DECISION This an appeal against an order of 4th May 1972, whereby the learned Chairman of the Second Sind Labour Court, Karachi, held that the order of suspension of the respondent was illegal and that he should be re-instated in service forthwith. The facts giving rise to the present appeal briefly put are these.
2. The respondent, Muhammad Anwar, who was a Conductor in the appellant- company, was charge-sheeted for misconduct and was found guilty. The respondent being an office-bearer of the Union, an application was made under section 37(2) of the West Pakistan Industrial Disputes Ordinance, 1968 (hereinafter called the Ordinance of 1968), for permission to dismiss the respondent. The application was made on 20th October 1969. The respondent was also suspended under the provisions of section 37(2) of the Ordinance of 1968, pending permission by the Court to dismiss the respondent. After about three weeks, i.e., on 13th of November 1969, Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance), was promulgated. Section 47, a provision almost similar to section 37 of the Ordinance of 1968 was promulgated in the Ordinance. There was, however, one important difference in the two provisions, namely, that the right of the employer to suspend the office-bearer of the Union during the pendency of the application before the Labour Court was taken away. The respondent made an application on 3rd May, 1972, to the Labour Court to re-instate him and to withdraw the order of his suspension. The learned Court, as already stated, accepted the application.
3. Mr. Amir Husain, the learned Representative for the appellant, raised three contentions before me, which I propose to dispose of separately.
4. In the first place, the learned Representative contended that the application under section 37 of the Ordinance of 1968, for withdrawing the suspension Order was not maintainable. It is true, the application under section 37(2) of the Ordinance of 1968 for withdrawing the order of suspension was not maintainable. It is, however, clear from a perusal of the application that the application was not only under section 37(2) of the Ordinance of 1968, but also under section 47 of the Ordinance. The very first sentence of the application reads as under:-- "It is respectfully submitted that in this matter, the respondent has been illegally suspended since 20-10-1969, in contravention of the provisions of section 47(2) of Industrial Relations Ordinance, 1969 which provision became inapplicable to the pending cases.** 5. What the respondent intended to say was that the Ordinance having come into force on 13th November, 1969, the order of suspension became illegal from that date. The application really being under section 47 of the Ordinance, cannot be dismissed on the ground that it was under section 37 of the Ordinance of 1968.
6. In the second place, Mr. Amir Husain, contended that on 20th of October, 1969, when the respondent was suspended the law gave such power to the appellant. It is true, the appellant had such a power on 20th October, 1969, to suspend the appellant during the pendency of the application for permission to dismiss the respondent. The question is that the Ordinance of 1968 having been repealed on 13th November, 1969, by the Ordinance and the equivalent provision of section 37 of the Ordinance of 1968, namely, section 47 of the Ordinance did not give any power to the Management to suspend the office-bearer of the Union, can the order of suspension passed on 20th October 1969, continue to be legal. The Ordi-r* nance is prospective in its operation. It has not been given retrospective effect. The order of suspension is a continuing one. If the enactment containing the provision empowered an authority to suspend while seeking permission from the Court, is repealed and a provision 4on similar to the repealed one does not authorise him to suspend the office-bearer, the intention of the Legislature becomes evident that the authority concerned could not suspend an office-bearer after the promulgation of the Ordinance.
7. The relevant portion of repealing and saving section 67 of the Ordinance, as it stood on 13th November 1969, reads as under:-- "(2)
Notwithstanding the repeal of any law by subsection (1), and without prejudice to the provisions of section 24 of the General Clauses Act, 1897 (X of 1897):-- (a) (b) anything done, rules made, notification or order issued, officer appointed, Court constituted, notice given, proceedings commenced or other actions taken under any law shall be deemed to have been done, made, issued, appointed, constituted, given, commenced or taken, as the case may, under the ^corresponding provisions of this Ordinance, to the extent of consistency therewith."
8. Reading the above provision of law, it becomes clear that the application under section 37 of the Ordinance of 1968 was to be read under section 47 of the Ordinance. The order of suspension being a continuing act became illegal from 13th November, 1969, as the Legislature, which was conscious of the provisions of law, intentionally did not empower the Management to suspend an office-bearer of the Union during the pendency of the application to dismiss the respondent from service. The reason appears to me to be quite evident. The applications for permission because of pressure of work usually take very long time for disposal. This long delay effected the workmen very adversely.
In the present case, for instance, the application was made on 20th October, 1969, but it has not been disposed of so far. Had the workman remained suspended, he could not take up any other job, while he would have been almost starving up to this date. If permission to dismiss him was granted, he could take up some other job, but not while he was under suspension. In this connection, Mr. A. Majeed, the leamed Representative for the respondent, cited the case of Pakistan Tobacco Company Limited v. Karachi Municipal Corporation (1). The following paragraph may be usefully quoted from this case:-- "That next question that arises for consideration is as to whether, notwithstanding this, any terminal tax imposed under the Karachi Municipal Act of 1933 was saved by the provisions of subsection (2) of section 4 of the Ordinance. This subsection, inter alia, provides that notwithstanding the repeal of the enactments mentioned in the First Schedule to the Ordinance any tax imposed or assessed under the said Act shall "so far as it is not inconsistent with the provisions of this Ordinance and the rules, be deemed to have been respectively made, issued, imposed or assessed, entered into, instituted or taken under this Ordinance." It is contended that the continuance of any thing done under the previous Act, under these provisions is subject to two important conditions, namely; (/) that it should not be inconsistent with the provisions of the Ordinance and (if) that it should be such that it can be deemed to have been made under the Ordinance. In the present case in so far as section 33 and the Third Schedule to the Ordinance consciously omit the provisions for the imposition of the terminal tax, which were to be found in section 96 of the Act of 1933, the legitimate inference that can be drawn is that the Ordinance does not at all contemplate the imposition of such a tax and, therefore, the Terminal Tax Rules are not only inconsistent with the legislative intent of the Ordinance but can also not, by any means, be deemed to have been made under the provisions of the Ordinance. The deeming provision could have applied only if there was some provision in the Ordinance enabling the local authorities to impose a a terminal tax. A thing cannot be deemed to have been done under a statute if there is no power given by the said statute to do such a thing at all." * 9. I would hold that the order being not "closed and past transaction", but a continuing wrong, was not saved by section 67 of the Ordinance. The order of suspension from 13th November 1969, became illegal and ineffective. 10.
The last point that Mr. Amir Husain urged was that the respondent should not have been ordered to be re-instated, lt is true, the question of re-instatement of the respondent did not arise. He had never been dismissed from service. He was only suspended. It was enough for the Court to have withdrawn the order of suspension.
11. In the result, I would hold that the order of suspension is bad in law from 13th November 1969.