MUHAMMAD HUSSAIN Versus PAKISTAN TOBACCO CO. LTD.

1. MU14AMMAD HATEEM, J.-This appeal, by special leave, arises out of the judgment of the former High Court of Sind & Baluchistan dated 3rd of March, 1975, by which Constitutional Petition No. 1258 of 1974 was dismissed.

2. The facts which have given rise to this appeal are that the appellant, who was employed as a peon by the first respondent, continued to serve in that capacity for 18 years. Pursuant to a settlement dated 17th of November, 1971, he was retrenched from service. There was a stipulation in the settlement that in the event of any vacancy of a peon, the senior most retrenched worker would be eligible for being recalled.' The appellant learnt in February, 1973, that there were two vacancies of peons which had to be filled in and, thereupon, he sent a grievance notice on 17th of February, 1973, through his Advocate seeking re-employment under the terms of the settlement but the first respondent, by its letter dated 26th of February, 1973, denied that there was any vacancy of a peon in the Engineering Department where he had been working before his retrenchment.

3. Being thus dissatisfied he filed an application for the redress of his grievance under section 25-A of the Industrial Relations Ordinance before the Junior Labour Court No. V, Karachi. The first respondent resisted the application on the same ground as earlier stated. After the evidence was recorded, the Junior Labour Court No. V, by its order dated 9th of July, 1974, directed the first respondent to re-employ the appellant with effect from the date of resignation of a peon by the - name of Amanullah in the accounts Department. The first respandent filed an appeal before the Sind Labour Court No. 1V, Karachi, and- as the evidence was not properly recorded the case was remanded for this purpose to the Junior Labour Court No. V, and to decide the case afresh. It was at this stage that the first respondent took the objection to the maintainability of the proceedings on the ground that under the law the grievance notice could not be served through an Advocate. The objection was rejected and by order dated 28th of May, 1974, the Junior Labour Court No. 11, which became seized of the case, again directed the first respondent to re-employ the appellant with "full back wages" from the date of the resignation of Amanullah. The first. respondent again went in appeal before the Sind Labour Court No. IV. By order dated . 30th of August, 1974, it held that the grievance notice served by an Advocate "for and on behalf" of the appellant under subsection (1) of section 25-A of the Industrial Relations Ordinance, 1969, failed to comply with the requirement of law and, accordingly, the appeal was allowed on this ground alone. The appellant challenged the order in the aforementioned Constitutional Petition but failed to get relief as the High Court held that the word "himself" occurring in subsection (1) of section 25-A means the "workman himself" and not his agent such as his Advocate.

4. As there was a conflict of decision in the same High Court on the question of the interpretation of the word "himself", leave to appeal was granted to resolve it.

5. Since the controversy is in regard to the meaning of the word "himself" it is necessary to refer to the context in which it has been ' used in subsection (1) of section 25-A which reads:

6. "25-A. Redress of individual grievances.-(1) A worker may bring his grievance in respect of any right guaranteed or 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 cause of such grievance arises."

7. Abdul Hayee Kureshi, J. in Daud Hosiery Mills v. Hazrat Muhammad Yousuf (Writ Petition No. 264 of 1975), an unreported decision of the same High Court, held that the word "himself" must be construed liberally so as to include an agent as otherwise an illiterate workman would never be able to present his grievance in writing; and if the argument was that he could be represented by a Shop Steward or a Trade Union then would it still be possible to send the grievance notice if the alternatives were not available in the establishment. On this view of the matter he was of the opinion that a person has a right to be represented by an Advocate of his 'choice and such right cannot be lightly defeated by the mere fact that he has a choice of being represented by a Shop Steward or a Trade Union. The Labour Appellate Court in Hussain Textile Mills v. Muhammad Ishaq (Appeal No. KAR-440 of 1973) has taken a contrary view and held that by using the word "himself" the Legislature intended to avoid legal quibbles, if legal practitioners were permitted to assist, and, therefore, the concept of agency is excluded. In the judgment under appeal, Mir Khuda Bakhsb Marri, J., principally relied on the judgment of this Court reported as Karachi Union of Employers and others v. The Industrial Court, Karachi and others (P L D 1961 S C 57). In that case, while construing section 34 of the Industrial Disputes Ordinance, 1959, it was held that the intention of the Legislature was obvious from its language that it regarded the appearance of legal practitioners in proceedings before the Industrial Courts as undesirable except in cases where all the parties consented to his appearance. The learned Judge further distinguished the case of Daud Hosiery Mills v. Hazrat Muhammad Yousuf on the ground :

8. " . . . . A beneficial interpretation can only be given where the language is not clear and two or more different interpretations can safely be given to it but here, in my opinion, the word `himself' need no other interpretation except `workman himself' or `through his two other agencies' as provided in the section to bring his grievance before the employer and not through an Advocate. Ignorance or illiteracy of the workman in the country is generally well known and it cannot be said that Legislature could remain ignorant of the fact. Hence, this fact, in my opinion, cannot be a valid ground to give a wider interpretation to the word `himself'."

9. Now looking at subsection (1) of section 25-A of the Ordinance, I find that the word "himself" is prefixed by the word "either" and coupled with the words "or through his Shop Steward or Trade Union". The word "either". means "one or the other" and the word "through" denotes the concept of agency. Therefore, in construing the word "himself" the words "either" and "through" cannot be overlooked. The former ,refers to the alternatives while the. latter means a medium of agency. The word "himself" means "the emphatic form of be, him in his real character". Clearly, therefore, in using the word "either" the Legislature provided alternatives to the workman or his agent such .:s the Shop Steward or the Trade Union; and if the concept of agency is to be regarded as inherent in the' word "himself" then plainly it would be against its real meaning and this could not be the intention of the Legislature which has purposely used this', word to avoid legal quibbles as rightly held in Hussain Textile Mills v. Muhammad Ishaq. The legislative intent seams to be to avoid interference by any other outside agency. It would appear from the scheme of the legislation that the appearance through legal practitioners is restricted and wherever he is eligible to appear it has been so enacted. Section 49 of the Ordinance makes this intent obvious and in this view of the matter it would be anomalous to introduce the concept of agency in the word "himself" for in that eventuality the object of the law can easily be, defeated.

10. It would also be inapt to introduce the consideration of illiteracy or the existence or non-existence of the alternatives while construing the word "himself" as it is the principle of interpretation to give to the word its ordinary meaning for that is the only way to find out the intent of the Legislature. Therefore, this consideration is wholly irrelevant. Mir Khuda Bakhsh Marri, J., was, according, correct in holding that having regard to the language of the subsection it is not a case where the word conveys different meanings to require a beneficial construction. The learned Judge has supported his view by referring to English cases such as Monks v. Jackson (1) and Queen v Mansel Jones (21 in which the implication of the word "himself" was considered and the meaning given to this Court in Karachi Union of Employers and others v. The Industrial Court, Karachi and others also leads considerable assistance to the interpretation of the word "himself."

11. Comparable instances are furnished by rule 5 of Order XXXIII and rule 1 of Order XLIV, C. P. C. where the presentation of the application has to be by the applicant himself although in Order III of the Code of Civil Procedure it is provided that parties can be represented by recongnized agents. (See Munuswami Goundar v Mottayya Koundan and others (3).

12. It is apparent from the application that the appellant was seeking the enforcement of his right under the settlement as would appear from his prayer and, therefore, the prerequisite of a valid notice was essential under subsection (1) of section 25-A. The learned counsel for the appellant placed reliance on subsection (6) of this section but the case of the appellant is not covered by it so as to avoid the necessity of sending a grievance notice to the employer. The reference to Messrs Crescent Sugar Mills Ltd. v. Haji Muhammad and another (4) is wholly irrelevant as in this case the employees were dismissed after the promulgation of Industrial Relations (Amendment) Act, 1973, and the question for consideration arose as to whether the grievance notice was necessary having regard to the language of subsection (6) of section 25-A which is not the point for consideration here. For the foregoing reasons I would approve the view taken by Khuda Bakhsh Marri, J., in the judgment under consideration and also that of the Labour Court in Appeal No. KAE440 of 1973. The opinion of Abdul Hayee Kureshi, J.,

(1) (1889) 23 Q B D 29 ? (2) (1876) L R C P D 683

(3) A I R 1954 Mad. 853 (4) P L D 1976 Lah. 1176 is too widely stated and, therefore, fails to give appropriate meaning to the word "himself". Accordingly, I would not approve it.

13. In the result, the appeal fails and is hereby dismissed but with no order as to costs.

14. DORAB PAM, J.-I agree.

15. Petition dismissed.