' SAAD SAOOD JAN, J.---These are three appeals by special leave from three different judgments of the Lahore High Court whereby in the exercise of its Constitutional jurisdiction it declared the orders of the Punjab Labour Appellate Tribunal to be without lawful authority and of no legal effect. These appeals have been heard together as a common question of law arises for consideration therein.
2. The appellant in Civil Appeal No,38 was an employee of Pakistan International Airlines Corporation. He was serving as a liaison officer (Finance) in Group 7 drawing pay in the scale of Rs,1200-75-1950. His post was abolished and consequently his services were terminated with effect from 21-8-1977 by giving him one month's pay in lieu of notice. He filed a.Grievance petition on 10- 10-1977 before the Labour Court. The petition was resisted by the Corporation, inter alia, on the ground that he was not a workman and being an employee in Group 7, the Industrial Relations Ordinance was not applicable to him. By its ordei fated 31-1-1978 the Labour Court dismissed the petition with the finding that he was not a workman. He preferred an appeal before the Punjab Labour Appellate Tribunal. By its order dated 7-8-1978 the learned Tribunal accepted the appeal .
Holding that he was a workman and directed the Corporation to reinstate him with all the back benefits. The Corporation filed a Constitutional petition in the High Court to call in question the legality of the order of the learned Tribunal. A learned Single fudge allowed the Constitutional petition after finding that the appellant was not a workman and that, in any event, the learned Tribunal had no jurisdiction to entertain his appeal.
3. In Civil Appeal No,417, Bashir Ahmad, respondent No,1, was employed as a storekeeper in the appellant-Corporation. Consequent upon disciplinary proceedings taken against him he was dismissed from service with effect from 18-10-1975. He served a grievance notice upon the appellant-Corporation on 29-11-1975. When he failed to receive a favourable response he filed a grievance petition before the Labour Court on 6-2-1976. By its order dated 1-9-1977 the Labour Court allowed the petition and directed the appellant-Corporation to reinstate him in service but without back benefits. The appellant-Corporation preferred an appeal before the Punjab Labour Appellate Tribunal. By its order dated 31-5-1978, the learned Tribunal accepted the appeal and set aside the order of the Labour Court on the finding that the grievance petition was barred by time, Bashir Ahmad invoked the Constitutional jurisdiction of the High Court to call in question the legality of the orders of the learned Tribunal. A learned Single Judge accepted his Constitutional petition, holding that the learned Tribunal had no jurisdiction to entertain the appeal.
4. Civil Appeal No,527 has been preferred by Muhammad Riaz. He was employed by a limited company, respondent No,1, as shift supervisor. He tendered his resignation on 14-7-1972. Five days later, he served a grievance notice upon his employer. On 5-8-1972 he filed a grievance petition under section 25-A, Industrial Relations Ordinance, before. The Labour Court. He alleged that the resignation was entirely involuntary as it had been obtained by exercise of force and intimidation.
By its order dated 11-11-1972 the learned Labour Court dismissed the petition with the finding that the resignation tendered by him was a voluntary one. He preferred an appeal before the Punjab Labour Appellate Tribunal. The learned Tribunal accepted the appeal and after reversing the findings of the Labour Court directed his reinstatement.
' Respondent No,1 filed a writ petition in the High Court to call in question the legality of the order of the learned Tribunal. A learned Single Judge held that the learned Tribunal had no jurisdiction to entertain the appeal of the appellant. Accordingly, he accepted the writ petition and declared the order of the Tribunal to be without lawful authority and of no legal effect.
5. The common question of law which arises in all these appeals is whether the Labour Appellate Tribunal was competent to hear appeals from the orders' of the Labour Courts in matters arising out of dismissal/removal from service of workmen. To examine this question it will be necessary to examine the background of the relevant labour laws.
6. The Industrial Relations Ordinance was promulgated on 3-11-1969. Section 35 of the Ordinance enabled the Provincial Government to establish Labour Courts to, inter alia, adjudicate upon and determine industrial disputes referred to them and enquire into and adjudicate upon any matter relating to the implementation or violation of a settlement referred to them by the Provincial Government. Similarly, section 38 empowered the Provincial Governmet to set up a Labour Appellate Tribunal to hear appeals from an award made by a Laour Court. The West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance was promulgated on 8-3- 1968. Standing Orders 12 and 13 provided some modicum of protection to workmen against arbitrary termination of their services.
7. From 1972 onwards some important changes were made in the law to afford larger protection to the workmen against termination of their employment. These changes not only affected the forum where they could take their grivances but also enlarged the nature of the disputes. Thus, the Labour Laws (Second Amendment) Ordinance (No,XVIII of 1972), promulgated on 27-5-1972, recast clause
(3) of Standing Order 12 to read as follows:-- "The service 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 bring his grievance to the notice of his employer in the manner laid down in section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969), and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance."
' Earlier, the Labour Laws Amendment Ordinance (No,IX of 1972), promulgated on 13-4-1972,, had added a new section, as section 25-A, in the Industrial Relations Ordinance. It read:-- "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 the cause of such grievance arises.
(2) Where the 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 his 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 the Shop Steward may take the matter to his Trade Union or the Labour Court or, as the case may be, the Trade Union may take the matter to the Labour Court, and where the matter is taken to the Labour Court it shall give an award within twenty days from the date of the matter being brought before it as such matter were an industrial dispute: ' Provided that a worker who desires to so take the matter to the Labour Court shall do so within a period of two months from the date of 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 Labour Court shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case."
This Ordinance also amended section 37(3) of the Industrial Relations Ordinance by providing a right of appeal from the decision of the Labour Court made under section 25-A to the Labour Appellge Tribunal.
8. The Industrial Relations Ordinance was again amended on 10-11-1972 by Ordinance XLVIII of 1972.
The amending Ordinance added a number of new provisions in the Industrial Relations Ordinance.
Thus section 36-A empowered the Provincial Government to establish Junior Labour Courts. It also amended section 25-A so as to entrust the functions which were formerly performed by the Labour Court, to the Junior Labour Court. The new sectiod 36-D made the decisions of the Junior Labour Court appealable before the Labour Court. As original jurisdiction under section 25-A was now to be exercised by the Junior Labour Court and its decisions were made appealable before the Labour Court, a consequential amendment was also made in section 37(3), doing away with the appellate jurisdiction of the Labour Appellate Tribunal. This new dispensation was to apply to only such grievance petitions as were to be filed after the enforcement of the amending Ordinance, that is, 10-11-1972. Thus section 28 of the Ordinance provided: "Nothing in this Ordinance shall be deemed to--
(a) require the transfer to the Junior Labour Court of any matter under subsection (4) of section 25-A which may be pending before a Labour Court immediately before the commencement of this Ordinance;
(b) affect any appeal from an order of a Labour Court which may be pending before the Labour Appellate Tribunal immediately before such commencement."
9. Perhaps the new arrangement did not prove to be a success. Thus, the Industrial Relations Ordinance was once again amended on 12-4-1976 by the Labour Laws (Amendment) Act (XI of 1976). It abolished the Junior Labour Courts and re-invested the original jurisdiction to entertain grievance petitions under section 25-A in Labour Courts. It also restored the jurisdiction of the Labour Appellate Tribunal to hear appeals from the decisions of Labour Courts. It also provided for the transfer of all pending matters under section 25-A before a Junior Labour Court to a Labour Court.
10. At this stage it will be convenient to dispose of one of the arguments which was raised before us.
It was stated that by amending section 37 (3) the . Ordinance had specifically abolished appeals from the decisions' of a Labour Court under section 25-A to the Labour Appellate Tribunal; for while providing that the pending proceedings might be continued to be dealt with by the Labour Court the Ordinance did not expressly or by necessary intendment save the right of appeal from its decision; as the right of appeal was the creation of statute, none could be preferred after the amendment of section 37(3) from the original decisions of a Labour Court. In support of this contention reference was made to section 28 of the Ordinance as reproduced above. It was argued that this section saved only the pending appeals before the Labour Appellate Tribunal but did not authorise it to entertain fresh appeals from the decisions of the Labour Court which were recorded after the amendment of the present Ordinance.
11. This contention has already been examined by this Court in the case W.P.I.D.C. v. Rashid Ahmad (1988 SCM R,526) and rejected with the following observations:-- "We do not agree with the view of the High Court that the savings in section 28 of Ordinance XLVIII of 1972 provided a contrary provision by not expressly providing a right of appeal when the amending Ordinance was enforced. Lord Macnaghten in Colonial Sugar Refining Company, Limited v. Irving (1905 AC 369), recalled the basic principle. It was firstly established from the time of Lord Coke to the present day that if the amending provisions are not a matter of procedure but touch a right such as that of an appeal, that will survive the amendment and the appeal will lie to the forum to which it was earlier provided when the proceedings were instituted."
' The condition, however, laid down was that the right should not have been taken away retrospectively or by necessary intendment. This principle has been adopted by this Court in many of its judgments two of which I will at present refer as Idrees Ahmad v. Fida Ahmad Khan (PLD 1981 SC 3/6) and PIA Corporation v. Pak Saaf Dry Cleaners (PLD 1981 SC 553) where this question was expressly considered and decided."
' In the present case clause (a) of section 28 of the amending Ordinance provides for the pendency of proceedings in the Labour Court and clause (b) saves the appeal pending in the Labour Appellate Tribunal.
' There are, however, no express words in section 28 as to whethei the decision of the Labour Court in a pending proceedings was appealable. Nonetheless, this right cannot be construed to have been taken away as the right of appeal accrued to an aggrieved party on the date of the proceedings. Section 28, as worded, cannot be construed to be retrospective either by reason of any-express words or by any necessary intendment so as to defeat the right of appeal of an aggrieved party under the earlier Ordinance. The right survives despite the absence of any words to that effect in section 28 or by insertion of section 36-D. All that has happened is that there is now a different nomenclature for the Tribunal. In this view of the matter the High Court was not correct in holding that section 28 of the Ordinance was a contrary provision by not expressly providing a right to appeal."
' In view of what has already been stated by this Court we would repel the contention.
12. In coming to the conclusion that no right of appeal was available before the Labour Appellate Tribunal from decisions of the Labour Court in matters which were brought before it in pursuance of Standing Order 12, West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, the High Court was influenced mainly by the consideration that the inclusion of the provisions of section 25-A in Standing Order 12(3) was a case of legislation by reference; on the accepted rules of construction relating to legislation by reference, when legislature in adopting the procedural provisions of another statute made substitutions in certain instances, it would be inferred that in matters not specified no substitution was intended; as the recast Standing Order 12
(3) made no reference to section 37 (3), Industrial Relations Ordinance, which provided an appeal from the decision of the Labour Court it should be presumed that the legislature did not intend that the said decision should be appealable before the Labour Appellate Tribunal.
13. It is difficult to subscribe to the view of the High Court. It will be noticed that section 25-A(1) specifies the nature of grievances which a workman may take to a Labour Court. Under this provision the grievance has to relate to a right guaranteed or secured to him by or under any law or any award or settlement for the time being in force. Whether a workman removed from service in violation of the provisions of Standing Order 12 could also seek relief from a Labour Court was a matter of interpretation of section 25-A (1). To remove all doubts in this regard Standing Order 12(3) specifically provided that he, too, could take his grievance to the Labour Court. Whatever 'be the nature of the grievance, whether it is the one mentioned in section 2A(1) or of the kind specified in Standing Order 12(3), the competence of the Labour Court to deal with it flows from section 25-A. Its adjudication, therefore, is a decision under section 25-A. It may also be noticed that under section 35(5)(d), Industrial Relations Ordinance, it is an ordinary function of a Labour Court to exercise and perform such other powers as are or may be conferred upon or assigned to it by or under any other law. Thus while recording its decision upon a grievance petition filed in pursuance of the provisions of Standing Order 12(3) it does not act as a persona designata. Section 37(3), Industrial Relations Ordinance, expressly enables an aggrieved party to file an appeal before the Labour Appellate Tribunal from a decision of a Labour Court made under section 25-A. The mere fact that there was no mention of section 37(3) in Standing Order 12(3) will not affect the position. By operation of section 37(3) ibid, the decision of a Labour Court under section 25-A is not final. But it is subject to the right of appeal by the aggrieved party. There is no justification whatsoever forte conferring finality upon it if it is. Made on an application moved by a workman in exercise of his right under Standing Order 12 (3). Had the contrary been the intention of the legislature an express provision to that effect would have been made in the Standing Order. In support of the view that we take, we would refer to a recent judgment of this Court reported as Muhammad Hussain v. Islamic Republic of Pakistan (PLD 1991 SC 385). Under section 17(1), Payment of Wages Act, a direction made by an Authority under the Act was appealable before the Labour Court. Section 17(2) of the Act expressly stated that subject to the decision in the appeal, the direction made by the Authority would be final. A question arose whether the Labour Appellate Tribunal was competent to revise the appellate order of Labour Court in exercise of its jurisdiction under section 38(3-A), Industrial Relations Ordinance. The Court answered the question in the affirmative after referring to its earlier judgment in the case of S.M.Rahman & Co. v. Motabar (PLD 1981 SC 282) and the provisions of section 35(5)(d), Industrial Relations Ordinance. We are, therefore, of the opinion that the High Court was clearly in error in setting aside the judgment of the learned Labour Appellate Tribunal on the ground of competence. We would,' accordingly, accept Civil Appeals Nos.417 and 527 of 1980 and withdraw the writs issued by the High Court. There will be no order as to costs in these appeals.
14. Civil Appeal No,38 of 1979, however, requires further consideration. As already noticed one of the objections of the employer before the Labour Court was that the appellant was not a workman. The Labour Court found substance in this objection and dismissed the grievance petition. On appeal by the appellant the learned Labour Appellate Tribunal came to a contrary conclusion and held that he was a workman. The High Court in writ jurisdiction re-examined the divergent findings on this point and noticed that the learned Appellate Tribunal had ignored certain material facts before recording its finding. Some of the material facts Were:-
(i) the appellant enjoyed a high status in the employer's Organization and was entrusted with the task of recovering arrears running into crores of rupees from various Ministries and Embassies; he could be equated with a Station Manager;
(ii) he had to keep an eye on financial stability of the employer and he was also required to occasionally conduct departmental inquiries; and
(iii) for the purpose of facilitating his job he was provided a car and an allowance to entertain people; he was issued with an apron pass; he could travel to Lahore, Karachi and Peshawar to meet officers in the Ministries and Embassies.
The reasons given by the High Court for not accepting his status as workman cannot be regarded as insubstantial. As this question was not considered at the hearing of these appeals, it will be only fair to re-hear the appeal on this question. We would, therefore, direct that this appeal may be listed for hearing.