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Petitioner: PAKISTAN BURMAH SHELL LTD. VS Respondent: CENTRAL LABOUR COMMISSIONER AND 5 JUDGMENT
Court Name: Sindh High Court Judge(s): Saeeduzzaman Siddiqui, Abdul Hayee Qureshi, Naimuddin Ahmed Title:PAKISTAN BURMAH SHELL LTD. vs CENTRAL LABOUR COMMISSIONER AND 5
JUDGMENT
Reported As: PLD 1982 Karachi 33 Result: Reference answered Judgment JUDGMENT ABDUL HAYEE KURESHI , J.-The present appeal under section 3(2) of the Law Reforms Ordinance, 1972 has been filed by Messrs Pakistan Burmah Shell Limited to impugn a judgment of the learned Single Judge dated 25-5-1976 in Constitutional Petition No. 609/74. The said petition was filed by the appellant to challenge an order of the respondent, namely Central Labour Commissioner where four respondents Nos. 3 to 6, namely, Babu, Muhammad Sadiq, Ghulam Mir, Din Muhammad, who are the employees of the present appellant were ordered to be re-instated in service. We have heard Mr. Syed Sharifuddin Pirzada and Mr. Salim Akhtar for the appellant and Mr. Nasir Aslam Zahid for the respondent. 2. The brief facts of the case are that respondents Nos. 3 to 6 were employed by the appellant who carries on the business of Petroleum and Petroleum Products. By an arrangement of the employers and employees a provident fund scheme was devised which necessitated making of a declaration by the employees in regard to the dates of their birth. Each one of the respondent-employees had disclosed their age which was in--corporated in their books maintained under the Employment (Record of Service) Act, 1952, and the rules framed thereunder. On the basis of their declaration the appellant had notified the respondents Nos. 3 to 6 about such dates on which they would attain their superannuity age. It seems the respondents challenged such communication on the premises that the entries in the service books were incorrect. The respondents moved the Central Labour Commissioner (respondent No. 1) for relief and the said Commis--sioner extended such relief in favour of the respondents by determining their age. A final order was passed by the said Commissioner directing reinstate--ment of the respondent employees in service. Such order was
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also published in accordance with the rules framed under the Essential Services (Maintenance) Act, 1952. 3. It is necessary to state that employment in concerns dealing with Petroleum and Petroleum Products have been notified in accordance with the provisions of section 3 of the Essential Services (Maintenance) Act, 1952. 4. When this appeal came up for hearing before the Division Bench of this Court Mr. Sharifuddin Pirzada pointed out several judgments of this Court as also a judgment of the Lahore High Court and averred that there was conflict of authority on the point of application of the provisions contained in sections 3, 6 and 7-A of the Essential Services (Maintenance) Act, 1952 and the Rules framed thereunder. To put it clearly the point that was raised by Mr. Sharifuddin Pirzada was that the word "regulate" contained in section 6 of the said Act did not mean determination of disputes or individual grievances of the employees working in the concerns to which the provisions of Essential Services (Maintenance) Act, 1952 were extended. On such point there was an obvious conflict in decision that the Division Bench formulated two points on which Constitution of a Full Bench was requested. The said two points are the following :- "(1) Whether the provisions of all other enactments cease to apply to an employment or class of employment as soon as the notification is issued by the Central Government under section 3 of the Act to such employment or class of employment or the inapplicability of the provisions of the other Act is only to the extent of inconsistency between the provisions of the other Acts and Pakistan Essential Services (Maintenance) Act, 1952, and the actual `Regulation of wages and other terms and conditions of the services' under the Act ? (ii) What is the effect of introduction of section 7-A in the Act on other laws and to what extent the applicability of the provisions of the other Acts is affected by extension of the provisions of the Act to an employment or class of employment ? ' The learned Chief Justice agreed with the view expressed by the Division Bench and referred the questions for- determination of the Full Bench. 5. At the time of hearing of the case by the Full Bench Mr. Sharifud--din Pirzada bad requested that a third question may also be framed to the following effect :-- "Whether the Commissioner can adjudicate an industrial dispute ?" Mr. Nasir Aslam Zahid did not object to the framing of this third question. Mr. Sharifuddin Pirzada has, however, pointed out the case of Bakhshi Rustom Ali v. Province of West Punjab (PLD 1960 Lah. 957to contend that the Full Bench has the powers to add to or amend the original questions referred to the Full Bench. In that case from Lahore the Full Bench in order to correctly identify and particularise the problem observed that in fact the question referred to the Full Bench should have been in a different form. The question referred was then substituted by another question to create a proper focus for the scope of enquiry by the Full Bench. Mr. Sharifuvuin Pirzada has also pointed out the case of Farid Khan v. The State (PLD 1965 Pesh. 31). In this case Anwar--ul Haq, J. (as he then was) observed as follows :- "We consider, however, that the question referred to us by the learned Single Judge is not the only question which needs consideration in this case, and that by answering this question alone the controversy is not finally resolved. The question has still to be answered as to how the cases of convicts sentenced to transportation for life before the issue of Provincial Government's memorandum of the 22nd day of May, 1961 are to be regulated. In view of the fact that there is already a Division Bench decision in the field, the correctness of which is being challenged, it would be appropriate if the entire matter is dealt with by this Full Bench." On such position the Full Bench took the view that it would be appropriate if the entire matter was dealt with by the Full Bench and the Bench indeed did proceed to consider even the other contentions which were raised before it.
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6. The power of a Full Bench to amend or add to the question referred for its opinion is without doubt available. The only limitation perhaps would be that the new question should also be relateable to the issues involved in the main case referred to the Full Bench. If the new question is also relateable to the existing issues before Full Bench it would only be proper if the new question is determined so that the entire controversy is disposed of. We have, therefore, decided to determine the new question which has been proposed for determination by Mr. Sharifuddin Pirzada. 7. In fact that entire controversy in this case centres around the scope of powers of the Central Labour Commissioner in matters involving or requiring adjudication of an industrial dispute between the employee and employer. On the answer to this question would depend the result of the main appeal itself because there is no other controversy in the case on the shoving of counsel on either side. We are conscious that on a reference to the Full Bench, normally such Bench expresses an opinion and leaves the making of the final order to the Bench which would ordinarily deal with cases of the said type. In this case, however, the position is different because the only point is in regard to the powers of the Central Labour Commissioner to adjudicate an industrial dispute so that if the opinion of the Full Bench is expressed hardly anything would then remain for decision by the Division Bench. In this particular appeal the opinion of the Full Bench would completely dispose of the appeal itself. In such circumstances we have thought it proper to dispose of the main appeal itself so that unnecessary duplication work is avoided. ' 8. For the purpose of brevity we propose to refer the Essential Services (Maintenance) Act, 1952 as "the Act" and the Industrial Relations Ordinance, 1969 as "the Ordinance", Central Labour Commissioner as "the Commis--sioner", respondents Nos. 3 to 6 as "the employees" and appellant Pakistan Burmah Shell as "the Employer". 9. In order to appreciate the scope of this case it is necessary to detail the history of some relevant statutes. As early as in 1941, viz. During the Second World War Ordinance known as Essential Services (Maintenance) Ordinance, 1941 was promulgated presumably with the intention to curb strikes and lock-outs for the necessity of keeping the wheels moving so that war effort was not retarded. It seems this Ordinance was kept alive on the statute book until 1952 by which time the Indian Sub-continent was divided into two different countries. In 1952 Essential Services (Maintenance) Act was enacted and by sectionof the said Act the earlier Ordinance of 1941 was repealed. The obvious purpose of the new enactment was to replace the old Ordinance which was temporary legislation by an enactment having the characteristic of permanency. It may be pointed out that earlier to 1.971 there was no enactment that identified or provided s6ttling industrial disputes as such, save the Trade Unions Act of 1926 or Trade Disputes Act, 1929. The Trade Unions Act, 1926 only provided for the registration and recognition of Trade Unions, rights and liabilities of registered Trade Unions, elections of officers of the Trade Unions, and matter ancillary thereto. Chapter...... Of that Act however defined unfair labour practices and unfair practices of the employer. An Industrial Court was established but its main. Function was to determine the question regarding the recognition of Trade Union by the employer. In short no machinery was provided for redress of individual grievances of workers. Some offences were created which were triable by the Courts of Magistrate. Subsequently, of course, Industrial Disputes Act was enacted in 1947 and Industrial Relations Ordinance in 1969. These two statutes more or less provide a fuller compendium of rights and liabilities of employers and employees, the venue and method of redress of grievances, either of the employer or the employee, registration of Unions, Collective Bargaining Agents, etc. 10. The Act was enacted on 14-12-1952 and it has undergone many amendments. For the purpose of this the relevant provisions, viz. Sections 3, 6 and 7-A are reproduced hereinbelow;-- "3.-(1) This Act shall apply to every employee under the Central Government, and subject to the provisions of subsection (2), to any employment or class of employment which the Central
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Government may, by notification in the official Gazette, declare to be an employ--ment or class of employment to which this Act applies. (2) No declaration under subsection (1) shall be made in respect of any employment or class of employment unless the Central Government is of opinion that such employment or class of employment is essential- (a) far securing the defence or the security of Pakistan or any part thereof ; (b) for the maintenance of such supplies services as relate to any of the matters with respect to which the (Central Legislature has power to make laws and are essential to the life of the community. (3) A declaration under subsection (1) shall remain in force for a period of six months which the Central Government may, by notification in the official Gazette, extend for further period not exceed--ing six months at any time." 6.-(1) The Central Government may make rules regulating or em--powering a specified authority to regulate the wages and other conditions of service of persons or of any class of persons engaged in any employment or class of employment declared under section 3 to be an employment or class of employment to which this Act applies. (7) When any such rules have been made or when any directions regulating wages of conditions of service have been given by any authority empowered by such rules to give them, any person failing to comply therewith is guilty of an offence under this Act. 7-A. The provisions of this Act shall have effect notwithstanding anything to the contrary contained in the Trade Unions Act, 1926 or Industrial Disputes Ordinance, 1959, or any other law." The three sections quoted above, as these stand today, were either subs--tituted for the original provisions of the Act by Essential Services Maintenance (Adaptation) Order, 1956 (P. O. 13 of 1956) or Pakistan Essential Services (Maintenance) Ordinance, 1965 (Ordinance V of 1965). Section 8 of the Act defines the employment or class of employment to which the Act was made applicable. This Act applies to all employments under the Federal Government or to such employment, be it of a Government statutory body or even private employer, to which the provisions of the Act were made applicable by a notification. It may at this stage be stated that the employment in concerns dealing with distribu--tion of petroleum products have been duly notified for the purpose of the Act. There is no dispute on that point. Section 6 of the Act provides for a power to the Federal Government to make rules regulating the wages and other conditions of service of persons or any class of persons to whom the Act by virtue of notification under section 3 is made applicable. This section also provides for a power to the Federal Government to appointment a "specified person" to perform the functions of regulating the wages and other conditions of service of persons to whom the Act is made applicable. Subsection (2) of section 6 again provides for prosecution of such persons who violate the directions either of the Federal Government or the person authorised by it in matters of wages and conditions of services. Section 7-A is in the nature of an ouster provision. It provides that notwithstanding the provisions contained in Trade Unions Act, 1926 or Trade Disputes Act, 1929 or any other Act, the provisions of the Act shall have effect. It would thus seem that in the matter of wages or conditions of service of persons to whom the provisions of the Act are extended all other enactments including the Indt4strial Relations Ordinance, Workmen's Compensation Act, Pay--ment of Wages Act, Trade Unions Act, and a host of other enactments in the field, relating to wages and conditions of services would have no application. To identify the problem in :he instant case the sole point is whether a person to whom the provision of the Act apply can in any matter whatsoever approach any authority statutory, or otherwise save the Federal Government or the person specified under section 6 for redress of his grievances. To put the question in a narrower compass whether the Federal Government or the person specified by or
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under section 6 of the Act has the power to redress all or any of the grievances of employees to the exclusion of all other functionaries under the various statutes. 11. At this stage it is first of all necessary to determine the mode o the. Principles which should be called in aid for the purpose of interpretation of the provisions of the Act. The Act is declaratory and penal by its very nature. It has a purpose, besides others of depriving the remedy which is available to all other employers or employees, viz. Moving the Labour Court or other institutions in such matters as fall within its ambit or the rules framed thereunder. In a way it would be said that the Industrial Relations Ordinance which has all the characteristics of a beneficial statute is also - sought to be ousted in some respects. The nature of the provisions of the Act was considered by Shafi-ur-Rehman, J as Judge of Lahore High Court in the case of General Manager, Heavy Mechanical Complex v. Mr. Bashir Malik PLD 1977 Lab. 982. No doubt this judgment has been overruled by an other judgment of the Division Bench of the Lahore High Court in the case reported in the same volume at page 998, but as far as the enuniciation of the principles of interpretation propounded by Shafi-ur---Rehman, J. Are concerned the Division Bench that overruled the decision did not differ from the view of Shafi-ur-Rehman, J. In the judgment of Shafi-ur-Rehman, J. At page 989 of the report reliance was placed on the text book "Statutory Law" Sedgwick (Second Edition) at page 287 and the following passage appearing in the book of the author was quoted with approval "The more correct version of the doctrine appears to be that statutes of this class or to be fairly construed and faithfully applied according to the intent of the Legislature, without unwarrantable severity on the one and or unjustifiable leniency on the other, in cases of doubt the Court inclining to mercy." Shafi-ur-Rehman, J. Called the Act a penal statute so that it required to be strictly construed. The learned Judge, however, pointed out that strict construction is not the exact converse of liberal construction nor does it imply that the words should be given the narrowest meaning in fact as is the concept understood whenever strict construction is demanded in interpretation of statute it only means that something which is not with the letter as well as spirit of the law cannot be read into it unless the intention of the Legislature to have used such other words is manifest. In the discussion a reference is also made to the judgment of the Supreme Court in the case of Pakistan Tobacco Company Limited v. Pakistan Tobacco Company Employees' Union and others PLD 1961 SC 402At page 424 of the report appears the view of Hamood-ur---Rehman, J. (as his Lordship then was) in the same context. His Lordship was considering the provisions of the Industrial Disputes Act. That Act provided for a separate machinery and different normal relation to the otherwise full right of the employer to "hire and fire" the employees. In such context the learned Judge observed that the Industrial Disputes Act, drastically abridged or curtailed the right of an employer under the general law of the land in the matter of relationship of master and servant. 1n the view of his Lordship such an Act has "to be construed with reasonable strictness and not be given a meaning wider than the words used will justify when read together with the other provisions of the statute keeping in view its scheme and purpose". On the basis of these principles the conclusion has to be that the provisions of the Act have to be construed strictly but if a doubt arises in regard to the meaning or import of any provision then such interpretation should be accepted which would be in favour of the employer on the process that the Act is legislation in derogation of the right of the employer to lay down the terms and conditions of service and also fix the wages of his employees. 12. In the light of the above principles of interpretation it is proposed to examine the import of section 6 of the Act from the angle whether the Commissioner could adjudicate the dispute between the employer and the employees in regard to the employees having attained the age of retirement. Section 6 provides for general legislation on the subject by the- Federal Government.
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Such legislation to be undertaken by framing rules. The same section also delegates powers to "the specified authority" in the matter of regulation of wages and other conditions of service of the employees. Such specified authority for the purpose of this case is the Commissioner but by more recent appointment the powers have been conferred on the National Industrial Relations Commission which is a body owing existence to the provisions of Industrial Relations Ordinance. The rules framed by the Federal Government or any document regulating the wages and other conditions of the services. Therefore, or legislative in character. The tam have necessarily to be termed legislative functions as the effect on such rules or other directions, be the same issued by the Federal Government or the specified authority would have all the characteristics of law in the matter of wages and conditions of services of the employees in concerns to which the Act is made applicable. What is more is that the rules framed in pursuance of the provisions of section 6 of the Act have to be published in the Gazette. 13. The. Point that now requires consideration is whether the Act or the Rules framed by the Government or any other document, be it termed regulation or by any other name, provides for a power to the Commissioner to adjudicate in regard to dispute arising between the employers and employees in relation to their wages or terms and conditions of service by application of such rules or regulations. In this context it is necessary to reviewthe case-law on the subject. This exercise is undertaken for two purposes---to understand the scope of the word "regulate" and to find if any scheme or modalities have been devised by the Government or the Commissioner for adjudication of dispute. The first case in point is of Syed Manzoor Ali Rizvi v. National Bank of Pakistan 1973.P I, C 94In this case an industrial dispute had risen between the, employee and the employer and conciliation proceedings were commenced under section 5 of the Industrial Disputes Ordinance of 1959: Such proceeding bore no fruit so that a certificate was given to such effect. . The point was raised that section 7-A of the Act had barr6d the jurisdiction of the industrial Court. The learned Judge considered the provi--sions of the Act together with the rules and came to the conclusion that the same constituted a method for settling industrial disputes and such method was different from the method prescribed by the Industrial Disputes Ordinance. The learned Judge further observed that the fact of issuing of a certificate to the effect of failure of conciliation did not necessarily confer any jurisdiction on the Industrial Court if the jurisdiction was otherwise ousted under section 7-A of the Act. In fact the learned Judge held that as soon as the Act was extended to any employment the result was total exclusion of the applicability of the Industrial Disputes Ordinance and the Labour Court stood divested of its jurisdiction to entertain disputes of the nature of industrial disputes. The next case was the case of Employees' Union v. Pakistan Machine Tool Factory 1974 PLC 201. The learned Judge considered the incidence of contemporaneous existence of a general Act and a special Act and came to the conclusion that while two such enactments were in the legislative field, the provisions of the special Act would always override the provisions of the general Act. In such context the learned Judge took the view that the Act also regulated the procedure for setthing disputes besides affecting the rights of the employer and the workman. It would be profitable to reproduce the relevant passage appearing at page 205 of the report which reads as follows :- "The scheme of the Act and the rules framed thereunder is that the grievances of the workmen and industrial disputes between the employer and the workmen were to be attended to, by the Central Labour Commissioner who had a final say in the matter. It is true that it provided no right of appeal and whittled down many other rights. But it does constitute a method for settling the industrial disputes, though different from the one under the Ordinances referred to above. The two methods are mutually inconsistent and, therefore, the one prescribed under the Act and the rules, has prevail. The said Act not only regulates the procedure for setting the dispute but also affects the rights of the employer and the workmen by virtue of Notification in question."
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It may be stated that the case of Manzoor Ali was referred to in this judgment and agreement was expressed. It may also be noticed that the words "conditions of service" appearing in section 6 of the Act were construed by the learned Judge as embracing questions not only relating .To employment or non-employment or the terms of employment of any person,but also the jurisdiction to regulate the wages and other conditions of service, as vesting in the "specified authority". The next case in point is that of General Manager, Heavy Mechanical Complex v. Bashir Ahmad Malik. This decision was overruled on appeal and the Appellate Judgment appears at page 998 in the same Volume. Reference is, however, being made to this judgment in order to appreciate the process of reasoning adopted by the learned Judge. The learned Judge took notice of the fact that two authorities existed, apparently equally competent and therefore, if ascendancy of one authority over the other is manifest the supersession of the other authority follows by natural implication. On such premises the learned Judge held that jurisdiction of Labour Courts stood ousted in respect of such matters as were .Within the domain…
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