WEST PAKISTAN INDUSTRIAL DEVELOPMENT CORPORATION Versus RASHID AHMED

1. MUHAMMAD HALEEM, C.J. --Leave was granted to consider whether an appeal could lie before the Labour Appellate Tribunal against the decision of the Labour Court in a matter pending for decision in that Court on the promulgation of the Industrial Relations (Amendment) Ordinance (XLVIII of 1972) deleting subsection (3) of section 37 of the Industrial Relations Ordinance, 1969.

2. The circumstances giving rise to this question are as under:-

3. The services of respondent Rashid Ahmad, a Stenographer in the West Pakistan Industrial Development Corporation (hereinafter called W.P.I.D.C.) were terminated on 10th of June, 1965. He thereupon instituted a declaratory suit in the Civil Court against the illegal termination of his services which was decreed on 5th of July, 1967. The W . P. I . D . C . filed an appeal against the decree which was, however, dismissed as time-barred on 8-2-1969. The W.P.I.D.C. next filed a suit to challenge the validity of the decree which too was dismissed and an appeal against that dismissal was pending in the District Court at Karachi.

4. As the W.P.I.D.C. failed to reinstate the respondent, he served on the appellant a grievance notice and thereafter filed an application in the Labour Court on 20th of July, 1972, under section 25-A of the Industrial Relations Ordinance which was allowed on 18th of June, 1974. By this order he was reinstated with back benefits.

5. Against this order the W.P.I.D.C filed an appeal before the Labour Appellate Tribunal. An objection, as to the maintainability of the appeal, was raised before it in view of the aforesaid amending Ordinance. But the objection was ruled out and the appeal was allowed on 2nd of October, 1974. This order was challenged through Constitutional Petition No.1329 of 1974 which was allowed and the appeal was held to be not maintainable as it was instituted subsequent to the promulgation of the amending Ordinance which had taken away the right of appeal previously available under section 37(3) of the Industrial Relations Ordinance (XXIII of 1969) by reason of its deletion by the industrial Relations (Amendment) Ordinance (XLVIII of 1972). The question, therefore, is as to whether the right of appeal under the Labour Laws (Amendment) Ordinance (IX of 1972) survived the appeal.

6. The High Court in holding against the survival of the right of appeal observed as under:

7. "However, the question which requires consideration is, as to whether there is any contrary provision provided for in the Ordinance. In our view section 28 of the Ordinance read with section 36-D of the newly-added section in the I.R.O. provided contrary provision by not expressly providing a right of appeal against an order passed by the Labour Court in a pending case which was saved by virtue of clause (a) of section 28 of the Ordinance."

8. By the Industrial Relations (Amendment) Ordinance (XLVIII of 1972), the words "or a decision of the Labour Court" under subsection (4) of section 25-A, were omitted from section 37(3) of the Ordinance (XXIII of 1969). Again section 25-A of Ordinance XXIII of 1969 was also amended in that in subsections (4) and (5) the words "Junior Labour Court" were substituted for the words "Labour Court" and a new subsection (6) was added which reads as under:

9. "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."

10. A new section, that is, section 36-D was added which gave to the aggrieved party the right of appeal from the section of a Junior Labour Court to a Labour Court. Section 28 of the Ordinance XLVIII of 1972 provided for the saving of the proceedings in the Labour Court and the maintainableness of the appeal in the Labour Appellate Tribunal. This section reads as under:

11. "Nothing in this Ordinance shall be deemed to--

(a) require the transfer to the Junior Labour Court of any matter under subsection (4) of section 25-A which may be pending before a Labour Court immediately before the commencement of this Ordinance; or

(b) affect any appeal from an order of a Labour Court which may be pending before the Labour .Appellate Tribunal immediately before such commencement "

12. The amending Ordinance by section 36-D gave the right of appeal after the commencement of the Ordinance while section 28 gave protection to the pending proceedings before a Labour Court and so also to appeals pending before the Labour Appellate Tribunal.

13. We do not agree with the view of the High Court that the savings in section 28 of Ordinance XLVIII of 1972 provided a contrary provision by not expressly providing a right of appeal against the decision of a Labour Court to the pending proceedings when the amending Ordinance was enforced. Lord Macnaghten in the Colonial Sugar Refining Company, Limited v. Irving (1905) A C 369, recalled the basic principle. It was firmly established from the time of Lord Coke to the present day that if the amending provisions are not a matter of procedure but touch a right such as that of an appeal, that will survive the amendment and the appeal will lie to the forum to which it was earlier provided when the proceedings were instituted. The condition, however, laid down was that the right should not have been taken away retrospectively or by necessary intendment. This principle has been adopted by this Court in many of its judgments two of which I will presently refer as Idrees Ahmad v. Fida Ahmad Khan (P L D 1985 S C 376) and P.I.A. Corporation v. Pak Saaf Dry Cleaners (P L D 1981 S C 553) where this question was expressly considered and decided.

14. In the present case clause (a) of section 28 of the amending Ordinance provides for the pendency of proceedings in the Labour Court and clause (b) saves the appeal pending in the Labour Appellate Tribunal.

15. There are, however, no express words in section 28 as to whether the decision of the Labour Court in a pending proceeding was appealable. Nonethless, this right cannot be construed to have been taken away as the right of appeal accrued to an aggrieved party on the date of the proceedings. Section 28, as worded, cannot be construed to be retrospective either by reason of any express words or by any necessary intendment so as to defeat the right of appeal of an aggrieved party under the earlier Ordinance. The right survives despite the absence of any words to that effect in section 28 or -by insertion of section 36-D. All that has happened is that there is now a different nomenclature for the Tribunal. In this view of the matter, the High Court was not correct in holding that section 28 of the Ordinance was a contrary provision by not expressly providing a right to appeal.

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

17. S. Q./W-18/S ????????????????????????????????????????????????????????????????????????? Appeal allowed.