N.J. SILK INDUSTRIES Versus PRESIDING OFFICER, IVTH SINDH LABOUR COURT

1. MUHAMMAD HALEEM, J.-This appeal, by special leave, is from the judgment of the High Court of Sind, dated 11th of November, 1976, by which Constitutional Petition No. 61 of 1975 was allowed.

2. Respondent No. 2 was a permanent employee of the appellant in whose establishment less than 20 workers were employed. This establishment discontinued its business in April, 1976 ; but before it did so, except for 12 employees, all the others left their jobs in 1974. Thereafter, the number was reduced to three as the remaining workers also left on their own accord. The services of the second respondent and one other were terminated by letter dated 26th of March, 1974. One other worker was left. Thereafter, all the three served grievance notices dated 27th March, 1974, under section 25-A of the Industrial Relations Ordinance, 1969, on the appellant to which reply was given by letter dated 5th of April, 1974, Not being satisfied, respondent No. 2 and one other, who had served the grievance notice, filed separate applications before the Junior Labour Court, Karachi, on 22nd of April, under section 25-A of the Industrial Relations Ordinance, 1969, for the re-instatement and full back benefits. The appellant, in its written statement, pleaded that by reason of the, second proviso to subsection (4) of section I of the West Pakistan (Standing Orders) Ordinance 1968, Standing Order No. 15 did not apply to any industrial establishment wherein not more than 49 persons were employed on any day during the preceding 12 months and, therefore, the termination of their services was legal under Standing Order No. 12(1) of the said Ordinance. The Junior Labour Court, by order dated 10th of May, 1974, held that the provisions of the West Pakistan (Standing Orders) Ordinance, 1968, were not applicable to the case of the second respondent and the other employee who had sought reinstatement.

3. On appeal, the IVth Sind Labour Court, by order dated 23rd of October, 1974, reversed this conclusion and held that as they were removed because of misconduct, without observing the procedure laid down in Standing Order No. 15, the termination of their services was illegal and they were, therefore, entitled to be re-instated with full back benefits. Aggrieved by this order the appellant filed separate Constitutional Petitions to challenge this decision. The one filed against respondent No. 2 was accepted and the other was dismissed.

4. Leave to appeal was granted to consider whether Standing Order No. 15 was applicable to the case of respondent No. 2 in the face of the second proviso to section 1(4) of the West Pakistan (Standing Orders) Ordinance, 1968.

5. The same learned Judge, who decided this petition in Messrs Shafqual Silk Factory v. Presiding Officer, Second Sind Labour Court, Karachi and others (1979 P L C 400) held that in view of the second proviso to section 1(4), Standing , Order No. 15 was not applicable to establishment with 49 or less workers as the extent and application of this Standing Order was controlled by section I of the Ordinance. However, he changed his opinion and held that the procedure prescribed by Standing Order No. 15 had to be observed. The teas 3o assigned for taking the latter view was that he was not provided enough assistance in the earlier case. As is the judicial practice, a Single Judge is bound by his previous opinion ; and if subsequent he feels that his earlier opinion requires a review, then he should have referred the matter to a larger Bench. But this practice was not followed. However, the reason which persuaded him to hold so was that in the face of Standing Order No. 12(5) which emphatically provided that the service of a permanent workman shall not b terminated on the ground of misconduct otherwise than in the manner prescribed in Standing Order No. I5, the second proviso to section 1(4), therefore, did not give a "blanket protect to the employees of the establishment as there were not more than 49 workers. Subsection (4) of section 1 and the second proviso appended to it read as under

6. "(4) It applies to --

(a) 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

(b) . ??????????..

(c) such classes of the industrial and - commercial establishments as Government may, from time to time, by notification in the official Gazette, specify in this behalf

7. Provided further that the provisions of Standing Orders 10-B and 11, clauses (6) and (8) of Standing Order 12 and Standing Order 15 shall not apply, in the first instance, to any industrial establishment wherein not more than forty-nine persons were employed on any day during the preceding twelve months but Government may, by notification in the official Gazette, extend all or any of the said provisions to any such industrial establishment or any class of such establishment."

8. Plainly read the above provision relates to the extent of the application of the Ordinance. The second proviso qualifies the generality of the main enactment by providing an exception and taking out, as it were, from the mad enactment a portion which, but for the proviso, would fall within the main enactment. This being so, it has to be given full effect and, therefore, Standing Order No. 15 which had been explicitly excluded could not be pressed into service irrespective of the consideration that the termination of service was for misconduct. If, as the single Judge has held that clause (5) of Standing Order No. 12 has not been excluded, hence the procedure prescribed in Standing Order No. 15 must be followed, does not appear to us to be realistic as/ Standing Order No. 12(5) cannot operate in vacuum in the absence. Standing Order No. 15 whose application has been excluded by the second proviso. Needless to say that as the second proviso occurs in this section, relating to the extent and application of the enactment, it must, therefore, regarded to override the other provisions inconsistent therewith The Labour Appellate Tribunal. Sind. in Messrs Lucky Silk Mills v. Khaliqur Rehman (1979PLC5) has also held that Standing Order No. 15 was not applicable to .he case of an establishment which did not have more than 50 workers. The ;ame view was taken in Abdul Hai v. Messrs S. N. M. .industries and another (1976PLC723) but in both the decisions, there is no consideration of section 12(5) of the Ordinance. The decisions turn on the interpretation of the second proviso to section 1(4) of the Ordinance.

9. For the reasons given above, we would approve the view taken by M. A. Rashid, J., in the case of Shafquat Silk Factory v. Presiding Officer, Second Sind Labour Court, Karachi and others in preference to his latter view taken in the case under consideration which we disapprove.

10. Accordingly, we would allow the appeal and set aside the order of the High Court. There will be no order as to costs.

11. ? Appeal allowed.