1. GHULAM SAFDAR SHAH, C. J.-This petition under Article 199 of the Con--stitution is meant to call in question the order of Labour Court, N.-W. F. P. Dated 20-1-1975 by which it rejected the application of petitioner-Company praying therein that under the Second Amending Ordinance of 1972 (West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (LI of 1972)
2. (hereinafter called the Ordinance), it was not obliged to pay by way of gratuity to its workers wages for 20 days calculated on the basis of their average earning during the last three months.
3. The main contention of the petitioner is that the Ordinance is not retroactive in character. But this contention did not find favour with Labour Court.
2. The short question in this case for determination, therefore, is where--thee the Ordinance is retroactive in character. Before dealing with this question, however, it would be necessary to refer to the relevant enactments providing for payment of gratuity to workers. It is conceded that the first enactment on this subject is Ordinance VI of 1968, commonly known as West Pakistan Industrial and Commercial Employment (standing Orders) Ordinance, 1968, which came into force on 8-3-1968. Under this Ordinance, it was provided that a worker would be entitled to gratuity for fifteen days for each completed year of service or service in excess of six months. There--after, another Ordinance XVIII of 1972 was promulgated on 27-5-72, substituting subsection (5) of Standing Order 12 by a new subsection, namely, subsection (6) leaving, however, the provision of gratuity 15 days intact. To these Ordinances, the learned counsel for parties have no objection. But the difficulty arose when by a third Ordinance LI of 1972, which came into force from 16-11-72, subsection (6) was further amended allowing to a worker gratuity for 20 days instead of 15 days.
4. We would presently address ourselves to the purport of this provision. But before that, let us consider the preliminary objection raised by the learned Advocate-General as to the maintainability of this petition.
5. He argued that against the impugned order of Labour Court, which to all intents and purposes would be an "award", an appeal lay to Labour Appel--late Tribunal. But since this remedy has not been availed of, petitioner should be refused the extraordinary jurisdictions of this Court. In this respect, he relied on subsection (3) of section 37 of Industrial Relations Ordinance, 1969 which is as follows:-- "Any party aggrieved by an award given under subsection (1) may prefer an appeal to Labour Appellate Tribunal within 30 days of the delivery thereof and the decision of the Tribunal in such appeal shall be final."
6. In order to appreciate this contention, it would be proper to reproduce the provisions of section 34 of the said Ordinance under which the petitioner had filed their application before Labour Court.
7. This section reads as under: "Any Collective Bargaining Agent or any employer may apply to the Labour Court for the enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement."
8. A look at the language of this section would show that a cause, which is required to be determined thereunder, must be one for the enforcement of any right guaranteed or secured to a Collective Bargaining Agent or an employer under any award or settlement. This being the clear connotation of this section, it is obvious that the adjudication of an industrial dispute thereunder, being neither "an award" nor a "settlement", would be clearly without jurisdiction. In support of our conclusion that the adjudication of an industrial dispute is not an award, reference may be made to clause (it) of section 2 of Ordinance, 1969 in which an award has been defined thus:- "the determination by a Labour Court, Arbitrator or appellate Tribunal of any industrial dispute or any matter relating thereto and includes an interim award."
9. In so far as the resolution of an Industrial dispute is concerned, notice may be taken of section 32 of Ordinance, 1969. In subsection (1-A) of this section it is said that a party raising a dispute may at any time either before or after the commencement of a strike or lock-out, make an application to Labour Court for its adjudication. And under subsection (5) of it, a Labour Court is required to afford to parties an opportunity of being heard and then make such award as it would deem fit. It may be mentioned, however, that under the warrant of section 43 of the said Ordinance:- "No industrial dispute shall be deemed to exist unless it has been raised in the prescribed manner by a collective bargaining agent or an employer."
10. The words "raised in the prescribed manner" are significant. These words would appear to convey the intention of Legislature that the raising of a frivolous industrial dispute must be discouraged. To achieve this object it has in sections 26, 27 and 28 of the Ordinance, laid down a comprehensive procedure the observance of which, before an industrial dispute can be said exist within the meaning of section 43, has been made essential. It is no body's case that in the application filed before Labour Court by the petitioner, it bad "raised in the prescribed manner" or asked for the resolutions of any dispute between the parties. All that was prayed in that application was that under the law, the petitioner was obliged to pay to its workers gratuity for 15 days and not 20 days under the Ordinance of 1972, as it was prospective in nature.
11. Mr. M. Sardar Khan, the learned for counsel petitioner brought to our notice at this stage a Division Bench judgment in the case of Muhammad Aqil v. Chairman, Sind Labour Appellate Tribunal (1974 PLC 194) in which an identical objection was repelled as under:- ---......As aforesaid award has been defined in the Industrial Relations Ordinance, 1969 as meaning determination by a Labour Court of any industrial dispute or any matter relating thereto. Can it be said that in exercise of its jurisdiction under section 34 of the Ordinance the Labour Court is determining an industrial dispute? From this language of section 34 it would appear that the Court does not under it either determine or adjudicate upon rights of the parties. The section merely provides for enforcement of pre-existing rights and not determination or adjudication of rights between the parties. In this view of the matter the decision of the Industrial Court under section 34 would not fall within the meaning of the award as defined in the Industrial Relations Ordinance, 1969, for award is determination of an industrial dispute or any matter relating thereto and not enforcement of a recognized right guaranteed to a workman under any law, settlement or award.
12. The result is that an order under section 34 made by the Industrial Court in this case was not an award and, therefore, it was not appealable under section 37 of the said Ordinance."
13. We are in respectful agreement with this dictum. In this view, there is no force in the preliminary objection of the learned Advocate-General and it is rejected.
14. As to the merit of the case, there is not much difficulty, The learned Labour Court seems to have agreed with the contention of petitioner that the Ordinance of 1972 was not retroactive in application. But even so, held in favour of workers saying as follows:- "The amendment is not retrospective and therefore only those claims are to be paid at the rate of twenty days wages which arise after the afore--said amendment came into play and therefore there is no escape from the conclusion that these claims have to be paid at twenty days wages for every completed year of service or any part thereof in excess of six months. I think the petitioner fell into error due to the nature of the claim itself. Gratuity constitutes a claim which has to be calculated in respect of the past service at a future date and such calculation is not based upon the fact that the amendment has been given a retrospective effect. The amendment has come into force on 16-11-1972 and so all the claims arising after 16-11-1972 shall have to be paid at the rate of 20 days wages for all the previous service. Gratuity, as stated aforesaid is by its very nature a claim relating to a past period and so the emphasis should be on the date when the claim arises and not the period for which it is being paid because in any case, it has to be paid for the past period and there cannot be controversy about it. Nobody would suggest that as the payment of gratuity has been introduced in 1968 therefore it should be paid only for the period of service rendered in 1968 or after it. It was introduced in 1968 but it shall have to be paid with regard to the period prior to 1968. The same anology holds good in the present case we can say for the sake of arguments that gratuity has been introduced for the first time on 16-11-1972 to be paid at the rate of wages for twenty days for every completed year of service whether prior to the date mentioned above or after it. The error has arisen only due to the fact that though the claim arises after 16-11- 1972 but it also relates to the period preceding it."
15. With this reasoning, however, we have not been able to agree. It is clear to us that the learned Labour Court has not been able to appreciate the inter-play of Ordinance, 1972, by which the existing liability of petitioner to pay to its workers' gratuity at the rate of 15 days for each completed year of service was enhanced to 20 days. By its vary nature, therefore, the Ordinance in question cannot be said to be procedural in nature so as to hold that it would be applicable retroactively. It is true that normally the Legisla--ture would have all the power to say that a law shall apply with retrospective effect. But then the instrument must reveal its intention either expressly or by necessary intendment. The learned Advocate-General readily agreed with] this well settled legal position. But all the same, we would like to take note of a judgment of Supreme Court of Pakistan in the case of Income-tax Officer v. Sulaiman Bhai jiwa (PLD 1970 SC 80) from which the following dictum would appear to be relevant:---- "No rule is more firmly established than the rule with regard to retros--pective operation of a statute Law. It is a fundamental rule of law that no statute shall be construed to have retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication."
16. Their Lordships also referred to the word "shall" appearing in the instrument, the construction of which had fallen for consideration and held that by the use of that word, the Legislature had intended that the instrument was to apply prospectively.
17. Now by examining the language of Ordinance of 1972, there is nothing in it to show that the Legislature had, expressly or by necessary intendment, intended to apply it retroactively. Not only this, but in subsection (2) of section 1 of the Ordinance, it is said that '-It shall come into force at once." And from this, it would follow that it was intended to be applicable pros--pectively with effect from 16-11-1972 on which date the Ordinance was promulgated.
18. Now before the Ordinance of 1972 came into force, the liability of petitioner was to pay to its workers gratuity at the rate of 15 days for each completed year of service. But after the Ordinance in question it was burdened with the additional liability of five days. To apply the Ordinance, therefore, retroactively, as the learned Labour Court has done in this case' would be impermissible unless of course the Legislature can be shown to have intended to do so which, however, is not the case. The impugned order of the Labour Court is, therefore clearly erroneous.
19. This petition is, accordingly, allowed. And we hold that the Ordinance of 1972 would be applicable prospectively from 16-11-1972 on which date it came into force. Consequently, the impugned judgment of learned Labour Court is held to be illegal and of no effect whatever. Under the circum.
20. Stances however, the parties would bear their own costs.