Arif Hussain Shah petitioner was employed as a skilled worker in Electric Equipment Manufacturing Company Limited, hereinafter called EMCO. He was dismissed from service on 28th August 1175. He filed a petition under section 25-A of the Industrial Relations Ordinance, 1969 before the Punjab Labour Court No. 2 on 17-1-1976. This petition was accepted by the said Labour Court vide its order dated 30th August 1976. It was held that the impugned dismissal was bad as no domestic enquiry was held in the case. Petitioner was ordered to be re-instated. The respondent-Company filed an appeal before Punjab Labour Appellate Tribunal against the aforesaid order of the Punjab Labour Court No. 2. This appeal was filed on 29th September 1976. The appellant had specifically taken up the point of limitation in the appeal. It was urged that application of the respondent before the Punjab Labour Court was clearly barred by time and that the same deserved to be dismissed on that ground alone. The learned Punjab Labour Appellate Tribunal vide its judgment dated 14-5-1977 accepted the contentions of the appellant and held that the petition before the Punjab Labour Court was barred by time and that this delay could not be condoned. The learned Tribu--nal relying upon its earlier judgment in the case of Muslim Commercial Bank Limited v. Muhammad Tayyab Khan (1977PLC617) held that the petition before the Punjab Labour Court should have been filed within two months of the dismissal of the petition in terms of subsection (6) of section 25-A of Industrial Relations Ordinance, 1969, and since this was not done, the petition was barred by time.
The learned Tribunal declined to condone the delay. The appeal was accepted.
2. The petitioner has assailed the order of Punjab Labour Appellate Tribunal dated 14-5-1977 by means of this writ petition. This judgment will dispose of the same.
3. Learned counsel for the petitioner has assailed the order of the Punjab Labour Appellate Tribunal and has argued that the petition before the Punjab Labour Court was not barred by time and that remedy under subsection (6) of section 25-A of the Industrial Relations Ordinance was only an alternate remedy and that other remedy provided by subsections (1) to (4) was also available to the petitioner and that if the period spent in following the grievance procedure prescribed in subsections (1) to (4) was taken note of, the petition before the Punjab Labour Court was within time. Learned counsel also submitted that the Tribunal should have adopted a more bene--ficial interpretation of subsection (6) and should have condoned the delay specially when there were conflicting judgments in the field regarding the interpretation of subsection (6) of section 25-A of Industrial Relations Ordinance, 1969.
4. The important question which calls for determination in this case is whether an aggrieved worker is required to follow the procedure as laid down in subsections (1) to (4) of section 25-A of Industrial Relations Ordinance or whether it was not necessary and was in fact dispensed with by virtue of the provisions of subsection (6) of the same section. The controversy in this case revolves around the interpretation of section 25-A of Industrial Relations Ordinance, 1969 and its various subsections.
5. It would perhaps be advantageous to trace the brief history of legisla--tion of this aspect of the Labour Law in the country. Prior to 1946 there was no provision of law for the redress of an individual grievance. The relation--ship between an employee and the employer was governed by the old Common Law principle of Master and Servant. In 1946 for the first time we have the Industrial Employment (Standing Orders) Act, 1946 (Act No. XX of 1946). A workman was entitled to bring his grievance to the notice of the Manager or other person specified in this behalf with a right of appeal to the employer. This Act was the first inroad into this hitherto prohibited field. This Act was repealed and replaced by Industrial and Commercial Employment (Standing Orders) Ordinance, 1960 (Ordinance III of 1960). Standing Order XIV of this Act provided that all complaints arising out of employment including those relating to unfair treatment or wrongful exaction on the part of the employer or his agent, shall be submitted to the Manager or other person specified in this behalf with a right of appeal to the employer. This was followed in the year 1968 by West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (Ordinance VI of 1968).
Standing Order 18 of this Act provided for the individual grievance. A worker was required to bring his grievance to the notice of his employer in writing within 15 days of the occurrence of the cause of such grievance and employer was required to enquire into the matter within 30 days of such grievance notice giving the workman concerned an opportunity of being heard, and communicate his decision in writing to the said workman. A workman was given a right to move the Industrial Court within the period of limitation prescribed in the Standing Order.
The Legislature then brought in Labour Law (Amendment) Ordinance, 1972 (Ordinance IX of 1972) whereby far-fetched changes were made in Labour Laws. A new section 25-A was introduced in Industrial Relations Ordinance, 1969 by means of this Ordinance on 13th April, 1972. The following section 25-A was added :- "25-A. Redress of individual grievances.-(1) A worker may bring his grievance in respect of any right, guarantee secured to him by or under any law or any award or settlement for the time 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 the cause of such grievance arises.
(2) Where a 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.
(3) Where a worker brings his grievance to the notice of his employer through his Shop Steward or Trade Union, the employer shall, within seven days of the grievance being brought to his notice, communicate his decision in writing to the Shop Steward or, as the case may be, the Trade Union.
(4) If the employer fails to communicate a decision within the period specified in subsection (2) or, as the case may be, subsection (3), or if the worker is dissatisfied with such decision, the worker of the Shop Steward may take the matter to his Trade Union or the Labour Court or, as the case may be the Trade Union may take the matter to the Labour Court, and, where the matter is taken to the Labour Court it shall give an award within twenty days from the date of the matter being brought before it as such matter were an Industrial dispute; Provided that a worker who desires so to take the matter to the Labour Court shall do so within a period of two months from the date of the communication of the employer or, as the case may be, from the expiry of the period mentioned in subsection (2) or subsection (3), as the case may be.
(5) In adjudicating and determining a grievance under subsection (4), the Labour Court shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case."
Standing Order XVIII of West Pakistan Industrial and Commercial Employ--ment (Standing Orders)
Ordinance, 1968 (Ordinance VI of 1968) was repealed. The grievance procedure was maintained. A worker was required to bring his grievance to the notice of the employer in writing either himself or through his Shop Steward or Trade Union within 3 months of the cause of such grievance and the employer was to communicate his decision in writing to the worker within 15 days of the grievance being brought to his notice. Where a worker brings his grievance to the notice of his employer through his Shop Steward or Trade Union the employer was required to communicate his decision within 7 days to the Shop Steward or, as the case may be, the Trade Union. A workman could take his grievance to a Labour Court within a period of 2 months from the date of the communication of the employer or the expiry of the period mentioned in subsection (2) or subsection (3), as the case may be. There was no change in section 34 of Industrial Relations Ordinance, 1969 which provided a remedy to the Collective Bargaining Agent or an employer for the enforcement of any right guaranteed or secured to it by him under any law or award or settlement.
Thus by the introduction of this section 25-A the worker was provided with an elaborate procedure while his Trade Union as a Collective Bargaining Agent had also been provided a remedy under section 34 to move the Labour Court.
Shortly thereafter another amendment, this time by means of Labour Laws (Second Amendment)
Ordinance, 1972 (Ordinance XVIII of 1972) was brought in on 27th of May 1972. This amendment substituted Standing Order No. 12 for the previous Order. This amendment brought track the grievance procedure and the forum but redress could be sought only by refer--ence to section 25- A of Industrial Relations Ordinance, 1969. This Ordinance became an Act on 9th September 1972, by means of Labour Laws (Amendment) Act, 1972 (Act V of 1972). Thus a worker who was aggrieved of his termination, removal, retrenchment or discharge was bound to follow the procedure as laid down in section 25-A of the Industrial Relations Ordinance.
Legislature once again intervened and promulgated Industrial Relations (Amendment) Ordinance, 1972 (Ordinance XLVIII of 1972). A new sub--section (6) was added to section 25-A of Industrial Relations Ordinance. This read as follows :- "(6) Notwithstanding anything contained in subsections (1) to (5), any workman aggrieved by the termination of his employment as a result of retrenchment, dismissal, discharge, lay-off, lock-out, or otherwise after the commencement of this Ordinance, may make an application to a Junior Labour Court having jurisdiction in the area in which the establishment is situated."
The effect of this change was that after the date of this Ordinance a worker aggrieved by the termination of his employment as a result of retrenchment, dismissal, discharge, lay-off, lock-out or otherwise could take his grievance to a Junior Labour Court directly without the notice of the employer as required by subsections (1) to (4). Moreover no period of limitation was prescribed.
Soon afterwards Standing Order No. 12 was also amended (to bring it into line with the amendments) by means of West Pakistan Industrial and Com--mercial Employment (Standing Orders) (Amendment) Ordinance, 1972 (Ordinance LI of 1972) and the provision for a notice to employer in case of termination etc., was dispensed with. Thereafter yet another amendment (subject-matter of present controversy) Industrial Relations (Amendment) Act, 1973 (Act XXIX of 1973) was brought in and new subsections (6) and (7) were added; "(6) 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 (Amend--ment) Act, 1973, or the termination of the employment, whichever is latter, either himself or through his Shop Steward or Trade Union, take the matter directly to a Junior Labour Court having jurisdiction in the area in which the establishment is situated.
(7) Where a matter is taken to the Junior Labour Court under subsec--tion (6) the Junior Labour Court shall give its decision thereon in the manner laid down in subsections (4) and (5)."
6. The controversy in this case, as narrated above, revolves around the interpretation of subsection
(6) of section 25-A of Industrial Relations Ordi--nance, 1969. The question which calls for determination is whether a worker aggrieved with regard to his termination of service by his employer as a result of retrenchment, dismissal, discharge, lay-off, lock-out or otherwise is required to follow the procedure as laid down by subsections (1) to (4) of section 25-A of Industrial Relations Ordinance or whether it was no longer necessary to follow the said procedure and that the same had now been dispensed with by virtue of the provisions of subsection (6) of the said section and that a worker could now move the Labour Court directly within the specified period of two months.
The law as it stood prior to the addition of subsection (6) provided through subsections (1) to (4), firstly, that a workman who has any grievance against his employer must give a notice to him either directly or through his Shop Steward or Collective Bargaining Agent within three months from the date on which the cause of such grievance arises. Secondly, the employer must reply to this notice within 15 days. Thirdly, the employer shall com--municate his decision in writing to the Shop Steward or to the Trade Union, as the case may be, within 7 days and fourthly, the workman may take the matter to the Junior Labour Court within a period of 2 months of the date of communication from the employer or from the expiry of 15 days whichever be earlier.
By introduction of subsection (6) this situation has been altered so that now all cases of termination as a result of retrenchment, dismissal, discharge, lay-off, lock-out etc., may be taken to a Junior Labour Court without any pre-condition of notice if they have arisen not earlier than 9th September 1972, i.e. Before the Labour Laws Amendment Act, 1972 (Act V of 1972) or within 2 months of the date of termination of service or the enforcement of Industrial Relations (Amendment) Act, 1973 (Act XXIX of 1973) which came into force on 9-2-1973 whichever was latter.
7. The precise question which calls for determination in this case is the effect of "non obstante" clause used in subsection (6). The word 'non-obstante' means 'notwithstanding'. It means "despite" or "in spite of." A "non obstante" clause is used in a provision to indicate that the provision should prevail despite anything to the contrary in any provision. No doubt, one of the objects is to indicate that, despite any repugnancy between the provision containing a "non obstante" clause and another provision the former should prevail. This clause owes its origin to the fact that in the year 1950 a British King began to issue licences to do such and such things' "non obstante" any law to the contrary.
While interpreting "non obstante" clause, it should first be ascertained what the enacting part of the section provides on a fair construction of words used according to their natural and ordinary meaning as a "non obstante" clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing law which is Inconsistent in the new enactment. The enacting B part of the Statute must, where it is clear, be taken to control the non obstanted clause where both cannot be read harmoniously for, even apart from such clause a later law abrogates an earlier law clearly inconsistent with it.
The expression "non obstante" or "notwithstanding" has recently come up for consideration in Saeed Ahmad Khan v. Federation of Pakistan (PLD 1974 Lah. 18). The High Court was interpreting Article 281 of the Interim Constitution of Islamic Republic of Pakistan which in its original form reads as follows :---- "281.-(1) All Proclamations, President's Orders, Martial Law Regulations, Martial Law Orders, and all other laws made as from the twenty-fifth day of March 1969, are hereby declared, notwithstanding any judgment of any Court, to have been validly made by competent authority, and shall not be called in question in any Court.
(2) All orders made, proceedings taken and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, on or after the twenty- fifth day of March 1969, in exercise of the powers derived from any President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws, or in execution of any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall be deemed to be and always to have been validly made, taken or done.
(3) No suit or other legal proceedings shall lie in any Court against any authority or any person for or on account of or in respect of any order made, proceedings taken or act done, whether in the exercise or pur--ported exercise of powers referred to in clause (2), or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers."
Sub-clause (2) of this Article was amended on 3rd of April 1973, and in its amended form, it reads as follows :- "(2) All orders made, proceedings taken and acts done by any authority or by any person, which were made, taken or done, or purported to have been made, taken or done, on or after the twenty- fifth day of March 1969, in exercise of the powers derived from any President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders, or bye-laws, or in execution of any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall be deemed notwithstanding any judgment of any Court to be and always to have been validly made, taken or done, and shall not be called in question in any Court."
This amendment was brought about by the Constitutional (Sixth Amendment) Order, 1973 (President's Order 3 of 1973). It was held that the words "notwithstanding any judgment of any Court" used in Article 281 referred to above was meant to controvert and nullify the judgment of the Supreme Court of Pakistan in Miss Asma Jilani's case (PLD 1972 SC 139). It may be recalled that in Miss Asma Jilani's case the Supreme Court of Pakistan had held that validity of various actions, legal or otherwise taken in Martial Law period could be confirmed only by Courts on the ground of necessity and to that extent such condonation was permissible within the four principles highlighted in the judgment by Hamoodur Rahman, C. J. Thus the following four categories of actions were condoned: "(1) all transactions which are past and closed, for, no useful purpose can be served by reopening them,
(2) all acts and legislative measures which are in accordance with, or could have been made under the abrogated Constitution or the previous legal order,
(3) all acts which tend to advance or promote the good of the people,
(4) all acts required to be done for the ordinary orderly running of the State and all such measures as would establish or lead to the establish--ment of, in our case, the objectives mentioned in the Objectives Resolution of 1954."
It was to do away with this dictum that the Legislature had now added the words "notwithstanding any judgment of any Court" and wanted to show that the validity could be conferred not only by the Court but by the Constitution-- makers whose scope of authority in various respects had been doubted. The Court, however, observed that acts which were coram non judice and mala fide would not be saved even by the condonation of the words "notwithstanding any- judgment of any Court". This matter went to the Supreme Court of Pakistan in the case, Federation of Pakistan v.
Saeed Ahmad Khan (PLD 1974 SC 151). The Supreme Court of Pakistan upheld the aforementioned interpretation of the "non-obstante" clause and held that the ouster of jurisdiction was complete and the Courts cannot on any ground whatever call in question such actions notwithstanding the judgments of this Court in the cases of Miss Asma Jilani and State v. Zia-ur-Rehman (PLD 1973 SC 49). In other words it was held that a "non obstante" clause was used in Article 281 to indicate that the provision should prevail despite anything to the contrary in any law and that one of the objects of a `non obstante" clause is to indicate that, despite any repugnancy between the provisions containing a "non obstante" clause and any other provision, the former was to prevail.
8. Supreme Court of India in R. Kanwar Rai Nath and others v. Pramod C. Bhatt, Custodian of Evacuee Property and another (AIR 1956 SC 105), while interpreting section 12 of Administration of Evacuee Property Act, 1950 discussed the scope of non obstante clause. Section 12 subsection (1) reads as follows:---- "12.-(1) Notwithstanding anything contained in any other law for the time being in force, the Custodian may cancel any allotment or terminate any lease or amend the terms of any lease or agreement under which any evacuee property is held or occupied by a person, (whether such allotment, lease or agreement was granted or entered into before or after the commencement of this Act)."
It was held that the said section 12 expressly authorised the Custodian to vary the terms of the lease, and that could not be reconciled with the contention of the appellants that it conferred no authority on him to go back upon his own contracts. The operative portion ---of the section which conferred power on the Custodian to cancel a lease or vary the terms thereof was unqualified and absolute, and that power could not be abridged by reference to the provision that it could be exercised "notwithstanding anything contained in any other law for law for the time being in force".
This provision was obviously intended to repel a possible contention that section 12 did not by implication repeal statutes conferring rights on lessees, and could not prevail as against them and had been inserted as 'ex abundanti cautela'.
9. My learned brother S. Rehman. J. While interpreting this provision in Messrs Crescent Sugar Mills v.
Haji Muhammad Shafi and another (PLD 1976 Lah. 1176) has held that subsection (6) of section 25- A of Industrial Relations Ordinance governed termination on and after 7th November, 1972, i.e. The date when the Industrial Relations Ordinance (Amendment) Ordinance, 1972 (Ordinance XLVIII of 1972) was promulgated and that thereafter all cases of termination are to be governed by subsection (6) and that a workman must move the Labour Court within two months of the termination of service. It was further held that the provisions of subsections (1) to (4), by excluding cases of termination of service from the grievance procedure, have not become redundant. The provisions of subsections (1) to (4) would be available in all cases other than of termination of service, e.g. Grant of statutory bonus, leave, hours of work, unfair labour works, short of termination of employment etc., and that by using the word "notwithstanding" in subsection (6), the Legislature meant that only those provisions of subsections (1) to (4) are overridden in respect of which a different provision has been made in subsection (6) and the provisions of subsections (1) to (4) would continue to be available in all cases and all matters which are not in conflict with the provisions of subsection (6). It was further held that no notice of grievance as prescribed in subsections (1) to (4) of section 25-A of Industrial Relations Ordinance was required to be given to the employer in case of termination of service and that a workman must move the Labour Court within the prescribed period of two months or within two months of the enforcement of Act (Act XXIX of 1973) whichever happens to be later.
10. The aforesaid interpretation is in conformity with the rules of interpretation of statutes as laid down in the leading teats :----
(i) Interpretation of Statutes By Maxwell (Eleventh Edition) at page 364 it is observed :- "A strong line of distinction may be drawn between cases where the prescriptions of the Act affect the performance of a duty and where they relate to a privilege of power. Where powers, rights or immunities are granted with a direction that certain regulations, formalities or conditions shall be complied with, it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquistion of the right or authority conferred, and it is therefore probable that such was the intention of the Legislature."
(ii) Crawford on Statutory Construction at page 526 observed as follows :---- "A statute which creates a new right, privileges or immunity, and regulates the manner of its exercise, will be construed as mandatory. In other words, the right can be exercised only in the manner and within the time prescribed. Similarly, when a statute gives a new right and prescribes a particular remedy for its recovery, such remedy must be strictly pursued; though it is otherwise where a statute gives a right without prescribing a remedy."
(iii) Craies on Statute Law (5th Edition) has observed at page 243 :- "If the requirements of a statute which prescribes the manner in which something is to be done are expressed in negative language, that is to say, if the statute enacts that it shall be done in such a manner and in no other manner, it has been laid down that those requirements are in all cases absolute, and that neglect to attend to them will invalidate the whole proceeding."
11. The learned Judge has also taken note of a number of cases of High Court of Sind & Baluchistan.
They need not be discussed again.
12. The same view has been taken by the Labour Appellate Tribunal, Sind, in a case Beecham (Pak.)
Ltd., Karachi v. Fourth Sind Labour Court, Karachi (1978 PLC 375). The learned Appellate Tribunal, Sind, has referred to another judgment of the Karachi High Court i.e. Messrs International Laboratories Employees' Union v. Sind Labour Appellate Tribunal (PLD 1976 Kar. 292). In this judgment. a Division Bench of Karachi High Court while interpreting subsection (6) of section 25-A of Industrial Relations Ordinance held that the remedies were available to a workman for re- instatement, one by way of individual grievance under subsection (6) and the other by way of Industrial Dispute under section 34. Provisions of section 34 of Industrial Relations Ordinance were available to a Collective Bargaining Agent or an employer. This judgment, however, did not discuss the scope of provisions of subsections (1) to (4) of section 25-A.
13. Learned counsel for the petitioner referred to two judgments of this Court, i.e. Pakistan National Centre v. Presiding Officer, Punjab Labour Court (PLD 1976 Lah. 1085). This judgment is of no help to the learned counsel for the petitioner as it has not discussed scope of subsection (6) of section 25- A of industrial Relations Ordinance. Similar is the case of Muhammad Yusuf Qureshi v. Punjab Labour Appellate Tribunal (NLR 1979 Labour (Lah). 123). It has been merely observed in this case that the remedy under subsection (6) was only an alternate remedy. There is no discus--sion on this subject and no law or principle discussed.
14. In view of the above discussion I am inclined to agree with the interpretation of section 25-A of Industrial Relations Ordinance and its various subsections as expounded by this Court in M/s, Crescent Sugar Mills Ltd. v. Haji Muhammad Shafi and another (PLD 1976 Lah. 1176) and hold that all grievances other than termination of service are to be dealt with under subsections (1) to (4) of section 25-A of Industrial Relations Ordinance, 1969 and that all cases of termination of employment of a workman as a result of retrenchment, dismissal, discharge, lay-off, lock-out or otherwise are to be governed by subsection (6) and a workman must, accordingly move a Labour Court (Junior Labour Court) having jurisdiction in the area in which thee establishment is situated within a period of two months.
15. Admittedly in the present case the application of the petitioner before the Labour Court was barred by time. The Appellate Tribunal was accordingly justified in accepting the appeal of the respondent.
16. It has been argued by the learned counsel for the petitioner that since there was conflict of views with regard to the interpretation of section 25-A and its subsections, the Appellate Tribunal should have condoned the delay and decided the case on merits. High Court in its jurisdiction under Article 199 of the Constitution confines itself to determining whether a Tribunal concerned possessed jurisdiction to go into question before it and whether in doing so it has transgressed limits of its lawful authority. This Court does not sit as a Court of appeal. It cannot decide whether there was sufficient evidence for upholding the conclusions arrived at by a Tribunal. A Tribunal having authority to decide certain questions of law and facts can decide it rightly or wrongly. The expression "without lawful authority and of no legal effect" used in Article 199 of the Constitution is an expression of art and refers to jurisdictional defects as distinguished from a mere erroneous decision whether on questions of fact or even on law. Reliance in this regard is placed upon Muhammad Munir Hussain v. Sikandar (PLD 1974 SC 13) and Sadiq Hussain Qureahi v. Federation of Pakistan etc. (PLD 1979 Lah. 1).
No jurisdictional defect has been pointed out in the impugned order.
This Court, in its writ Jurisdiction, is not competent to interfere with order of Tribunal on purely equitable consideration.
This writ petition has no force and is dismissed.
There would be no order as to costs.