Respondent No. 3 was working as a Machine Man in the petitioner-Firm and resigned from service on 4-9-1973. The petitioner-Firm, as it then stood, consisted of three partners and had reached this position after undergoing many f changes since its coming into existence somewhere in 1950. It was dissolved on several occasions and reconstituted after change of partners. The last occasion when it was dissolved was on 1st April 1970, and it was constituted of only three partners to carry on the business as from that date. However, the name and style of the Firm remained the same ever since it came into existence and continued to carry on the same business, viz., the manufacture of tools throughout. Respondent No. 3, moreover, despite the frequent changes in the partnership of the Firm, remained working in the Firm from 3-12-1961 without break, until his resignation was accepted from service by the management of the partnership Firm on 4-9-1973.
2. On 22-12-1973 respondent No. 3 filed an application before the Junior Labour Court under section 25-A of the Industrial Relations Ordinance, 1969 for payment of gratuity on 20 days wages' for every completed year of service from 3-12-1961 up to 4-9-1973, amounting to Rs. 1560. The application was resisted by the Management, inter alga, or. The following grounds :-
(1) That the Junior Labour Court (respondent No. 2) had no jurisdiction to entertain and respondent No. 3 had no focus standi to file the application for payment of gratuity before respondent No. 2, as the' remedy to the said respondent was available by an application under section 15 of the Payment of Wages Act, 1936 before the Authority appointed under the aforesaid section of the Act, which was the special law on the subject and that the provisions of section 25 A of the Industrial Relations Ordinance, 1969 were not attracted.
(2) That the petitioner-Firm was formed and registered on 1-4-1970 and was not, therefore, liable to nay gratuity for the period prior to the said date as the respondent was not its employee fear the period prior to its formation.
(3)That the payment of gratuity equal to twenty days wages was provided by the amendment which was effected on 15-11-1972, (vide Ordinance LI of 1972). Before the said date gratuity was payable only equal to fifteen days wages for every completed year of service and as the amendment was only prospective and did not have any retrospective effect, it would not therefore affect the entitlement to or to the rate of gratuity for the period prior to its enactment.
3. The Junior Labour Court (respondent No. 2) vide its order dated 21-1-1975 upheld the last mentioned contention advanced on behalf of the petitioner-Firm that payment of gratuity under section 12 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was not prospective and that, therefore, respondent No. 3 could only obtain gratuity equal to fifteen days wages for every completed year of service for the period prior to 15-11-1972 and equal to twenty days' wages of every completed year of service thereafter. It, however, overruled the other to objections raised by the petitioner-Firm holding that it had the jurisdiction to entertain the application and that the petitioner was liable to pay gratuity with effect from 3-12-1961 up to 4-9- 1973.
4. Aggrieved by the above order, the petitioner filed an appeal before the Presiding Officer, Punjab Labour Court No. 2, Lahore (respondent No. 1). Respondent No. 3 also filed an appeal in respect to the lower rate of gratuity granted by respondent No. 2 for the period prior to the amendment, claiming that he was entitled to it at the rate of twenty days' wages for every completed year of service. Both the appeals were heard together by respondent No. 1, who vide his order dated 27-2- 1975, dismissed the appeal of the petitioner, on the ground that even if the application for payment of gratuity by respon--dent No. 3 lay before the Authority under the Payment of Wages Act and not the Junior Labour Court under section 25-A of the Industrial Relations Ordinance, 1969, as an appeal against the order passed by either of the to Authorities lay to him, the objection of the petitioner was not, therefore, substantial and the course followed had not in point of fact, caused any injustice to the petitioner-Firm, because there was no force in the objections raised by the petitioner with respect to the grant of gratuity to respondent No,
3. On the other hand the appeal of respondent No. 3 regarding the rate of gratuity was accepted on the ground that as respondent No. 3 resigned from service after the amendment in section 12 of the West Pakistan Indus--trial and Commercial Employment (Standing Orders) Ordinance, 1968, he was accordingly entitled to the grant of gratuity for the entire period of service at the rate prescribed by the law in force at the the when he resigned Respondent No. 3 was accordingly granted a sum of Rs. 1,560 as gratuity, as originally prayed, and the appeal of the petitioner was dismissed.
5. This writ petition is directed against the orders passed by the Junior Labour Court dated 21-1-1975 and the order passed by the Punjab, Labour Court No. 2, Lahore, dated 27-2-1975.
6. Before me only to grounds were pressed :-
(a) That neither the Junior Labour Court nor the Punjab Labour Court. No. 2 had the jurisdiction to adjudicate upon the claim for payment of gratuity under section 25-A of the Industrial Relations Ordinance, 1969, in so far as such a claim could only be made under the Authority established under the Payment of Wages Act, 1936; and
(b) that in any case the petitioner-Firm was not liable to pay gratuity before 1-4-1970 when the present partners took over the Management of the said Firm.
7. Payment of gratuity to workmen was allowed for the first the by the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the Standing Orders Ordinance). Standing Order 12(5), which confers this right for the first the reads ag.
Follows :- "12(5) Where the services of a permanent workman are terminated for reason other than misconduct, he shall addition to the wages payable to him under clause (1), be paid gratuity equivalent to fifteen days wages for every completed year of service or any part thereof in excess of six months .
8. The mode for enforcement of any right conferred under the said Statute was provided by having resort to the "Grievance Procedure" laid down in Standing Order 18, of the above-said Ordinance.
According to this Standing Order any individual workman who had a grievance in respect of any matter under the Ordinance could seek redress thereof by resorting to the procedure laid down for the redress of his grievance. This provided, inter alia, for the making of a complaint to the Industrial Court in cases where the employer did not give redress voluntarily.
9. On 13th April 1972, however, the "Labour Laws (Amendment) Ordinance, 1972 (IX of 1972) was promulgated, whereby the Standing Order 18 was altogether omitted and instead an amendment was made in the industrial Relations Ordinance, 1969, by the insertion of a new section 25-A, dealing with the redress of individual grievances. Under this provision a worker could 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 the 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. 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. Where the worker brings his grievance to the notice of his employer through his shop steward or Trade Union, the employer shall be obliged to communicate his decision in writing to the shop steward or the Trade Union, as the case may be, within seven days of the grievance being brought to his notice. In case the employer fails to communicate the decision within the specified period, the matter can be taken up before the Labour Court. (By a subsequent amendment, made by Act XXIX of 1973, the Labour Court was substituted by the Junior Labour Court, against which an appeal was provided for to the Labour Court).
10. According to the learned counsel for the petitioner this procedure could not be resorted to by any workman after the promulgation of the Pay--ment of Wages (Amendment) Ordinance, 1972, whereby an amendment was made in subsection (1) of section 15 to the effect that the Authority under the said Act could not only be approached with regard to all claims regard--ing payment of wages, but also with regard to all claims regarding non-pay--ment of dues relating to provident fund, and gratuity payable under any law. (It may be mentioned that the aforesaid Ordinance was later converted into an Act-Payment of Wages (Amendment) Act, 1973 (Act XVII of 1973). Section 22 of the said Act barred suits in these matters and laid down as follows :- "Bar of suits.-No Court shall entertain any suit for the recovery of wages or of any deduction from wages in so far as the sum so, claimed-
(a) forms the subject of any application under section 15 which has been , presented by the plaintiff and which is pending before the Authority appointed under that section or an appeal under section 17; or
(b) has formed the subject of a direction under section 15 in favour of the plaintiff; or
(c) has been adjudged, in any proceeding under section 15, not to be owed to the plaintiff; or
(d) could have been recovered by an application under section 15."
The argument is that with regard to the question of recovery of provident fund, the Payment of Wages Act is the special enactment, whereas the general enactment for redress of all rights guaranteed to workmen, under any law, is contained in the Industrial Relations Ordinance, 1969.
Whenever there exists a particular enactment and a general enactment dealing with the same subject-matter, it is the particular enactment that governs the matter sad not the general enactment. In this connection the following observations made by Hamoodur Rahman, J. (as his Lordship then was) in the case of Abul A'la Maudoodi v. Government of West Pakistan (PLD 1964 SC 673) were brought to my attention :- "This is another aspect of the matter which does not appear to have received consideration in the High Courts, namely, as to whether where action producing the same result in pith and substance is possible under to different statutes upon the same grounds it would not be legitimate to hold that action should more appropriately be taken under the special statute dealing specially with the subject matter by expressly specifying the grounds upon which action can be taken and providing a special method of action rather than under a general statute, particularly, where the special statute provides a more beneficial remedy or method of taking action. In such circum--stances I would have no hesitation in holding that where a special statute dealing with a special subject created special liabilities as also provided a special remedy or procedure for the enforcement of that liability then in order to bring about the consequences contemplated by that statute for the breaches of its provisions recourse should be bad to that statute and to no other statute."
Reliance was also placed on Noor Zaman v. Mst. Saidano (PLD 1967 Pesh. 343), which is a Single Bench judgment, in which it was held that where a Special Tribunal is created, then by necessary implication the jurisdiction of the ordinary Courts is excluded even in the absence of the express words ousting the jurisdiction of the ordinary Courts.
11. The above dicta do not appear to be relevant in the circumstances of the case, because in the present case to remedies appear to be available to the workmen. It has been seen that the right to obtain gratuity was conferred by the Standing Orders Ordinance, its enforcement was initially provided for in the said Ordinance by Standing Order 18, but after its omission, on 13-4-1972, the enforcement of the said right was only possible under the provisions of section 25-A of the Industrial Relations Ordinance, which were inserted in the said Ordinance on the same day by the same Ordinance (IX of 1972). Thereafter, the Payment of Wages Act was amended on 26-10-72 by the Payment of Wages (Amendment) Ordinance, 1972 and workmen could move the Authority created under the said Act , to only for the enforcement of their claims to wages, but also for the enforcement of their claims towards the payment of provident fund orgratuity, to which they might be entitled under any law. As from 25-10-1972 the workman was provided with to remedies in the matter of recovery of provident fund, namely, either to approach the Authority under the Payment of Wages Act or to move the Labour Court under the Industrial Relations Ordinance. It may, however, be noted, that some difficulty could arise in obtaining relief from the Authority under the Payment of Wages Act, because even though under subsection (1) of -section 15 matters relating to non-payment of wages and provident fund payable under any law could be taken cognizance of by the Authority appointed under the said Act, the corresponding amendment was not made in the succeeding provisions of section 15. This becomes manifest from the perusal of the relevant part of section 15, which reads as follows:- "15. Claims out of deductions from wages or delay in payment of wages and penalty. For malicious or vexatious claims.-(1) The Provincial Government may, by notification in the official Gazette appoint any Commissioner for workmen's compensation or other officer with experience as a Judge of a civil Court or as stipendiary Magistrate to be the authority to hear and decide for any specified area all claims arising out of deductions from the wages, or non-payment of dues relating to provident fund or gratuity payable under any law or delay in the payment of wages, of persons employed or paid in that area.
(2) Where contrary to the provisions of this Act any deduction has been made from the wages of an employed person, or any payment of wages has been delayed, such person himself, or through any legal practitioner, or any official of a registered Trade Union authorised in writing to at on his behalf, or any Inspector sunder this Act, or any other person acting with the permission of the authority appointed under subsection (1) may apply to such authority for direction under subsection (3)
'Provided that every such application shall be presented within three years from the date on which the deduction from the wages made or from the date on which the payment of the wages was due to be made, as the case may be : Provided further that any application tray be admitted after the said period of three years when the applicant satisfies the authority that he had sufficient cause for not making the application within such period.
(3) When any application under subsection (2) is entertained, the authority shall hear the applicant and the employer or other person responsible for the payment of wages under section 3, or give them an opportunity of being heard, and, after such further inquiry (if any) as may he necessary, may, without prejudice to any other penalty to which such employer or other person is liable under this Act, direct the refund to the employed person of the amount deducted, or the payment of the delayed wages, together with the payment of such compensation as the authority may think fit, not exceeding ten times the amount deducted in the former case and exceeding ten rupees in the latter."
It may further be noted that in the definition clause of the Payment oft Wages Act the term "wages" has been defined (in sub-clause (vi) of section 2) but it has been made clear therein that gratuity payable on discharge is not included in the expression "wages". The perusal of subsection (2) and subsection (3) of section 15 of the Payment of Wages Act shows that it provides for the procedure for recovery of "wages" only and not for recovery of gratuity, because section 15 has not been properly amended, to deal with the question of payment of gratuity and the procedure in this respect has not been specifically laid down. There is no mention of the direction that the Commissioner can issue in this respect. The mere conferment of power under subsection (1) of section 15 to deal with the question of non-payment of gratuity may not thus enable a workman to approach the Commissioner with fruitful results in the absence of the necessary amendments being made in subsections (2) and (3) of section 15. It is true that where a Legislature introduces a substantive provision in a statute but omits to make the consequential amendment in the procedural law, the Court is competent to give effect to the true and patent intention of the lawmaker by supplying the omission, if the intention of the Legislature is clear. See Shakeel Ahmad. v. State (PLD 1972 Lab. 374), but it is possible that the Authority, under Payment of Wages Act, might feel hesitant in proceeding in connection with the payment of gratuity without the exact terms of the law being before it as to what direction ban be made with regard to its payment.
12. The argument that because section 22 of the Payment of Wages Act bars any suit to be filed with respect to a matter liable to he dealt with under the Act before any Court, the proceedings before the Labour Court would also be barred is not correct. The word "Court" occurring in section 22 is not a bar to the entertainment by a Labour Court of a claim for payment of wages. See in this connection Messrs Luxury House v First Labour Court (PLD 1969 Dacca 410) wherein Salahuddin, J.
(now Judge of the Supreme Court) observed as follows :- "Evidently the section bars a Court to entertain any suit for the recovery of wages and the "Court" referred to appears to us to her a "Civil Court" and not a Court of the special description as the Labour Court. The proceeding before the Labour Court under section 25 of the Standing Orders Act is not a suit. In our opinion, therefore, section 22 of the Payment of Wages Act has no applications to the present case."
Similarly in Americana Dry Cleaners v. Abdul Karim (PLJ 1973 Tr. C. (Lab.) 242), Mr. Inamullah Khan, formerly Chief Justice of the West Pakistan High Court, while construing the provisions of the West Pakistan Shops and Establishments Ordinance 1969, observed "Labour Courts are not Civil Courts.
They have only certain powers of a civil Court in certain matters. I would hold that the application under section 25-A of the Industrial Relations Ordinance was maintainable".
13. I may further observe that the remedy under section 25-A of the Industrial Relations Ordinance seems to be a more beneficial remedy than the one prescribed under section 15 of the Payment of Wages Act, inasmuch as not only can the aggrieved person approach the Labour Court for the redress of his grievance under the Industrial Relations Ordinance, but he can also approach the said Court through the shop steward or his Union who can also take up the grievances on his behalf. Furthermore, certain the limits are specified within which the Courts established under the Industrial Relations Ordinance are to give their decisions.
14. The above discussion shows that the amendment made in section 15(1) in the Payment of Wages Act merely confers an additional jurisdiction in respect of payment of gratuity payable to a workman under any other law on the Authority created under the said Act. As has already been noticed, the Payment of Wages Act does not confer a right to payment of gratuity, because the said right is conferred by another enactment, namely, the Standing Orders Ordinance. Hence, it merely provides for the enforcement of a right conferred by some other law. The argument of the learned counsel for the petitioner would have had some force if the right was created by the same statute which provided the remedy for its enforcement. In such a case no doubt the Tribunal created told determine the said right would have exclusive jurisdiction. However, in this case only the Payment of Wages Act provides for the remedy, but the right is conferred in another statute.
Hence the person aggrieved appears to be the master of the situation and can pick and choose the forum, which he considers more appropriate for the redress of his grievance. This is not a case of exclusion of jurisdiction, but a case of to remedies being available to a person, leaving the person concerned to choose whichever remedy is more beneficial to him. I would hold therefore, that the application under section 2,5-A of the Industrial Relations Ordinance, filed by respondent No. 3 could be entertained by respondent No. 2.
15. So far as the second contention that the present management .Of the Firm was not liable for the liability of the previous management before 1-4-1970, suffice it to say that this is not a case of the management being burdened with the liabilities of the previous management, but is a case of a fresh liability being incurred, -on account of the promulgation of law, which has imposed upon the employer the liability to pay gratuity in respect of his employees. This liability is cast on the employer from whose service the employee relinquishes service. The orders of the Junior Labour Court and the Punjab Labour Court holding the petitioner-Firm liable to pay the full amount of gratuity are correct and do not require any interference.
16. The result is that there is no force in this petition, which is hereby, dismissed. As a difficult question of law arose for determination, there shall tie no order as to costs.