JUDGMENT This petition under \ Article 199 of Constitution of Islamic Republic of Pakistan, 1973 Sis directed against the Orders of respondent No. I "Sind Labour Court No. 1V'\ Karachi, dated 30th of August 1974 (Annexure J) whereby while accepting the appeal, and setting aside the order of the Court below he has held that grievance notice dated 17-2-1973 given by the petitioner through an Advocate was not maintainable in view of the subsection (1) of section 25-A of Industrial Relations Ordinance, 1969 and that the subsection does not empower an agent or an Advocate of the workman to give a statutory notice and that the workman could approach the junior Labour Court after giving the proper notice and following the procedure laid down in section 25-A of I R O , 1969 only.
2. The facts briefly are that : Syed Mahmood Hussain the petitioner workman is a retrenched employee of respondent No. 2 Messrs Pakistan Tobacco Co. Ltd. (hereinafter called the employer).
According to settlement between the parties dated 17-11-1971 contained stipulations that in event of any vacancy for a job accruing at the factory the retrenched workers were eligible to fill the vacancy and preference was to be given to them against new recruits.
3. The employee (petitioner), however, came to know in months of January-February 1973 that two vacancies of peons are lying vacant in the Accounts Department and another in the Engineering Department. As such he sent grievance notice to the respondent/employer through his Advocate on 17-2-1973 and offered himself for re-employment according to the terms of settlement Annexure *A\ A reply was sent to the above notice by the employer on 26th February 1973 denying that there is any vacancy in the Engineering Department of the factory where the petitioner could be absorbed Annexure *B\
4. Being dissatisfied with the above reply to the notice the petitioner/ workman filed an application under section 25-A of I. R. O., 1969 before the Junior Labour Court No. V, Karachi who after hearing the parties by his order dated 9-7-1973, Annexure 'E' ordered re-instatement of the workman w. e. f. resignation of one peon Amanullah from Accounts Department. [1] 6. I have heard Mr. Abdus Samad, Advocate for the petitioner and Mr. Fazle Ghani, Advocate for the respondent. Learned counsel for the petitioner argued that the impugned order was passed on wholly wrong and incorrect interpretation of law and is an error apparent on the face of the record because according to him although section 25-A of I. R. O., 1969 envisages notice by a workman in case of any grievance to be addressed to his employer for redress of grievance to be in writing, either himself or through his shop- steward or Trade Union but under the general principle of law a wider interpretation should have been given to the word "himself'* used in the section because "he who does an act through another is deemed in law to do it himself5*. Therefore the grievance notice through his Advocate was a valid one. He further argued that the law does not lay down that the worker was to issue a grievance notice personally signed by him. The purpose and intention of law is to inform the Management about the grievance and it cannot be restricted that the worker to bring the grievance himself and not through his recognised , agent or Advocate and that the objection to the validity of notice was taken only at appellate stage and not earlier, therefore, learned first appellate Court should have ignored it as belated and that when there is possibility of two interpretations of l^w, the interpretation which advances the remedy and suppresses the mischief (should be adopted and in this case the intention of the Legislature in the I. R. O. was to make available remedies to the workman, therefore, the beneficial and wider interpretation may be given to section 25-A subsection (1) hence the grievance notice by an Advocate may be treated as valid notice and by" himself". In this regard he relied on a judgment of my learned brother Mr. Justice Abdul Hayee Kureshi in Writ Petition No. 242/75 Messrs Dawood Hosiery Mills v.
Hazrat Muhammad Yousuf and others'* (1) involving the same questions, that is the validity or grievance notice under section 25-A (1) of I. R. O., 1969 by an Advocate. Whereby he has held that the word "himself!* appearing in section 25-A of I. R. O., 1969 includes notice by Advocate and does not exclude the same.
7. As I am inclined with due respect to disagree with the interpretation put by my learned brother Mr. Justice Abdul Hayee Kureshi on the word "himself** appearing in section 25-A of I. R. O. I must in fairness reproduce in extenso his Lordship's reasoning which appear at pages 5 to 9 in para. 6 of the Judgment s-- "6. In regard to the first contention the facts are clear and admitted. The workman had given a notice to the employer through Mr. Abdul Latif Sheikh, Advocate. On 6-12-1973, making a grievance that after return from leave on 6-9-1973, he was allowed to work for 2 or 3 days and thereafter the employer terminated his sei vices. Mr. Hassan A.
Sheikh has contended that under section 25-A of Industrial Relations Ordinance, a grievance of the workman has to be brought to the notice of employer by the workman himself or through his Shop- Steward or Trade Union. The learned Advocate contends that the word "himself** excludes agency of Advocate and the only other agency contemplated by the statute is the Shop Steward or Trade Union ; and since agency of Advocate is not specifically mentioned, it should be deemed to be excluded by implication. In support of the contention reliance has been placed on an order of the Sind Labour Appellate Tribunal in the case of Hussain Textile Mills v. Mohammad Ishaque being - A photostat of a certified copy of the said order has been placed on record and the order of Junior Labour Court also (1) PLD 1975 Kar. 312 makes a reference to the said order. The passage in the order on which reliance is placed is reproduced below :-- 'Under section 25-A of the Ordinance, the Labour Courts would have jurisdiction only where the worker himself or his Shop Steward or Trade Union, has given grievance notice. It is well-settled proposition of law that where a certain thing is to be done by a certain person, it must be done by him and by no other person. The intention of the Legislature under section 25-A of the Ordinance appears to redress the grievance of the workmen as quickly as possible. The Labour Courts were directed to give their decisions within 20 days. The intention of the Legislature appears to be to avoid legal quibbles, which are likely to occur if the assistance of Advocates and legal practitioners are permitted. A "workman himself" under subsection (2) of section 25-A of the Ordinance cannot mean 'worker himself or through his agent.'
I would hold that the notice under section 25-A of the Ordinance was not competent by an Advocate of the workman.' In such context it has to be noticed that the Statute does not specifically bar notice by or through Advocates ; and I cannot overlook several Statutes specifically providing for exclusion of Advocates in representation of parties before the Tribunals created by such Statutes. Even under section 35-B or 49 of Industrial Relations Ordinance a party to an industrial dispute is not entitled to be represented by a legal practitioner in any conciliation proceedings. This would show that whenever the Legislature has intended exclusion of representation by a legal practitioner, such intention has been manifest explicitly. On the other hand such inference cannot be lightly countenanced by mere process of induction. The learned Advocate has argued that since section 25-A(l) of Industrial Relations Ordinance specifically referred to representation by Shop Steward or Trade Union it should be inferred that representation by any other agency including Advocate was barred. Such contention is also fallacious because a Shop Steward or Trade Union would not able to represent a worker, but for such recognition in the Statute. The case of an Advocate representing, stands on an entirely different principle. A person always has a right to be represented by an Advocate of his choice and such right cannot be lightly defeated by the mere fact that the person has also a choice of being represented by agencies other than Advocates. What is more that proceedings under the Industrial Relations Ordinance being of a civil nature, the representation by an Advocate is inherent in the system unless barred specifically.
Whenever an Advocate represents a party, a presumption arises that he acts on the instructions of his client and in such circumstances the voice of the Advocate is deemed by law to be the word, wish and welfare of the client. There is a further reason which has persuaded me to come to the conclusion that notice by Advocate is sufficient compliance of provisions of section 25-A, Industrial Relations Ordinance. In the society in which we live enormous illiteracy prevails, and most of the workmen employed in industrial concerns are illiterate. On the state of complicated legal machinery or legal requirements it would seem that an illiterate worker would never be able to submit his grievances, because the Statute requires such grievance in writing. The only argument advanced before me was that in such case the shop steward and Trade Union come to the assistance of the workman, but what if there is no Trade Union, it is not necessary that every concern must have a Trade Union. Would it then mean that the workman cannot avail of the services of an Advocate, in spite of peril to his rights. / Moreover, section 25-A of Industrial Relations Ordinance is a beneficial enactment which was introduced by the Legislature to safeguard the rights of workmen, and to exact them. Such enactments have as of necessity to be construed liberally so as to advance the remedy. In such cases provisions requiring something to done by a person are to be so construed as may include the doing of that thing by another. Maxwell on "Interpretation of Statutes", Tenth Edition, at page 74 has stated the case thus :-- 'A Statute which requires something to be done by a person would, except in cases subject to the principle that 'delegatus non potest delegare', be complied with, in general, if the thing were done by another on his behalf and by his authority, for it would be presumed that there was no intendon to prevent the application of the general principle of the law that *qui facit per alium facit per se' unless ttiere was something in either language or the object of the Statute which showed that a personal act was intended. On this ground, an Act of Parliament which requires that notice of appeal shall be given by Churchwardens is complied with if given by their solicitor/ The above proposition enunciated by the learned author is based on enormous case-law cited by him at the foot of page 74 at point (h).
I may also state that Mr. Hassan A. Sheikh has not attempted to argue that notice by Advocate had in any manner prejudiced the case of the employer who, I must state, even replied to the notice. I may in this context also state that the reason of avoidance of 'legal quibbles' as stated by the Labour Appellate Tribunal in the case relied on by the Advocate for the petitioner has not impressed me. for if a legal question or quibble does indeed exist, j ustice requires effective dealing with it rather than avoiding the same. I am therefore clear in my mind that the word 'himself* appearing in section 25-A (1) of Industrial Relations Ordinance includes notice by Advocate and does not exclude the same."
8. In support of the above judgment-learned counsel for the petitioner for the purpose of wider interpretation to be given to the word 'himself' in the section put reliance on Jackson & Co. v. Napper {1). The relevant passage relied upon by the learned counsel is at page 172 as under :-- 'I take it that, subject to certain well-known exceptions, every person who is Sui Juris has a right to appoint an agent for any purpose whatever, and that he can do so when he is exercising a statutory right no less than when he is exercising any other right. If it is necessary to refer to any authority in support of that, I may refer to the very recent case of In re : Whitley before the Court of Appeal with reference to signing a memorandum under the Companies Act of 1862 in which the Court held that the signature might be by an agent. And I understand the law to be that, in order to make out that a right conferred by Statute is to be exercised personally, and not by an agent, you must find something in the Act, either by wav of express enactment or necessary implication, which limits the common law right of any person who is sui juris to appoint an agent to act on his behalf. Of course the Legislature may do so, but prima facie, when there Is nothing said about it a person has the same right of appointing an (1) 35 Ch. D 162 agent for the purpose of exercising a statutory right as for any other purpose."
9. It may be noted that the learned Judge has clearly observed that subject to certain well-known exceptions these words are very important.
"Every person who is sui juris has right to appoint an agent for any purpose, whatever, and that he can do so when he is exercising a statutory Tight no less than when he is exercising any other right". In other words, the learned Judges kept in view that there may be circumstances when a law or a Statute put certain qualifications or conditions on the right of appearance through agents or a counsel. If so then first the conditions must be fulfilled. In the present Statute the word 'himself* in the section is specifically mentioned, therefore, the word 'himself' here cannot be treated otherwise than an exception to the general principle. Hence the judgment does not help the conusel for the petitioner, nor in my opinion, it is in consonance with the judgment of my learned brother.
10. On the other hand Mr. Fazle Ghani, Advocate appearing for the respondent submitted that subsection (1) of section 25-A must be strictly interpreted and that in different sections the repeated use of the word 'himself* in the Statute is a clear indication that the grievance notice must be brought to the notice of the employer by the workman in writing through only three agencies and none else as provided 'in the section which are ; (?) himself (i?) or through a Shop Steward, {Hi) or through a Trade Union which definitely according to him excludes any other duly appointed Advocate or an agent, hence no wider interpretation could be placed on the subsection. He pointed out that, adm.ttedly, in this case grievance notice was not given by the worker himself but by his Advocate, therefore, the very notice was not maintainable, hence the entire later proceedings had become invalid and illegal. I see sufficient force in this argument.
11. I may also observe that'had any of the learned counsel for the parties in PLD 1975 Kar. 312 brought Supreme Court judgment reported in Karachi Union of Employers and others v. The Industrial Court, Karachi and others to the notice of my leamed brother or to my notice they would have saved themselves of lengthy arguments advanced mostly on different principles. Be that as it may, the judgment of their Lordships of the Supreme Court clinches the controversy wherein while interpretint? section 34 of Industrial Disputes Ordinance with regard to representation of the parties, have held :-- ''The two subsections of section 34 of the Industrial Disputes Ordinance, 1959, if read without any qualification, are inconsistent with each other and in order that the two may be read together it is necessary to regard one of them as containing a general proposition and the other as containing a proviso to such a generation proposition. The first subsection of section 34 of the Ordinance is in fact in the nature of a general provision contained in procedural enactments entitling parties to be represented by other persons and the second subsection of the same section is a proviso or exception to the first. The Legislature regarded the appearance of legal practitioners (except in cases where all parties consent) in proceedings before Industrial Courts undesirable and therefore if legal practitioners, who are office-bearers of associations of employers or Unions of employees, were to be allowed to represent parties before the Industrial Court the very object of the law could be easily defeated. For there is no bar to the legal practitioners being appointed honorary office- bearer of Unions or associations and in all cases legal practitioners could without any difficulty be thus introduced in proceedings before the Industrial Court in the guise of office-bearers. Legal practitioners who are office-bearers of associations or Unions are, therefore, not entitled to appear before the Industrial Court." l2. It is obvious that under section 34 a workman party to an indutrial disputue was entitled to be represented in any proceeding under the Ordinance by an officer of a registered Trade Union and the employer was given the same right through an officer of association of an employer. And in the present case under section 25-A as noted earlier only three agencies are provided for the right of representation by the workman i. e. himself or through his shop steward or Trade Union, therefore, here the language of the Statute is very clear which confers the right given to the worker to the three agencies only and not for instance to his Advocate or attorney. When the words of Statute are clear as in this case, no wider interpretation can be put to it, which if allowed would amount to making violation with the language of Statute as well with intention of Legislature. A beneficial interpretation can only be given where the language is not clear and two or more different interpretations can safely be given to it but here in my opinion the word 'himself* needs no other interpretation except the 'workman himself* or through his two other agencies as provided in section to bring his grievance before the employer and not through an Advocate. Ignorance or illiteracy of the workman in the country is generally well-known aad it cannot be said that Legislature could remain ignorant of the fact hence this fact in my opinion cannot oe a valid ground to give a wider interpretation to the word 'himself*.
13. I am fufther supported in my view with regard to limited and strict interpretation to be given to word 'himself* by a judgment Monks v. Jackson (1). The word 'himself' came for interpretation under Municipal Elections Act, 1875 (38, 39 Viet. C. 40 S. 1), Subs. (3) which provided that a nomination paper must be delivered to the town clerk by the candidate 'himself' or by bis proposer or seconder personally. It was held by Lord Coleridge, C. J. that subsection (3) of S. 1 of 38 and 39 Viet. C. 40, enacts that every nomination-paper, subscribed as aforesaid shall be delivered by the candidate himself, or his proposer or seconder, to the town clerk seven days at least before the day of election, and before 5 o'clock in the afternoon on the last day on which any such nomination paper may by law be delivered. The persons petitioning here are persons who complain of the way in which the election was conducted, because they say they were duly nominated as candidates, and that if they had not been prevented from going to the poll the result of the election might have been otherwise. It is true they were not prevented from going to the poll by reason of any objection to the nomination- paper. But they question the election, and upon this special case we have to determine whether or not the respondents were duly elected. The 3rd paragraph of the special case states that, "upon the 22nd of October in due time nomination-papers nominating the respective petitioners as candidates for the respective words in the petition mentioned, were delivered to the town- clerk by one Scott, being then the agent of the petitioners and their respective proposers and seconders authorized by them in that behalf ; but the said nomination papers were not otherwise delivered to the town clerk by respective petitioners--or their proposers or seconders respectively." The case, therefore, shows on the face of it that the petitioners were not duly nominated as (l) (1876) 1 C P D 683 candidates, and had no right to go to the poll, and that if they had been elected their election must have been set aside, I am clearly of opinion that the early part of 38 and 39 Viet. C. 40 S. 1 subs. (3), is imperative and not merely directory. It further appears from S. 8 of 22 Viet. c. 35, which was referred to by Mr. Herschell, and which is incorporated in the lst section of the Act in question, that if the petitioners were not duly nominated, it was the duty of the mayor to declare the candidates who were duly nominated to be elected. And it appearing on the face of the case that the petitioners were not duly nominated, there is no ground for questioning the election of the respondents. We are, therefore bound to give our judgment in favour of the latter.'* Archibald, J. following the learned Chief Justice held that "the 3rd subs, of S. 1 of 38 and 39 Viet. C. 40 enacts that the nomination-paper "shall be delivered by the candidate himself or his proposer or seconder to the town clerk." He went on to observe "How 1he Legislature could more clearly indicate that paper shall be delivered by the candidate himself or by his proposer or seconder personally, it is difficult to conceive. That part of the section is clearly obligatory, and is not complied with by a delivery of the nomiration- paper to the town clerk by an agent. The fact being stated upon the face of the case, the petitioners are shown not to be qualified to appear to question the validity of the election".
15. Petition dismissed. (1) 23 Q B D 29 Jn view of clear judgment of their Lordships of the Supreme Court as well as of English Jurisdiction cited above, I am of the considered opinion that the word 'himself' in section 25-A (1) must be interpreted strictly and it cannot be given any extended or wider interpretation therefor, (the presentation of grievance notice through an Advocate by the petitioner in law does not amount as presentation 'himself'. The result is, I dismiss this petition, set aside the judgment of Junior Labour Court No. II (Mr. Abdul Jabbar Uqaili), dated 28-5-1974 and uphold the appellate Judgment of Abdul Hamid Baloch, Presiding Officer, Sind Labour Court No. IV, Karachi, dated 30-8-1974, 1 make no order as to costs because the petitioner is workman and fairly important questions of law of interpretation were involved.