1. DECISION These are 20 appeals against an award of IIlrd Junior Labour Court, Karachi dated 31-7- 1974 dismissing applications under section 25-A of I. R. O., 1969 and refusing applicants/appellants relief of re-instatement in service. This "Decision" will dispose of all these appeals as they were disposed by a single order (Award) as they involve common issues of law and facts. The facts giving rise to these appeals are that appellants are employees in the respondents* factory. They had taken part in their Trade Union activities and raised dispute as to Bonus before Labour Directorate. This caused annoyance to them and the respondents. Management terminated their services illegally. They approached Junior Labour Court under section 25-A of I. R. O., 1969 which dismissed their applications by an award dated 31-7-1974. Against the impugned order they have preferred present appeals. There are two sets of appellants. One set consists of three appellants namely Abdul Hamid Khan, Abdul Ghani and Ashraf. These three appellants had served grievance notice upon the employer and domestic enquiry was held against them. While the other set consists of 17 appellants who filed application under section 25-A of I. R. O., 1969 without following grievance procedure under section 25-A. Their case is distinguishable from the case of above- named three appellants. I, therefore, deal with both sets separately. Now I take up the case of the first set of three appellants namely Abdul Hamid Khan, Abdul Ghani and Ashraf. They were charge- sheeted on 6- 5-1974 vide Annexure *A', page 183. The charge against them is that they were operating only two looms. The charge itself does not allege that they had resorted to "go-slow". The essence of the charge is that they did not run 3rd loom. As to this aspect, I come to the evidence and circumstances on the record. Mr. Izharul Hussain, Director of the Company, has examined himself. He admits in his cross-examination that "it is not in writing that every worker should operate 3 looms but" it is verbal order". There is 'Settlement' Exh. 1-X on record which falsifies witaess Izharul Hussain. Its relevant clause (7) pages 35 to 39 does not bind the Workers to run the third loom. In the absence of any writing regarding operation of 3rd loom oral and interested testimony of Mr. Izhar Hussain cannot supersede the <4 documentary evidence viz. Exh. 1-Y. Thus the charge dees not fall within the mischief of S. O. 15(J) of Standing Orders Ordinance, 1968. At this stage it is necessary to mention here that Workers* defence is that they had taken active part in their Trade Union activities and there was dispute regarding payment of Bonus pending before Labour Directorate and as such they were removed. Their version as to dispute over Bonus gets corroboration from witness Mr. Badrual Haq, conciliator, page 309. Mr. Badrual Haq, an independent witness, at the end of his deposition has stated that both parties had verbally agreed that the Management would make payment of Bonus under section 10-C by 30th June, 1974 and the Union agreed to approach Junior Labour Court. His testimony proves that dispute regarding Bonus was pending before the Conciliator and there were joint meetings of the parties before him on 18-5- 1974 and 14-6-1974. Next point for consideration is whether the domestic enquiry was fair and impartial. The aforesaid 3 Workers did participate in the enquiry but they allege that they were not given copies of enquiry proceedings in spite of their joint application Exh. 1-A dated 5-5-1974 and their reply to second show-cause notice. This allegation does not appear untrue. A perusal of the application shows that it is signed by the Enquiry Officer Mr. Jamshed Temuri. In this connection Mr. Izhar Hussain shows ignorance of this application Exh. 1-AA. But he does not deny that the application was not given. The Management has failed to examine the Enquiry Officer in this connection for reasons best khown to them. Non-supply of copies of enquiry proceedings alongwith second show-cause notice is a defect. Copy of Enquiry Officer's report and second show-cause notice are necessarily to be given to the Workers before dismissal order are passed. A point agitated by Management is that strength of Workers is less than statutory number. The burden of this fact lay on the Management which they have failed to discharge. The Management has given conflicting statement as to number of the Workers at different stages in the case. In reply statement the Management speak of less than 40 Workers while Director of the Company Mr. Izharul Hussain at a later stage gives the number of the Workers as 40 in his examination-in-chief.
2. In the same breath he gives the details of Workers in his cross-examination which discloses the number as 46 or 47. He furthar deposes that there is no Factory Manager. The Management has also examined Mr. Nazir Ahmed, Ziaurrehman Khan and Muhammad Iqbal. Nazir Ahmad frankly swears that total number of Workers is not known while Ziaur Rehman says that there were not more than 40 Workers during preceding l2 months while Muhammad Iqbal swears in his cross- examination that the affidavit was not read over to him in Urdu and he does not know English. He is silent about the number of Workers in his affidavit. Admittedly Nazir Ahmad and Muhammad Iqbal were prosecution witness against the aforesaid Workers in enquiry proceedings. It appears that they have tried to oblige their Master. Jt is noteworthy to mention here that Mr. Izharul Hussain, Director of the Company in his deposition says that he is Director of the Mills since 1967 and production reports were maintained from 1973. This shows that Management is not maintaining the record as required by labour laws. His evidence further suggests that the Management has tried to suppress the number of the Workers with a view to circumvent labour laws. The evidence adduced by the Management appears uncertain, indefinite and unreliable. While evidence of appellant Abdul Hamid Khan establishes that there were more than 60 Workers in the Mills. I am inclined to prefer bis evidence to the witnesses of the Management regarding the strength of the Workers during preceding l2 months. I, therefore, hold that the strength of the Workers in the Mills was more than 40 at the relevant time. It therefore, follows that provisions of Standing Orders Ordinance, 1968 do apply in 1he present appeals. For these brief reasons, therefore the charge against the above- named three!- appellants fails and their "dismissal orders" had been passed in contraventionr of the provisions of the Standing Order 15 and, therefore, were illegal. \ Now I come to the second set of 17 appellants who had not followed grievance procedure as laid down in subsections (1) to (4) of section 25-AI of I. R. O., 1969. It has been argued by Mr. Aslam Bin Ibrahim, Advocate forlD the appellants that their case is governed by subsection (4) of section 25-A| of I. R. O., 1969 and not under subsections (1) to (4) of section 25-A. Before discussing this contention I like to mention here brief history of section 25-A of I. R. O., 1969. Before insertion of section 25-A in Industrial Relations Ordinance, 1969 two forums were available to ventilate their individual grievances and they were
(1) Forum under S. O. 18 of Standing Orders Ordinance, 1968 and (ii) Forum under section 34 of I. R.
3. O., 1969. An individual Workman had a vested right to seek redress under section 34 with effect from 17-10-1970 when word "workman" was inserted in section 34 till the word "workman" was omitted from section 34 by Amendment Ordinance XLV1'I of 1972 dated 10-11-1972. While Standing Orders Ordinance, 1968 (VI of 1968) was promulgated on 18-5-1968. The Standing Order 18 was deleted from the statute book on 13-4-1972 when section 25-A, an identical relief, was for the first time introduced in the 1. R. O., 1969 by Amendment Ordinance No. IX of 1972. The original section 25- A of I. R. O., 1969 had five subsections only. Under section 25-A as it stood on 13-4-1972 till 9-11-1972 a Workman could only approach a Labour Court after completing certain formalities. There was no such thing in section 34 of the Ordinance. It was therefore clear that an individual Workman had choice either to seek redress under section 25-A or under section 34 of the Ordinance. There was no impediment to choose better forum. Had the Legislature at that time this intention in view that for the individual grievance a Workman should resort to section 25-A only section 34 including the word "Workman" would not have been allowed to exist side by side with section 25-A of the Ordinance. After amendment dated 10-11-1972, Junior Labour Courts have been given exclusive jurisdiction to try section 25-A. On 10-11-1972 subsection (6) was added to section 25-A of I. R. O.
4. 1969 by Amendment Ordinance No. XLVIII of 1972 (dated 10-11-1972). I produce subsection (6) as under:-- "(6) Notwithstanding anything contained in subsections (1) to (5), any workman aggrieved by the termination of his employment as a result of retrenchment, dismissal, discharge, lay off, lock-out or otherwise after the commencement of this Ordinance, may make an application to a Junior Labour Court having jurisdiction in the area in which the establishment is situated." The insertion of the subsection entitled an individual workman to make an application to Junior Labour Court without following grievance procedure and without any time limit. Subsection (6) of section 25-A of I. R. O., 1969 was thereafter again amended on 9-2-1973 by Industrial Relations Amendment Act, 1973. Subsection (6) which was introduced on 10-11-1972 was deleted from section 25-A and new subsections (6) and (7) were added to section 25-A. The new subsection (6) amended on 9- 2-1975 has different wordings. It is necessary to reproduce it as under:-- "(6) Nothwithstanding anything contained in subsections (1) to (4) any worker aggrieved by the termination of his employment as a result of retrenchment, dismissal, discharge, lay-off, lock-out, or otherwise not earlier than two months preceding the commencement of the Industrial Relations (Amendment)
5. Ordinance, 1972 may within a period of two months from the commencement of the Industrial Relations (Amendment) Act, 1973 or the termination of the employment whichever is later either himself or through his shop steward or Trade Union, take the matter directly to a Junior Labour Court, having jurisdiction in the area in which the establishment is situated." The new subsection which is latest was added with an idea to remove an anamoly. At this stage, it would be useful to reproduce S. O. 12(3) as under:-- "The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of section 25-A of the Industrial Relations Ordinance, 1969, XXIlI of 1969 and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance." The last sentence used in S. O. 12(3) "and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance" is very significant. Thus S. O. 12(3) does not make distinction in subsections (1) to (4) and subsection
(6) of the section 25-A., Standing Order 18 and section 25-A and its all provisions including subsection (6) were considered by his Lordship Mr. Justice Dorab Patel while giving decision in Nasim Mills (1). 1he pertinent observation is as under:-- "(A) We have quoted subsection (6) and clearly it confers on the worker the right to prosecute a grievance which might have lapsed under the earlier law. (B) Twin conditions precedent continue to be same as those for Industrial Couit under Standing Order 18 Worker must serve his employer with statutory notice of his grievance.
6. Omission to do so disentitles worker to invoke jurisdiction of Junior Labour Court." Relying on these observations it can safely be concluded that subsection (6) is a concessional provision for covering lapsed causes of actions. The latest new subsection (6) of section 25-A of I. R. O., 1969 has placed a restriction of time-limit for making application to Junior Labour Court. The words "or the termination of the employment whichever is later" occurring in subsection (6) construe to cover causes of action accrued in-between period from 11-9-1972 (not earlier than two months, preceding the commencement of Industrial Relations Amendment Ordinance, 1972 dated 10-11- 1972) to 8-4-1973 (within a period of two months from the commencement of the Industrial Relations Amendment Act, 1973 dated 9-2-1973). Plain reading of subsection (6) of section 25-A shows that the Legislature has placed an embargo against entertainment of an application in respect to a cause of action accruing prior to 11-9-1972 and subsequent to 8-4-1973. The confusion arises only with the use of the word "or" after the words "Act 1973" and before the words "the termination of the employment" as used in subsection (6). Conjunctions "or" and "and" are interchangeable and can be read one for the other to give effect to the legislative intention. The punctuation "comma" and word "or" used in subsection (6) appear conjuction but not disjunctive.
7. One construction is that the word "or" so used is conjunctive and has been used in the same context and sequence in which the other conditions of limitation and concession have been enacted. The Courts are also competent to change and will change conjunctions "or" to "and" and vice versa if it leads to anamolies and absurdities. (1) PLJ 1973 Kar. (sic) The services of the 17 appellants were terminated on 10-6-1974 and 14-7-1974. The causes of action had arisen to them in June 1974, fourl months after Industrial Relations Amendment Act, 1973 and beyond limitation!# period and as much they cannot take benefits of subsection (6) of section 25-a| Therefore the applications of these 17 Workers were incompetent. As a result of above discussion I allow appeals of first set of three appellants namely Abdul Hamid Khan, Abdul Ghatu and Ashraf Hussain and order that they be re-instated in service with full back wages. While the appeals of 2nd set consisting of i7 appellants stand dismissed. The 17 appellants shall be entitled to their legal dues if not paid. With this modification, the impugned order is maintained.