JUDGMENT There are involved eight classes of employee of Pakistan International Airlines Corporation in this case. They are as follows :-- (1) Senior Accounts Assistants ; (2) Junior Sales Assistants ; (3) Junior Cargo Assistant ; (4) Canteen Assistants {i.e. Canteen salesmen and dishers) ; (5) Drivers in motor transport ; (6) Junior Traffic Assistants ; (7) Loaders ; and (8) Peons. The services of the above classes of employees (who are respondents) were dispensed with by way of an alleged retrenchment by the petitioner- corporation somewhere in April 1972. ,The employees filed petitions under section 25-A of the Industrial Relations Ordinance XXIlI of 1969 in the Punjab Labour Court (Northern Zone) Lahore. The petitions were accepted in certain respects and the Punjab Labour Court directed their re-employment on 3-7-1972. The actual paragraph in the order of the Punjab Labour Court which is relevant reads as follows : "As a result of the observations made above, the petitions of all the 7 petitioners are accepted, they are declared as permanent in view of Order I Clause (b) of the Ordinance of 19b8 and the respondent is directed to re-employ them immediately. The respondent should also scrutinise if any junior to the petitioners were retained in service when the services of the petitioners were terminated. If it happened so, the matter should be set right so that the seniority of the petitioners may not suffer.** The petitioner filed an appeal against the aforesaid order of the Punjab Labour Court but without any success, as the same was dismissed by the Punjab Labour Appellate Tribunal (hereinafter called the Tribunal) n 25th August, 1972. The petitioner took no steps to challenge that order anywhere and rather as I was told by the learned counsel, started implementing the same, according to him, in real earnest.
On the other hand feeling that the order of the Punjab Labour Court as maintained by the Appellate Tribunal was not being properly complied with stricto senso the employees filed an application under section 38(5) of the Industrial Relations Ordinance, which contained the following prayer : "It is, therefore, respectfully prayed that the respondents may kindly be punished for committing the contempt of these Hon'ble Courts and they may be dealt with in accordance with law." This application was disposed of by the Appellate Tribunal by means of its judgment and order dated 13-7-1973. Paragraphs 6, 7 and 8 of that order are relevant for facility of reference. They are reproduced as follows : "(6) Re-employment under Standing Order 14 means neither re- instatement nor fresh appointment, lt is a recall to the old job under statutory compulsion.
Therefore the petitioners will have the same rights, duties, privileges and obligations as before.
Supposing if a person is a Senior Clerk. Will he be recalled as a Junior Clerk ? Answer. No. In fact the petitioners are reservists for one year. Since by operation of law if they had become permanent before their retrenchment on recall they will be re-employed as before. According to Standing Order 14 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 workman 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 occording to the length of his service under the employer. This shows that previous service has to be taken into account. The leamed counsel for the respondents contended that the words **other persons'* means outsiders and not persons already in employment. This contention has no force because this legislation is primarily for the benefit of the employees and therefore beneficial construction should be placed.
The interpretation which is likely to defeat the object of the legislation has to be discarded in favour of the interpretation which promotes the object of the legislation. If this was not so, it will give an opportunity to an unscruplous employer to partially or wholly close down the factory or any of its department, entailing the retrenchment of permanent staff with a view to deprive them of their existing rights and privileges. In fact it will be a fraud on the statute. I am fortified in this view by the judgment of the Supreme Court in the case "Abdul Majid Khan v. The Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore. Sh. Muhammad Hassan v. The Chief Settlement and Rehabilitation Commissioner, Pakistan Lahore, PLD 1968 SC 154, wherein it was held that the interpretation advancing the object of the legistation has to be preferred. (7) Thus the petitioners are entitled to all the rights, privileges, allowances, benefits etc., which are available to a permanent employee under any law, custom, usage, award or agreement, because they were held to have become permanent by operation of law. (8) In the result I find no force in the contentions of the learned counsel for the respondents and direct them to comply with the decision dated 3-7- 1972 of the Court below within a month from today. The petition is disposed of accordingly." The petitioner has come up in writ petition against the aforesaid order and particularly the above reproduced passages to this Court.
2. From what has been writtea above it will be evident that the sole controversy between the parties for the present is as to in which sense the direction of their re- employment is to be understood. The finding of the Appellate Tribunal is that the term re- employment in Standing Order 14 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance VI of 1968 does not mean simple re-employment but it means the recall to duty as a result whereof the persons who are re-employed will be entitled to all the rights, duties, privileges and obligations to which they were entitled previously. It was further held that the reemployment direction in the previous orders of the Punjab Labour Court dated 3-7-1972 and the Appellate Tribunal dated 25-8-1972 should be understood in that sense and the previous services of the employees for that reason should also be taken into account. It may be clarified at this stage that the petitioner has not challenged the order of the Punjab Labour Court dated 3-7-1972 (Annexure 'A'). Similarly it has not challenged the order in appeal passed by the Punjab Labour Appellate Tribunal on 25-8-1972 (Annexure 'B'). Learned counsel for the petitioner submitted that he has simply come up to this Court in writ petition solely against the order dated 13-7-1973 of the Appellate Tribunal whereby no punishment in contempt was inflicted on the petitioner and the matter was disposed of by simply issuing a direction to the petitioner to comply with the orders dated 3-7-197. and 25-8-1972. The learned counsel clarified that the petitioner is aggrieved of certain clarifications as made by the Punjab Labour Appellate Tribunal in the earlier orders dated 3-7-1972'and 25-8-1972.
3. The first point argued by the learned counsel for the petitioner was that the proceedings in which the impugned order was passed By1the learned Appellate Tribunal were contempt proceedings under subsection (5) of section 38 of the Industrial Relations Ordinance XXIlI of 1969 where it is written that "the Tribunal shall have authority to punish for contempts of its appellate jurisdiction, as if it were a High Court." In these proceedings, he submitted, the Tribunal could either convict a person or discharge or acquit him of the accusations of any alleged contempt, and in this particular case when the proceedings for contempt were, to use his own words, "filfd", the Tribunal had no jurisdiction to give directions of the kind which have been impugned in this writ petition. The contention has no merit, and instead of feeling gratified that the Tribunal has not proceeded in contempt against the petitioner it is strange enough that the petitioner is taking objection as to why a lenient view has been taken and why the case has been "filed" by mere issuing of clarifications or directions requiring, and once again emphasising on the petitioner, to obey them. In Mahdi Hass an, Additional Secretary, Food and Forest Department and ano'her v. Zulfiqar All, Conservator of Forests, Development Circle, Lahore (1) the law is well summed up in head note (6) on page 752 which states that : ^ "when an order passed by the High Court in the exercise of writ jurisdiction is not complied with, two procedures are open to the . (1) PLD 1960 Lah. 751 812 Pakistan Labour Cases 19)5 person aggrieved. He may pray for further directions when there can be a bona fide dispute as to what is the effect of the order or he may apply for action under the Contempt of Courts Act, 1926. In the first case the Court may after determining the effect of its order give further directions for its enforcement. Such an order would not be an order in the exercise of its criminal jurisdiction. In the second case the Court may either find the respondent guilty or it may discharge him on the ground that the respondent acted in the bona fide belief that he was complying with the order of Court though in fact he was disobeying it. Hence forth that person would know the effect of the order and if he still failed to comply with the order, the defence of bona fides would not be open to him in any application that may subsequently be filed under the Contempt of Courts Act, 1926. The Court which issues a writ can be moved for its implementation, but such further proceedings would be proceedings in the very same petition for writ. If a Court has already issued a writ the Court can be approached for an interpretation of its order and for its enforcement, but these proceedings which may be called proceedings in execution for proceedings in implementation, are a continuation of the previous proceedings." As the Labour Appellate Tribunal has the same powers of punishing its contempt as a High Court has, therefore, the aforesaid law which is applicable to High Courts can well be applicable to a Labour Appellate Tribunal. Judged from that point of view, the Labour Appellate Tribunal was quite within its jurisdiction in making clarification of its previous order dated 25-8-1972 which otherwise was not being challenged by the present petitioner either before the Tribunal or in the present writ petition.
Any objection on the competency of the Labour Appellate Tribunal on the above ground advanced by the learned counsel for the petitioner, therefore, has no substance and is hereby repelled.
4. The next point submitted by the learned counsel for the petitioner was that assuming without conceding that the learned Appellate Tribunal had the jurisdiction in proceedings of the present nature to interpret its own previous order dated 25-8-1972 whereby the appeal of the present petitioner was dismissed and order of the Labour Court dated 3-7-1972 was maintained, nevertheless, the interpretation placed on those two orders and clarifications made or directions issued by the learned Appellate Tribunal went beyond the scope of the aforesa d earlier orders and from that point of view they were withbut lawful authority on the part of the learned Appellate Tribunal. At this stage it is necessary to note down as to what were the contents of the earlier ordeis of the Appellate Tribunal and the Labour Court. Relevant passage from the order dated 3-7-1972 of the Labour Court has been reproduced in paragraph 1 of this judgment. If that passage is kept in view then it becomes evident that the Labour Court had declared : (a) that the workmen in the relevant original applications before the Labour Court were declared permanent within the meaning of Standing Order 1(6) of the Schedule to the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance VI of 1968. In that Standing Order 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 sicknesL accident, leave, lock-out, strike (not being an illegal lock-out or stril&) or involuntary closure the establishment and includes a badli who has been employed for a continuous period of three months or for one hundred and eighty-three days during any period of twelve consecutive months ; (b) and had directed the employer to re-employ them immediately ; (c) the employer was further directed to scrutinise if any juniors to workmen concerned were retained in service when their services were terminated. If it had so happened then the matter, it was directed, should be set right so that the seniority of the concerned workmen \ may not suffer. Learned counsel for the petitioner has no quarrel with any of the aforesaid directions. He submits that his client is prepared to accept the workmen concerned as "permanent"--which term according to him, should be understood within the meaning of Standing Orders 1(6) of the Schedule attached to the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance VI of 1968. Hp also concedes that his client has re-employed all the workmen who were petitioners in the various original applications before the Labour Court. Similarly he concedes that his client is prepared to grant, and as a matter of fact, has fixed the seniority of the workmen by safeguarding that they do not become junior to those who were rather junior to them. If &U these incidents of the order of the Labour Court have been on the part of the employer to come up in writ petition against the order of the labour Appellate Tribunal which has simply directed him to comply with the aforesaid order which even otherwise was maintained by the Tribunal in appeal. When confronted with this situation, learned counsel for the petitioner submitted that his client was prepared to set right the seniority of the workmen against such juniors who may have been retained in service when the said workmen were allegedly retrenched but the employer, according to the learned counsel, could not make those workmen as senior to such others who may have been employed during the interregnum period which may have passed between the retrenchment and re-employment of the workmen under the orders of the Labour Court. This means that against the persons who were old junior employees and who were retained in service--(when workmen were allegedly retrenched)-- the employer is prepared to set right their seniority but not against the fresh employees. With respect to all concerned I have not been able to appreciate this logic. Fresh employees who were recruited during interregnum period in thtvery fitness of things have to rank junior to old employees who were either retained in the service or were retrenched or were not illegally taken in. If those who were retained in service were for instance junior to the aggrieved workmen and vere to be still treated as junior then obviously the fresh Remits would also have to remain junior to those workmen. The plea raised by the employer amounts to reprobate that which he, at the same time, approbates. Obviously a relief with this type of approach cannot be claimed in the course of writ jurisdiction from this Court. Even otherwise I notice that the employer really is not certain as to what stand he should take before law Courts in this respect. From various portions of the order of the learned Appellate Tribunal reproduced in para. 1 of this judgment above, it trens pires that there the employer was conceding the seniority of the work' men concerned against the new recruits whom he called at that time as "outsiders" but not against person^- who were already in employment (or to put it differently who were retained in employment and who might have been junior to the workmen)--but now the argument is just in the reverse. In High Court in the course of writ jurisdiction a petitioner cannot advance a plea which runs counter to that which he took before the learned Appellate Tribunal. From that point of view also the point which is now being advanced cannot be accepted and is hereby repelled.
5. At this juncture learned counsel for the . petitioner referred to Standing Orders l2, 13 and 14 of the West Pakistan (Standing Orders) Ordinance VI of 1968. They read as follows Standing Order l2. "Termination of Employment.--(1) For terminating employment of a permanent workman, for any reason other than misconduct, one month's notice shall be given either by the employer or the workman. One month's wages calculated on the basis of average wages earned by the workman during the last three months shall be paid in lieu of notice. (2) No temporary workman, whether monthly-rated, weekly-rated, daily-rated or piece- rated, and no probationary or badli shall be entitled to any notice if his services are terminated by the employer, nor shall any such workman be required to give any notice or pay any wages in lieu thereof to the employer if he leaves employment of his own accord. (3) 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 the 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. (4) Where the services of any workman are terminated, the wages earned by him and other dues, including payment for unavailed leaves as defined in clause (1) of Standing Order 8 shall be paid before the expiry of the second working day from the day on which his services are terminated. (5) The services of a- permanent or temporary workman shall not be terminated on the ground of misconduct otherwise than in the manner prescribed in Standing Order 15. (6) Where a workman resigns from service or his services are terminated by the employer for any reason other than misconduct, he shall, in addition to any other benefit to which he may be entitled, under this Ordinance or in accordance with the terms of his employment or any custom, usage or any settlement or an award of a Labour Court under the Industrial Relations Ordinance 1969 (XXtn of 1969), be paid gratuity equivalent to twenty days wages calculated on the basis of the wages admissible to him in the last month of service if he is a fixed-rated workman or the highest pay drawn by him during the last twelve months if he is a piece-rated workman, for every completed year of service or any part thereof in excess of six months : Provided that, where the employer has established a provident fund to which the workman is a contributor the contribution of the employer to which is not less than the contribution made by the workman, no such gratuity shall be payable for the period during which such provident fund has been in existence. (7) A workman shall be entitled to receive the amount standing to his credit in the provident fund, including the contributions of the employer to such fund, even if he resigns or is dismissed from service. (8) Provided that no payment of gratuity in such cases be made otherwise than by a deposit with the Commissioner, who shall proceed with the allocation of the deposit to the dependant of the deceased in accordance with the provisions of section 8 of the Workmen's Compensation Act, 1923 (VHI of 1923). (9) If the employer fails to deposit the amount of the gratuity under clause (8) the dependent of the deceased may make an application to the Commissioner for the recovery of the amount thereof. Explanation. --"Commissioner*' and "dependent" in this Standing Order shall have the same meanings as are respectively assigned to them in the Workmen's Compensation Act, 1923 (VHI of 1923)." Standing Order 13.--Procedure for retrenchment.--When 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." Standing Order 14.--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 ; Provided that in the case of a seasonal factory within the meaning of section 4 of the Factories Act, 1934(XXy of 1934), a workman who was retrenched in one season and reports for duty within ten days of the resumption of work in the factory in the immediately following season shall be given preference for employment by the employer." The learned counsel then referred to section 25-A of the Industrial Relations Ordinance (XXIlI of 1969), which reads as follows:-- Section 25-A.--Redress of individual grievances.-- (1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing either himself or through his Shop Steward or Trade Union, within three months of the day on which cause of such grievance arises.
(2)Where a worker himself brings his grievance to the notice of the employer, the employer shall, within fifteen days of the grievance being brought to his notice, communicate his decision in writing to the worker. (3)Where a worker brings his grievance to the notice of his employer through h's Shop Steward or Trade Union, the employer shall, within seven days of the grievance being brought to his notice, communicate his decision in writing to the Shop Steward or, as the case may be, the trade Union. . (4)If the employer fails 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 Junior Labour Court, or, as the case may be, the Trade Union may take the matter to the Junior Labour Court, and where the matter is taken to the Junior Labour Court, it shall give a decision within seven days from the date of the matter being brought before it as if such matter were industrial dispute ; Provided that a worker who desires to so take the matter to the Junior Labour Court shall do so within a period of two months from the date of the communication of the employer or, as the case may be, from the expiry of the period mentioned in subsection (2) or subsection (3) as the case may be.
(5)In adjudicating and determining a grievance under subsection (4) the Junior Labour Court snail go into all the fact3 of the case and pa*s such orders as may be just and proper in the circumstances of the case. (6)Notwithstanding anything contained in subsections (l) 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) 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 UnioD, take the matter directly to a Junior Labour Court having jurisdiction in the area in which the estab- , lishment is situated. (7)Where a matter is taken to the Junior Labour Court under subsection (6) the Junior Labour Court shall give its decision thereon in the manner laid down in subsections (4) and (5)." Learned counsel argued that in case of retrenchment when a reemployment was made it could not be considered to be a continuation of the old service or employment, because under Standing Order 14 the retrenchment staff when again taken in, will enter into a sort of fresh service from the date whea according to his own turn, he is taken back in employment. According to the very nature of employment, therefore he argued the question of maintaining seniority of the retrenched staff against those who were junior to them--(but were retained in service)-- does not arise and nor will it arise against new recruits who may have been employed in the interregnum period especially when the basic retrenchment in this case, as was held by the two Courts below, was validly brought about. Advancing his argument in this way, he submitted, that the directions issued by the learned Appellate Tribunal to the contrary were without lawful authority. Firstly, this is not the direction issued merely in the impugned order dated 13-7- 1973 of the Labour Appellate Tribunal but was already contained in the order of the Labour Court dated 3-7-1972 which was maintained by the learned Appellate Tribunal on 25-8-1972. If the earlier two orders have not been challenged before me I wonder how can only the last order dated 13-7- 1973 be now challenged. Secondly, to speak with respect, the employer seems to exploit the terms "retrenchment" and "re-employment". Where a staff is "taken back" it has obviously to retain its old seniority against those who were junior to them but were retained in service. Similarly it will retain seniority against new recruits who may have been employed during the interregnum period. This is clear from Standing Order 13 where it is written that while making a retrenchment the employer shall retrench that workman who is the last person employed in that category. In Standing Order 14 it is then written that when retrenched staff is to be re-employed it shall have preference over "other persons" each having priority according to the length of its service under the employer. The cumulative effect of these two provisions of law when read together is that the retrenched staff, if it was not retrenched on first come last go basis formula--then it will remain senior to old junior employees and similarly to new recruits who had no length of service to complete with and have no preference for appointment in the presence of retrenched staff. From that point of view, when the Labour Appellate Tribunal while discussing the relevant law, on the facts and in the peculiar circumstances of the present case, issued certain directions the same appear to be in conformity with the law on the subject. Learned counsel for the petitioner argued that the two Courts below actually found no fault, with the retrenchment in question inasmuch as, they categorically held that the retrenchment was brought about lawfully after due notice. He submitted that after so holding how could then there be a direction to re-employ the retrenched staff on the line of the directions contained in the impugned order. To hold retrenchment legal and, at the same time to direct the re-employment of the retrenched staff was, according to the learned counsel, a contradiction in terms. The argument is attractive but on closer scrutiny it seems to have no substance. Even if the retrenchment was Jbrought about after a regular notice and from that point of view was not illegal, still there is no bar in holding, after taking notice of the immediate subsequent events that as the work actually was not retrenched and the employer had rather been taking in new employees, therefore, despite that regularity in the procedure adopted, the employer should retake the retrenched staff immediately, because in actual practice * and field the so-called retrenchment, on the facts and circumstances of the case, was not called for. It was in this context that the two Courts below directed the in-take of the retrenched staff immediately and gave further directions regarding their other incidents. If the case is approached from this point of view there will not appear any contradiction in the order(s) of the Courts below, The mistake, if any, i$ not in the orders of the aforesaid Courts, but to speak with respect, in not dispassionately comprehending the same in the context of the relevant law of re-employment. Here it may be pointed out that the employer took up the plea before the two Courts below that he had in fact asked the retrenched workmen to rejoin but it were they themselves who had refused to come in and there were no fault of the employer in this respect. The two Courts below, however, did not accept this factual plea of the employer, because he could not prove that he had issued any registered acknowledgment due notice to any retrenched workman under Standing Order 14 ibid. Hence they passed they relevant orders. After having taken up the plea of willingness to accept the retrenched staff it is not justified to refuse to do the same now when the law Courts have asked the employer to proceed accordingly and to grant them due seniority, privileges and benefits etc. to them.
6. In the beginning Of his arguments leamed counsel for the petitioner desired ro argue that the Industrial Relations Ordinance XXIlI of 1969 and the West Pakistan (Standing Orders) Ordinance VI of 1969 were not applicable to the Pakistan International Airlines, inasmuch as, according to first "proviso" to clause (c) of section 4 of the West Pakistan (Standing Orders) Ordinance 1969 "nothing in this Ordinance shall apply to industrial and commercial establishments carried on by or under the authority of the Central or any Provincial Government, where statutory rules of service, conduct or discipline are applicable to the workmen employed therein". He was asked to show that the prerequisites mentioned in the aforesaid 'proviso* were satisfied in his arguments His attention was also drawn to A. George v. Pakistan International Airlines Corporation (1), and he was asked to meet the findings recorded by the two Courts below in this respect on the subject. After examining the law for some time the learned counsel did not press this plea which is, therefore, hereby repelled. 7.
The upshot of the above discussion is that the present writ petition has no merit and is hereby dismissed with costs.
8. A. H. Petition dismissed. (1) PLD 1971 Lah. 748