It cannot read this to mean that it authorises the Commission by regulation to increase its jurisdiction and the fact that section 22-F goes on to- provide that regulations will have effect not with standing any inconsistency with the Evidence Act, the Code of Criminal procedure or the Code of Civil Procedure or any other law for the time being in force cannot, so far as I can see, make any difference. Nor indeed does the regulation purport to do so; it provides for dealing with complaints but these complaints are specifically limited to the class of complaints "of an offence of which it is authorised to take cognizance". Regard being had to the fact that the entire question in debate before us just now is whether the Commission could take cognizance of these offences reliance upon this regulation would seem- to me to beg the question.
26. It was then argued that under clause (i) of subsection (8) other powers and functions could also be conferred by the Central Government upon the Commission from time to time and reliance was placed upon a notification stated the 27th April 1973 which appears in the Gazette of Pakistan, Extraordinary, dated May the 4th, 1973 at page 736: ---S. R. O. 623 (1)/73.-In exercise of the powers conferred by clause (i) of subsection (8) of section 22-A of the Industrial Relations Ordinance, 1969 (XXII of 1969), the Federal Government is pleased to direct---
(a) for the purposes of clause (f ) of subsection (8) of section 22 of the said Ordinance, the trial of offence of unfair labour practice in respect of Trade Unions and Federation of Trade Unions within a Province, shall be one of the functions of "National Industrial Relations Commission ; and
(b) for the purposes of the trial of such offences, the National Industrial Relations Commission, through its benches constituted under subsection (2) of section 22-B of the said Ordinance, shall exercise the same powers as are exercise able by a Labour Court under subsection (3) of section 36 thereof."
27, An argument was raised by counsel for the respondents, really in the nature of a preliminary objection, though not taken as such, based upon Article 216 of the Interim Constitution of 1972 that Article read thus "216.-(1) Notwithstanding anything hereinbefore contained, the Federal Legislature .May by Act establish one or more Administrative Courts or Tribunals to exercise exclusive Jurisdiction in respect of-
(a) matters relating to the terms-and conditions of persons in the service of Pakistan, including the award of penalties and punishments ;
(b) matters relating to the imposition, levy and collection of any tax, duty, cess or impost ;
(c) matters relating to claims arising from tortuous action of Government any person in the service of Pakistan, any local or other authority empowered by law to levy any tax or cess any; any servant of such authority acting in the discharge of his duties as such servant ;
(d) matters relating to industrial and labour disposes ; and
(e) matters relating to the acquisition, administration and disposal of any property which, is deemed to he evacuee property or enemy property under any law.
(2) Where any Administrative Court or Tribunal is established under clause (1), no other Court, including the Supreme Court, and the High Courts, shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends."
Clearly this Article has two main effects, t he first being the conferment of power upon the Federal Legislature to establish one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of certain matters which include industrial and labour disputes and the second being that upon the setting up of such a Tribunal or Court a prohibition to all other Courts including the Supreme Court and the High Courts to grant an injunction, make an order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends. Now in the first place the Commission itself has not been given exclusive jurisdiction at all in respect of least of the kind of matters, which are before it just now and the legality of which is being chal--lenged before us. Subsection (12) of section 22-A expressly says that nothing in the section shall be deemed to exclude the jurisdiction of a Junior Labour Court or a Labour Court to entertain cases of unfair labour practices, whether individually or collectively, though of course once tree Commission itself is seized of a matter then these Courts are not to take any action in respect thereof. I could have understood the argument better if it had been argued that it is not the Commission itself, which is the Tribunal or Court of exclusive jurisdiction, which is mentioned in Article 216 but that the entire system of Tribunals created under the Ordinance is one of exclusive jurisdiction. But even that argument would fail because under section 64 of the Ordinance a First Class Magistrate is still empowered to try offences punishable under the Ordinance. Counsel were, therefore, driven to the position of arguing that if we found that the Tribunal was acting within its jurisdiction then we would have no jurisdiction to interfere. But that result is anyhow achieved, though not precisely in the same language, by the terms of the power conferred upon this Court by Article 201 of the Interim Constitu--tion or 199 of the permanent Constitution. As I understand these Articles, the precursor of which is Article 98 of the 1962 Constitution, the function of the High Court is to ensure that all other 'tribunals act within the limits of their own powers. If they do so then although they may come to a wrong finding of fact or even of law I do not think that the High Court would be justified in interfering for jurisdiction to decide must include the Jurisdiction to decide wrongly as well as the jurisdiction to decide rightly. If, therefore, we were to be satisfied that the proceedings are validly maintainable before the Commission we would not anyhow interfere and the argument raised on Article 216, therefore, would be deprived of any practical importance.
28. It being an admitted position that in all these cases the proceeding have been initiated by individuals I have, by reason of all that I have said above, come the conclusion that these petitions must be allowed and that in each case it must be declared that the proceedings are without lawful authority and of no legal effect. In one of the petition, however, namely Petition No. 877 we were informed that since the filing of the petition they, petitioner has already been convicted; if this be so, I would in this case also grant a declaration that the conviction is without lawful authority,
29. Several other arguments have been raised by the petitioners including the question whether the Chairman and the Members of the Commission were validly appointed at all but since I have found it possible to dispose of the petitions upon the main question I am refraining from making any comment upon these matters which should, I think, be left for decision in a case where they would determine the matter.
30. I would, therefore, allow all these petitions; in view, however, of the fact that the questions raised were of importance and of first impression I would make no order as to costs.
ABDUL HAEEEZ MEMON, J. I agree