PAKISTAN INTERNATIONAL AIRLINES Versus SINDH LABOUR COUTR NO.5

1. DORAB PATEL, J.-The appellant decided to construct a training school in 1973, therefore; it entered into a written agreement on 1-2-1973 with a contractor by the name of Zakaullah for the construction of this school and clause, (2) of this contract expressly stipulated that the school had to be constructed "in fifteen working months from the commencement of the contract period." Now, although the appellant entrusted the construction of the school to a contractor, it decided to engage its own staff for supervising the construction by the contractor, therefore, on various dates in 1973, it appointed respondents 2 to 13 (hereinafter called the respondents) to supervise the contractor's construction on its behalf. Letters of appointment were issued to all the respondents and it was emphasized in these letters that the appointments were temporary and on a work-charge basis.

2. The appellant was not satisfied with its contractor's performance, therefore, it cancelled its agreement with him. Then, as the construction of the school was thus suspended, by notices dated 26-7-1974, the appellant informed all the respondents "since the work at this Project has been suspended indefinitely your services are no longer required with effect from 27-7-1974 (F. N)".

3. The respondents served a joint notice on the appellant challenging its notices of 26-7-1974, and their contention in their notice was that they had become permanent workmen, because they had been in the appellant's employment for more than one year. And, as the appellant did not comply with the terms of this notice, they filed applications under section 25-A of the Industrial Relations Ordinance, '4969, in the Junior Labour Court, Karachi for their re-instatement by the appellant with back benefits. The appellant contested these applications, and whilst evidence was being recorded by him, the Presiding Officer of the Junior Labour Court visited the site, where the appellant's school was being built, and largely because the appellant had resumed the construction of the school, without re-instating the respondents, by his order dated 25-1-1975, he allowed the applications of all the respondents.

4. The appellant challenged this order in an appeal in the Sind Labour Court, which was heard by the first respondent. This respondent dismissed the appeal by his order dated 11-4-1975, on the ground that the respondents had become permanent workmen within the meaning of the West Pakistan Industrial land Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the said Ordinance).

5. The appellant challenged the orders of the Labour Court in a writ petition in the Sind & Baluchistan High Court, and in dismissing this writ petition, the learned Single Judge observed in his judgment that the respondent-had become permanent workman under the said Ordinance, because they had been engaged by the appellant "against a contract which lasted more than nine months, and, therefore, their case would be governed by Standing Order 12(3) (of the said Ordinance) whereby their services could only be terminated by ,giving them one month's notice or by paying them one month's salary in lieu thereof." Accordingly, as the learned Single Judge dismissed the writ petition of the appellant, the appellant filed a petition for leave in this Court .which was granted in order to consider the meaning of the words "permanent workmen" and "temporary workmen" in the said Ordinance,

6. The definitions of permanent and temporary workmen are to be found in Standing Order No. 1 in the Schedule to the said Ordinance. Clause (1) of the Standing Orders reads:

7. "1. Classification of workmen.-(a) Workmen shall be classified as

(1) permanent,

(2) probationers,

(3) badlis,

(4) temporary,

(5) .apprentices,

(b) A "permanent workman" is a workman who has been engaged on work of permanent nature likely to last more than nine months and has satisfactorily completed. a probationary period of three months -in the same or another occupation in the industrial or commercial establishment . . . . . . . . . . : '

8. By an amendment promulgated in 1973, the following. words were added to this definition:- ? _ "and includes a badli who has been employed for a continuous period of three months or for one hundred and eighty-three days during any period of twelve consecutive months.

(c) A "probationer" is a workman who is provisionally employed to fill a permanent vacancy in a post and has not completed three months' service therein. If a permanent employee is employed as a probationer in a higher post he may, at any time during the probationary period of three months, be reverted to his old permanent post. .

(d) A "badli" is a workman who is appointed in the post of a permanent workman or probationer, who is temporarily absent.

(e) A "temporary workman" is a workman who has been engaged for work which is of an essentially temporary nature likely to be finished within a period not exceeding nine months.

(f) An "apprentice" is a person who is an apprentice within the meaning of the Apprenticeship Ordinance, 1962 (LVI of 1962).

9. We are constrained to observe with regret that the definitions in clauses (b) and (e) are difficult to construe, therefore, we are conscious that the task of the High Court was not easy, but in any view of the matter, we are unable to agree with the construction placed on clause (e) by the learned Single Judge. According to the learned Single Judge, the respondents had become permanent workmen solely, because they had been in the appellant's employment for more than nine months. But, as subject matter by Mr. Sarwana, this view ignores the words "likely to be" which precede the words "finished within a period not exceeding nine months." Redundancy is not to be attributed lightly to the Legislature and the word. "likely to be" were inserted because given the nature<of human beings "work" expected to be finished within nine months might not lie finished during that period, because of human error; miscalculation, negligence or an other cause. And the insertion of the words "likely to be" makes it clear that a workman cannot become a permanent workman if the work for which he was employed was expected to be finished within nine months, but was in fact completed after, the expiry of nine months, This is obvious and Mr. Mohsen Ali did not even attempt to defend the sweeping observations of the learned Single Judge.

10. Mr. Mohsen Ali, however, drew our attention to the appellant's agreement with its contractor and pointed out that the appellant itself had given the contractor fifteen months' time to complete the construction, and as the respondents had been appointed to supervise this contract, learned counsel's submission was that the respondents were not temporary workmen, because they bad been employed on a project which the appellant knew would last more than nine months, and because they were not temporary workmen within the meaning of clause (e), learned counsel's further submission was that they were permanent workmen as defined in clause (b).

11. As the first limb of this submission is supported by the language of clause (e), Mr. Sarwana attempted to rely on the letters of appointment issued by the appellant to the respondents, because according to these letters ? the respondents had been appointed "on a purely temporary basis". But, although .the appellant had purported to appoint the respondents on a purely temporary basis, it could not, in view of section 3 of the said ordinance, contract out of its obligations under the said Ordinance, therefore, these letters do not help the appellant's case.

12. Mr. Sarwana's next submission was that, if we accepted the claim of the respondents that they were not temporary workmen, it would render redundant in clause (e) the words "work which is of an essentially temporary nature" which precede the words "likely to be finished within a period of nine months." Now, as we observed earlier, redundancy is not to be attributed lightly to the Legislature, and further the Legislature has gone out of its way to draw a distinction between work "of permanent nature" in clause (b) and work "of an essentially temporary nature" to clause, (e)," and on the other hand, if the intention of the Legislature had been, as submitted by Mr. Mohsen Ali, to classify permanent and temporary workmen solely on the basis of the period of their expected employment, it would have enacted accordingly, and it Would not have used the words "engaged on work of permanent nature" in clause (b). Similarly, :t would not have used the words "engaged for work which is of an essentially- temporary nature" in clause (e), but whilst we cannot ignore these words, we cannot also ignore the words which follow them, because there is no contradiction between the words "engaged for work which is of an essentially temporary nature" and the words "likely to be finished within a period not exceeding nine months". Employment of a temporary nature may or may not likely to be finished in nine months, and it was open to the Legislature, to draw a distinction between work likely to finish within this period and work unlikely to be finished within this period, and as it has drawn. this distinction in plain language, Courts have to give effect to. it, although,, as we will presently show, the consequences of this distinction are somewhat anomalous,

13. Mr. Sarwana, therefore, placed great stress on the ordinary meaning of the word "temporary". There is no ambiguity .about this word and it is not a word capable of infinite nuances either. But, as the appeal turns on the meaning of the words "temporary" and "permanent" we would quoter the meaning of these words. According, to the Oxford he'-lish Dictionary, the words "temporary" means : - '

14. "Lasting for a limited time ; existing or valid for a time. (only) ; not permanent ; transient ; made to supply a passing need."

15. Now, whether a contract of employment. is likely to finish within nine months or in nineteen months, it is a contract for a limited period of time only, therefore, there cannot be any doubt that 'the respondents were, engaged on work of an essentially temporary nature, but this does not help the case of the appellant, because the Legislature has defined the words "temporary workmen", and the intention as well as the effect of this definition is to curtail the ordinary meaning of these words. However, although the Legislature curtailed the ordinary meaning of the words "temporary workmen" it did not alter the meaning of the word "temporary". This is strange, and, according to Mr. Sarwana it amounted to a contradiction in terms. The argument is erroneous, because a definition clause may alter and transform the meaning of a ,word, and if the intention of the Legislature is plain, Courts have to give effect to that intention. And, in the instant case, the Legislature has manifested its intention in clause (e) that workmen employed for a period likely to last more than nine months shall not be treated as temporary, workmen, therefore, the respondents are not temporary workmen.

16. ? We, now turn to the second limb of Mr. Mobsen Ali's submission. According to Mr. Mohsen Ali, if a workman (other than a probationer or an apprentice) was not a temporary workman, he was automatically a permanent workman, and like Mr. Sarwana, Mr. Mohsen Ali thought that any other view would be illogical, and, therefore, we had to modify the meaning of the word "permanent" in clause (b). But if we may adapt the dictum of that great Judge, Oliver Wendell Holmes, the life of the law is experience, not logic, and we cannot classify workmen by our preconceptions what is logical. We have to go by what is stated in clauses (b) and (e), and unfortunately for Mr. Mohsen Ali's submission, clause (b) does not define a permanent workman as a worker engaged on work likely to last more than nine months, but as a worker "engaged on work of permanent nature likely to last morel than nine months". The words "engaged on work of permanent nature have been inserted deliberately in this clause, and we cannot ignore them any more than we can ignore the words "likely to finish within a period of nine months" in clause (e), the moreso, as the only possible inference from a comparison of these two clauses is that the Legislature has deliberately drawn a distinction between and what it considered to be work of a permanent nature work of a temporary nature. Therefore, the question is of the meaning of the word "permanent" and it connotes the opposite of what is temporary.

17. According to the Oxford English Dictionary, the word "permanent" It means :-- ?

18. "Continuing or designed to continue indefinitely without change; abiding, lasting, enduring; persistent."

19. Now, whatever be the true construction of this word, as the respondents' had been engaged on work intended to last for a limited time only, if we/ were to hold-that they had been engaged on work- of a permanent nature, this would amount not to preferring one of the possible constructions of the word "permanent", but it would amount to giving the word a meaning which was the opposite of its true meaning. This we have no power to do. Only the Legislature could have done it by giving its own definition of the word,! but it chose not to do so, although it gave its own definition of the words' "permanent workmen".

20. Mr. Mohsen Ali then- referred us to the definition of a permanent workman in the 1960 Ordinance, and he appeared to think that we could by applying the rule of beneficial construction, alter the meaning of the word "permanent" or strike out the word, and he invited us to do so, because according to him, the object of the said Ordinance was to enlarge the definition of permanent workmen and this object would be defeated if workmen employed temporarily, but for a period exceeding nine months, were not treated as permanent workmen, and further, according to learned counsel, this would be extremely unjust, and the Courts were entitled in such a situation to modify the meaning of any word in a statute which led to such injustice.

21. As learned counsel also thought that his submissions were supporter by the history of the said Ordinance, we may explain here that said Ordinance was the third in a line of statutes enacted in order to regulate the condition of employment in industrial and commercial employment. The first of these statutes was the Industrial Employment (Standing Orders) Act, 1946, and it applied only to industrial establishments employing one hundred or more workers. It left it to the employer to frame Standing Orders for regulation the conditions .of employment of his workmen, but once he did so, he was bound by them. This was obviously not a satisfactory piece of legislation, because it left workmen to the mercy of their employers, therefore, this Act was repealed by the Federal Government in 1960 by the Industrial and Commercial Employment (Standing Orders) Ordinance, 1960. This Ordinance applied both 'to Industrial and Commercial establishments employing fifty or more workers, and section 3 of this Ordinance reads: "In every industrial or commercial establishment, conditions of the employment of work-, men and other incidental matters shall, subject to the other provisions of this Ordinance, be regulated in accordance with the Standing Orders." We may point out that this section is similar to section 3 of the said Ordinance, and similarly Standing Order 1 of the Ordinance contained a classification of workmen, and the definitions of this six types of workmen specified in the Standing Order. The other Standing Orders dealt with matters like publication at the industrial or commercial establishment of the working time and wage rates of workmen, provisions for shift working, leave and casual leave, stoppage of work and payment to workmen during such stoppages, and finally the mode in which the services of workmen could be terminated and the mode of imposing punishments on them. Standing Order 2 contained the provision for terminating the services of workmen, and it prescribed that only permanent workmen were entitled to a month's notice for the termination of their employment. But, although the Order stated in terms that the employment of a temporary workman could be terminated without notice, it further prescribed that "the services of a temporary workman shall not be terminated as a punishment unless he has been given an opportunity of explaining the charges of misconduct alleged against him" in the manner prescribed in Standing Order 13 which contained the provisions for taking penal action, including dismissal, against workmen.

22. Although the preamble to this statute did not say so, it is clear that it was enacted in order to protect the rights of workmen and not leave the terms and conditions of their employment to the mercy of their employers. And, it i? also significant that except for Standing Order 12, the benefits of the other Standing Orders were available to all workmen.

23. This Ordinance was repealed by the said Ordinance and the said Ordinance, when enacted, applied, to industrial establishments employing fifty or more workmen and to commercial establishments employing twenty or more workmen. The definition of a commercial establishment was also enlarged, and the definitions of permanent and temporary workmen in Standing Order 1 were altered. As Mr. Mohsen Ali submitted that the object of this Ordinance was to enlarge the rights of workmen, we. have to point out that most of the Standing Orders in the said Ordinance, as originally enacted, were a mere reproduction of the Standing Orders of the repealed Ordinance. However, Standing Order 18 marked a complete departure from the repealed Ordinance and it entitled every workman, who had any grievance against his employer "in respect of any matter under this Ordinance to obtain redress from the Industrial Court after first serving a grievance notice on his employer." Although this Standing Order relates to procedure and not substantive rights, it conferred a very great boon on workmen, because it provided them with a speedy remedy for enforcing their rights. That this Standing Order was later substituted by section 25-A of the Industrial Relations Ordinance, 1969, is another matter, which is -not relevant to this appeal. But, apart from this procedural innovation, the only additional benefits conferred by the said Ordinance were contained in Standing Orders 12, 13, 14 and 17. The change introduced in Standing Order 12 was that permanent workmen because entitled to a gratuity, dependent on their length of service with their employer. Standing Orders 13 and 14 contained provisions for regulating the procedure for the retrenchment of workmen and the procedure for the re employment of retrenched workmen, and these benefits were available to all categories of workmen. Standing Order 17, which was subsequently repealed, contained provisions for protecting the interests of workmen ? who had contributed to a provident fund.

24. Thus it Will be seen that although the said Ordinance was more advantageous to workman than the Ordinance which was repealed, the advantages thus conferred were comparatively limited, and, therefore, we cannot agree with Mr. Mohsen Ali's submission that the object of the said Ordinance was only to enlarge the rights of workmen. On the contrary, an examination of the provisions of the said Ordinance shows that the Legislature was feeling its way slowly in the field of social reforms, and it tried to strike a balance between the rights of workmen and employer and it is significant that the preamble to the said Ordinance merely reads : "whereas it is expedient to amend and consolidate the law relating to industrial employment in the Province of West Pakistan".

25. ? However, sweeping amendments were made in the said Ordinance after 1972. Thus, for example, Standing Order 10-A, introduced a Group Incentive Scheme for all factories employing fifty or more workmen, whilst Standing Order 10-C, introduced a provision for the compulsory payment of bonus. Standing Order 11-A, drastically curtailed the employer's power to close down his establishment, and even Standing Order 12 was amended so as to extend to all workmen the right of a gratuity,, subject of course-to the length of their service with their employer. And in submitting that the sole object of the said Ordinance was to enlarge the rights of workmen Mr. Mohsen Ali was relying on the said Ordinance as it now stands. This approach is not correct, because we are construing definitions enacted in 1963, and in so far as the objects of the said Ordinance ? we have to gather them from the provisions of the said Ordinance as it stood in 1968.

26. We now turn to the definitions of permanent and temporary workmen in the 1960 Ordinance which were repealed by the said Ordinance. These definitions were contained in Standing Order 1 of that Ordinance and reads .

27. "(6) A `permanent' workman is a workman who has been engaged on a permanent basis and includes any person who has satisfactorily completed a probationary period of three months in the same or another occupation in the industrial or commercial establishment, including breaks due to sickness, accident, leave, lock-out, strike (not being an illegal strike) or involuntary closure of the establishment.

(c) and (d) ???????????????????????????..

(e) A "temporary" workman is a workman who has been engaged for work which is of an essentially temporary nature likely to be finished within a limited period."

28. These definitions were based on the ordinary meaning of the words "temporary" and "permanent", therefore, if a workman, other than an apprentice or a Badli, was not a temporary workman, he was automatically a permanent workman. But, as the definition of a temporary workman has now been divorced from the ordinary meaning of the word "temporary", without any change in the meanings of the Words "temporary" and "permanent", the respondents were in the anomalous position of being workmen engaged on work of a temporary nature, who were nonetheless debarred from claiming the benefits of being temporary workmen. This incongruous situation is the result of the alterations made by the draftsman in definitions which had the merit of simplicity and clarity, and we are deeply disturbed by the anomalous situation created by the definition of a temporary workman, as it is bound to affect a large number of workmen. However, as the meaning of clause (e) is free from all doubts, we have to give effect to it. ? -

29. Reverting however to Mr. Mohsen Ali's submissions, he relied on the alterations contained in the present definitions of temporary and permanent workmen. As we have held that the respondents are not temporary workmen, it is unnecessary to examine the history of clause (e). Next, as to the changes made by the said Ordinance in the definition of a permanent workman, we have to explain here that the present definition has substituted the words "engaged on a permanent basis" by the words "engaged on work of permanent nature likely to last more than nine months." As the word "work" is a word of very wide import,__ the new definition is ambiguous, therefore; we enquired from learned counsel how it supported his submissions. Mr. Mohsen Ali's reply was that the old definition was subjective and had, therefore, enabled employers to terminate the services of their employment arbitrarily, whilst the new definition would avoid litigation, because it contained an objective standard for determining when a workman became a permanent workman. That objective standard, according to learned counsel, was the period of nine months, so that any workman employed on a job likely to last more than nine months automatically became a permanent workman. But, as we explained, this interpretation of the definition would mean giving the word "permanent" a meaning which is the opposite of its true meaning, and as learned counsel appeared to think that the rule of beneficial construction enabled the Courts to delete words from a statute and to alter their meaning, we would emphasize here that learned counsel's conception about the Court's powers is totally misconceived.

30. Maxwell observes in his Interpretation of Statutes, 12th Edn., page 208:

31. "A sense of the possible injustice of an interpretation ought not to induce Judges to do violence to well-settled rules of construction but it may ;properly lead to the selection of ore rather than the other of two reasonable . interpretations. Whenever the -language of the Legsiature -admits of two constructions- and, if construed in one way, would lead to obvious injustice, the Courts act upon the view that such a result could not have been intended, unless the intention to bring it about has been manifested in plain words."

32. We agree with the view of the learned author that the Court's power of interpretation is limited "to the selection of one rather than the other of, two reasonable interpretations". This power does not entitle us to alter the meaning of words or to ignore them. That can only be done by the Legislature.

33. We are aware that the words "likely to last more than nine months" in clause (b) do not render it easy to construe this clause; the more so, as the word "work" is a word capable of many meanings. Therefore, the rule of beneficial construction is attracted to the construction of the word "work", and although the learned counsel have not -addressed us on this aspect of the case, the widest possible meaning of the word "work" would be task or job, therefore, we wi11 assume that this is the true meaning of the word y in clause (b). Even on this assumption, there would be jobs of a permanent nature that might not last nine months, as for example, when a business or a branch of a business is being wound up. In any case, it must be borne in mind that the words "of a permanent nature" are not inconsistent wit the words "likely to last more than nine months". Therefore, fro whatever angle we examine clause (b), it is clear that we cannot ignore or alter the meaning of the word "permanent", and this is fatal to the case of the respondents.

34. Finally, learned counsel drew our attention to the amendment of clause (b) m 1973 and submitted that this amendment in the definition of a permanent workman supported the construction which he sought to place upon the clause by parity of reasoning, therefore, we would recall here that the definition of a permanent workman was enlarged by this amendment to include "a Badli who has been employed for a continuous period of three months". As a Badli is by definition a worker, who works as a substitute for another, he is employed on a temporary basis. But, as the Legislature decided to confer on him the status of a permanent workman, it enacted accordingly by making an express provision which has artificially enlarged the definition of a; permanent workman. Yet even when it made this amendment, the Legislature did not delete the word "permanent" from this clause, therefore, to ignore the word "permanent" would be to flout and disregard the statute and not to give effect.

35. The result of this discussion is that the concept of employment of permanent nature is an essential ingredient of the definition of a permanent workman. But, the respondents had not been employed on a permanent. basis, because they had been employed to supervise a contract which was of limited duration. Therefore, the High Court and the Labour Courts et red in law in holding that they were permanent workmen. Accordingly, this appeal has to be allowed.

36. Finally Mr. Mohsen Ali submitted that even if the respondents were not permanent workmen they were entitled to re-instatement, under Standing Order 14, and, therefore, their grievance application should be treated by us as an application under section 25-A read with Standing Orders 12(3) and 14. In order to understand this submission, we have to point out that even according to the appellant, the respondents had been recruited with several other persons for supervising the construction of the appellant's training School, and although some of those other persons had been recruited after the respondents, they had, according to learned counsel, been re-instated, therefore, the respondents too were entitled to re-instatement under Standing Order 14. Further, as this was the effect of the orders passed by the Labour Court, learned counsel invited us to dismiss the appeal on this ground.

37. Mr. Sarwana feebly submitted that the provisions of Standing Order 12 were available only to the permanent workmen and that in any event this Standing Order had nothing to do with the workmen's right to file a grievance application which was governed exclusively by section 25-A The submission is totally fallacious. It is true that clause (1) of Standing Order 12 refers in terms to a permanent workman, and the right conferred by this clause is available to permanent workmen only. But this cannot possibly lead to the conclusion that the rights conferred by clause (3) of the Order are limited to permanent work. men only, the moreso, as the second clause refers in terms to temporary workmen, probationers, etc. Turning now to clause (3). It reads :-

38. "(3) The service of a workman shall not be terminated nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment discharge or dismissal, he may take action in accordance with the provisions of section 25-A of the Industrial Relations Ordinance, 1969, (XXIII of 1969), and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance."

39. This clause refers to a workman simpliciter, unlike the two preceding clauses, which refer in terms to specified classes of workmen. The reason why clause (3) refers to workmen without any qualification is obvious. As we indicated earlier, the benefits of many of the Standing Orders are available to all workmen whatsoever, and as clause (3) entitles an aggrieved workman to enforce his rights under the Standing Orders, the Legislature has deliberately not qualified the word "workman" by any adjective, so as to make it clear that the right conferred by this clause to file an application under section 25-A of the Industrial Relations Ordinance is available to any workman whose rights under a Standing Order have been infringed. Therefore, Mr. Mohsen Ali was right when he invited us not to take a lenient view of the pleadings and to treat the grievance application of the respondents as an application for their re-instatement under Standing Order 14.

40. However, even though we would be willing to treat the grievance application of the respondents as an application for their re-employment under Standing Order 14, provided the appellant was given an opportunity to defend itself on this plea, the respondents have to bring their case under this Standing Order by proving that persons recruited after them for supervising the construction of the appellant's training school had been re-employed after the termination of their appointments in July 1974. But, Mr. Mohsen Ali could only refer us to evidence-according to which persons who had been recruited after the respondents had been given permanent appointments by the appellant in its construction wing in 1973. As this was before the termination of the appointments of the respondents, there was no question whatever of the re-employment of retrenched workers therefore, learned counsel's contention that the appointments of these other persons was in violation of Standing Order 14 is totally misconceived.

41. In the result, we hold that the respondents had never become the permanent workmen of the appellant and the orders to the appellant to re-instate them are illegal. Accordingly, we set aside the judgments of the 4th Junior Labour Court and of the 5th Sind Labour Court, Karachi dated 25-1-1975 and 11-4-1975 respectively and also the judgment of the Sind High Court dismissing the appellant's writ petition and allow the appeal. As the appeal turns on the construction of definitions which are ambiguous, we leave the parties to bear their own costs.

42. S. A. H.

43. Appeal accepted.