The petitioner is a firm and owns a silk mill. The second respondent eras employed by the petitioner as a weaver in its mill, but he vas absent from 20th September, 1972 for about 2 weeks, therefore the petitioner had charge-sheeted him. Its notice was returned undelivered to it with the postal endorsement "refused". However, as the 2nd respondent appeared for duty on 10-10-1972, the petitioner allowed him to resume his employment. But he was again absent from the next day, and again did not care to make any application for leave to the petitioner. Therefore, after waiting for about two weeks, the petitioner again charge-sheeted him on 26-10-1972, and this notice also was returned undelivered with the same postal endorse--ment "refused." The 2nd respondent however claimed that he had addressed a leave application not to his employer, but to the Provincial Labour Minister, and, as he was not allowed to resume duty by the petitioner, he filed an application under section 25-A of the Industrial Relations Ordinance 1969 (hereafter called the said Ordinance), in a Junior Labour Court, Karachi. His prayer in this application was that he should be re-instated or that he should be paid all his legal dues.
2. The petitioner contested this application on various grounds. It advanced two legal objections. It contended firstly that the application against it was barred under section 25-A of the said Ordinance, as the 2nd respondent had not followed the procedure prescribed in that section.
Secondly, it was submitted that the application was barred under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (to which we shall refer as the Standing Orders Ordinance). Finally on the merits of the 2nd respondent's grievance its reply was that it was entitled to dismiss him because of his misconduct and wilful absence from duty. As the Junior Labour Court accepted the two legal objections of the petitioner, it dismissed the 2nd respondent's application by its order of 23-2-1972 without going into the merits of big claim: The 2nd respon--dent therefore filed an appeal against this order under section 36-D of the said Ordinance, and this appeal was allowed by the 1st respondent on 19th May, 1973. We may pause to observe here that this order has been erroneously described as an award. Be that as it may, the 1st respondent reversed the findings of the Junior Labour Court and held that the peti--tioner's factory was an industrial establishment within the meaning of the Standing Orders Ordinance and that the 2nd respondent's application was competent under section 25-A of the said Ordinance. Then with reference to the 2nd respondent's grievance, it observed that under Standing Order 12, it was "obligatory to give notice in writing of at least one month which is not in the present case as no notice was received spy the appellant." Finally, without attempting to consider the evidence of the postal acknowledge--ments produced by the petitioner 1st respondent held that the petitioner's charge-sheet had not been served on the 2nd respondent, therefore it allowed his application against big alleged illegal dismissal. The petition before us has been filed to quash this order of the 2nd respondent, and we would now consider the submissions of Mr. Mirza, the learned counsel for the petitioner.
3. Mr. Mirza's first submission was that the 2nd respondent could invoke section 25-A of the said Ordinance only if the petitioner was an industrial establishment within the meaning of the Standing Orders Ordinance, but that as the petitioner employed less than 50 workmen, it was not an indus-- trial establishment within the meaning of the Standing Orders Ordinance, there--fore the Labour Courts had no jurisdiction to entertain the 2nd respondent's claim. The first limb of the argument is correct, therefore the question is whether the petitioner was not an industrial establishment within the meaning of section 1 (4) (a) of the Standing Orders Ordinance. The applica--tion of the 2nd respondent was filed in January, 1973, and on that date section 1 (4) (a) of the Standing Orders Ordinance read as follows: "every industrial establishment or commercial establishment wherein twenty or more workmen are employed, directly or through any other person whether on behalf of himself or any other person, or were so employed on any day during the preceding twelve months and."
Mr. Mirza admitted that the petitioner bad admitted having more then twenty persons in its employment in the twelve months preceding the date on which the in respondent hail filed his application. But he submitted that the definition which we have quoted wag incorporated in tine Standing Orders Ordinance by the amendment of that Ordinance on November 15, 1972, But as the petitioner had dismissed the 2nd respondent a month earlier, learned Counsel's submission was that the rights of the parties were governed by the definition of an industrial establishment in the Standing Orders Ordinance on the date of the 2nd respondent's dismissal. The submission is contrary to the plain meaning of the definition which came into force on 15th November, 1972, therefore learned counsel attempted to cite authority to show that a statute affecting rights was presumed not to have retrospective effect. No authority is required. In this Court for the proposition that a statute affecting rights is presumed to be prospective but the Courts can fall back on this presumption only when the meaning of the statute is not clear. The amended definition of an industrial establishment is however very clear, and it is attracted to all establishments which bad employed more than 20 persons "on any day during the preceding twelve months", therefore, in view of the admitted position taken by the petitioner, its factory was an industrial establishment under the Standing Orders Ordinance, and to this extent we agree with the 1st respondent's view.
4. However, the 1st respondent had decreed the 2nd respondent's claim on the ground that the petitioner had not given the statutory notice required under Standing Order 12. Here Mr. Mirza's submission that this finding was based on a total misreading of evidence is correct, therefore, after bearing arguments, we had passed an oral order remanding the case to the Junior Labour Court: However whilst writing our judgment, it seemed to us that the Junior Labour Court's view that the 2nd respondent's application did not fall under section 25-A of the said Ordinance appeared to be correct. Therefore, we had given fresh notice for arguments and heard both the learned Counsel on 23-10-1973, and after hearing the learned counsel we find ourselves in agreement with the Junior Labour Court's view.
5. The heading of section 25-A of the said Ordinance is "Redress of individual Grievances". We would recall here that the procedure for such redress was contained in Standing Order 18 of the said Standing Orders Ordinance. However, that Standing Order was omitted by the Labour Laws (Amendment) Ordinance, 1972, and re-enacted with some modifications as section 25-A of the said Ordinance. This section was thereafter amended twice and as the impugned order is based on the section, as amended for the second time, it is necessary to examine the changes in the law.
6. We would begin with the Standing Orders Ordinance, and as we are concerned in this petition only with the question of an illegal termination of employment, it is sufficient to state here that a worker, aggrieved by big dismissal, was required under Standing Order 18 to give notice to his employer of his grievance "within fifteen days of the grievance being brought to his notice" and the employer was required to give his decision within thirty days of the receipt of the worker's communication. But if he failed to give big decision, or, if the worker was agreed by his decision, the worker was entitled to file an application in the Industrial Court for the redress of his grievance within sixty days of big bringing his grievance to the notice of his employer. But as observed by us, this Standing Order was omitted from the Standing Orders Ordinance, by the Labour Laws (Amendment) Ordinance, 1972, en 13-4-1972, and substituted by section 25-A of the said Ordinance. Now this section, as originally enacted, entitled a worker to bring big grievance to the notice of his employer either directly or through big Shop Steward or Trade Union "within three months of the day on which the cause of such grievance arises". The employer was thereafter required to communicate his decision on the grievance to the worker "within fifteen days of the grievance being brought to his notice". Finally, if the employer failed to communicate his decision, or, if the worker was dissatisfied with it, he had to prosecute his remedy in the Labour Court directly or through his Shop Steward or Trade Union "within a period of two months of the day of the communication to the employer." The effect of the change in the law was to entitle the work to prosecute his grievance through his Shop Steward or Trade Union and to enlarge the period within which ha could prosecute his grievance. But despite these changes, the worker was required to prosecute his remedies only wit1in a prescribed period and after notice to his employer. Thus the twin conditions for the jurisdiction of the Labour Court continued to be the same as those for the Industrial Court under Standing Order 18. and, as admittedly tae 2nd respondent had never served his employer with the statutory notice of his grievance, it is obvious that rite view of the Junior Labour Court was correct. As the 2nd respondent had not compile with a pre-condition of the Junior Labour Court's jurisdiction, the applica--tion filed by him could only be dismissed. However, in reversing they junior Labour Court's view, the 1st respondent bad relied on the amendment of section 25-A on 9th February, 1973 by the Industrial Relations (Amend--ment) Act, 1973. Mr. Chishti also relied o this amendment and for the purpose of his petition, it is sufficient to point out that Junior Labour Courts were set up by the Industrial Relations (Amendment) Ordinance, 1972 of 10-11- 1972, sad section 25-A was amended, so that applications for the redress of individual grievances had to be filed in Junior Labour Courts. Finally, section 25-A was again amended on 9-2-1S7i by the Industrial Relations (Amendment) Act, 1973, and subsection (6) was added to sec--tion 25.A. This subsection, on which Mr. Chishti relies, reads as follows: "Notwithstanding anything contained in subsections (1) to (4) any worker aggrieved by the termination of his employment as a result of retrenchment, dismissal, discharge, lay-off, lock-out, or otherwise not earlier than two months preceding the commencement of the Industrial Relations (Amendment) Ordinance, 1972, may, within a period of two months from the commencement of the Industrial Relations (Amendment) Act, 1973, or the termination of the employ meat whichever is later, either himself or through his Shop Steward or Trace Union, take the matter directly to a Junior Labour Court having jurisdiction in the area in which the establishment is situated."
As the 2nd respondent's services were terminated in October, 1972, Mr. Chishti submitted that be was enticed to the benefit of this section because his grievance had arisen "not earlier than two months preceding the commence--ment of the Industrial Relations (Amendment) Ordinance, 1972'". This submis--sion is correct, but the 2nd respondent was required tinder subsection to "take the matter directly to a Junior Labour Court"; clearly therefore he should have filed a fresh application after 9-2-1973 for the redress of his grievance. But he did not do so and in order to bring his case within the subsection, the 1st respondent in appeal treated The application of lath January, 1973, as an application under subsection (6), which came into force almost a month later. But although this application had been filed before this final change in the, law on 9-2-1973, the 2nd respondent bad not served the statutory notice out the petitioner therefore on the plain language of section 25-A, as it stood on 18th January, 1913, the Junior Labour Court did not have any jurisdiction to entertain his application. But according to Mr. Chishti the application was saved by the subsequent change in the law. Now as the application was not competent when filed, it was a nullity in law, therefore it did not exist, and this means that it could not be resurrected by a subsequent change in the law. Mr. Chishti however stressed the fact that the change in the law was intended to be retrospective. We have quoted subsection (6) and clearly it confers on the worker the right to prosecute a grievance which might have lapsed under the earlier law. But as we observed earlier the result of the subsection was that the 2nd respondent was required to file a flesh application ; this he did not do, and, on the other hand, there is nothing in tile subsection to lend any support to the view that an application, which was a nullity, could, automatically be revived or resurrected, so to say, in consequence by this change in the law.
7. Learned counsel's last hope was in the authorities. Mr. Chishti referred us to a judgment of the Supreme Court in Muhammad Abdullah v. Imdad Ali (1972 SCMR 173). The question before their Lordships was the construction of an amendment in section 537 of the Criminal Procedure Code. By this amendment, which was enacted in West Pakistan in 1964, the powers of an appellate Criminal Court were enlarged, but the High Court was of the view that this provision could not be given retrospective effect. This view was reversed by their Lordships, who pointed out that the amendment was of a procedural nature and must therefore be deemed to be retrospective. We were not able to understand the relevance of this authority to the present case, but cause their Lordships held that the amendment of section 537, Cr. P. C. had enlarged the appellate powers of Criminal Courts, Mr. Chishti submitted that this supported his argument about what we can only describe as the resurrection of the 2nd respondent's application of 18th January, 1973, to the Junior Labour Court. The argument is totally misconceived. In the first place, the amendment of section 537, Cr. P. C. was an amend--ment in procedure which is presumed to be retrospective, but Mr. Chishti's submission before us was that section 25-A (a) revived rights which had been extinguished under the earlier jaw. Now, this submission necessarily implies that subsection (6) affects substantive rights, therefore, in accordance with the judgment of their Lordships it cannot be presumed to be retrospective, accordingly we cannot possibly hold that the subsection was intended to revive an application which was a nullity when filed. Secondly, the judgment of their Lordships relates to the powers of the regular Courts and there is a material distinction between Courts and Tribunals. There is a presumption in favour of the jurisdiction of regular Courts so that an illegal exercise of jurisdiction by a regular Court may not automatically render its order void. But the jurisdiction of a Tribunal is fettered by the statute under which it is created, and if it exceeds the conditions for the exercise of its jurisdiction, its order will be void. Accordingly, on this ground also, the judgment cited is distinguishable. Mr. Chishti also relied on Safdar Ali v. Ibrahim Ellahi (1969 SCMR 166) but this judgment too is distinguishable on the facts.
8. On the other hand, Mr. Mirza referred us to an old judgment of the Calcutta High Court reported in Jyotish Prokas Chattoraji and another v. Bagla Kanta Choudari and others (AIR 1922 Cal: 27). The question here was whether the institution of a suit in a Court without jurisdiction could be invalidated subsequently by the conferment of jurisdiction on that Court. In answering the question in the negative, the learned Judges observed: "Conversely, it has been maintained that if an action is commenced in a Court without jurisdiction over the subject-matter, the proceeding is void, nor will the fact that subsequently jurisdiction was by law conferred upon the Court over that class of cases cure the error'. We are in respectful agreement with these observations, and in our humble opinion the observations quoted are applicable by parity of reasoning to the instant case. In any case, we have fur--ther to observe that even are precluded by authority from taking a contrary view. In Saleemsons Ltd. v. Second Sind Labour Court (PLD 1973 Kar. I) a worker had sought relief from the Labour Court, but long after the expiry of the period prescribed in Standing Order 18 for filing such an application, therefore a Division Bench of this Court held that as he had not strictly complied with Standing Order 18, the Labour Court "had no jurisdiction to entertain the complaint" by him. The rule laid down in this judgment is fully applicable to the present case, because, as we have shown earlier, the relevant provisions of Standing Order 18 and of section 25-A are in pari materia. Mr. Chishti however feebly submitted that the two statutes were not in part materia. We have examined the two statutes earlier, and although there are some differences between them, the differences are not material. Both the Standing Order 18 and section 25-A prescribe that a worker can approach the Tribunal for relief only if he first gives a notice to the employer send if he seeks redress from the Tribunal within a prescribed period. These provisions are the conditions of the Tribunal's jurisdiction, therefore the present case falls under the rule laid down in Saleemson's case. Accordingly, for the reasons given therein, we set aside the 1st respondent's order of 19th May, 1973, restore the Junior Labour Court's order of 23rd February, 1973, and allow the petition without costs on 23-10-1973.