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Petitioner: REMINGTON RAND OF PAKISTAN, LTD. VS Respondent: ISLAMIC REPUBLIC OF PAKISTAN
P L D 1957 Supreme Court (Pak
P L D 1957 Supreme Court (Pak.) 170
(Appellate Jurisdiction)
Present: Muhammad Munir, C. J., M. Shahabuddin,
A. R. Cornelius, Muhammad Sharif and Amiruddin Ahmad, JJ
REMINGTON RAND OF PAKISTAN, LTD.---Appellant
Versus
(1) THE ISLAMIC REPUBLIC OF PAKISTAN,
(2) MANZOOR ALAM, INDUSTRIAL TRIBUNAL,
(3) REMINGTON RAND EMPLOYEES UNION (REGD.)‑Respondents
Civil Appeal No. 6 of 1957, decided on 6th March 1957.
(On appeal from the order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 27th July 1956, in Writ Petition No. 287 of 1956.)
(a) Constitution of Pakistan------
---Art. 160‑Award of Indust rial Tribunal under S. 15, Industrial Disputes Act (XIV of 1947) Appeal able to Supreme Court by special leave.
Held, that the Tribunal appointed under the Industrial Disputes Act (XIV of 1947) exercises judicial powers of the State and therefore its award is liable to correction by the Supreme Court under Article 160 of the Constitution by grant ing special leave to appeal to the party aggrieved.
The award in dispute is a judgment or order of the Industrial Tribunal.
The powers and functions of the Tribunal as set out in the Act, indicate‑
(1) that the Tribunal is required to adjudicate on rights which may affect property, and on the masters' right to employ and dismiss servants and the servant's right to leave his employer's service, as well as on the liabilities arising from these rights;
(2) that the Tribunal has most of the indicia of a Court because:
(i) it is competent to take evidence on oath;
(ii) the parties are entitled to state their cases, to examine, cross‑examine and re‑examine witnesses and to be represented by legal practitioners; and
(iii) the Tribunal makes an award which affects legal rights and liabilities, and which the Government is bound to publish and to declare to be binding.
Muhammad Saeed and others v. Election Petitions Tribunal and others P L D 1957 S C (Pak.) 91 ref.
(b) Industrial Disputes Act (XIV of 1947)-----
----S. 10‑"Appropriate Government" in case of dispute arising in Capital of the Federation‑Whether Central Government or Government of West Pakistan‑ Difficulties underlying question indicated.
(c) Industrial Dispute‑---
-----Right to dismiss striking employee not taken away where the strike is legal but unjustified Employer's right under the general law.
The right to dismiss a striking employee is not taken away in all cases where the strike is legal. For instance, where the strike is legal but unjustified, the employer has under the general law the right to dismiss the striking employees, and such dismissal, in the absence of any provision in the Act to the contrary, cannot be held to be wrongful.
(d) Industrial Disputes Act (XIV of 1947)----
-----S. 10 (1) (3)‑Matter not referred is beyond the jurisdiction of Tribunal to give an award upon.
Where the legality or illegality of the lock‑out was not referred to the Tribunal, the order of payment of wages in consequence of an illegal lock‑out was beyond the jurisdiction of the Tribunal to make.
(e) Industrial Disputes Act (XIV of 1947)-----
----Ss. 12, 20, 22 & 33‑Commencement of conciliation proceedings‑Terminus a qua.
The combined effect of sections 20 and 33 is that an employer cannot dismiss an employee after a notice of strike or lock‑out in respect of a public utility service is received by the Conciliation Officer or after a dispute has been referred to a Board or to a Tribunal. The principle underlying this provision seems to be that to subject an employer to a disability under section 33, a reference should have been made to a Tribunal or to a Board or the conciliation proceedings should have begun before a Conciliation Officer on receipt of a notice of strike or lock‑out in an industrial dispute which relates to a public utility service. Conciliation proceedings for the purpose of bringing any such disability do not at all commence when the Conciliation Officer intervenes in a dispute under section 12 otherwise than on receipt of a notice under section 22.
Muhammad Fazlur Rahman, Advocate, Supreme Court, instructed by M. Siddiq, Attorney for Appellant.
Faiyaz Ali, Attorney‑General for Pakistan, (Abdul Haque, Advocate, Supreme Court, with him), instructed by M. Iftikhar‑ud‑Din Ahmad, Attorney for Respondent No. 1.
Respondent No. 2: Not represented.
Abdur Rauf, Advocate, High Court of West Pakistan briefed with Mushtaq Ahmad Khan, instructed by S. A. Majid, Attorney for Respondent No. 3.
Dates of hearing: 4th, 5th and 6th March 1957.
JUDGMENT
MUHAMMAD MUNIR, C. J.‑---This is an appeal, by special leave of this Court under Article 160 of the Constitution, from the award of an Industrial Tribunal directing the re instatement of 45 dismissed workmen and declaring them to be entitled to wages.
The appellant employer is a company registered in Pakistan under the name of Remington Rand of Pakistan Ltd. and carrying on business as agent for the Remington Rand Corporation of America. Sami, one of the employees of the Company, who was working as Divisional Accountant, was dismissed by the Company for alleged insubordination on 13th February 1956. On 20th February, the Company received a notice from the Remington Rand Employees' Union demanding re‑instatement of Sami and threatening a strike in the alternative. On 23rd February 1956, the Union served on the Company a notice of strike, again demanding re‑instatement of Sami and full wages and salaries for the employees if they went on strike. The strike commenced on 24th February 1956, and on the same day the Company served on the 45 striking employees a notice requiring them to resume work and intimating that if they failed to do so, their services would be terminated. The employees not heaving resumed work their services were terminated on 27th February 1956.
By Notification No. L. R. 25 (14)/56, dated the 3rd April 1956, the Central Government under subsection (1) of section 10 of the Industrial Disputes Act, 1947, referred the dispute between the Company and its employees to an Industrial Tribunal consisting of Mr. Mansur Alam for adjudication, and prohibited the continuance of the strike or the lock‑out under subsection (3) of that section. The issues referred to the Tribunal were mentioned in a Schedule to the Notification and were:
"(1) whether the management is justified in terminating the services of Mr. M. A. Sami, an employee of the Company?"
"(2) whether the strike resorted to by the employees of the Company, with effect from 24th February 1956, till the date of the issue of this Notification, is legal? If the reply of the Tribunal is in the affirmative, are the workers entitled to pay for the period of strike ?"
"(3) whether the management is justified in terminating the services of its forty‑five employees on 27th February 1956, as they failed to join work even after due warning? If the reply of the Tribunal is in the negative, then are these employees entitled to re‑instatement with the Company or the contractor to whom contract has been given by the Company?"
The Tribunal, after investigation of the dispute, sub mitted its award to the Central Government who published it as required by section 17 and directed it under section 15 to be binding on the parties for one year.
The Tribunal found that the dispute relating to the termination of the services of Sami was not an industrial dispute which could be referred to it because Sami was not a workman but only an executive; that the strike was legal but not justified; and that the Company was not justified in terminating the services of the employees on 27th February 1956, because on that date conciliation proceedings were pending before the Conciliation Officer, and the strike being legal, the Company could not dismiss the striking employees.
It has not been disputed before us that in proper cases this Court has the jurisdiction to grant special leave to appeal from the award of an Industrial Tribunal. In Civil Appeal No. 14 of 1957 (Muhammad Saeed and others v. Election Petitions Tribunal and others (P L D 1957 S C (Pak.) 91) we have discussed at length the scope of Article 160 of the Constitution under which appeals by special leave can be brought to this Court from the judgments, decrees, orders or sentences of Courts and tribunals. For the reasons given in the judgment in that case, this appeal must be held to be competent because under subsection (2) of section 15 of the special Act the Govern ment has no alternative but to declare the award of the Tribunal to be binding. The award in dispute must therefore be held to be a judgment or order of the Industrial Tribunal by which the Company's property and its legal rights to B employ or dismiss servants have been affected.
Under section 11 of the Industrial Disputes Act the Tribunal has to follow such procedure as may be prescribed by the rules and any member thereof may, for the purposes of inquiry into any dispute, after giving reasonable notice, enter the premises occupied by any establishment to which the dispute relates. It has the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters, namely:
(a) enforcing the attendance of any person and examin ing him on oath;
(b) compelling the production of documents and material objects;
(c) issuing commissions for the examination of witnesses;
(d) in respect of such other matters as may be pres cribed; and every inquiry or investigation by it shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the P. P. C., and every member of it shall be deemed to be a public servant within the meaning of section 21 of the P. P. C.
Under the rules framed by the Central Government in exercise of the rule‑making power conferred on it by the Act, the Tribunal is competent to administer an oath and to accept, admit or call for evidence at any stage of the pro ceedings before it and in such manner as it may think fit. The inquiry before it begins when at the first sitting the Chairman requires the parties in such order as he may think fit to state their respective cases. If without good cause shown, any party to the proceedings before it fails to attend or to be represented the Tribunal may proceed ex parte. The Tribunal also has the power to enter any buildings, factory, workshop or other place or premises whatsoever and inspect the same, any work, machinery or appliance or article therein or interrogate any person therein in respect of anything situated therein or any matter relevant to the subject‑matter of the investigation, inquiry or adjudication. And apart from the powers conferred on it by subsection (3) of section 11 of the Act, the Tribunal has the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, when trying all suits, in respect of the following matters, namely:
(a) discovery and inspection;
(b) granting adjournments; and
(c) reception of evidence taken on affidavit.
Further the Tribunal may summon and examine suo moto any person whose evidence appears to it to be material, and it is to be deemed to be a Civil Court within the meaning of sections 480 and 482 of the Criminal P. C. The proceedings before it are to be held in public unless it directs a witness to be examined in camera, and the representatives of the parties appearing before it have the right of examination, cross examination, and re‑examination and of addressing the Tribunal when all evidence has been called. All questions arising for decision at any meeting of the Tribunal, where the Tribunal consists of more than one person, have to be decided by a majority of the votes of the members thereof, the Chairman having a casting vote in the event of any equality of votes. Any party to a reference may be represented before it by its permission by a legal practitioner and a party appearing by a representative is bound by his acts.
It will be apparent from this statement of the powers and functions of an industrial Tribunal.
(1) that the Tribunal is required to adjudicate on rights which may affect property, and on the master's right to employ and dismiss servants and the servant's right to leave his employer's service, as well as on the liabilities arising from these rights;
(2) that the Tribunal has most of the indicia of a Court because:
(i) it is competent to take evidence on oath;
(ii) the parties are entitled to state their cases, to examine cross‑examine and re‑examine witnesses and to be represented by legal practitioners; and
(iii) the Tribunal makes an award which affects legal rights and liabilities, and which the Government is bound to publish and to declare to be binding.
Thus the Tribunal exercises judicial powers of the State and therefore its award is liable to correction by this Court by granting special leave to appeal to the party aggrieved under Article 160 of the Constitution.
The validity of the reference of the present dispute under section 10 of the Industrial Disputes Act, 1947, is challenged on the ground that the Central Government, which made the order of reference, is not the "appropriate Government" for the purpose within the meaning of that section, and the definition in section 2 (a) of the Act. The definition reads as under:‑‑,
"(a) "appropriate Government" means‑
(i) in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government, by a railway company operating a Federal Railway or in relation to an Industrial dispute concerning a mine, oilfield, or a major port, the Central Government, and
(ii) in relation to any other industrial dispute, the Pro vincial Government";
It is quite clear that the present dispute does not fall under the first sub‑clause. Therefore, in order that the reference should be valid, it must be shown that the Central Government is the Provincial Government for the relevant purpose, in relation to the Federal Capital, viz., Karachi.
In a recent case; that of Zahid Hussain (P L D 1956 F C 58) the late Federal Court had occasion to consider a similar question raised concerning the grant of sanction by the Chief Com missioner of Karachi, to the prosecution of Zahid Hussain, before a Special Judge acting under the Pakistan Criminal Law (Amendment) Act, 1948. At the material time, Karachi as an administrative unit, had the status of a Chief Commis sioner's Province, by virtue of an Order of the then Governor General, No. IV of 1952. In October 1955, however, there was enacted the Establishment of West Pakistan Act, by section 2 of which, Governor‑General was enjoined to declare by public notification that as from a date to be specified in the notification, certain territories should be incorporated into a new Province of West Pakistan. Among these territories the Capital of the Federation was included, but it was provided, by subsection (2) of the same section, that despite the integration, the Capital of the Federation "shall be administered in accordance with the provisions of section 290‑A of the Government of India Act, 1935". It appears that by an oversight, there was included in the First Schedule, which contained a catalogue of amendments to the Government of India Act, 1935, the following item.‑
"Section 290‑A‑The section shall be omitted."
The integration was brought into effect on the 14th October 1955. On the 13th October, an Act was passed amending the Government of India Act, 1935, which inter alia inserted a fresh section 290‑A in that Act, by means of a section which reads as follows:‑
(9) Notwithstanding the omission of section 290‑A of the Government of India Act, 1935, from the appointed day by the First Schedule to the Establishment of West Pakistan Act, 1955, the following section shall be inserted in the Government of India Act, 1935, on and from the fourteenth day of October 1955, namely:‑
"290‑A.‑(1) Except in respect of matters relating to High Court, the provincial Legislature shall have no power to make laws in respect of the Capital of the Federation.
(2) The Governor‑General may by order make, in respect of the Capital of the Federation, such provisions‑
(a) for its government and administration;
(b) for varying the composition of the Legislature of the Province affected thereby and the representation in the Federal Legislature of that Province ;
(c) with respect to the laws which are to be in force in the area ;
(d) with respect to the expenses or revenues of any Court theretofore exercising the jurisdiction of a High Court in the area ;
(e) with respect to apportionments and adjustments of, and in respect of, assets and liabilities ; and
(f) with respect to other supplemental, incidental and consequential matters ;
as he may deem necessary or proper.
(3) Governor‑General may by order alter, amend or modify any order made under this section.
(4) the executive authority of the Federation extends to the Capital of the Federation and any order made under this subsection may be controlled or superseded by an Act of the Federal Legislature, which shall have also power to make laws for the Capital of the Federation with respect to matters enumerated in the Provincial legislature List, other than matters relating to High Court.
(5) An order made under this section may authorise expenditure from the revenues of the Federation."
It is unnecessary to consider whether, by this provision the effect was created that the Federal Capital administration became a "Provincial Government" within the meaning of section 2 (a) of the Industrial Disputes Act, 1947, because on the 23rd March 1956, section 290‑A was repealed along with all other sections of the Government of India Act, 1935, by virtue of Article 221 of the Constitution of the Islamic Republic of Pakistan. But it is of importance to note that with the inclusion of the Capital of the Federation in the Province of West Pakistan, the Chief Commissioner's Province of Karachi ceased to exist. The area being one of the "specified territories" in the Establishment of West Pakistan Act, 1955, by virtue of section 4 of that Act, all references in any laws or public notifications to the Federal Capital, "shall be construed as a reference to the Province of West Pakistan." That Province was to be administered in all respects in accordance with the provisions of the Government of India Act, 1935, as modified by the Establish ment of West Pakistan Act, 1955. The Provincial Govern ment of West Pakistan was an entity set up in accordance with the Government of India Act, 1935.
Therefore, prima facie, the "appropriate Government" with reference to the Federal Capital, after the constitution of the new Province of West Pakistan, was the Government of West Pakistan, and this would be perfectly clear were it not for the aforesaid section 290‑A empowering the Governor General to make provisions for the "government and adminis tration" of the area, and inter alia "with respect to the laws which are to be in force in the area". This section expressly extended the " executive authority of the Federation" (which by section 7 of the Government of India Act, 1935 "shall be exercised by the Governor‑General") to the Federal Capital, and empowered the Federal Legislature, in addition to its separate power of legislation under the Federal and the Concurrent Legislative Lists, also to make laws with respect to matters in the Provincial Legislative List to the exclusion of the Legislature of West Pakistan. To these wide exten sions of power, there was but one exception, viz., that the Federal Legislature could, not, and only the Provincial Legislature could, make laws with respect to matters relating to the High Court.
By section 10 of the Establishment of West Pakistan Act, 1955, existing laws were continued in force "to apply to the areas and the persons to whom they would have applied if this Act had not been passed." For the purposes of section 10 of the Industrial Disputes Act, 1947, the question would be whether the Central Government continued to be the "Provincial Government" for the purposes of a reference of the kind in the present case. The Chief Commissioner appears to have been retained as the designation of the head of the Karachi Administration, but there was no longer a Chief Commissioner's Province, and therefore advantage could not be taken of the provision in clause 43 (a) of section 3 of the General Clauses Act, 1897, that the expression "Provincial Government" means "in a Chief Commissioner's Province, the Central Government." And similarly, there was no precise provision for delegation of executive authority, vested in the Governor‑General, such as was made available for a Chief Commissioner's Province by section 94 (3) of the Government of India Act, 1935, in the following terms:
"A Chief Commissioner's Province shall be administered by the Governor‑General acting, to such extent as he thinks fit, through a Chief Commissioner to be appointed by him."
Such delegation might conceivably be made under the general power conferred by section 290‑A for the "government and administration" of the Federal Capital. It may perhaps be also presumed that since the designation of the head of the administration was retained, viz., Chief Commissioner, all instruments empowering him in that name continued to have force, by virtue of section 10 of the Establishment of West Pakistan Act, 1955. It seems, however, that the powers of the Provincial Government under the Industrial Disputes Act, 1947, were not transferred to the Chief Commissioner at any time. and remained vested in the Central Government up to the date of integration of the West Pakistan Province.
It is argued that in order that these powers should be continued in favour of the Central Government after that date, it was necessary that the Central Government should not merely possess the power of a Provincial Government in the relevant respect, but should be in law, the Provincial Government. This was no less necessary, it was argued, after the passing of the new Constitution, where the provisions relating to Karachi were couched in terms which were, if anything, less clear than in the period immediately before the Constitution Day.
In the new Constitution, Article 211 replaces section 290‑A of the Government of India Act, 1935. It empowers Parlia ment to determine the area of the Federal Capital, which until such determination, was to remain as before. It also empowers Parliament to legislate for the Federal Capital in relation to all matters, including matters which in a Province, he within the exclusive power of the Provincial Legislature, with the exception of the High Court. It provides that "the administration of the Federal Capital shall vest in the President", whom it empowers, by Order, to make provision inter alia for its "government and administration" and "the laws which are to be in force therein." The provision in subsection (4) of section 290‑A, that " the executive power of the Federation extends to the Capital of the Federation" does not appear in Article 211.
The latter omission might be thought to be sufficiently supplied by the provisions in Article 39 that the executive authority of the Federation "shall extend to all matters with respect to which Parliament has power to make laws" and that it "shall vest in the President." On this view, the entire legislative and executive power in respect of the Federal Capital, with the exception of such power relating to the High Court, belonged, indeed, to the Federation. But the question still remains, whether the effect of these instruments was to constitute the Federal (or Central) Government as the Pro vincial Government for the Federal Capital. It is perfectly clear that the definition of the term "appropriate Government" is based on differentiation between the Central Government on the one hand and the Provincial Government on the other. Each of these Governments is nominated as the " appropriate Government" not by reference to powers in respect of "industrial disputes", but as an independent entity. The subject of "industrial disputes" is included, indeed, in item 5 of the Concurrent List, and is therefore within the legislative competence of both the Centre as well as a Province, but, in the case of the Federal Capital, all such power is vested in the Centre exclusively, and the corresponding executive power vests exclusively in the President, not as the executive of a Province, but as the executive of the Federation.
The learned Attorney‑General contended that before the commencement of the Constitution, the referring authority for the Federal Capital was the Central Government, and there fore the Central Government must continue to be the referring authority after the Constitution came into force, by virtue of…
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