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Petitioner: GENERAL MANAGER, HEAVY MECHANICAL COMPLEX, TAXILA VS Respondent: MR. BASHIR JUDGMENT
Court Name: Lahore High Court Judge(s): Shafi-ur-Rehman Title:GENERAL MANAGER, HEAVY MECHANICAL COMPLEX, TAXILA vs MR. BASHIR
JUDGMENT
Reported As: PLD 1977 Lahore 982 Result: Order accordingly Judgment JUDGMENT ' This judgment disposes of the following writ petitions :- (1) W. P. No, 885/75 Heavy Mechanical Complex, Taxila v. Bashir Mali and another. (2) W. P. No, 886/75 Heavy Mechanical Complex, Taxila v. Bashir Mala and another. (3) W. P. No, 887/75 Heavy Mechanical Complex, Taxila v. Bashir Malik and another. (4) W. P. No, 888/75 Heavy Mechanical Complex, Taxila v. Bashir .Malik and another. (5) W. P. No, 890/75 Heavy Mechanical Complex, Taxila v. Member, N. 1. R. C. And another. 2. The petitioner, in all these petitions, is the employer and the contesting respondents are the employees who were dismissed or remove from service for various acts of misconduct. The employees so removed from service or dismissed first approached the Junior Labour Court and then the Labour Court in appeal but these Courts refused to entertain their claim on the ground of want of jurisdiction in view of the extension and application of the Pakistan Essential Services (Maintenance) Act, 1952 (hereinafter referred to as the Act) to this establishment. They then took their grievance to the Chairman, Industrial Relations Commission (hereinafter referred to as the Chairman) as the specified authority under section 6 of the Act and in spite of an objection having been raised with regard to jurisdiction of the Chairman of the Commission to deal with individual grievances so brought before him the jurisdiction was assumed and an order re-instating the individual workers was passed and the decision so given was ordered to be treated as a direction and published in the Gazette of Pakistan.
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3. The legal question which arises for decision in these petitions is whether the authority specified under section 6 of the Act for the purposes of regulating the wages and other conditions of service could entertain individual grievance of the workmen employed in the petitioner's industry and adjudicate the same. 4. In order to have a clear view of the question raised in these petitions it will be necessary to examine in brief the statutory instruments in the field applicable to the case. The Act came to be enforced on 14-12-1952. Section 3 thereof by its own force makes the Act applicable to every employment under the Central Government. A power is also conferred on the Central Government to declare by notification any other employment, subject to satisfaction of certain specified conditions, to which the Act shall apply and such a declaration made in respect of any class of employment is to remain in force for a period of six months within which the Central Government by notification in the official Gazette can extend it for further periods not exceeding six months at a time. Section 4 confers a power on the Central Government or a designated authority to direct persons engaged in certain employments governed by the Act to remain in specified areas. Certain offences are created by section 5 e.g. Disobedience of lawful order or abandonment of employment or departing from the area specified under section 4. Section 7 provides the procedure and penalties. Section 7-A which was introduced by Ordinance V of 1965 provides that "The provisions of this act shall have effect notwithstanding anything to the contrary contained in the Trade Unions Act, 1926 or the Industrial Disputes Ordinance, 1959 or any other law." It is section 6 of the Act which has to be particularly taken note of as its interpretation, scope and effect is to be determined in these proceedings. It reads as follows :- "6.-(1) The Central Government may make rules regulating or empowering 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. (2) When any such rules have been made or when any directions regulating wages or conditions of service have been given by an authority empowered by such rules to give them, any person failing to comply therewith is guilty of an offence under this Act." ' For ten years after the enforcement of the Act no rules were framed as required by section 6 of the Act. It was in the year 1962 that the rules under section 6 of the Act came to be enforced. These are called the Pakistan Essential Services (Maintenance) Rules, 1962 (hereinafter referred to as the Rules) and are reproduced hereunder in extenso :- "The Pakistan Essential Services (Maintenance) Rules, 1962. ' No, S. R. 0. 42.-In exercise of the powers conferred by subsection (1) of section 6 of the Pakistan Essential Services (Maintenance) Act, 1952 (LIII of 1952), the Central Government is pleased to make the following rules, namely :- 1.-(1) These rules may be called the Pakistan Essential Services (Maintenance) Rules, 1962. (2) They shall apply to every employment and every class of employment which the Central Government may, in pursuance of subsection (1) of section 3 of the Act declare to be an employment or class of employment to which the Act applies. 2. In these rules :- (a) "Act" means the Pakistan Essential Services (Maintenance) Act, 1952 (LIII of 1952); and (b) "Central Labour Commissioner" means the Central Labour Commissioner appointed by the Government of Pakistan in the Ministry of Health, Labour and Social Welfare (Labour and Social Welfare Division), or the officer performing for the time being the functions of the Central Labour Commissioner so appointed.
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3.-(1) The Central Labour Commissioner is hereby empowered to regulate, subject to the other provisions of this rule, the wages and other conditions of service of persons or class of persons engaged in any employment or class of employment to which these rules apply. (2) In regulating the wages and other conditions of service under sub-rule (1), the Central Labour Commissioner shall not- (a) prescribe any terms or conditions without taking into consideration the views of the employers, of the persons concerned, or the representatives of such employers and the views of the representatives of such persons, except where such views are not received within the time fixed by the Central Labour Commissioner for that purpose ; (b) prescribe any such terms or conditions as may affect adversely the rights to which a person is entitled, immediately before the publication of these rules, by virtue of any law or under the terms of any award, agreement or contract duly made and operative; (c) increase, without the previous sanction in writing of the Central Government, the wages or allowances of any persons in respect of whom a dispute exists with the employers; or (d) specify, without the previous sanction in writing of the Central Government, any condition on which the employment of any person may be terminated. (3) All directions of the Central Labour Commissioner regulating wages and other conditions of service under sub-rule (1) shall be published in the official Gazette." 5. An amendment was made in the rules on 22-7-1974 and for clause (6) of rule 2, the following clause (b) was substituted:- " 'Chairman' means the Chairman of the National Industrial Relations Commission constituted under the Industrial Relations Ordinance, 1969 (XXIII of 1909) and includes a member of that Commission authorized by the Chairman in this behalf." ' Other amendments made were that for the words "Central Labour Commissioner" wherever occurring in the rules the word "Chairman" was substituted and for the Central Government expression "Federal Government." 6. The petitioner i,e, Heavy Mechanical Complex, Taxila is an industry to which the Act was applied since before the grievances of the employees arose, on the force of a notification issued under section 3, subsection (1) of the Act which has been repeated every six months and is still in the field. In this background of fact and law the following objections have been taken to the assumption of jurisdiction by a member of the Commission and adjudication of the dispute by him :- (i) The law under which jurisdiction was assumed and exercised has the following characteristics which make it necessary that it should receive a strict interpretation, least interfering with existing rights and established forums. (a) The Act is penal and not remedial. It creates offences and prescribes penalties therefor without prescribing the procedure or the forum. It does not create rights nor provides for remedies. (b) It is a temporary and an emergent law. It can be applied only when an exceptional situation comes into existence and even then for a short period of six months at a time. (c) It is not a labour law, as commonly understood, but a law which embraces all types of employment vertically, in any establishment brought within the fold of this Act. (ii) The power to regulate by Rules or by direction does not and cannot extend, or is in any way similar, to the power, to adjudicate industrial disputes. GM The Rules in so far as they authorise the Chairman of the Commission to empower any member of the Commission to perform the functions of the specified authority, provide for delegation of a delegated power and there being no statutory backing for it suffer from invalidity. (iv) In any case disputes which had arisen earlier to the specification of the Chairman as the authority could not be dealt with by the Chairman.
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(v) The expression wages and conditions of service as used in the Act has to be given a restricted meaning so as to exclude the terms and conditions guaranteed by law. 7. The three characteristics of the Act noted by the learned counsel for the petitioner for ascertaining the rule of interpretation appear to be substance flatly correct. Looking at the provisions of the Act we find that it is f more extensive than the so-called labour laws of the country which are expressly overridden to the extent of inconsistency by section 7-A of the Act. The purpose of enacting the Act has been expressed to be the "maintenance of certain essential services". In its scope and application it extends t "employment of any nature whether paid or unpaid and whether in or out of Fakistan." A declaration under section 3, subsection (2) can be made only respect of employment "which is essential for securing the defence or the security of Pakistan or any part thereof" or for the "maintenance of such supplies or services as relate to any of the matters with respect to which the Federal Legislature has power to make laws and are essential to the life of the community." Section 5 has directly the effect of overriding the terms and conditions of all categories of employees by making the following acts an offence (a) disobedience of lawful orders of the employer, or refusal to work ; 0) absence from or abandonment of employment ; (c) departure from the area specified by the authority under section (4). It is also made an offence if the employer without reasonable excuse-(a) discontinues the employment of such person, or (b) closes the establishment. Government has been empowered to regulate by rules or to specify the authority which shall by means of directions regulate the "wages and other conditions of service" of persons engaged in such employment. Any persons violating the rules of the Government or the directions of the specified authority commits an offence. Cognizance of offences under the laws are to be taken only at the instance of and upon a "complaint in writing made by a servant of any Government in Pakistan authorized in this behalf by the Federal Government". Section 7-A expressly provides that "the provisions of this Act shall have effect notwithstanding anything to the contrary contained in the Trade Unions Act, 1926 or the Industrial Disputes Ordinance, 1959 or any other law". 8. This resume of the main provisions of the Act bears it out that it is a temporary and emergent law applying to a restricted group employed in essential services. It is penal. AU this only indicates that it is to be strictly construed. The strict construction is not the exact converse of liberal cons. Unction and it does not imply that the words should be given the narrowest meaning of which they are susceptible. It really means that such laws are not to be regarded as including anything which is not within their letter as well as their spirit, which is not clearly and intelligibly described in the very words of the statute, as well as manifestly intended by the Legislature. Sedgwick (Statutory Law, 2nd Edn., page 287) enunciated this principle of construction in the following words:- "The more correct version of the doctrine appears to be that statutes of this class are to be fairly construed and faithfully applied according to the intent of the Legislature, without unwarrantable severity on the one hand or unjustifiable lenity on the other, in cases of doubt the Court inclining to mercy." 9. A second look at the law applicable to the case would show that the Legislature empowered the Government to frame rules or to authorize a specified authority to regulate the wages and other conditions of service of employment declared under section 3 of the Act. Section 3 has two parts. The first relates to Government employment to which the Act applies by its own force and the second are those brought under the Act by a declaration under section 3(2). It is this latter category alone and not the first one that is governed by section 6 of the Act. 10. The rules make it clear that the specified authority can take to guidance of disputes between the employer and the employee concerning the wages and allowances. He can with the previous sanction in writing of the Federal Government specify conditions on which the employment of any person can be terminated. He can prescribe the terms and conditions of employment after hearing
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the employer and the employee. The directions given by him are to be published in the Gazette and has been given the compulsive effect of a statute by making it an offence to disobey them. 11. An examination of the scheme of the Ordinance for which protection, is sought shows that it provides for (a) Formation of Trade Unions of employees and workmen and their registration. (b) Penalties and procedure concerning unfair labour practices on the part of employers and workmen. (c) Determination of Collective Bargaining Agent and procedure for Collective Bargaining. (d) Establishment of forums for conciliation, adjudication and for regulating-- (i) rights of the workman and employer secured by law, 00 their other terms and conditions not so secured. 12. It is primarily the co-existence of the sphere controlled by item (d) just enumerated which has to be examined in these proceedings. The contention of the learned counsel for the petitioner is that these forums and powers continue to be available till by rules framed by the Government or directions in the nature of rules given by the specified authority they are displaces. The right and power to displace them under section 6 of the Act is not denied. 13. The rules framed by the Government under section 6 have already been reproduced and analysed. These have three characteristics. Firstly they specify the authority competent to give directions. Secondly, the matters on which such directions can be given have been enumerated. Thirdly, the limitations placed on the exercise of power of giving directions on the enumerated subjects has been prescribed. The vires of these rules is not in question. The limitation placed on the powers of the specified authority make it clear that the terms or conditions of employment as enjoyed by a person immediately before the publication of these rules, by virtue of any law, or under the terms of any award, agreement or contract duly made and operative are protected, at the bands of the specified authority but overridden to the extent prescribed in section 7-A of the Act. It is also clear that all disputes, between whomsoever, governed by the subsection (2) of section 3 of the Act and pertaining to wages or conditions of employment has to be referred to the specified authority not so much for adjudication as ordinarily understood but for a direction as envisaged under section 6 of the Act. The direction so given is for the time being determinative of the conduct of the party to whom such direction is given. A failure to obey the directions amounts to an offence. The only qualification for such a direction has to be that it must concern the wages or conditions of service. 14. As regards the conflict in jurisdictions and ouster of one by the other two principles of interpretation have to be kept in view. The first is that where a right is created by a statute which also provides the manner in which the right may be enforced, the party complaining of any infringement of such right can only seek such remedy as is provided by that statute. The second is that an intention to repeal the law in the field may well be gathered from the D repugnancy of its provisions, with the general course of the subsequent legislation or from the incongruity of keeping both the enactments in force. For examining the extent of repugnancy between the provisions of the laws in the field and for determining the ascendency of one over the other, the features already noted while ascertaining the rule of interpretation, have to be kept in view. 15. It is true that the Act creates offences and only indirectly or consequently the rights. It prescribed no rigid and elaborate procedures. However, these deficiencies are made up by providing for the appointment of an authority under the Act whose power is so plenary, so compulsive and so specific, untrammelled by any technical rule of procedure that no scope is left for any other forum, any other procedure or decision from any other quarter on matters within the domain of the specified authority. It is matter of great public importance that there should be no conflict or clash of jurisdiction between two authorities apparently equally competent. If the ascendency of one over the other is manifest the supersession of the other follows by necessary implication. 16. It is not without interest to survey the departmental practice and the judicial pronouncements on the subject. The provisions of the Act came to be examined first in National Bank of Pakistan
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Staff Union v. National Bank of Pakistan, Lahore (1) and the exclusion of jurisdiction was inferred as follows:- "When an authority has been appointed by the Central Government to regulate wages and conditions of service of any class of employment which has been declared to be essential under the Act then in spite of the provisions of the Industrial Disputes Ordinance, 1959, that authority will have powers to regulate the wages and conditions of service of such employment and the jurisdiction of the Industrial Court be barred. It may be pointed out here that the main function of the Industrial Court is to regulate the relationship of the employees and the employer in respect of the conditions of service and when this jurisdiction has been conferred under a special law to another authority in spite of the provisions of the Industrial Disputes Ordinance, 1959, the jurisdiction of the Industrial Court would stand excluded." 17. In the case of National Bank of Pakistan Staff Union and Employees' Federation v. National Bank of Pakistan, Karachi (2) a distinction was drawn between conditions of work and conditions of service and thereafter the exclusion of jurisdiction was inferred on the following grounds: "By virtue of section 7-A of 1952 Act the provisions of section 6 of the Act have got overriding effect over the provisions of the Industrial Disputes Ordinance, 1959 or any other law, in so far as questions relating to wages and other conditions of service of workmen are concerned. In other words, if an industrial dispute between employers and workmen pertains to or is connected with such matter as the 'employment or non-employment or the terms of employment' of a person or, in other words, his "Conditions of Service", then under the compulsion of section 7-A of the Act of 1952, the jurisdiction of this Court will be barred. But, if the dispute relates to the 'Conditions of of Work' of such a person, then in that case, the Industrial Court will have jurisdiction to take cognizance of the matter. In the present case, the disputes relate to the matters connected with conditions of service of the petitioner, as stated in para. 2 above, and, therefore, it is only the "specified authority" who is empowered to take cognizance of the matter and the jurisdiction of this Court is barred." 18. In the case of Karachi Port Trust Labour Union v. Karachi Port Trust (3) the ouster of jurisdiction of Industrial Courts was upheld with the following observations: "Both the enactments deal with the same subject-matters, namely, the settlement of industrial disputes arising between employers and their workmen, though the procedure to be adopted for the settlement of the disputes is differently given in both the enactments. If any of the (1) 1967 PLC 779 (2) 1968 PLC 51 (3) 1968 PLC 76 ' dispute arises between employers and workmen engaged in an industry to which the Essential Services Act of 1952 has been made applicable, then in that case, it will have to be taken to the 'specified authority' who shall regulate the wages or conditions of service of a workman concerned and submit his recommendations to the Government for approval and under the compulsion of the provisions of section 7(A) of the Act of 1952, the Industrial Court will have no jurisdiction to enterain the dispute provided it pertains to (i) regulations of wages, (ii) conditions of service of the workmen concerned." ' Similar was the finding in- "(i) State Bank of Pakistan Clerical Staff Association, Lahore v. Governor, State Bank of Pakistan 1968 PLC 589. (ii) Muhammad Yakub v. Karachi Electric Supply Corporation 1969 PLC 731. (iii) Shikarpur Electric Supply Co. v. Abdullah Bayo PLJ 1974 Tr. C. (Lab). 227. (iv) Secretary, Labour Department v. National Refinery 1975 PLC 105. (v) Abdul Quddus v. Tarbela Joint Venture 1976 PLC 283.
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19. An exception was made in Habibullah Khan v. Chairman. WAP DA (1). It was a case of termination of service of employee for misconduct before the notification under section 3(2) of the Act issued. All the same the notification was in the field when the matter was brought before Industrial Court. The jurisdiction of the Industrial Court in the matter was upheld, on the following grounds "Neither the petitioner had claimed better terms and conditions of service than those prevailing prior to the application of Essential Services (Maintenance) Act, 1952 nor the respondent pretended that the terms and conditions of the petitioner required any change, but it was clearly stated that his service had been terminated according to the terms and conditions of service applicable to him. So there is no dispute about the terms and conditions of service but the dispute is whether the action of the respondent is bona fide based on the misconduct of the petitioner. This question can still be gone into by this Court. The Court, thereby will not proceed to regulate or lay down any new terms and conditions of service already applicable in this case as no change is under contemplation of either party." 20. In three cases this question was raised before the High Court of Sind & Baluchistan. The first was the case of Syed Manzoor All Rizvi v. National Bank of Pakistan (2). It concerned dismissal of an employee governed by the Act. Two cases were disposed of by a common judgment reported as Employees' Union v. Pakistan Machine Tool Factory (3). One of these two cases was concerned with dismissal of 21 employees for misconduct. It was held that the jurisdiction of Labour Courts was excluded. The reasoning is as follows :- "The scheme of the Act and the rules framed thereunder, is that the grievances of the workmen and the 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 (1) 1968 PLC 603 (2) 1973 PLC 94 (3) 1974 PLC 201 rights, but it does constitute a method for setting the industrial disputes, though different from the one under the Ordinance referred to above. The two methods are mutually inconsistent and therefore the one prescribed under the Act and the rules, has to prevail The said Act not only regulates the procedure for settling the dispute but also affects the rights of the employer and…
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