PACKAGES LIMITED through its General Manager and others vs MUHAMMAD

1. ' NASIM HASAN SHAH, J.--This judgment will dispose of above mentioned five Civil Appeals as all of them involve the same question of law namely whether after the addition of subsection (6) in section 25-A of the Industrial Relations Ordinance, 1969 by Industrial Relations (Amendment) Act, 1973, a workman could seek redress against the termination of his service only under the provisions of the said subsection or whether he could, notwithstanding the addition of subsection (6) aforesaid, still avail of the remedies provided under subsections (1), (2) and (4) of section 25-A.

2. ' For the purposes of examination of the above question it will be useful to reproduce below the provisions of subsections (1),(2) and (4) and the provisions of the subsequent addition to the said section namely subsection (6) thereof.

3. ' The provisions of subsections (1),(2) and (4) of section 25-A are as follows:-- "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 collective bargaining agent, within three months of the day on which 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 collective bargaining agent the employer shall, within seven days of grievance being brought to his notice, communicate his decision in writing to the shop steward or, as the case may be, the collective bargaining agent.

(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 or shop steward may take the matter to his collective bargaining agent or the Labour Court or, as the case may be, the collective bargaining agent may take the matter to the Labour Court and where the matter is taken to the Labour Court it shall give a decision within seven days from the date of the matter being brought before it as if such matter were an industrial dispute: ' Provided that a worker who desires to so 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."

4. ' Subsection (6) was introduced, as already mentioned by the Industrial Relations (Amendment)

5. Act, 1973 and provided 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."

6. A perusal of the provisions of subsections (1), (2) and (4) shows that a worker is allowed to seek redress of his grievance by approaching his employer who is required to communicate decision within 15 days of the grievance being brought to his notice and if the employer fails to communicate his decision within the aforesaid period or if the decision is communicated but the worker is dissatisfied with such decision, the worker may take the matter to the Labour Court within a period of two months from the date of the communication of the decision by the employer.

7. Now, in case of a grievance caused to the workman by termination of his employment a speedier remedy is provided by subsection (6) namely that he may make an application directly to the Labour Court within a period of two months of the termination of the employment.

8. ' The controversy that has arisen is whether the remedy provided under subsection (6) of section 25-A is an independent remedy in addition to the remedy provided under subsections (1) to (4) to section 25-A or is a remedy which derogates from and excludes the application of the provisions of subsections (1) to (4) of the same section on the principle of generalia specialibus non derogant.

9. ' It may be mentioned in passing that subsection (6) of section 25-A aforesaid was omitted through Labour Laws (Amendment) Ordinance, 1977--Ordinance IX of 1977--which was promulgated on 28-1-1977. Thus, these cases relate to the short period falling between 1973 and 1977.

10. ' Coming back to the merits of the matter we observe that different views have been expressed on the question as to whether subsection (6) provides an additional remedy or whether it provides a special remedy exclusively for cases of termination of the employment. Thus in the judgment delivered in Muhammad Duryab Yousuf Qureshi v. Punjab Labour Appellate Tribunal, Lahore PLD 1979 Lah. 406, Gul Muhammad Khan, J. (as he then was) expressed the view that the provisions of subsection (6) do not exclude the remedy provided under subsection (4) but come into play only if a worker does not give a grievance notice to employer as provided under subsection (1). However, in Arif Hussain Shah v. Operative Director, Administration, Electric Equipment Manufacturing Co.Ltd.

11. And another (PLD 1979 Lahore 603), Dilawar Mahmood, J. (as he then was) expressed the view that individual grievances of workman other than termination of service were to be dealt with under subsections (1) to (4) of section 25-A but cases of termination of employment were governed exclusively by subsection (6). Accordingly, he went on to add that a workman questioning an order of termination must move the Labour Court having jurisdiction in the area concerned within two months in case he was aggrieved by an order of termination. Reliance was placed on the opening words of subsection (6) namely Notwithstanding anything contained in subsections (1) to (4) any worker aggrieved by termination of his employment and it was opined that subsection (6) being a 'non obstante' clause, the word `notwithstanding' implying "despite" or "in spite of this provision was intended to oust the jurisdiction of the Labour Court to call in question the orders of termination of service. On this view, he held that all grievances other than termination of service are to be dealt with under subsections (1) to (4) of section 25-A but so far as cases of termination of employment are concerned they must be governed by subsection (6) of section 25-A.

12. ' Coming to the matters before us, in the first two, namely Civil Appeal No,143 of 1979 and Civil Appeal No, 228 of 1979, A.S. Salam, J. (then in the High Court) in an elaborate judgment wherein all the earlier judgments on the subject have been discussed reached the conclusion that the intention of the addition of subsection (6) was not to take away the existing rights under subsections (1) to (4) of section 25-A but to supplement them by the addition of subsection (6) to enable immediate relief to the worker, where he so desired. In other words, a further right was conferred on the worker to obtain speedier relief in addition to the right earlier conferred upon him under subsections (1) to (4) to section 25-A. So far as the question of the effect of the word "notwithstanding " with which words subsection (6) commenced, he expressed the view that the word `notwithstanding' should be interpreted in the context of the particular statute in which it occurs and that in the words of the learned Judge-- "in the case in hand, what is to be seen is whether when it is said in subsection (6) that "notwithstanding" anything contained in subsections (1) to (4), the worker may take the matter directly to the Labour Court, does it mean that a worker could not have had recourse to subsections (1) to (4)? Now word "notwithstanding" in the Oxford English Dictionary means "in spite of something" "nevertheless", "still", "yet", "although". If we were to substitute the word "notwithstanding" with its meaning "in spite of', the provision would read that "in spite of anything contained in subsections (1) to (4), any worker aggrieved by the termination of his employment may take the matter directly to the Labour Court". It would clearly mean that a worker could go to the domestic authority under subsections (1) to (4), but in spite thereof, he could come directly to the Labour Court. To put the matter directly the provision is not that "instead of what is contained in subsections (1) to (4), subsection (6) shall apply. On the other hand, the provision is that "notwithstanding", or, "in spite of' what is contained in subsections (1) to (4), a worker may come to Court directly under subsection (6)".

13. ' On this reasoning he came to the conclusion that the addition of subsection (6) after subsections

(1) to (5) of section 25-A was not meant to take away the right to seek redress from the domestic forum under subsections (1) to (3) followed by recourse to Labour Court under subsection (4) but to confer further right to the worker to take the matter 'directly' to the Labour Court under subsection (6).

14. ' However, so far as the other three appeals namely Civil Appeals Nos.311 to 313 of 1980 are concerned a contrary view has been taken namely that a grievance petition made before the Labour Court after two months of the order of the termination of service would be barred by time in view of the provisions of subsection (6) of section 25-A which provides for such grievances to be submitted within two months to the Labour Court. Thus, the time spent for seeking redress of the grievance under subsections (1) to (4) of Section 25-A was not available as the petition for redress of grievance of termination was particularly provided for by subsection (6) of section 25-A.

15. We have heard learned counsel for the appellants in Civil Appeals No,143/1979 and Civil Appeal No,228 of 1979 and Mr. Abid Hassan Minto, learned counsel for the appellants in Civil Appeals Nos.311 to 313 of 1980. In our opinion a 'non abstante' clause operates as an ouster of the earlier provisions only where there is a conflict and inconsistency between the earlier provisions and those contained in the later provision and, therefore, must be read in the context in which it is operating.

16. Accordingly, a non obstante clause will operate as ouster only if an inconsistency between the two is found to exist. In the instant case, there was no such inconsistency because the procedure for redress of the grievance of a worker under subsections (1) to (4) of section 25-A and that under subsection (6) of section 25-A can co-exist. In the first set of provisions a workman could approach the employer for redress in the first instance and if the same was not forthcoming and the employer refused to grant redress he could, after failing to secure redress from him, approach the Labour Court. Under subsection (6) of section 25-A the workman where he felt aggrieved by the termination of service and being of the opinion that there was no hope for redress being accorded to him by the employer and approaching him was merely a waste of time could approach the Labour Court directly, within two months of the termination of his employment. Viewed from this angle the provision of subsection (6) would appear to be providing an additional remedy as there was no inherent unworkability in the remedies provided in the two sets of procedures contained in subsections (1) to (4) and subsection (6) of section 25-A. The maxim "generalia specialibus non derogant" namely that special provisions will control general provisions is, therefore, not really attracted in the circumstances. Moreover, this rule is not to be understood in the sense that wherever there is a particular enactment following a general enactment the particular enactment would overrule the former. On the other hand, it is only where the particular enactment is absolutely repugnant and inconsistent with the general enactment that the Court may declare the special enactment as having been repealed by the general one. This is not a case here.

17. ' We would, therefore, dismiss the appeals of the appellants in Civil Appeals Nos.143 of 1979 and 228 of 1979 and allow the appeals of the appellants in Civil Appeals Nos. 311 to 313 of 1980. Accordingly, in the last mentioned three appeals the order of the Appellate Tribunal dismissing the appeals of the workman as barred by time are declared as erroneous in law and it is found that the Labour Appellate Tribunal has not disposed of the appeals in accordance with law. Resultantly, the said appeals are remitted back to the Labour Appellate Tribunals concerned for fresh decision in accordance with law. The parties will be left to bear their own costs as difficult questions of law arose therein.