James Finlay and Co. Ltd. Vs. Chairman, Second Labour Court, Dacca and another, 33 DLR (AD) (1981) 59

Case No: Civil Appeal Nos. 26, 27, 46 & 47 of 1978

Judge: Badrul Haider Chowdhury,F.K.M.A. Munim,Ruhul Islam,

Court: Appellate Division ,,

Advocate: Syed Ishtiaq Ahmed,Mr. T. H. Khan,,

Citation: 33 DLR (AD) (1981) 59

Case Year: 1981

Appellant: James Finlay and Co. Ltd.

Respondent: Chairman, Labour Court

Subject: Labour Law,

Delivery Date: 1980-1-9

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Kemaluddin Hossain CJ
Fazle Munim J
Ruhul Islam J
K.M.Subhan J
Badrul Haider Chowdliury, J.
 
James Finlay and Co. Ltd.
.................. Appellants (in C.A. Nos. 26 & 27 of 1978)
Vs.
The Chairman, Second Labour Court, Dacca and another
...............Respondents (in C.A. Nos. 26 & 27 of 1978)
And
Mir Ally Akbar
............................App­ellants (in C.A. Nos. 46 & 47 of 1978)
Vs.
M.S. James Finlay & Co. Ltd. and anr
... …………….Respondents (in C.A Nos. 46 & 47 of 1978)
 
Judgment
January 9. 1980
 
Industrial Relations Ordinance 1969 (XXIII of 1969)
Section 34
The maintainability of the employee’s applications under section 34 of the Ordinance. The fact which required to be ascertained was whether the employee was dismissed by the company in the course of an industrial dispute. If the employee were not dismissed in the course of an industrial dispute or his dismissal did not lead to any such dispute or his application under section 34 of the Ordinance would appear to be barred.…. (8)
 
Cases Referred to-
General Manager, Hotel Inter-Continental Vs. Chairman, Second Lab-P65our Court, Dacca, 28 DLR 160, Railway Men's Store Ltd. vs. Chairman, Labour Court, Chittagong 20 DLR (S.C) 251, Administrator, Omar Sons Ltd. vs. Chairman, First Labour Court 28 DLR 178, Pakistan Tobacco Co. Ltd. 13 D.L.R. (S.C.) 280, A. Robrio, 27 D.L.R. 98, M/s. Nabisco Biscuit and Bread Factory W.P.N. 397 of 1974, Rats vs. National Arbitration Tribunal, 1948 I.EB. 424, Joblr vs. Middlesex County Coun­cil (1949) I.K.B.
 
Lawyers Involved
Syed Ishtiaq Ahmed, Senior Advocate with Altaf Hossain and A.W. Bhuiyan, Advocates, instructed by A. Rab-II, Advocate on Record— For Appellants (in C.A. Nos. 26 and 27 of 1978.
Syed Ishtiaq Ahmed, Senior Advocate with Altaf Hossain and A.W. Bhuiyan, Advocates, instructed by A. Rab-II, Advocate on Record— For the Respondent No. 1 (in C.A. Nos. 46 and 47 of 1978).
T.H. Khan, Senior Advocate, with Dr.Zahir, Advocate, instructed by S. M. Huq, Advocate-on-Record.—For Respondent No. 2 (in C.A. Nos. 26 and 27 of 1978)
T.H. Khan, Senior Advocate, with Dr.Zahir, Advocate, instructed by S. M. Huq, Advocate-on-Record.— For the Appellant (in C.A. Nos. 46 and 47 of 1978).
Ex-parte.—Respondent No. 1 (in C.A. Nos. 26 and 27 of 1978)
Ex-parte.—Respondent No. 2 (in C.A. Nos. 46 and 47 of1978).
 
Civil Appeal Nos. 26, 27, 46 & 47 of 1978
(from the judgment and Order dated 7.1.1977 passed by the High Court of Bangladesh in Writ Petition Nos. 863 and 864 of 1974).
 
JUDGMENT
 
K. Hossain CJ.
 
I concur with the deci­sion of my learned brother Fazle Munim, J.
 
Fazle Munim, J.
 
These appeals arise from the same judgment and order of the High Court passed in Writ Petition Nos. 863 and 864 of 1974 on January 7, 1977. In Civil Appeal Nos. 46 and 47 of 1978. Ally Akbar, who is an employee of James Finlay and Co. Ltd. (hereinafter called the company”), is the appellant. The company which is the appellant in Civil Appeal Nos. 26 and 27 of 1978 is the employer.
 
As the facts involved and the points of law raised in these appeals are common, they were heard analogously and this judgment will govern all the four appeals.
 
3. The employee who was a senior assis­tant in the company's establishment for 20 years claimed that he, being the General Se­cretary of the Workers Union, was involved in trade union activities. His involvement ultimately led, according to him, to victimisa­tion by the company. During the pendency of his case before the Labour Court in which he raised an industrial dispute, the company ini­tiated two separate proceedings against him on some baseless charges, it is alleged. In the first proceeding, the allegation revealed that he prevented Mr. Alvi, Assistant Manager, from leaving the office for his house and had also prevented his car from moving any furth­er than where he had stopped it. In the second one, it was alleged that he snatched away the workers' attendance register from the table in the Manager's room and persisted in refusing to return it to the Manager. During the enquiry held by the company be denied both the charges. Nonetheless, he was dismissed from service as the company found him guilty. Two separate applications under section 34 of the Industrial Relations Ordinance, 1969 (hereinafter referred to as "the Ordinance") were filed by him, the grounds of challenge being that the proceedings drawn by the com­pany were hit by sections 15 and 47 of the Ordinance. The company questioned the em­ployee's competence for present the aforesaid applications before the Labour Court. It denied the existence of any industrial dispute and of dismissal of the employee as a conse­quence of such dispute. The company also denied the plea of his victimisation for any trade union activities; It asserted that the acts of misconduct which ended in his dismissal were independent of any trade union activities as alleged by the employee. Accordingly, there is no scope of application of section 15 of the Ordinance.
 
4. Both parties were heard by the Labour Court which held that the applications of the employee before it were competent under section 34 of the Ordinance and the charges levelled against him in the proceedings drawn by the company did not constitute the offence of misconduct. The Court also found that the proceedings were drawn merely to victi­mise the employee for his trade union activi­ties'. In its opinion the findings of the domestic enquiry were perverse. Accordingly, the Court ordered his reinstatement in the company's service.
 
5. The company moved the High Court under Article 102 of the Constitution. The High Court found that the employee had ceased to be a worker within the meaning of its definition provided in section 2(XXVIII) of the Ordinance, so his applications under secti­on 34 were incompetent. The Court, however, expressed the opinion that his applications can be converted to be under section 25 of the Employment of Labour (Standing Orders) Act, 1965 (hereinafter referred to as the Act). On merit the High Court found that the Labour Court could not go behind the findings of a domestic enquiry, as its duty was only to see whether the legal requirements prescribed by section 18 of the Act were complied with or not. After finding that the requirements of the aforesaid section were fulfilled the High Court held that the Labour Court acted ille­gally. Its order was, therefore, declared to have been made without lawful authority and as being of no legal effect. The employee obtained special leave from this Court on the following submissions made by his counsel, Mr. T.H. Khan. The submissions were:
 
1. The Labour Court has found that the allegations made against the worker did not constitute an offence of misconduct, and that the findings of the domestic enquiry were perverse, and the employee was victmised for his trade union acti­vities, and as such the Labour Court had jurisdiction to interfere with the findings of a domestic tribunal.
 
2. The High Court exercising its Writ jurisdiction in the nature of certiorari had no jurisdiction to interfere with the decision of the Labour Court, because the Labour Court acted within its juris­diction in holding the finding of the domestic enquiry perverse and that the petitioner was dismissed for his trade union activities. These are questions within the jurisdiction of the Labour Court to decide   and there is no error of law apparent on the   fact of the record.
 
6. In Civil Appeal Nos. 26 and 27 of 1978, the company, James Finlay & Co. Ltd. which is the appellant, raised the following point upon which leave was granted by this Court:
 
"Whether the High Court after holding that the applications under section 34 of the Industrial Relations Ordinance were not maintainable, was justified in treating the said applications as ones under sec. 25 of the Employ­ment of Labour (Standing Orders) Act of 1965, without coming to a finding that the mandatory requirements of the said section were complied with or not."
 
7. From the submission made by the employee's counsel, it would appear that he did not prefer to challenge the High Court's finding on the maintainability of the employee's applications under section 34 of the Ordinance before the Labour Court. The reason why he did not direct an attack against that we consider to be the foremost hurdle in the way of his client's winning the appeals is not clear. None­theless, the issue regarding the maintain-ability of the application, under section 34 of the Ordinance became the pivotal ground upon, which the controversy during the hearing of the appeals and the same was debated before us in full force. Had the decision of the High Court been given merely on this point, no further complica­tion would perhaps have arisen. As, however, the High Court travelled a little further than setting this point and by entering upon the question which would, no doubt, seem to be quite pertinent, gave its decision there­on namely, whether the applications under section 34 of the Ordinance were conver­tible to one under section 25 of the Empl­oyment of Labour (Standing Orders) Act, 1965, we have to consider this question as well. The decision as to its convertibility had, of course, been challenged by the company.
 
8. These two main issues apart, it was necessary to consider another connected issue, namely, whether in deciding upon an app­lication under Article 102 which is in the nature of the Writ of certiorari, the High Court should enter upon the merits of the case.
 
9. To decide the first question, that is the maintainability of the employee's applica­tions under section 34 of the Ordinance, the facts which required to be ascertained was, whether the employee was dismissed by the company in the course of an indust­rial dispute. If the employee was not dis­missed in the course of an industrial dispute or his dismissal did not lead to any such dispute, his application under section 34 of the Ordinance would appear to be barred. The bar comes from the definition of the word 'worker’ as provided in the Ordinance as well as its object, scheme and other provi­sions. Two decisions which considered the definition of 'worker' and other relevant provisions along with the scheme and object of the Ordinance have already found the existence of such a bar. Previous to the decision of the Supreme Court in the case of M/S. Railway Men's States Ltd.  Vs. Chair­man, Labour  Court,  Chittagong 30 DLR 251 the High Court Division also considered the same question which was argued at length and with some vehemence by two eminent counsels.
 
10. In the case of General Manager, Hotel Inter-Continental Vs. Chairman, Second Lab-P65our Court, Dacca, 28 DLR 160, the employer challenged the competence of the worker who had not been dismissed either in course of an industrial dispute or whose  dismissal did not result in an industrial dispute, to file an application under section 34   of the Ordin­ance. Needless to say, the worker had won before the Labour Court. Against the backgr­ound of the provisions in the Ordinance, the conflicting claims regarding the maintainability of such an application were examined; Views expressed in this decision   were, with the slightly different emphasis, approved by the Supreme-Court in the case of Railway Men’s Stores Ltd. vs. Chairman, Labour Court Chittagong referred to above. Before referring to the various points which were decided in relation to the maintainability of an application under section 34 by a dismissed worker in these two decisions, it would be necessary to mention that there are two enactments, nam­ely, the Industrial Relations Ordinance, 1969 and the Employment of Labour (Standing Orders) Act, 1965 both of which seek to govern employer-employee relations and other connected issues. One of us who delivered the judgment in the case of Administrators Omar Sons   Ltd.,  vs. The Chairman, First Labour Court, Dacca and another 8 DLR (S.C.) 178 observed as follows:
 
“The principle to be followed in matters dealing with the same subject, where there are parallel laws, is that they should not ordinarily be deemed to be repugnant to each other but supplement each other. They should be interpreted harmoniously unless there is any express, or by necessary implica­tion, repugnancy between the two. When there is more than one enactment in the field on the same subject, they need not necessarily be repugnant to each other."
 
11. In determining the question as to the maintainability of the employee's applications under section 34 of the Ordinance, the point also arose whether in case such appli­cations are found to be not so maintainable, they can be treated as ones under section 2  of the Act of 1965. But this, it may be mentioned, may not be determined in these appeals if the maintainability of the applica­tions is established; otherwise the convertibi­lity of these applications as already men­tioned has to be considered.
 
12. Before considering the competing claims under the two different laws, the provisions of section 34 of the Ordinance and section 25 of the Act may be quoted. Section 34 is as follows:
 
"Application to Labour Court. Any collective bargaining agent or any emp­loyer or workman may apply to the Labour Court for the enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement."
 
13. It will be noticed that the word 'worker' occurs in this section. A challenge was thrown on behalf of the employer that dismissed worker (whose dismissal was neither the consequence of an industrial dispute nor led to such a dispute) did not come within its meaning as defined in the Ordi­nance. Quite obviously, the question arose as to who is then a 'worker’. This, of necessity, led to the consideration of the definition of "worker” as provided in section 2 (XXVIII) of the Ordinance. Mention may be made that if a word occurring in an enactment which requires to be interpreted has already been defined in the enactment itself, the Court will adhere to the meaning of such word as is given in the definition unless there is anything contrary in the context. There is no necessity to travel elsewhere or to other enactments for the purpose of defin­ing that word or discovering its proper meaning.
 
14.  Section 25 of the Act of 1965 is as follows:
 
"(1) Any individual worker, including a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment" who has a grievance in respect of any matter covered under this Act and intends to seek redress thereof under this section shall observe the following procedure:
(a) the worker concerned shall submit his grievance to his employer, in writing by registered post, within fifteen days of the occurrence of the cause of such grievance and the employer shall within fifteen days of receipt of such grievance, enquire into the matter, give the worker con­cerned an opportunity of being heard and communicate his decision, in writing, to the said worker.
(b) if employer fails to give a decision under clause (a) or if the worker is dis­satisfied with such decision, he may make a complaint to the Labour Court having jurisdiction, within thirty days from  the last date under clause (a) or within  thirty days from the date of the decision, as the case may be, unless the grievance has already been raised or has otherwise  been taken cognizance of as labour dispute under the provisions  of the Industrial Disputes Ordinance, 1959.
 
15. It will be observed that provision of this section have elaborately laid down the procedure for filing a grievance petition by a worker. This Act also contains the definition of a 'worker'. But this definition is not (he same as given in the Ordinance. Section 2(v) of the Act provides the definition of a 'worker' which is as follows:-
Worker means any person including an apprentice employed in any shop, commercial establishment or industrial establishment to do any skilled, unskilled, manual, technical, trade promotional or clerical work for hire or reward whether the terms of employment be expres­sed or implied, but does not include any such person-
(i) who is employed mainly in a managerial or administrative capa­city; or
(ii) Who, being employed in a supervi­sory capacity, exercises, either by nature of the duties attached to the office or by reason of power vested in him, functions mainly of managerial or administrative nature.
 
16. As the issue regarding the maintain­ability of the applications under section 34 of the Ordinance primarily involves the reconsi­deration of the definition of 'worker' as given in the Ordinance along with other provisions therein, the clause defining it may be quoted. It may, however, be mentioned that the defi­nition has been found to be in accord with the various other provisions therein in the decision mentioned above.
Section 2(XXVIII) reads as follow.
 
"Worker'' and 'workman means any person not falling within the definition of employer who is employed (includ­ing employment as an apprentice) in an establishment or industry for hire or reward either directly or though a contractor whether the terms of em­ployment be expressed or implied and for the purpose of any proceeding under this Ordinance in relation to an indus­trial dispute include a person who has been dismissed, discharged, retrenched laid off or otherwise removed from em­ployment in connection with, or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay­off or removal has led to that dispute."
 
17. In the Hotel Inter-Continental case, the High Court Division decided upon the maintainability of an application under section 34 of the Ordinance by a dismissed worker not merely relying on the definition of 'worker' as provided in the Ordinance itself, but did so, on examining the object and purpose as re­vealed in all relevant sections. In discovering the meaning of the word 'worker' attention was given to the wording of the definition itself, as veil as the grammatical construction. The definition, it was found, provides two categories of workers:
 
"The two categories fall in two parts of the clause and are constructional joined together by the use of the con­junction ‘and’ which is preceded and followed by a comma. A 'worker' or 'workman' who falls in the first category means any person who is not an employer as defined in the Ordinance but is emplo­yed for hire or reward under any express or implied term of employment. An ap­prentice would also fall in this category.
 
In the second category falls a 'worker or 'worker' who has been dismissed, discharged, retrenched, laid offer other-wise removed from employment, but, beside such dismissal, retrenchment or removal two other factors must exist so as to bring him under this category. One is the existence of any proceedings under the Ordinance in relation to an industrial dispute and the other is the existence of some connection between his dismis­sal, discharge, retrenchment, lay-off or removal and the industrial dispute. To face more explicit, his dismissal must have arisen out of an industrial dispute or must have led to such dispute."
 
18. This finding would have sufficed for deciding the case but as objections  were voiced on the ground of other provisions in the Act which, it was claimed, attracted different conclusions they were also considered by the learned judge. References were made to section 28, 33, 34, 35 (v) (d) and 43 of the Ordinance. It may be mentioned that in the present appeals before us, in addition to these sections which have been considered in the Hotel Inter-Continental case, refer­ences were made to section 15 of the Ordi­nance. Since we do not find any substantial reason to differ with the reasonings given in this   decision as to the interpretation of the above mentioned sections it is not necessary to quote them in this judgment.
 
19. Conclusions reached in this decision on the interpretation of other relevant sec­tions of the Ordinance are that after the amendment to section 34 which no longer contains the expression "any party to such dispute", a worker who has not been dismissed in the course of an industrial dispute or his dismissal has not led to an industrial dispute is not entitled to file an application under this section. The bar against the maintainabi­lity of such an application comes from the exp­ression "for the purpose of any proceedings under this Ordinance in relation to an indus­trial dispute" which occur in the clause defining a worker'. The meaning of these expressions is clarified by the provisions of section 43 which prohibit rising of an industrial dispute except in the manner provided by the Ordina­nce which appears in sections 28 to 33 of the Ordinance. Consequently, an application can be maintained by a worker under section 34 which does not include any reference to an industrial dispute.
 
20. As regards the contention that a dispute between a worker and the employer can be viewed as an industrial dispute so that incase of such dispute a worker would be entitled to move the Labour Court under section 34 of the Ordinance, views were expressed that if this were possible the whole purpose and scheme of the legislation which provided for the settlement of an industrial dispute will be defeated. The interaction between sections 34 and 43 which arc care­fully noted in the aforesaid decision in the following words further highlights the purpose and scheme of the Ordinance:
 
"The prohibition against raising an industrial dispute as provided by this section (43) cannot be nullified by any­thing contained in section 34 which does not specifically contain any words or expressions showing that such a dispute can be raised under that section. Even such expressions as "any party to an industrial dispute" or "adjudica­tion on the dispute" as occurred in the unamended section 34 which might have been viewed as nullifying the intention of the legislature as expres­sed in section 43, do no longer exist. The aforesaid expressions have been omitted from the amended section 34. There is no other phrase or clause in section 34 which can be interpreted as nullifying the express prohibition in section 43 of the ordinance. It is difficult to understand how, in the absence of any exception, the express prohibition imposed by section 43 can be overcome or importance be whittled down. Even if it be conceded that an individual dispute between a single worker and his employer can be included within the definition of "industrial dispute", such dispute cannot, I am afraid, be brought to the notice of the Labour Court for its decision by reason of the express prohibition contained in section 43 of the Ordinance. Being unqualified the prohibition must seem to be both total and complete."
 
21. A dismissed worker can, however, bring an application under section 34 during the continuance of an industrial dispute which under the Ordinance can only be raised by any collective bargaining agent or employer acco­rding to the manner laid down in the above-mentioned sections of the Ordinance. It was, therefore, held in the decision afore­said that:
 
"During the continuance of such an industrial dispute which led to his dis­missal or which arose on his dismissal, a dismissed worker can, by filing an application under section 34, enforce any legal right or the term of any award or settlement. If no such dispute exists, a dismissed worker will not fall within the second category of workers or workmen, and he cannot, therefore, maintain an application under section 34. A "worker1 or 'workman" who fills in the first category of workers as defined in clause (XXVIII) can, however, maintain an application under section 34, but the first category does not, as mentioned above, include a dismissed worker".
 
22. In deciding the question whether a worker who was not dismissed in the course of an industrial dispute or whose dismissal did not lead to such an industrial dispute can file an application under section 25 of the Act 1965, it was observed that though the definition of worker as provided in section 2 (v) of the Act is narrower than that given in the Ordinance, a worker who falls within that definition can prefer an application under section 25 of the Act. As regards a dismissed worker who is not included within the narrower definition of 'worker', it was found that though such a worker would be unable to seek protection against his dismissal under section 34 of the Ordinance; he would not be without a legal remedy.
 
23. The point that was established in this decision, that is to say, a worker who has not been dismissed in the course of an industrial dispute nor dismissal had led to such a dispute is not entitled to maintain an application before the Labour Court under section 34 of the Ordinance, finds support from the case of Railway Men's Store Ltd. vs. Chairman, Labour Court, Chittagong 20 DLR (S.C) 251. Facts on which the question arose as to whether an application by an employee of the appellant company was maintainable under section 34 of the Ordi­nance are simple. Respondent No. 4 which is a Union of the employees of the appellant company filed an application under section 34 of the Ordinance for the reinstatement of its general secretary who was also an emp­loyee of the appellant company alleging that the termination of the latter’s service with­out assigning any reason was illegal and such termination is the result of victimisation for being an officer of the Employees Union. The appellant company contested the application by stating that the termination was bonafide and that the application under section 34 was not maintainable. Neither of the objections of the appellant company was accepted by the Labour Court which held that the application was maintainable and ordered reinstatement of the employee concerned. Aga­inst this decision the appellant company moved the High Court of Bangladesh under Article 102 of the Constitution. The appellant company did not succeed before the High Court which rejected the application summarily and in relying upon the case of Administrator, Omar Sons Ltd. vs. Chairman, First Labour Court 28 DLR 178, found that the application was maintainable. Though the locus standi of a worker to file an applica­tion under section 34 of the Ordinance was not directly involved in the case some observa­tions have been made regarding the same. Both the enactments namely, the Ordinance of 1969 and the Act of 1955   have been con­sidered to find out legal position of a worker in maintaining an application either under section 34 of the Ordinance or section 25 of the Act. It was observed:
 
"An application under section 25 of the Employment of Labour (Standing Orders) Act is certainly maintainable as the said provision has been specifi­cally made for adjudication of the grievances of an individual worker in respect of any of the matters covered under the said Act, The main provision of the definition clause of a worker as given in section 2(v) of the (Standing Orders) Act, of course, does not prima facie appear to include a worker who has ceased to be in employment but if the provisions of sections 25 are read as a whole, particularly having regard to the proviso to clause (b) section 25(1) it appears that when the said section provided that any individual worker who has a grievance in respect of any matter covered under this Act, the legis­lature used the word 'worker is an extended sense including a worker who is no longer in employment."
 
Further,
 
"From the said proviso it is clear that a worker who has ceased to be in employment may make a complaint under section 25 under certain circum­stances. It is manifest therefore that so far as section 25 of the Standing Orders Act is concerned an individual worker, as has been referred to in the said section, includes a worker who has ceased to be in employment either by an order of termination or of dismissal or discharge or any other order of removal, provided he fulfils the other terms of the said section. That is an important distinction between the amended section 34 of the Industrial Relations Ordinance and section 25 of the Standing Orders Act, which has been lost sight of in some decisions of the High Court Division including the case of Omar Sons Ltd, (28 DLR 778)."
 
24. Lastly, in referring to the provisions of section 34 of the Ordinance, the Supreme Court stated:
 
"Having regard to the definition of 'workman it is clear that a workman whose termination of service or dismi­ssal or discharge from service has not been in connection with any industrial dispute is not a worker within the meaning of the Industrial Relations Or­dinance and, therefore, cannot apply under section 34 of the Ordinance for relief against such termination, dismi­ssal or discharge. It cannot be said that such termination of or dismissal or discharge from, the service of a workman is an infringement of any right guaranteed to the collective bar­gaining agent by any law. It is no­body's case that there was any settle­ment or award, to which respondent No. 4, the Trade Union, was a party, providing against such termination, dismissal or discharge. It does not seem to be reasonable that what is not avai­lable to a workman out of employment under section 3 4 of the Ordinance on an application made by himself will be available to him by adopting an indirect procedure by making an application through, the collective bargaining agents. Under the amended provision of section 34 it is manifest that a collective bar­gaining agent or an employer or work­man may apply under the said provision to enforce its or his respective right. In that view of the matter we do not think that Respondent No. 4 has any right to apply under section 34 to en­force a right which may be guaranteed to a workman under the Standing Orders Act but not to it. The workman concerned could certainly apply under section 25 of the Standing Orders Act for the necessary redress in respect to the termination of his service if he ful­filled the conditions laid down in the said section and could establish that the termination was really a kind of victimi­sation for Trade Union activities."
 
25. If has been repeatedly argued by the learned Counsel for the employee that the Ordinance has included not merely two cate­gories of them, as found in these two decisi­ons, but any worker, meaning thereby also a worker who has act been dismissed in course of an industrial dispute or whose dismissal has not resulted in such dispute. To streng­then his argument the counsel relied heavily on the wording of section 34 of the Ordinance. He submitted that if a worker is illegally dismissed, for example, under section 15 (d) of the Ordinance, for indulging in an unfair labour practice he is entitled to move the Labour Court under Ibis section against such dismissal though it has not led to an indus­trial dispute or such dismissal did not occur during the continuance of such dispute. If section 34 is read in isolation, that is, without considering other relevant provisions of the Ordinance such reading may, I am afraid, tend to produce such an impression, but if all of them are read together, the inevitable conclusions will be what have been reached at in the decisions quoted in this judgment.
 
26. In view of my conclusion regarding the main issue as to the maintainability of the employee's application under section 34 of the Ordinance, it is necessary to consider the question whether these applications can be converted   to be   under section 25 of the Act of 1965. The question of convertibility arose as a result of the finding of the High Court that they can be treated so.
 
27. Mr. Ishtiaq Ahmed, learned Counsel for the company submitted that since section 25 not merely conferred the right upon a worker who had been dismissed, discharged, retrenched, laid-off or otherwise removed from employment to move the Labour Court re­garding his grievance against dismissal but it also provided a detailed procedure which must be complied with by the worker before filing an application under section 25. As the emplo­yee did not fulfill the procedural requirements under this section, his applications cannot be treated to be under section 25. On reference to section 25 it is seen that clauses (a) and (b) of sub-section (1) of section 25 provide time-limits for doing certain things prior to his filing the application before the Labour Court. Clause (a) also requires that worker concerned should submit his grievance to his employer in writing by registered post and the employer has to communicate his decision in writing to the said worker within the prescribed period, Clause (b) provides that if the employer gives any decision under clause (a) or if given the worker is not satisfied, then he may move the Labour Court within the time limit mentioned therein. Another condition is that the Labour Court must not have already taken cognizance of the dispute under the provision of the Industrial Disputes Ordinance of 1959.
 
28. In the absence of compliance with these statutory requirements no worker, there­fore, can hope to have his application under section 34 of the Ordinance treated as applica­tion under sec. 25 of the Act of 1965. The employee's applications under section 34 could be converted under section 25 if it were found that prior to his filing the applications under section 34  of the   Ordinance he fulfilled the provisions of clauses  (a) and (b) of section 25.
 
29. Since the materials upon which the decision could be given as regards the fulfil­ment of the requirements of conditions laid down in section 25 had not been referred to in the Judgment of the High Court the deci­sion   that the employee's applications under section 34 were not convertible cannot be sustained. The Court could, in the fitness of things, send the cases back to the Labour Court to enable it to come to finding as to convertibility on a proper consideration of facts required to be established for main­taining an application under section 25 of the Act. However, I think the case may now be remitted back to the Labour Court so as to decide the question in accordance with law.
 
30. In view of my conclusion as above, Civil Appeals No. 26 and 27 are allowed and the decisions of the Courts below set aside and the matters are sent back on rema­nd to the Labour Court for deciding the question of convertibility of the employee's applications from under section 34 of the Ordinance to ones under section 25 of the Act and Civil Appeal Nos. 46 and 47 are disposed of accordingly and will abide by the decision of the Labour Court. There will be no order as to costs.
 
K. M. Subban J.
 
I also concur with the judgment of my learned brother Fazle Munim, J.
 
Ruhul Islam J.
 
With due respect I di­ffer from the majority judgment, and give my reasons in support of the dissenting judgment.
 
33. These four appeals by special leave arise from the judgment dated January 7, 1977 of the High Court Division in Writ Petition Nos. 863 and 864 of 1974. In Civil Appeal Nos. 26 and 27 James Finlay & Co. Ltd. hereinafter referred to as "the employer", is the appellant. In Civil Appeal Nos. 46 and 47 Mir Ally Akbar hereinafter referred to as "the employee” is the appellant. The writ petitions were filed by the employer against the judgment and orders dated July 12, 1974 of the Second Labour Court in Industrial Relations Ordinance Case No. 219 of 1973 and Industrial Relations Ordinance Case No. 202 of 1973 allowing the applica­tions under section 34 of Industrial Relations Ordinance, 1969 filed by the employee against the orders of dismissal from his service, and directing the second party (employer) to re­instate the first party (employee) in his for­mer post and to pay him all his back wages within one month, challenging, inter alia, maintainability of the applications filed by the employee. The High Court on accepting the contentions of the employer converted the applications into applications under section 75 of the Employment of Labour (Standing Orders) Act, 1965, and set aside the orders of the Labour Court and dismissed the ease of the employee.
 
34. Facts necessary for disposal of the appeals are: the employee was dismissed from service by two separate orders, that is, dated 31st August, 1973 and 4th September, 1973 by the employer for misconduct on the reports submitted in two separate proceedings drawn up against him. The employee cha­llenged the legality of the dismissal orders be­fore the Labour Court by filing two separate applications under section 34 of the Indus­trial Relations Ordinance, 1969 alleging, inter alia, that the employee was a permanent wor­ker being one of the Senior Assistants with twenty years service under the employer; that he was the General Secretary of the Finlay Employees Union which is the Collective Bargaining Agent for the employees of the M/S. James Finlay and Co. Ltd. Dacca and Narayanganj and M/S Plummer Bros, Ltd. (Chittagong) Ltd. Dacca, hereinafter referred to as "Plummer Bros", and that the Finlay Employees Union submitted, a Charter of Demands to the employers as well as the Chairman of the Plummer Bros. Ltd. but the authorities having failed to accept the dema­nds of the Union, the employees of both the Organizations resorted to strike after ob­serving all the formalities and strike continued for over a month, whereupon the Govern­ment referred the dispute to the Second La­bour Court Dacca for adjudication which was registered as I.R.O. Case No. 5 of 1973; that the case was partially disposed of on August 7. 1973 and the parties were directed to file separate written statements with regard to the demands of the employees of the Plummer Bros, Ltd.; that, accordingly, a sepa­rate written statement was filed on the date fixed. 'Thus, the said I.R.O. Case No. 5 of 1973 was still pending before the Second La­bour Court for adjudication on the Charter of Demands referred by the Government to the Labour Court, when the employer ille­gally drew up charge-sheet against the emplo­yee on February 16, 1973 alleging that in spite of direction upon him not to enter the office without permission he was still seen in the office on February 12, 1973 and also on several occasions before: and secondly, on 13th February, 1973 while the Assistant Ma­nager A.Z.M Ala was going out of his office, the employee obstructed him in his way in an aggressive manner and asked him not to leave his office before meeting a depu­tation of some workers who were on their way from Narayanganj; and that when the Assistant Manager refused to wait saying that the Narayanganj workers bad not made any appointment with him on that date and wanted to proceed the employee warned his driver not to move the car.
 
35. During the pendency of the said I.R.O. Case No. 5 of 1973 the employer drew up another charge-sheet against the employee on July 9, 1973 on two counts, namely (1) that the employee directed P. C. Sen of the Accounts Department not to pre­pare the Attendance Register in usual man­ner but to prepare it according to the direc­tion given by him; and that he threatened the Accountant that he would suffer the conse­quence if he failed to obey his directions; (II) that on July 5,1973 the employee took away the Attendance Register from the table of the Assistant Manager and despite his asking the employee to return the Attendance Regis­ter the employee refused to return it.
 
36. The employee denied the charges be­fore the Inquiry Officer in both the procee­dings. His case, inter alia, was that in Febr­uary 1973 he met the Assistant Manager In his capacity as the General Secretary of the Finlay Employee Union to ascertain as to when the Manager, who was not regularly attending the office at the relevant time; would be available to wait upon him in connection with a representation pending with the Com­pany in respect of the Bid advance of the employees; that the said act of his presence in the office of the Assistant Manager was a part of his trade union activities and that the other allegation that in an aggressive man­ner he obstructed the Assistant Manager from leaving his office, was false and it was concocted with the ulterior object to victi­mise him for his trade union activity, In the other case also the employee denied the char­ges. His case, inter alia, was that the Assis­tant Manager got the Attendance Register pre­pared unsystematically, Several workers including the employee and the Joint Secretary of the Worker's Union represented to the Assistant Manager that the Attendance Register should be prepared and maintained by putting the names of the workers systematically according to their category and seniority; and over that matter the Assistant Manager became unduly annoyed as well as apprehensive and brought the charges with a view to Victimising the petitioner. Further explanation of the emp­loyee is that on 5th July, 1973 he took the Attendance Register from the rack for signing when the Assistant Manager rushed to the table and demanded the register whereupon the employee replied that it would be returned after signing by him and in fact the same was returned soon after signing, as such there was no wilful disobedience.
 
37. The Inquiry Officer found the emp­loyee not guilty "on the first count of the charge in both the cases but found the employee guilty of misconduct on the second count of the charge in both the case, under Section 17 (3) (a) and (g) of the Employment of Labour (Standing Orders) Act, 1963 and recommended dismissal of the employee from service, in pursuance of the inquiry report the employee was dismissed from service by the two impugned orders.
 
38. Further case of the employee before the Labour Court was that the employer acted illegally in dismissing the employee without obtaining prior permission from the Labour Court as required under section 47 of the Industrial Relations Ordinance, 1969, inasmuch as whatever the employee did it was done in his capacity as General Secretary of the Union, which is part of his Trade Union activities. On this case the employee prayed   for reinstatement to his former post with all his back wages and service benefits.
 
39. Both the cases were contested by the employer by filing separate written statements contending, inter alia, that the application under section 34 of the Industrial Relations Ordinance, 1969, hereinafter referred to as "the IRO", was not maintainable; and that the rights guaranteed under clauses (a) (b) (c) and (d) of sub-section (I) of section 18 of the Employment of Labour (Standing Orders) Act 1965 hereinafter referred to as the "Standing Orders Act," were fast infringed by the emp­loyer; and that the procedure as provided under clause (c) of sub-section (1) of section 18 of the Standing Orders Act was duly complied with by the employer; and that the employee did not comply with the requirements under clause (a) of sub-section (1) of section 25 of the Standing Orders Act before filing the application before the Labour Court; and as such the remedy as prayed for, if available, could not be given under section 25 of the Standing Orders Act, and as such the appli­cation was liable to be dismissed, It was fur­ther contended that the Labour Court exer­cising its jurisdiction under section 34 of the I.R.O. could not direct for reinstate­ment of a dismissed worker. It was also contended that it was not correct to any that I.R.O. Case No. 5 of 1973 was still pen­ding when the impugned actions were taken by the employer. In this context it was submitted that on August 21, 1973 when the employee was dismissed there was no proceeding pending either before the Second Labour Court or in the Labour Appellate Tribunal in connection with any industrial 'dispute because the I.R.O Case No. 5 of 1973 in the Second Labour Court was disposed of on August 7, 1973 and Appeal Case No. 114 of 1973 arising the reform was disposed of on August 25, 1973. It was submitted that prior permission as contemplated under sub-section (2) of section 47 of the 1RO before passing of the impugned orders, was not necessary. In this context it was further submitted that the proceeding pending before the Appellate Tribunal was Miscellaneous Case No. 200 of 1973 at the time when I.R.O. (Permi­ssion) Case No. 151 of 1973 was withdrawn on 26th August, 1973, the proceeding before the Labour Appellate Tribunal was not a proceedings in connection with any industrial dispute it was a proceeding under section 50 of the I.R.O. for interpretation of a particular term of the Agreement.
The Labour Court after discussing the evidence on record found in both the cases that the charge of misconduct as defined in section 17 of the Standing Orders Act was not proved by the evidence. The Labour Court by its order dated July 12, 1974 allowed both the cases and directed the employer to rein­state the employee in his former post and to pay him all back wages. The Labour Court, however, rejected the contention of the emp­loyee that the I.R.O, Case No. 5 of 1973 was pending as it was not proved.
 
40. Against the said decision of the Labour Court the employer moved the High Court Division under Article 102 of the Constitution by filing two separate Writ petitions mainly contending about maintaina­bility of the applications under section 34 of the I.R.O. Learned Judge of the High Court accepted the contention of the employer that the applications under section 34 of the I.R.O. were not maintainable; and on this view con­verted the applications filed under section 34 of the I.R.O. into one under sec. 25 of the Standing Orders Act. After so converting the learned Judges allowed both the writ petitions filed by the employer on the finding that the Labour Court exceeded its jurisdiction in inter­fering with the domestic inquiry. According to the learned judges, Labour Court was not sitting as a Court of Appeal over the domestic inquiry; and its function was to see whether an order passed on the basis of a domestic inquiry was in conformity with law as provided in section 18 of the Standing Orders Act.
 
Against this decision both the employer and the employee filed petitions for special leave to appeal. On the employer's petitions leave was granted to examine the contention whether the High Court after holding that the applications under section 34 of the I.RO. were not maintainable, was justified in treating the said application as one filed under section 25 of the Standing Orders Act without examining whether the mandatory requirements of the said section were complied with before filing appli­cations under section 34. On the petitions of the employee leave was also granted to examine the contention whether the Court in exercising its writ jurisdiction in the nature of certiorari was competent to interfere with the decision of the Labour Court, because, the Labour Court acted within its jurisdiction in setting aside the dismissal orders on the view that the findings of the domestic inquiry were perverse; and that the employee was dis­missed for his trade union activities.
 
41.  On perusal of the judgment of the High Court it appears that the learned judges found the applications under section 34 of the I.R.O. not maintainable, mainly on the ground that the employee after dismissal from service, ceased to be a "worker" as defined under section 2 (xxviii) of the I.R.O. On that view about the maintainability of the applications the learned Judges converted the applications into one under section 25 of the Standing Orders Act.
 
42.  The finding of the High Court that the applications under section 34 of the I.R.O. were not maintainable is based on the view that section 34 of the I.R.O. enables a "workman" to apply to the Labour Court for the enforcement of any right guaranteed or secured to him by or under any law or settlement, but this remedy is not available to a worker who has been dismissed from service, as his case is covered by second part of the definition of "worker" as given under Section 2 (xxviii).
 
43.   Definition of ''worker" as given in section 2 (xxviii) of the I.R.O. reads as follows: " 'worker' and  'workman' mean any person not falling within the definition of employer who is employed (including employment as an apprentice) in an esta­blishment or industry for hire or reward either directly or through a contract, whether the terms of employment be expressed or implied, and, for the purpose of any proceedings under this Ordinance in relation to an industrial dispute in­cludes a person who has been dismissed, discharged, retrenched, laid off or other­wise removed from employment in con­nection with or as a consequence of that dispute or whose dismissal,   discharge, retrenchment, lay off or removal  has led to that dispute".
 
44. The definition of’ worker consists of two parts. First part contains the clause 'worker and 'workman' and means any person ............whether the terms of employment be expressed or implied", and, second part  con­tains   the clause ''for  the purpose of any proceedings under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay off or removal has led to that dispute.” Two clauses are connected by the word "and" The first clause provides a complete definition of 'worker or 'workman and the second clause are in the nature of explanation. It begins with the words "for the purpose of any proceeding under this Ordinance." If the proceedings are in relation to an "industrial dispute" taken under the I.R.O. according to the second clause, for the purpose of such proceedings the expression "worker" or "wor­kman" includes a person who has been dismi­ssed, discharged, laid off or otherwise removed from employment in connection with or as a consequence of that dispute. It also includes a "worker" or "workman" whose dismissal, discharge, retrenchment, lay off or removal has led to that dispute. There cannot be any doubt that the first part by itself is complete, because, it is self contained; it fully defines what a ‘worker' or 'workman’ means. The first part is independent the second part. And the second part has been added by way of an explanation, obviously for removal of any doubt that might be raised about maintainabi­lity of any proceedings in relation to an "in­dustrial dispute" initiated by a "worker" or ''workman" who has been dismissed, discharged etc, or whose dismissal, discharge, lay off, etc. has led to that dispute. The learned Counsel appearing for the employer found it difficult in not conceding that the first part in the absence of the second part is otherwise com­plete. He, however, submitted that in view of the second part, the whole should be read for the purpose of defining 'worker' or’ workman’ I do not find any sound reason to accept the submissions.
 
45. For proper appreciation of the question raised at the Bar the definition of 'industrial dispute' and the mode of raising an 'industrial dispute', as provided in the I.R.O. should also be examined Section 2(xxviii) of the Ordinance defines 'industrial dispute as under :
 
"Industrial dispute means any dispute or difference between 'employers and 'employees or between 'employers' and 'workmen or between 'workmen' and 'workmen' which is connected with the 'employment' or 'non-employment' or the terms of 'employment' or the con­ditions of work of any person"
 
46. I.R.O. provides the mode of raising of an industrial dispute. It has been provided in sections 26, 27, 28, 29, 30, 31, 32, 32A, 32B and 33 of the I.R.O. Section 26 provides that if at any time an 'employer' or a 'collective bargaining agent finds an 'indus­trial dispute is likely to arise between the 'employer' or any of the workmen, the 'employer' or, as the case may be, the 'col­lective bargaining agent shall communicate his or its views in writing to the other party. This is the initiation of raising of 'ind­ustrial dispute'. Then a period of seven days has been provided for negotiation be­tween the parties with a view to reaching an agreement on the issues raised in the com­munication through the medium of a dialo­gue. If the parties reached a settlement on the issues discussed, a memorandum of settle­ment shall be recorded in writing and signed by both the parties and a copy thereof shall be forwarded to the Conciliator and the authorities mentioned in clause (xxiv) of section 2 of the I. R. O. which defines 'settlement'. Section 27 provides for appoint­ment of Conciliators by the Government. Section 28 provides for giving notice of strike or lock-out, a copy of which is to be deliverer to the Conciliator. Section 29 provides for conciliation by the Conciliator. Section 30 provides the procedure of the proceedings before the Conciliator; it also provides that if a settlement of a dis­pute or any matter in dispute is arrived at in the course of the proceedings before him the Conciliator shall send a report there­of to the Government together with a memo­randum of settlement signed by the parties to the dispute. Section 31 provides for arbi­tration. If the conciliation fails, the Con­ciliator shall try to persuade the parties to agree to refer the dispute to an arbitrator. In case the parties agree, they shall make a joint request in writing for reference of the dispute to an arbitrator agreed upon by them. After the arbitrator has made an award, he shall forward a copy thereof to the parties and to the government who shall cause it to be published in the official Gazette. The statute makes the award final and no appeal shall lie against it. In shall be valid for a period not exceeding two years as may be fixed by the arbitrator. Section 32 provides that if no settlement is arrived at during the course of conciliation proceeding and the parties also do not agree to refer the dispute to an arbitrator, the workmen may go on strike, or, as the case may be, the employer may declare a lock-out in accord­ance with the notice of strike or lock-out. In a case where a strike or lock-out lasts for more than 30 days, the matter shall forth­with be referred to the Labour Court, by the Government. The Labour Court after giving both patties to the dispute and opportunity of being heard shall make such award as it deems fit as expeditiously as possible within the time specified therein. Section 32A deals with an 'industrial dis­pute which relates to or involves an industrial organization that has more than one estab­lishment. Similarly, section 32B deals with 'industrial dispute involving Bangladesh workmen employed abroad by organizations the Labour Court raising his individual dis­established in Bangladesh. Section 33 empo­wers the government to prohibit strike or lock-out in public utility services.  In this context section 43 is also relevant which provides that no 'industrial dispute' shall be deemed to exist unless it has been raised in the prescribed manner by a 'collective bargaining agent’. It refers to the manner of raising of industrial dispute’s provided under sections 26,28,29,30,31, 32A and 32B.  The manner of raising an industrial dispute' as provided in the above-mentioned sections does not enable an individual wor­ker to raise an 'industrial dispute' because the statute empowers only the collective bargaining agent to raise such dispute, and section 43 bars existence of an industrial dispute, unless it is raised in the prescribed manner by a collective bargaining agent Ac­cording to this provision an industrial dispute does not exist if it is not so raised. Keeping in mind the limitations provided in the section statute, let me examine the scope of section 34 of the 1. R. O.  Section 34 of the I. R. O., after amendment, reads thus;
 
"Any collective bargaining agent 'or any' 'employer' or 'workman' may apply to the Labour Court for the enforce­ment of any right guaranteed or secured to an employer or workman by or under any law for the time being in force or an award or settlement."
 
47. The High Court after noticing that the amended provision of section 34 now enables a workman to file an application, how­ever, has taken the view that as per definition of 'worker' for 'workman' as provided in section 2(xxviii) a dismissed worker ceases to be covered by the definition and as such he is not entitled to file an application before the Labour Court raising his individual dispute. According to the learned judges, if his dismissal fulfils the conditions as provided in the second part of the definition, only then he is competent to file an application under section 34 of the I.R.O. In taking this view the learned judges placed reliance upon a decision of a Division Bench of the High Court Division in the case of General Mana­ger, Hotel Intercontinental, Dacca, versus Chairman, Second Labour Court, Dacca, 28 D.L.R. 160.
 
48. Section 34 as amended came up for interpretation in the above-noted case wherein the question of maintainability of an applica­tion filed under section 34 by a dismissed workman was specifically raised and ans­wered. A Cashier Checker claming to be a worker of the Hotel challenged the order of his dismissal from service before a Labour Court by filing an application under section 34 of the I.R.O. The Labour Court allowed the application on the finding that the dismis­sal was illegal and directed his reinstate­ment. Legality of this order was challenged by the employer, namely the General Manager, Hotel Intercontinental, Dacca, by filing a writ petition under Article 102 of the Consti­tution of Bangladesh. It was contended before the High Court  Division that the respondent being a  dismissed workman  was not competent to bring his individual dispute before the Labour Court under section 34 of the I.R.O. because such a workman does not come within the ambit of the definition of the  worker as  given   in section 2 (xxviii) of the I.R.O. In support of this view it was argued that a dismissed worker not being a worker within the meaning of the term as defined   in section 2(xxiii) of the I.R.O because a dispute between a single worker and his employer relating to his dismissal is not an industrial dispute even though it may involve the question of his employment or unemployment, and as such the respondent was not competent to maintain the applica­tion. It was, however, conceded that such a dispute would become an industrial dispute when such a dispute is taken up by the Trade Union of Workers or by a number of workers. But it was argued that such a dispute would become an industrial dispute only when it was raised by the collective bargaining agent as provided in section 26. 27(a) and 28 of the I.R.O.  When the cause of the dismissed worker is not sponsored by the ‘collective bargaining agent', he may seek his remedy as provided under section 25 of the Standing Order Act. Sum total of the arguments was that the dismissed worker has no remedy under section 34 of the I.R.O., unless his cause is taken up by the 'collective bargaining agent.’
 
49. On behalf of the dismissed worker it was argued, inter alia, that a 'dismissed workers' as defined in the I.R.O. can main­tain an application under section 34 because, in certain cases, such a dismissed worker has no remedy under section 25 of the Standing Orders Act, because he does not come within the definition of 'worker' as provided in the Act. It was also submitted that a dispute brought before a Labour Court by an individual worker whether it relates to his dismi­ssal or any   conditions of his service, is an ‘individual dispute', and the scope of section 34 of the I.R.O. having been widened by the amendment, a dismissed workman is eligible to file an application challenging the legality of his dismissal from service, irrespective of its being not in relation   to an   'individual dispute'.
 
50. The Division Bench, however, accepted the contention of the employer and declared the order of the Labour Court as without lawful authority and of no legal effect. Ratio decidendi of the decision is that a dismissed worker can bring an application under section 34 of the I.R.O. for enforcement of any right guaranteed or secured to him under any law or any award or  settlement, but it must be in connection with an 'individual dispute which has been raised by the 'collective bar­gaining agent.' Accordingly, to the learned Judges, the definition of 'worker or 'workman' as given in section 2(xxviii) of the I.R.O. workers have been classified into two categories. The two categories fall in two parts of the definition and the two parts are constructionally joined together by a conjunction 'and' which is prefixed and suffixed by a comma. 'Worker' or 'workman' who falls in the first category means any  person who is  not an employer' and is employed in an  establish­ment or industry for hire or reward under any express or implied terms of employment, but the term does not include a dismissed work­man and he is no longer in the employment. The second category comprises of a worker who has been dismissed, discharged, retrenched laid-off or otherwise removed from employ­ment in connection with or as a consequence of an industrial dispute or whose dismissal, discharge, retrenchment, lay-off or  removal has led to that  dispute. According to the learned Judges the second part again includes two categories of dismissal workmen for a limited purpose. Dismissal of a workman took place in connection with an ‘industrial dispute', which already existed or whose dism­issal led to an 'industrial dispute'. After analysing trie definition of 'worker' or 'workman' and expressing the view that for the purpose of this Ordinance he only can figure in a procee­ding which arises as an 'Industrial dispute the learned Judge concluded saying, "The existence of an Industrial dispute, raised be­fore or after his dismissal is a condition precedent before a dismissed ‘workman’ wilt fall within the definition". In short his dismi­ssal must have arisen out of an industrial dispute or must have led to such dispute; and if the distinction between these two catego­ries of workers or workmen has been inten­ded by the Legislature different consequences must necessarily flow from it. Consequently, in view of the distinction made between two categories of workers or workmen, a workman who has not been dismissed can file an app­lication under section 34 of the I.R.O. The learned judges, however, keeping in view the  expressions "for the purpose of any pro­ceedings under this Ordinance in relation to an Industrial dispute" used in the second part of the definition of 'worker' or 'workman’ and section 43 of the I.R.O.  Observed as follows.
 
"As section 34 does not include any reference loan industrial dispute, it can­not, therefore, be said to have prescrib­ed the manner of raising an Industrial dispute. It would, therefore, appear that a dismissed worker who falls within the second part of the definition of 'worker or 'workman in clause (xxviii) of section 2 can bring an application under section 34 for the enforcement of any right guaranteed or secured to, him by any law or award or settlement when an industrial dispute exists which, as already mentioned, can exist only if it has been raised by a collective bargaining agent or an employer in the manner prescribed by any of the sections, namely; sections 26to 33 of the Ordinance,  and   during the continuance of such an industrial dis­pute which led to his dismissal or which arose on whose dismissal. These provi­sions, therefore, expressly prohibit the raising of industrial dispute except in the manner mentioned therein. As provided under this section an Industrial dispute can be raised by a collective bargaining agent or an employer only in the manner prescribed by the Ordinance. The manner prescribed by the Ordinance for raising an Industrial dispute is to be found in the provisions contained in sections 28 to 30 of the Ordinance. No other provisions in the Ordinance deal with the raising of an Industrial dispute or prescribe the manner according to which dispute can be raised".
 
51. From the above noted observations it appears that but for the definition of ‘worker' of 'workman' as given in clause (xxviii) of reaction 2 and the bar under section 43 of the I.R.O., they were inclined to accept the argument that the application under section 34 filed by a dismissed worker would be maintainable.
 
52. With reference to the definition of ‘worker' as provided in section 2 (v) of the Standing Orders Act and section 2 (xxviii) of the I.R.O. a question was raised at the Bar that the definition of worker'as given in the former statutes being narrower in scope th­an that as provided under the latter statute, a large number of persons being unable to maintain application under section 25 of the Standing Orders Act on account of the scope of the definition of 'worker' and certain limitations provided therein would be de­prived from the remedy as provided under section 34 of the I.R.O., If by interpretation section 34 of the I.R.O. is given narrower scope. The learned Judge while finding subs­tance in the argument simply observed as follows:
 
"A dismissed worker who is not inclu­ded within the narrower definition of worker as provided in the Act of 1965 will not however be without any legal remedy though unable to seek the pro­tection against dismissal under section 25”
 
53. The learned Judge did not indicate the course that would be available to such workers rendered without any remedy on account of the interpretation given to section 34 of the I.R.O. With due respect I find it difficult to agree with the conclusions drawn by the learned Judges. Before further discus­sion on this decision it would be of some interest to trace the history behind the framing of definition of 'worker’ or work­man’ as given in clause (xxviii) of section 2 of the I.R.O. for finding out its evolution by stages. First, reference may be made to the definition ‘workman’ as given in the Industrial Disputes Act of 1947. Section 2(s) of the Act defined 'workman’s under:
 
“Workman means any person   employed including an apprentice) in any industry to do any skilled  or unskilled, manual or clerical work  for hire or reward and includes for the purpose of any proceedings made. Under this Act in relation to one industrial dispute, but does not include any person employed in the naval, military or air service of the Government".
 
54. Scope of the definition of 'work­man' as given in section 2(5) of the Indus­trial Disputes Act of 1947 came up for interpretation before the Supreme Court of Pakistan In the case of Pak. Tobacco Co. Ltd. 13 D.L.R. (S.C.) 280. It was an ap­peal by special leave against the award of the Industrial Tribunal. On behalf of the com­pany objection was taken in respect of one of the disputes which was raised in the form as, shown below—
 
"Coverage of salesman and canvassers under accident, insurance policy or extension of the provision of the Work­man's Compensation Act to these em­ployees".
 
55. On behalf of the company it was submitted that the question did not constitute an 'industrial dispute' within the mean­ing of that expression as used in the Indus­trial Disputes Act. On behalf of the Union of the Employees it was submitted that salesman was within the meaning of the expression 'workman'. In deciding the ques­tion their Lordships examined the scope of the definition of 'Industrial dispute, as given in section 2 (k) of the Industrial Disputes Act, 1947 which reads asunder:
 
"Industrial dispute means any dispute or difference between employers and em­ployers or between employer and work­men or between workman and workman which is connected with the employ­ment or un-employment or with the conditions of labour of any person".
 
56. Examination mainly centred on the expression 'any person' occurring in the defini­tion, to find out whether the salesmen of the Company fall in the category of 'work­man' and thereby they could be brought within the scope of the definition of 'Indus­trial dispute'. In the course of discussion it was noticed that as per terms of the definition of 'workman' as given in section 2 (s) of the Industrial Disputes Act a worker discharged before the Industrial dispute was raised was not a workman, but in view of the expression of 'any person' occurring in the definition of 'indus­trial dispute' and if his dismissal led to-the dispute, such a previously discharged work­man would be within the ambit of the expres­sion 'any person'.
 
57. The relevant observation of S. A. Rahman, J.made in this respect is quoted below
“I may be noticed that the definition 'workman' in Clause (s) of section 2 of the Act includes for the purpose of proceedings under the Act in relation to an industrial dispute', a workman discharged during that dispute but not one who might have been discharged earlier than the dispute itself, although his dismissal may itself have led to the dispute. Such a previously discharged workman or a person sought to be brought in as a workman would be within the ambit of the expression 'any person/ But essentially they ought to have some kinship to workman as they maybe ex-workman or potential work­men".
 
58. Industrial Disputes Act 1947 was repealed and reenacted with certain amend­ments by the Industrial Disputes Ordinance, 1959, which was again repealed and re-enacted by the East Pakistan Labour Disputes Act, 1965. In this Act the expressions 'worker' and 'industrial dispute' have been defined, in 1965, the Factories Act, 1934 was repealed and with certain amendments re-enacted by the East Pakistan Factories Act, 1965. In this Act also the expression 'worker' has been denned. In 1965 the Industrial and Commer­cial Employment (Standing Orders) Ordinance 1960 was promulgated which, was repealed and with certain amendment re-enacted by the East Pakistan Employment of Labour (Standing Orders) Act, 1965. In this Act also the expression 'worker' has been defined.
 
59. Industrial Relations Ordinance, 1969 was promulgated with the object of consolida­ting with certain amendments the laws relating to the formation of trade unions, the regula­tion of relations between employers and workmen and the avoidance and settlement of any difference or disputes arising between them or matters connected and ancillary thereto. This Ordinance, repealed so far it related to East Pakistan the Trade Unions Act, 1965 and the East Pakistan Labour Disputes Act, 1965. In this Ordinance both the expressions 'industrial dispute' and 'worker or 'workman’ have been defined. So far as the definition of 'industrial dispute' is concerned there is no change, but in the definition of’ worker there is some change. The second part of the definition, which is in the nature of explanation, has been added. It now provides that for the purpose of proceedings under the Ordinance in relation to an industrial dispute’ worker' or 'workman' includes person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of the dispute or whose dismissal, discharge, retrenchment, lay off, or removal has led to that dispute. The explanation has been incorporated as a part of the definition with the object of obviating the objections raised to the competency of proceedings taken by a dismissed worker in relation to an industrial dispute. Now scope of the definition has been made wider to comprise a previously dismissed or discharged worker for the purpose of any proceedings in relation to an Industrial dispute. That is, in relation to an 'industrial dispute' 'worker' or 'workman' is a person who has been dismissed, discharged, etc. in connection with or as a consequence of that dispute or whose dismissal, discharge, etc. has led to that dispute.
 
60. The language of the definitions 'indus­trial dispute' and 'worker' given in the different statutes as shown above led to some controversy whether individual dispute' can be treated as an industrial dispute' or labour dispute. This controversy, however, as it appears from different decisions on the labour laws, has been resolved by interpretation of the words 'any person occurring in the definition of ‘industrial dispute" or labour dispute'. Consensus of decisions of the Superior Courts is that a labour dispute or an industrial dispute can be   raised by indi­vidual worker who has been discharged or dismissed by his employer. The original section 34 of the I.R.O., in view of the narrower scope for filing applications to the Labor Court, did not comprehend any such wider interpretation. The definition thus fell short of suitable definition for the application of the consolidated legislation. It also fell short of the requirement of the different provisions of the Ordinance itself which contained some remedial provisions for an individual worker. So out of necessity the Ordinance was amended by the Ordinance No XIX of 1970. Section 34 before amend­ment stood as under:
 
"Any party to an industrial dispute relating to a matter arising out of any right guaranteed or secured to an 'emplo­yer' or 'workman' by or under any law for the time being in force or an award or settlement may apply to the Labour Court for adjudication   of the dispute".
 
For the convenience of comparative study the   amended   section 34 is again   quoted below:
 
"Any 'collective bargaining agent' or any 'employer' or 'workman' may apply to the Labour Court for enforce­ment of any right guaranteed or secured to it or him by or under any law or any award or settlement."
By the amendment some major changes have been brought in, which arc like this;
a)  the expression "industrial dispute'  has been omitted;
b)  the expression  'collective bargaining agent' has been included ;
c)  the expression any party to an indus­trial dispute' has been omitted:
d) it enables any 'employer' or 'workman to apply to Labour Court for the enforcement of any  right guaranteed or secured to it or him by or under any law or any award or settlement:
e)  any employer or workman is now entitled to file an application before the Labour Court   relating to    any  matter which need not be an industrial   dispute, and
f)   it is now possible to bring an indivi­dual dispute before the Labour Court.
 
As the section now stands, existence of an 'industrial dispute' is no longer a pre-condition for taking a proceeding before the Labour Court. It is now open to an 'employer' or a 'workman' without being a party to an 'industrial dispute,' to apply to the Labour Court for enforcement of any right, etc. If it is a case of raising an industrial dispute then as per requirement of section 43 it should be raised in the prescribed manner by a 'collective bargaining agent' or employer.
In such a case there is no scope for an individual worker to raise an 'industrial dispute. Industrial dispute has been defined in section 2 (xiii) of the I. R. O. as under;
 
“Industrial dispute means any dispute or difference between ‘employers and 'employers' or between 'employers' and “workmen or between 'workmen and 'workmen' which is connected with the 'employment or 'r, on employment' or to terms of'employment'and the conditions of work of any person".
 
Section 34 of the I. R.O. reads as follows:
 
"No industrial dispute shall be deemed to exist unless it has been raised in the prescribed manner by a collective bargaining agent or an employer". Section 43 does not have any manner or application to case of an individual worker in raising an individual dispute. It has been indicated earlier that section 34 as it stands now does not contemplate only one class of proceedings, that is, 'industrial dispute, but it also comprehends proceedings relating to disputes other than industrial dispute'. The bar in raising 'industrialdispute' as provided in section 43 of the I.R.O. is only applicable in the matter of raising industrial dispute", but it does not operate as a bar to a proceed­ing other than an 'industrial dispute' before the Labour Court.
 
61. Before examining whether the I.R.O. contemplates only one class of proceedings, namely, industrial dispute', or it also con­templates proceedings other than 'industrial dispute', the jurisdiction of the Labour Court as constituted under section 35 of the I.R.O. may be examined. Section 35 reads as under:
 
35. Labour Court.—(1) The Provin­cial Government may, by notification in the official Gazette, establish as many Labour Courts as it considers necessary and where it establishes more than one Labour Court, shall specify in the noti­fication the territorial limits within which each one of them shall exercise jurisdic­tion under this Ordinance.
(2) A Labour Court shall consist of a Chairman appointed by the Provincial Government and two members to be appointed in the prescribed manner to advise the Chairman, one to represent the employers and the other to represent the workmen.
(3) A person shall not be qualified for appointment as Chairman unless he has been or is, or qualified to be, a Judge or Additional Judge of a High Court or is a District Judge or an Addi­tional District Judge.
(4) The members shall be appointed in consultation with the employers and workmen in such manner and on such terms and conditions as may be prescri­bed.
(5)  A Labour Court shall —
a) adjudicate and determine an industrial dispute which has been referred to or brought before it under this Ordinance;
b) enquire into and adjudicate any matter relating to the implementation or viola­tion of a settlement which is referred to it by the Provincial Government;
c) try offences under this Ordinance and
such other offences under any other law as the Provincial Government may, by notification in the official Gazette, specify in this behalf ; and
d) exercise and perform such other powers and functions as are or may be conferred upon or assigned to it by or under this Ordinance or any other law.
(6)  Notwithstanding anything con­tained in the Workmen's Compensation Act, 1923 (VII of 1923) or the Payment of Wages Act,1936 (IV of 1936), the Provincial Government may, by notifica­tion in the official gazette, appoint a Labour Court to be or confer upon it any power or, function of, any authority under any of the said Acts, and, upon such notification, the Labour Court shall be deemed to be such authority and shall exercise the powers and perform the functions of such authority under the relevant Act.
(7) if any member of the Labour Court is absent from, or is otherwise unable to attend, any sitting of the Court the proceedings of the Court may continue, and decision or award may be given in the absence of such member; and no act, proceeding, decision or award of the Court shall be invalid or be called in question   merely on   the ground of such absence.
 
Clause (d) of sub-section (5) of section 35 of the I.R.O. indicates that a Labour Court shall exercise and perform such other powers and functions as are or may be conferred upon or assigned to it by or under this Ordinance or any other law. The Labour Courts constituted under section 35 of the I.R.O. have also been authorised by the government to try offences under the East Pakistan Employment of Labour (Standing Orders) Act, 1965 under the notification published in the Dacca Gezette (Extraordi­nary, dated February 20, 1971.
 
62.  As indicated earlier the I.R.O. does not contemplate only one class of proceedings other than industrial dispute. Section 15 prohibits unfair labour practice on the, part of the employers. Section 16 prohibits unfair labour practice on the part of workmen. Contravention of either of the sections has been made an offence punishable with fine, etc. under section 53 of the I.R.O. in the case of dismissal, discharge, removal from employ­ment of a workman in contravention of section 15 of the I.R.O. the statute provides no forum other than as provided in section 34 of the I.R.O. Section 47(1 )(a) provides that no employer shall discharge, dismiss or otherwise punish any workman except for misconduct not connected with any concilia­tion proceedings or proceedings before Arbitr­ator or Labour Court or Tribunal in respect of an 'industrial dispute1, save with the permission of the Conciliator or Arbitrator or the Labour Court or Tribunal as the case may be. Dismissal of a- worker without obtaining the necessary permission or dismissal of a worker on false allegation of misconduct has no remedy other than as provided in section 34.
 
63. Section 48 of the I.R.O. provides prosecution of certain persons for refusing to take part or to continue to take part in any illegal strike or illegal lock-out. Contraven­tion of any of the said sections may be made the subject matter of a dispute before the Labour Court. Law does not require that the remedy may be had by the aggrieved person by making the contravention subject matter of all industrial dispute in the manner as provided in the I.R.O. and not by taking the 'individual dispute' to the Labour Court. If the view is taken that remedy may be had only by raising an 'industrial dispute, then, in the event of the 'collective bargaining agent' failing to make the contravention sub­ject matter of an 'industrial dispute' in the manner as provided under section 43, or in the absence of’ collective bargaining agent", the  injured   'workman goes without any remedy.
 
64. Section 34 of the I.R.O. was amen­ded, obviously "to enable an 'employer' or 'workman' to take a proceeding complaining violation of any of the statutory rights. In the case of dismissal of a 'worker for miscon­duct, unless it is open to him to take the ma­tter to the Labour Court complaining illegal dismissal in connection with any such 'Industrial dispute', and the 'worker does not come within the ambit of the definition under the Standing Orders Act or such a case is not covered by the Standing Orders Act, the 'workman' cannot move the Labour Court by filing an application under Section 25 of the Standing Orders Act. The result would be that illegal dismissal or discharge remains unremedied. It is obvious that to remove this defect in the statute and to enable full imple­mentation of some of the provisions of the I.R.O. section 34 was amended making its scope wider than before.
 
65. Section 34   as it stands amendment, puts no limitation in the filing of an applica­tion by a 'worker’ or 'workman before the Labour Court for the enforcement of his right guaranteed or secured under any law.
 
66. Sections 16, 17—19 of the Standing Orders Act provide for discharge dismissal from service and termination of employment under certain specified grounds. Any action taken against a 'worker' in violation of any of the provisions can be challenged before a Labour Court by filing an application under Section 25 of the Standing Orders Act. After amendment of Section 34 it is now also open for a 'worker' to make a grievance before the Labour Court complaining illegal discharge or dismissal or termination from employment, because his right to continue in his service is guaranteed under the Act, and he may be dismissed or discharged or his service termi­nated only in the manner as provided in the Act. Instead of filing an application under section 25 of the Standing Orders Act, if the aggrieved 'worker chooses to file an applica­tion under section 3.4 of the I.O.R. complai­ning illegal dismissal or discharge or ter­mination from service, no valid objection to its maintainability can be conceived of. This aspect of the question will be dealt with later.
Now let me refer back to the case of Ge­neral Manager, Hotel Intercontinental.
 
67. The learned Judges reversed the deci­sion of the Labour Court on, taking the views—
(i) A worker or workman who falls in the first category of workers as defined in clause (xxviii) of section 2 of the I.R.O. can not maintain an application under section 34 because the first category does not include a dismissed worker;
(ii) An industrial dispute which could be raised by the collective bargaining agent cannot be brought to the Labour Court by an individual worker;
(iii) even if be conceded that an Individual dispute between a single worker and his employer can be included within the definition of industrial dispute such dispute cannot be brought to the Labour Court for its adjudication in view of the express prohibition contained in section 43 of the I.R.O, which being unqualified prohibition must seem to be both total and complete; and
(iv) a dismissed worker who does not fall within the definition of worker as given in clause (xxviii) of section 2 of the I.R.O. but falls within the definition of wor­ker as given in Clause (v) of section (2) of the Standing Orders Act. His remedy lies under section 25 of the Act.
 
68. Close examination of the views expres­sed in the decision noted above shows that the conclusion are rather not consistent with the trend of discussions preceding, and this has created some anomalies. For convenience of appreciation of the decision some of the anomalies are indicated below:
 
(i) "After amendment of Section 34 omi­tting the words industrial dispute and introducing the expressions any collective bargaining agent or any employer or workman, so far as a collective bargain­ing agent or an 'employer' is concerned may apply to the Labour Court under this section whenever the necessity arises for the enforcement of any right guaran­teed or secured to it or him under any law or award or settlement".
 
The learned Judges, however, felt the difficulty in applying the law, and observed as under—
 
"Difficulty is, however, experienced when a workman applied under this section to enforce such a right. Such difficulty would not perhaps have raised had the definition of 'worker or 'workman' as provided in clause (xxviii) of Section 2 of the Ordinance been a little simpler, clearer and more unambiguous." 
(ii) "A 'worker' or 'workman' who falls in the first category means any person who is not an employer as defined in the Ordinance, but employed for hire or reward under any express or implied terms of employment".
(iii) "in the  second category falls a 'worker' or 'workman' who has been dismissed, discharged, retrenched, laid off or otherwise removed from employ­ment, but, besides  such dismissal, retrenchment or removal two other fac­tors must exist so as to bringing un­der this category. One is the existence of any proceedings under the Ordinan­ce in relation to an industrial dispute and the other is the existence of some connection between his dismissal, dis­charge, retrenchment, lay off or remo­val and the industrial dispute. To be more explicit, his dismissal must have arisen out of an industrial dispute or must have led to such dispute. If the distinction between these two categories of workers or workman has been inten­ded by the Legislature different cons­equences must necessarily follow from it. If such distinction has been inten­ded to exist between two categories of 'workers' or 'workman, then a 'workman who has not been dismissed can file an application under section 34 of the Ordinance''.
(iv) "It would, therefore, appear that a dismissed worker who falls within the second part of the definition of 'worker' or 'workmen' in clause (xxviii) of sec­tion 2 can bring an application under section 34 for the enforcement of any right guaranteed or secured to him by any law or any award or settlement when an industrial dispute exists which, as already mentioned, can exist only if it has been raised by a collective bargaining  agent or employer in the manner prescribed by any of the sections, namely sections 26 to 33 of the Ordinance. During the continuance of such industrial dispute which led to his dismissal or which arose on his dismissal, a dismissed wor­ker can by filing an application  under section 34 enforce any legal right or the terms of any award or settlement. If no such dispute exists, a dismissed worker will not fall within the second category of ‘workers and workmen: and he cannot, therefore, maintain an application under section 34. A 'weaker' or 'work­man'   who falls  in  the  first  category of workers as defined  in clause 2(xxviii) of the Ordinance, can, however, maintain  an  application  under section 34, but  the first category does  not. As mentioned above, include a dismissed worker. If it be conceded that individual dispute” between. A single worker and his employer can be included within the definition of 'industrial dispute', such dispute cannot, I am afraid, he brought to the notice of the Labour Court for its decision by reason of the express pro­hibition   contained in section 43 of the Ordinance".
 
69. In negative the argument that in the absence of express mention of section 34 in the provision of section 35 conferring jurisdiction on the Labour Court under sub­section (5) of section 35, the Labour Court is without any jurisdiction to decide an application of a 'worker' filed tinder sec­tion 34, the learned Judges observed that "general jurisdiction to decide an industrial dispute has been conferred by clause (a) of sub-section (5) of section 3 5 but this sub-section has not either expressly or impliedly negatived the power of labour Court to decide an individual dispute by a single worker under section 34," The learned Judges further observed "the provisions of section 34 which enable the persons mentioned there­in to apply to the Labour Court are both enabling and self contained as well a clear"; and the expression 'may apply to the Labour Court for enforcement of any rights' is sufficient to enable the Labour Court to operate, and, therefore, adjudicate any dispute, presented for its determination by an application. No further conferment of jurisdiction on 'he Labour Court under sub-section (5) of section 35 is necessary".
 
70. The definition of 'worker' as given in Section 2 (v) of the Standing Orders Act is narrower than that given in the IRO. A large number of persons would be excluded from the former, and, therefore, be unable to maintain application under section 25 of the Standing Orders Act. When an order of dismissal is passed by the employer against any one or all of them. The learned Judges while finding substance in the contention that in view of the definition of 'worker as con­tained in section 2 (v) of the Standing Orders Act, scope in which is narrower than that given in section2 (xxviii) of the IRO, a large number of workers not covered by the definition under the Standing Orders Act, would be unable to maintain application under Section 25 of Standing Orders Act, avoided to answer the question merely saying, 'But this difficulty, even if it may seem to be insurmountable, does not defy all solutions and it cannot, therefore, be pleaded as a ground for holding that a dismissed worker is entitled to challenge the legality of his dismissal under section 34 of the Ordinance, and such individual dispute must, therefore, be regarded as an industrial dispute so as to enable them to maintain such an applica­tion."
 
71. With due respect to the learned Judges I am constrained to say that even if the defi­nition of 'worker' or 'workman' as given in section 2(xxviii) of the I.R O. is taken as that, the conclusions   arrived   at   as shown above were not correctly drawn.  A definition in a modern statute provides the vocabulary for understanding the different provisions of the statute.  But the definition cannot control the legislative intent or the cypress provi­sions of the statute, or any particular provi­sions which is clear from the language of the section. In one part of the judgment, however, the learned judges expressed  the view that the definition comprises two categories of 'workers' but while inter­preting section 34 of the I.R.O. used  the definition of 'worker' or 'workman' consi­sting of one part, that is to say, for quali­fying a worker to maintain an application under section 34 he must fulfill the requirem­ent of the second part of the definition. I have already indicated earlier that first part of the definition of ’worker’ or’ workman' is com­plete and the second part is only explanatory. This interpretation of the definition will be quite in harmony with the different provisions of the I.R.O particularly keeping in view sec­tion 34 It is an accepted rule of equitable in­terpretation that when the language of a statue admits of two constructions, the one which leads to absurdity or obvious injustice, should not be adopted and instead the construction which appears to be most in accord  with reason and justice should be preferred.
 
72. On the subject "beneficial construc­tion" some of the principles stated in Maxwell on interpretation of Statutes. Eleventh Edi­tion will provide the necessary guidance in the interpretation of section 34 read with clause (xxviii) of section 2 of the IRO. "It is said to be the duty of the judge to make such construction of a statute as shall suppr­ess the mischief and advance the remedy. Even where the usual meaning of the language falls short of whole object of the legislature, a more extended meaning may be attributed to the words, if they are fairly susceptible of it. The construction must not, of course, be strained to include cases plainly omitted from the natural meaning of the words."
 
73. At another place of the book the following principle of interpretation has been stated:
 
"It is a cardinal principle of interpreta­tion that when the language used by the legislature admits of two constructions the Court should not adopt a construction which leads to an absurdity or obvious injustice but should adopt that cons­truction which appears to be most in accord with reason and justice."
 
The purpose of the legislation enacted in the IRO is to provide a consolidated law relating to the formation of trade unions, regulation of relations between employers and workman and avoidance and settlement of any differences or disputes arising between them or matters connected therewith and ancillary thereto. Section 34 was amended because obviously the section was found falling short of the requirement. By the amendment cope of the section was widened to enable full implemen­tation of all provisions of the statute. Now, by putting restricted meaning to section 34 read with the definition of the words 'worker' or 'workman', the purpose of the legislation cannot be defeated. The Interpretation sought lo be given does not seem to be intelligible and consonant with reason. The legislature found necessary to provide the second clause as explanatory in the definition in section 2(xxviii) in view of the definition of 'industrial dispute' given in section 2 (xiii) of the I.R.O. The definition of 'industrial dispute' does not, as the language shows, comprehend a 'worker' who has ceased to be in the employment ors person not belonging to the category of wor­kers. It has been earlier pointed out that in the case of Pakistan Tobacco Ltd, 33 DLR (S.C) 280 in repelling the contention of the employer that in view of the definition of workman in clause (s) of section 2 of the Industrial Disputes Act, 1947 which does not include for the purpose  of proceeding under the Act in relation to an industrial dispute, a dismissed workman, although his  dismissal may itself have led to the industrial dispute it has been held that "such a previously discharg­ed workman or person sought to be brought in as a workman could be within the ambit of the expression 'any person.' To set at rest any such controversy and keeping in view the definition of 'worker' or 'workman' and 'in­dustrial dispute' the definition of 'worker' or workman' has been extended to cover a case of a worker in relation to an industrial dis­pute, who has been dismissed, discharged, retrenched, laid-off or removed by using the word 'includes'. This view gets full support from the very language of the second part of the definition of 'worker' or 'workman. The word 'includes' indicates that the legislature intended to extend the scope of the definitions for 'worker' or 'workman to certain categories of 'workers' or 'workman' in relation to 'in­dustrial dispute', whose dismissal, discharge, etc has led to that dispute.
 
74. Reference has been made to a decision of this Court in the case of Railway men's Stores, 30 DLR (S.C) 251, in support of the view that a dismissed   worker cannot   main­tain an application under section 34 of the I.R.O. F4rom the report it appears that leave was granted to consider the question whether the applications under section 34 of the Ordi­nance was maintainable in the facts and circumstances of the case. Facts in short are that the services of one Abul Bashar was terminated under section 19 (1) of the Standing Orders Act on the ground of failure to su­pervise the work of the kitchen staff and bearers of a restaurant maintained by the ap­pellants". In spite of the termination of the service the appellants continued to deal with the said Abul Bashar who was General Secre­tary of the Employees Union, and, ultimately, a Memorandum of Settlement was concluded between management and the representatives of the Employees' Union, but in the meantime the Employees' Union filed an application before the Labour Court under section 34 of the I.R.O.  For reinstatement of said Abul Bashar in his former post, alleging, inter alia, that the termination of his service without stating full reason was illegal and that he was victimised for being an officer of the Emplo­yees' Union. The application was contested by the appellants contending; inter alia, that Abul Bashar. Having ceased to be a worker under the Railway Stores Co. Ltd. was not competent to maintain an application under section 34 of the I.R.O. The Labour Court, however, allowed the application and directed his reinstatement. In  repelling the objection the Labour Court relied upon the decision of a Division Bench of the High Court Division in the case of Administrator of Omar Sons Ltd. 28 DLR 178.  Against the order of the Labour Court the employer, that is, the appellants moved the High Court by filing an ap­plication under Article 102 of the Constitu­tion, which was summarily rejected, There­after the appellant fifed an appeal in this Court by obtaining special leave. The appeal was allowed on the finding that the application filed by the Employees' Union Collective Bargaining Agent making a grievance about illegal termination of service of Abul Bashar under section 34 of the I.R.O. was not main­tainable. The above finding is based on the following observation:
 
"It does not seem to be reasonable that what is not available to a workman out of employment under section 34 of the Ordinance, an application made by him­self will be available to him by adopting an indirect procedure by making an ap­plication through the collective bargain­ing agent. Under the amended provi­sions of section 34 it is manifest that a collective bargaining agent or an em­ployer or workman may apply under the said provisions to enforce its or his res­pective right. In that view of the matter we do not think that respondent No. 4 has any right to apply under section 34 to enforce a right which may be guar­anteed to a workman under the Stan-ding Orders Act but not to it."
 
75. From a reading of the judgment it appears that the view taken in the case of General Manager, Hotel Intercontinental, Dacca on the interpretation of the definition of 'worker' or workman' as given in section 2(xxviii) of the I.R.O. has been approved. According to this view 'worker or 'workman is one who is employed in an establishment or industry and he cannot be regarded as work­man if he ceases to be in employment unless as the said definition clause clearly makes an exception such cessation has any connection with or as a consequence of or has led to an 'industrial dispute.'
 
76. From the above noted observations it appears that there are some anomalies which are as follows:
 
(i) "in view of widening of the scope of section 34 by the amendment dated October 17, 1970 his Lordship observed: "It does not appear that under this am­ended provision the existence of an in­dustrial dispute is ah indispensable requi­rement for the application of the provi­sion and an individual workman may apply to the Labour Court to enforce a right guaranteed or secured to him by any law or award or settlement."
 
(ii) "But such workman can take advantage of the provision so long as he continues to be in any employment, be­cause as the definition of a 'worker or workman' as has been provided in sec­tion 2 (xxviii) of the Ordinance shows that a workman or worker is one 'who is employed in an establishment or industry' and he cannot, therefore, be regarded as workman if he ceases to be in employ­ment, unless such cessation has been in connection with or as a consequence of or has led to an industrial dispute.''
 
(iii) "It may be pointed out that if the victimisation of any worker for Trade Union activities be an infringement of the right guaranteed or secured under Standing Orders Act the provisions of section 34 can certainly be invoked for the necessary relief against such infringe­ment, if other conditions of the said section are fulfilled because victimisation for trade union activities may amount to an infringement of right guaranteed or secured by any law, But it appears to us that if section 34 is read properly then collective bargaining agent can apply under the said section for enforcement of any right guaranteed or secured to it by any law or any award or settlement; and similarly a workman may apply under said provisions for enforcement of such right guaranteed or secured to him.''
 
(iv) "Having regard to that definition of Workman' it is clear the worker whose termination   of service  or dismissal or discharge from   service has  not  been in connection with any  industrial dispute, is not a  worker within the meaning  of the Industrial Relations Ordinance, and, therefore, cannot apply under section 34 of the Ordinance  for relief against such termination, dismissal or discharge, it cannot be said that such termination or dismissal or discharge from the service of a workman is an infringement of any right guaranteed  to  the collective  bar­gaining agent by any law".
 
77. Ultimate conclusion of his Lordship is that the Trade Union respondent No 4 not being a party to any settlement, or award provided against such termination, dismissal or discharge, it cannot be said that such termination or dismissal or discharge from service of workman is an infringement of any right guaranteed to the collective bargaining agent and such a Trade Union in its capacity as the collective bargaining agent was competent to maintain the application under section 34 of the I.R.O. He further concluded that the right to move the applica­tion not being available to Abul Bashar who ceased to be in the employment of the Railway men’s Stores Co. Ltd., the Trade Union was also not competent to file the application under section 34 to enforce a right which may be guaranteed to a workman under the Standing Orders Act, but not to it. In concluding, however, his Lordship observed as follows:
 
'The workman concerned could cer­tainly  apply under section 25 of the Standing Order Act for the necessary redress in respect of the termination of his service if he fulfilled conditions laid down in the said section and could establish that his termination was really a kind of victimisation for Trade Union activities’.
 
78. In making this observation, as it appears, it has not been considered whether the employee concerned holding a supervisory post for management of the restaurant was 'worker' as defined in section 2(v) of the Standing Orders Act which excludes a person being employed in a supervisory capacity, exercise either by nature of duties attached to the office or by reason of power vested in him, functions as manager or managerial or administrative nature. It his also not been considered if the alleged termina­tion from service was "really a kind of victi­misation for Trade Union activities," then it was an offence under section 15 of the I.R.O. and whether, in such a case, the agg­rieved person was competent to seek an appr­opriate remedy under the I.R.O. In view of the restricted scope given to section 34, the victimised workman can at best seek for punishment of the employer under sections. 34, 35 of the I.R.O. but no remedy with regard to his service. For such remedy, the workman has been asked to seek relief under section.25 of Standing Orders Act. I am const­rained to say that the conclusions are not the result of correct interpretation of the relevant statutory provision. According to the view taken in that case, even in a case of victimisation for Trade Union activities the collective bargaining agent would not be competent to file an application under section 34 of the T.R.O. before the Labour Court for the necessary relief. This proposition tends to'. Practically negative the very basic purpose of the consolidated legislation of the Labour law, namely, the I.R.O.
 
79. In the instant case the employee filed two applications under section 34 of I.R.O. before the Labour Court with the specific allegation that be was dismissed with the malafide intention of victimising him for doing lawful Trade Union activities. Admit­tedly the employee was the General Secretary of the Workers Union. The Labour Court on consideration of the evidence arrived at the following finding in T.R.O. case No. 202 of 1973:
 
“(i) Thus, the entire evidence recorded by the enquiry committee gives no kind of proof in support of the charges. As a result the findings of the enquiry committee that First Party was guilty of the charges was quite perverse and arbitrary being without any basis."
 
(ii) Beside that, it is well indicated from the materials on record that the charge was drawn up against the First Party merely for his trade union activities in asking (he Assistant Manager only to wait for some time to meet the workers who were coming from Narayanganj to meet him on deputation and proceeding for such trade union activi­ties and the dismissal on such proceeding was also illegal being in contraven­tion of section 15 of the I.R.O.”
 
In I.R.O. Case No.  219 of 1973   the Labour Court arrived at the following findings:
 
"In fact, the charge of misconduct was not proved at all. On the other hand, it is found from enquiry proceeding that as the Assistant Manager got the atten­dance register prepared unsystematically several workers including the First Party who was  the General  Secretary of the worker's union represented to the-Assistant Manager that attendance register should be prepared by putting the names of workers systematically according to their categories and sen­iority and over that matter the Assis­tant Manager became unduly annoyed as well as apprehensive and brought the charges which were  not at all   proved. This also means that the charges were drawn up against the First Party merely for the Trade Union activities while there was no kind of misconduct at all. This also offended section 15 of the I.R.O."
 
80. The above finding of the Labour Court were not at all noticed by the High Court while considering the question whether the application under section 34 of the I.R.O. were maintainable. The orders of dismissal impugned before the Labour Court being on the specific ground of victimisation on account of trade union activities and the orders being in violation of section 15 of the I.R.O. victimised worker cannot be left without any remedy. In such a case section 34 after amendment provides the necessary forum for an appropriate relief. The definition of 'wor­ker' or workman' as given in section 2(xxviii), even with restricted meaning as given in the case of General Manager, Hotel Intercon­tinental and the Railway Men's Stores Co. Ltd cannot control the specific provisions of title Statute, and thereby defeating the very purpose of the legislation.
 
81. In Civil Appeal Nos. 26 and 27 of 1978 the conversion of the applications   under sec­tion 34 of the I.R.O. into applications under section 25 of the Standing Orders Act has been challenged. It appears that the High Court in converting the applications followed a decision of the   High   Court   Division in the case of Administrator; Omar Sons Ltd. 28   D.L.R.  178. In the said decision it has been held that in a case where both pro­visions as contained in section 25 of the Standing Orders Act and section 34 of the I.R.O. are applicable, it is open to   the aggrieved worker to choose his course.  If he chose   to seek his remedy under section 25 of the Standing Orders Act, in that case, he is required to fulfill the requirement of the section. But if he chooses to seek his remedy under section 34 of the I.R.O.  the application will not be fettered with the limitations as provided in section 25 of the Standing Orders Act. The view taken in this decision has been proved to be quite helpful in the administration of the two Labour Courts covering the same field. The course suggested does not offend against either of the two laws. This view has been followed in the case of A. Robrio, 27 D.L.R. 98 and in the case of M/s. Nabisco Biscuit and Bread Factory W.P.N. 397 of 1974. Since it is open to an aggrieved worker to choose his course in either of the two laws, in a proper case, it would be within the jurisdiction of the Labour Court to convert an application as per requirement. It would not be correct to say that the learned Judges acted in excess of this jurisdiction in converting the application. But in the facts and circumstances of this case the conversion was unwarranted, be­cause the applications under section 34 were maintainable.
 
82. It has been rightly argued  by Mr. T, H. Khan,  the learned Counsel appearing for the   employee  that the High Court acted in excess of its jurisdiction in  disturbing the finding of fact arrived at by the Labour Court on consideration  of the evidence. From the judgment it appears that the High Court set aside the orders of the Labour Court on the findings that  the Labour Court acted  in excess of its jurisdiction in entering  into  the evidence recorded by the enquiry committee and holding that the evidence was not sufficient to prove the  charges. The judgment of the Labour Court, however, shows that the finding of the enquiry committee, that the first party was guilty of the charge, was found perverse and arbitrary, not being warranted by the evidence.
 
83. When grievance is made before the Labour Court to the effect that the finding of the domestic inquiry was perverse on the ground that the finding of guilty of charges is not supported by the evidence recorded in support of the charges, it becomes the duty of the Labour Court to examine the proceed­ings of the domestic inquiry. In so doing if the proceedings of the domestic inquiry are found not in accordance with law, the orders passed on the basis of the recommendation of such domestic inquiry must be set aside. In my opinion, the High Court acted in excess of its writ jurisdiction in the nature of certiorari in disturbing the clear findings of the Labour Court, and selling aside the judg­ment and orders.
 
84. In any view of the matter the judgment of the High Court in both the appeals cannot be sustained. Therefore, Civil appeal Nos. 26 and 27 of 1978 are dismissed without any order as to costs and Civil Appeal Nos. 46 and 47 are allowed with cost. The judgment of the High Court Division is set aside and those of the Labour Court are restored.
 
Badrul Haider Chowdhury J:
 
I have had the advantage of going through the judgments delivered by my learned brothers Fazle Munim, J. and Ruhul Islam J.
 
86. Since the question raised is of public importance I better add a few words of my own for coming to the conclusion that I have found myself in agreement with my learned brother Ruhul Islam J.
 
Facts given in the judgment of Ruhul Islam, J. are sufficient and they need not be detailed again.
 
Leave was granted to the employee on the following submissions made by his Counsel, Mr. T.H. Khan:
 
(1) The Labour Court has found that the allegations made against the worker did not constitute an offence of miscon­duct, and that the findings of the domes­tic enquiry were perverse, and the em­ployee was victimised for his trade union activities, and as such, the Labour Court has jurisdiction to interfere with the finding of a domestic tribunal.
 
(2) The High Court exercising its writ jurisdiction in the nature of certiorari had no   jurisdiction to interfere with the decision of the Labour Court, because the Labour Court acted within its jurisdiction in holding the finding of the domestic enquiry perverse and that the petitioner was dismissed for his trade union activities. These are questions within that jurisdiction of the Labour Court to decide and there is no error or law apparent on the fact of the record. (3) Whether the High Court after hol­ding that the applications under section 34 of the Industrial Relations Ordinance were not  maintainable, was justified in treating the said applications as under section 25 of the Employment of Labour (Standing Orders) Act of 1965 without coming to a finding that the mandatory requirements of the said section were complied with or not.
 
87. The Enquiry Officer found the respon­dent No. 2, the employee, guilty of miscon­duct within the meaning of section 17 (3) (a) of the Employment of Labour (Standing Orders) Act, 1965. Thereafter, by an order dated 4-9-73 the appellant-company dismissed the Respondent No. 2. Respondent No. 2 thereafter filed an application under section 34 of the Industrial Relations Ordinance 1969. The appellant resisted the case on the ground that the Labour Court had no jurisdiction to entertain an application filed by a dismissed worker and since the worker did not file any application under section 25 of the Standing Orders Act, it is beyond the jurisdiction of the Labour Court to entertain the same.
 
88.  The Labour Court, however, allowed the application and held that the order of dismissal was illegal and the same being in contravention of section 15 of the Industrial Relations Ordinance, directed the appellant to reinstate the Respondent No. 2 in his former post and to pay him all back wages.
 
89. The employer moved the High Court Division and obtained the Rule in Writ Peti­tion  No.863 of 1974. The High Court Division having accepted the contention of the employer that the applications under section 34 were not maintainable converted the same to one under section 25 of the Stand­ing Orders. The High Court Division, how­ever, made the Rules absolute by holding that the clear finding of the enquiry commi­ttee was that the worker was guilty of misconduct and the Labour Court had no jurisdiction to interfere with the finding of the domestic enquiry, unless it contravenes section 18 of Standing Orders Act.
 
Being aggrieved by the order of the High Court Division both the employer and the employee preferred leaves petitions and   leave was granted on the aforesaid terms.
 
90. The main question that has cropped up is whether the petition under section 34 of the industrial Relations Ordinance by a dis­missed worker is maintainable. The High Court Division relying on the previous decisions came to the conclusion that such petition is not maintainable but converted the same under section 25 of the Standing Orders Act.
 
91. The moot point is whether a dismissed worker can file a petition under section 34 of the Industrial Relations Ordinance. In the judgment of Ruhul lslam, J. This point has been exhaustively dealt with. I would only give the salient points touching this question.
 
92.  Definition of worker is given in section 2(xxviii) of the Industrial Relations Ordinance 1969 in the following terms:
 
“(xxviii) 'Worker' and 'Workman' means any person not falling within the definition of employer who is employed (including employment as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employ­ment be expressed or implied and for the purpose of any proceeding under this Ordinance in relation to industrial dispute include a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, dis­charge, retrenchment, lay-off, or removal has led to that dispute."
 
93. It would be noticed at once that this is a definition by way of illustration and ex­clusion. It3 says any person not falling within the definition of employer. The definition of employer is given in clause (viii). So, whoever does not fall within the definition of employer if employed in an establishment or industry for hire or reward either directly or through a contractor by expressed or implied terms is a Worker. Thereafter, by conjunctive 'and' it says for the purpose of any proceeding under the Ordinance in relation to an industrial dispute includes person who has been dismissed, discharged, or retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off or removal has led to that dispute. It has been argued heavily that if the worker is a dismissed worker he cannot come under the first category and the second category includes such dismissed worker only when it has a relation to industrial dispute, or such dismissal must lead to that dispute then he can file an application under section 34 of the Industrial Relations Ordinance. Section 34 of the Industrial Relations Ordi­nance before amendment in 1970, reads as follows;
 
"Any party to an industrial dispute relating to matter arising out of any right guaranteed or secured to 'employer or workman' by or under any law for the time being in force or an award or settle­ment, may apply to the Labour Court for adjudication of the dispute."
 
94.  Section 34 as it was before amendment could probably lend force to  the argument' that an individual worker could not file such petition under section 34 of the Industrial Relations Ordinance because it is hedged by certain pre-conditions, namely, an industrial dispute. After amendment section 34 reads as follows:
 
''Any collective bargains agent or any employer or workman may apply to the Labour Court for the enforcement of any right guaranteed or secured to it or him by or under any law or any aw­ard or settlement."
 
95.   It will be noticed at once   that both the collective bargaining agent and the indivi­dual employer or workman has been given the right to invoke section 34. After such amend­ment it appears that the contention that first part of the definition of 'worker' or ‘workman does not include a dismissed worker does not" appear to be sound, Industrial Relations Ordi­nance has contemplated the collective bargain­ing agent and section 43 says that no industrial dispute shall be deemed to exist unless it has been raised in the prescribed manner by collec­tive bargaining agent. By adding a fiction the legislature has intended that the industrial dispute must be raised by a collective bargaining agent or an  employer. But what would happen if in an industry there is no collective bargaining agent or there is no registered trade union. A worker dismissed by the employer of such industry then is left in lurch without a remedy. This argument is met by saying that the worker can file a petition under section 25 Of the Standing Orders Act, 1965 which says that any individual worker including a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment can file a grievance petition. But such petition can only be filed "in respect of any matter covered under this Act and intends to secure redress thereof under this section" and it has provided a period of limitation. But, supposing a worker who has been dis­missed by the employer in contravention of section 15 of the Industrial Relations Ordinance, what will be his remedy? The dismis­sal from service can be made under section 17 of the Standing Orders Act if the worker is found guilty of misconduct and termina­tion can be done under section 19. Apart from such dismissal and termination   if the employee is dismissed by the employer and where there is no such trade union and collective bargaining agent then is it to be understood that all such employees are with­out remedy. To my mind such cannot be the contemplation of the legislature. That a dis­missed worker is no more a worker was con­tended in Rats vs. National Arbitration Tribunal, 1948 I.E.B. 424. The point was contended that the employment had been terminated before the date of reference and therefore there could be no trade dispute to refer" because there could not be dispute or difference on any subject between this employer and work­men as the workmen were not in service of the employer” and the argument was built up "by reference to definition of workman which he (the Counsel) submitted contemplated an existing contract of service". Lord Goddard, C.J. negatived the contention:
 
“I cannot agree with that submission. If effect were given to it, it would mean that employer, or indeed, any workman, could nullify the whole provisions of the order and the object of the regulation under which it was made, by terminating the contract of service before a reference was ordered or even after the matter was ordered but before the tribunal considered it."
 
Again it has been said:
 
"It appears to me clear that an emplo­yer could not avoid a reference by the Minister if the matter was reported to him, discharging his workmen and saying “they are no longer in my service whether I rightly or wrongly dismissed them."
 
96. Having given my anxious consideration to the definition of the word 'worker' I have found myself in agreement with my learned brother Ruhul Islam, J. That the legislature has given a remedy and the duty of the Court is to give beneficial interpretation to such enactment. In my opinion the appli­cations under section 34 are clearly maintain­able. In Joblr vs. Middlesex County Coun­cil (1949) I.K.B. Scott, L.J. considered that the definition sub-section ought not to be treated as prima facie an operative sub­section. "It is definitive sub-section and no more" and definitive section ought to be construed as not cutting down the enacting provisions of an Act, unless there is absolu­tely clear language having the opposite effect. In the Industrial Relations Ordinance, section 34 has been amended in 1970 and both the collective bargaining agent and the individual employer or worker has been given the right to invoke its jurisdiction. Whereas, before amendment it was only for a party to an industrial dispute which could invoke the jurisdiction. There lies the whole difference. The definitive sub-section contains two categories of workers and the first cate­gory includes a dismissed individual worker, whereas, the second category includes a dis­missed worker whose dismissal had led to the industrial dispute that is all the difference that has been made.
 
97. In view  of the  proposed order  that has been given in the majority judgment, I advisedly refrain from making any comment, as to whether the Labour Court exceeded its jurisdiction in setting aside the order of the Enquiry Committee and whether the High Court Division in exercise of its jurisdiction rightly interfered with it.
 
98. In the result I agree with the conclu­sion and the reasonings given in the judgment of my learned brother Ruhul Islam, J. and would allow the employee's appeals and dis­miss the Company's appeal without any order as to costs.
 
ORDER OF THE COURT
 
In view of the decision of the majority, Civil Appeal Nos. 26 and 27 of 1978 are allowed and the decisions of the Courts below set aside and the matters are sent back on remand to the Labour Court for deciding the question of convertibility of the emplo­yee's applications from under section 34 of the Ordinance to one under section 25 of the Act and Civil Appeal Nos. 46 and 47 of 1978 are "disposed of accordingly and will abide by the decisions of the Labour Court. There will be no order as to costs.
 
Ed.