1. DORAB PATEL, J.-Both these appeals have been filed against a judgment of the Peshawar High Court dated 7th April 1976, and the first respondent in both the appeals is a company incorporated under the Companies Act, 1913. This respondent owns a textile Mills, in which about 2,000 Labourers are employed and 1 will for convenience refer to it in this judgment as the Mill.
2. On the promulgation of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance VI of 1968 (hereafter called the said Ordinance), the Mill became liable to pay gratuity under Standing Order 12 of the said Ordinance to those of its workers whose services had been terminated for reasons other than misconduct, and whilst I will presently examine the history of Standing Order 12, in some detail, it is sufficient to state here that gratuity was payable under this Standing Order at the rate of "15 days' wages for every completed year of service." This Standing Order was amended by the Labour Laws (Second Amendment) Ordinance, 1971, but this amendment is not relevant to the arguments advanced before us. The Standing Order was amended for the second time on 16th November 1972, by the West Pakistan Industrial and Commercial Employment (Standing Orders) (Amendment) Ordinance, 1972, and by this amendment the gratuity was to be paid to a workman at a rate equivalent to 20 days' wages for every completed year of service. I will refer to this Ordinance as the amending Ordinance, and it was repealed on the promulgation .Of the West Pakistan Industrial and Commercial Employment (Standing Orders) (Amendment) Act, 1973, but nothing turns on this repeal.
3. The Mill's case is that on the promulgation of the amending Ordinance. Its workmen demanded "gratuity at the rate of 20 days' wages of service even for the period of service prior to the amendment. Of law". These words are from paragraph 5 of the writ petition filed by the' Mill in the High Court and as the Mill considered this demand to be illegal, it filed an application in the Labour Court under section 34 of the Industrial Relations Ordinance, 1969 for a declaration that it was liable to pay gratuity to its workmen only at the rate of 15 days' wages for every year of past service and not at the rate of 20 days' wages for every year of past service, because the amending Ordinance was not retrospective. The Mill had impleaded as defendants in this application the then Trade Union of its workmen and also Officers of Provincial Government's Labour Department. All the defendants contested the application and in a well-considered order the Presiding Officer of the Labour Court, Peshawar, accepted the Mill's claim that the amendment of Standing Order 12 of the said Ordinance was not retrospective. But he held that the calculation of the gratuity was necessarily retrospective because it had to be calculated on the basis of services rendered by workmen in the past, therefore, by his order dated 20-1-1975, he dismissed the Mill's application.
4. The Mill challenged this order in a writ petition in the Peshawar High Court and impleaded as defendants in this petition the appellant in Civil Appeal No. 93 of 1976 because by this time this appellant had become the registered Trade Union and Collective Bargaining Agent of its workmen.
5. The Mill also impleaded the Officials of the Provincial Labour Department as defendants. All the defendants contested the writ petition. But as it was allowed by a Division Bench of the High Court by its judgment dated 17th April 1976, the Trade Union of the Mill's workmen filed Appeal No. 94 of 1976 against this judgment whilst Civil Appeal No. 93 has been filed by the officials of the Provincial Government, who were the defendants in the High Court.
6. The learned Chief Justice, who pronounced the judgment of the Court, held rightly (I say so with respect) that the amendment of Standing Order 12 by the amending Ordinance was not of a procedural nature and should, therefore, be presumed to be prospective, not retrospective. And further in reaching this conclusion, he relied on the observations of this Court in Income-tax Officer v. Sulaiman Bhai Jiwa (PLD 1970SC80) which read "No rule is more firmly established than the rule with regard to retrospective operation of a statute Law. It is a fundamental rule of law that no Statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication."
7. Mr. Akbarjee submitted that a gratuity could only be calculated by reference to services rendered in the past. That is correct, and because a gratuity can only be calculated by reference to services rendered in the past, it is necessary to be clear about what we mean when we say that a Statute relating to a gratuity is retrospective. I would, therefore, explain here that the payment of gratuities necessarily raises two questions. The first is the question of ascertaining the persons to whom the right to a gratuity has accrued and the second is of ascertaining the amount payable as gratuity to such persons. Now the presumption against retrospectivity is a rule of construction which is relevant only to the determination of the first of these two questions. But it is not relevant to the rate for calculating the quantum of the gratuity, because it is not the rate which confers the right to the gratuity and further to apply the presumption against retrospectivity to the formula for calculating a gratuity would prima facie defeat the intention of the Legislature because a gratuity can only be calculated by reference to services rendered in the past.
8. Maxwell in his Interpretation of Statutes, Twelfth Edition, page 216 observes "Before the presumption against retrospectivity is applied, a Court must be satisfied that the statute is in fact retrospective. In the words of Craies on Statute Law, a statute is retrospective "which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, .Or attaches a new disability in respect to transactions or considerations already past." Other statutes, though they may relate to acts or events which are past, are not retrospective in the sense in which the word is used for the purposes of the rule under consideration." Applying the principle laid down in these observations to the instant case, a right to a gratuity was conferred for the first time by the said Ordinance and the -presumption against retrospectivity was relevant to the determination of the question whether an employer was liable to pay a gratuity to a workman whose services bad been terminated before the promulgation o the said Ordinance, therefore, in order to exclude this presumption, clause (6) of Standing Order 12, prescribed that "any permanent workman whose services were terminated within a period of three months immediately after,, coming into force of this Ordinance was entitled to a gratuity. But for this express provision, a workman whose services were terminated before the promulgation of the said Ordinance would not have been entitled to a gratuity, but as this provision was repealed and as the amending Ordinance further prescribed that it would come into force at once, it means, as rightly held by the High Court, that this Ordinance was not retrospective, therefore, the right of a gratuity conferred by it accrues in favour of only those workmen whose services terminated after it came into force. That this gratuity may have to be calculated for a long time to come, by reference to the services of a workman before the promulgation of the amending Ordinance, is another matter, but this does not make the Ordinance retrospec--tive, because the gratuity payable under it accrues only in favour of those workmen whose services are terminated after the promulgation of the amending Ordinance.
9. I am fortified in my opinion by the observations of Somervell, L. J., in Master Ladies Tailors Organization and another v. Minister of Labour and National Service (1950 All E R 525) a judgment to which Mr. Akbarji referred us. The question in this case was of the vires of an order issued under the English Wages Councils Act, 1945. The order which had to be construed by the Court bad a long history and it is sufficient to state here that workmen in certain industries in England were entitled to the payment of a holiday remuneration which depended on the length of their service with their employer. The order which had to be construed by the Court was issued on the 25th July 1949, and its effect was to increase the holiday remuneration of the worker. As that remuneration could only be calculated by reference to the worker's employment prior to the promulgation of the order, the contention was that the order was ultra vires, because it was retrospective. Somervell, L. J., held that the order was prospective only, and, in repelling the submission that it was retrospective, because the holiday remuneration had to be calculated by reference to services rendered before 25th July 1949. His Lordship observed :- "That the effect of these provisions as to remuneration accruing, being, as I hold, to determine and limit the quantum of prospective payments, do not make this order retrospective in the sense which has to be given to the word in this issue."
10. Looking at the matter from another angle, the controversy before us is of the effect of an amendment in a Statute. What is the principle for determining the effect of an amending Statute?
11. Lord Dunedin observed in Keshoram Poddar v. Nundo Lal Mallick (54 1 A 152) :- "The effect of the proviso is just as if the words therein had been inserted in the original Act, and the Act must be so read at the present time."
12. These observations had reference to an amendment of a section by the addition of a proviso, but the distinction is not material, so I would examine how Standing Order 12 reads after its amendment. Only clause (6) is relevant and it reads "(6) Where a workman resigns from service or his services are terminated by the employer, for any reason other than misconduct, he shall, in addition . . . . . To any other benefit . . . . . Be paid gratuity equivalent to twenty days' wages, calculated on the basis of the wages admissible to him in the last month of service if he is a fixed-rated I 14 workman or the highest pay drawn by him during the last twelve months if be is a piece-rated workman, for every completed year of service or any part thereof in excess of six months . . . . ."
13. As the direction that a workman "shall in addition to any other benefit to which he may be entitled . . . . . Be paid gratuity equivalent to twenty days' wages . . ." is clear beyond any doubt, I would again quote here a passage from Maxwell (p. 28) : - "The first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning if they have acquired one, and otherwise in their ordinary meaning, and the second is that the phrases and sentences are to be construed according to the rules of grammar."
14. As the words "to be construed" in Standing Order 12, as it now stands, are not technical words, we must construe them according to their ordinary meaning, and the ordinary meaning of the words "shall . . . . . Be paid gratuity equivalent to twenty days' wages . . . ." is very clear. They mean that a gratuity has to be paid at the rate of twenty days' wages for every year of service. There is no ambiguity about these words, therefore, w B cannot curtail or modify their ordinary meaning by reference to presumptions for construing ambiguities in Statutes. Accordingly, with the utmost respect, I am unable to agree with the view of the Peshawar High Court, and I would accept the contention of Mr. Akbarji and of Mr. Safdar Hussain that all workmen whose services are terminated after the promulgation of the amending Ordinance are entitled to a gratuity at the rate of twenty days' wages for every completed year of service as prescribed in clause (6).
15. Mr. Akbarji also submitted that the Mill's application before the Labour Court under section 34 of the Industrial Relations Ordinance was not maintainable. As the appeals succeed on merits, I would leave the determina--petition of this question open for a more appropriate occasion. I would, therefore, dismiss the Mill's writ petition and allow both the appeals with costs. s. A. H.