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Petitioner: PAKISTAN ELECTRICAL & MECHANICAL CONSTRUCTORS LTD. VS Respondent: CHAIRMAN, NATIONAL INDUSTRIAL RELATIONS COMMISSION,
1984 P L C (C
1984 P L C (C. S.) 325
[Karachi High Court]
Before Abdul Hafeez Memon and Ajmal Mian, JJ
PAKISTAN ELECTRICAL AND MECHANICAL CONSTRUCTORS LTD.
Versus
CHAIRMAN, NATIONAL INDUSTRIAL RELATIONS COMMISSION AND ANOTHER
Writ Petitions Nos. 146 and 956 of 1980, decided on 19th February, 1981.
(a) Constitution of Pakistan (1973)-
Art. 199-Writ petition - Jurisdiction - Question of want of jurisdiction-Can be permitted to be raised for first time in writ petition-Order of Specified Authority under Pakistan Essential Services (Maintenance) Act, 1952 challenged by way of writ petition as without jurisdiction --Objection that question of want of jurisdiction could not be raised for first time in writ petition-Rejected.
(b) Pakistan Essential Services (Maintenance) Act (LIII of 1952)-
-- Ss. 3, 6 & 7-A read with Constitution of Pakistan (1973), Art. 175 - Jurisdiction - Cannot be assumed unless conferred by Constitution or a Statute -Main object of Pakistan Essential Services (Maintenance) Act, 1952-Not to disturb services without reasonable cause-Contravention of Act entails criminal action under S. 7- Breach of directions issued competently under Act entails penal consequences - Issuance of notification under S. 3 of Act Effect on other enactments-Not all but only provisions inconsistent with Act or Rules framed thereunder shall be inapplicable . 7-A will extend to extent to which Act and Rules framed thereunder create machinery for determination of questions as to wages and terms and conditions of service-Specified Authority not empowered to adjudicate upon individual disputes or grievances not arising out of any scheme or direction issued by Federal Govern ment or Specified Authority in exercise of their powers to regulate wages and other terms of service-Word "regulate" does not include power to adjudicate upon individual grievance-Powers of Authority confined to regulate wages and terms and conditions of service Direction issued under r. 3 of Pakistan Essential Services (Main tenance) Rules, 1962 cannot be equated with power to adjudicate upon individual dispute under Industrial Relations Ordinance, 1969 by Labour Court or Appellate Tribunal - Chairman, National Industrial Relations Commission by issuance of declaration by notification cannot oust jurisdiction of Labour Court or Appellate Tribunal-Powers of adjudication of individual grievance by specified authority neither spelled out from S. 6 of Act nor same can be derived from notification issued under r. 3.
P L D 1982 Kar. 33 ; P L D 1977 Lab. 998 and Maxwell on Inter pretation of Statutes, 12th Edn., p. 159 rel.
A. Javed, President of P.LA's Employees' Union, Karachi v. N. 1. R. C. P L D 1978 Kar. 64; Syed Manzoor Ali Rizvi v. Messrs National Bank of Pakistan, Karachi and 3 others 1973 P L C 94 ; Employees' Union v. Pakistan Machine Tool Factory, Landhi and 2 others 1974 P L C Kar. 201; Pakistan Burmah Shell Ltd. and 3 others v. Sind Labour Court P L D 1979 Kar. 109; Muhammad Usman v. Messrs Pakistan Steel Mills Ltd. 1980 P L C 513; General Manager, Heavy Mechanical Complex Taxila v. Mr. Bashir Ahmad Malik, Member, National Industrial Relations Com mission P L D 1977 Lah. 982 ; Bakshi Rustam Ali v. The Province of West Punjab P L D 1960 Lah. 957 ; P L D 1980 Kar. 196 ; Messrs Indus River Contractors, Tarbela v. Mr. Aziz Ahmad Member, N. 1. R. C. P L D 1980 Pesh. 216 and Civil Petition No. 331 of 78 ; Attorney-General v. Sillem (1864) 10 H L C 704 ; Miss F. Dobash v. Sind Labour Appellate Tribunal P L D 1979 Kar. 302 and Kori v. State P L.D 1963 Kar. 256 ref.
(c) Pakistan Essential Services (Maintenance) Act (Lill of 1952)-
-- S. 6 read with Pakistan Essential Services (:%4.aintenance) Rules, 1962, r. 3(2)-Regulation of wages and terms and conditions of service Powers of Specified Authority--Authority cannot prescribe any term and condition without taking into consideration views of employer- .yes Increase in wages or allowances without Federal Government's previous written sanction when a dispute existed with employer also prohibited.
(d) Companies Profits (Workers Participation) Act (XII of 1968)-
S. 5 read with Pakistan Essential Services (Maintenance) Act (Lill of 1952), S. 6 -Question whether Companies Profits (Workers Participation) Act, 1968 applicable to a company and order there on Has no nexus with powers of Specified Authority under S. 6 of Pakistan Essential Services (Maintenance) Act, 1952 to regulate wages and terms and conditions of service.
(e) Precedent-
Full Bench ruling-Majority view of two Judges-Binding upon Division Bench.
Craise on Statute Law, 7th Edn., pp. 314-15 ; Statutory Construction by Crawford, 1940 Edn., p. 19 and Mexwell on Interpretation of Statutes, 11th Edn., p. 291 ref.
(f) Companies Profits (Workers Participation) Act (XII of 1968)-
S 5(1) as amended by Companies Profits (Workers Participation) (Amendment), Act (XVII of 1977)]-Applicability of Act-Application of workers union pending before .Federal Government for 2; years Decision of Federal Government after promulgation of Amending Act whereby Federal Government ceased to have power and that even without hearing, applicant-Whether a valid decision- [Quaere].
(g) Constitution of Pakistan (1973)-
-- Art. 199 and Pakistan Essential Services (Maintenance) Act (Lill of 1952), S. 6 read with Companies Profits (Workers Participa tion) Act (XII of 1968), S. 5-Writ jurisdiction -Proposition that in a fit case High Court may decline interference if it will result 1 to miscarriage of justice instead of fostering Justice -- Extent of application -- Question whether Companies Profits t1-orkers Parti cipation) Act, 1968 was applicable to petitioner company raised after lapse of 7 years by workers' union and same in issue between parties - Order of Specified Authority under Pakistan Essential Services (Maintenance) Act, 1952 that said Act was applicable challenged in writ petition as without jurisdiction - High Court arriving at conclusion that specified authority hail no jurisdiction to pass impugned order--Plea that High Court, would not exercise its discretionary jurisdiction in order to perpetuate an injustice which had been caused by petitioner-Company (employer) in not establishing workers participation fund, in circumstances rejected - Held: it will not be just and proper to dismiss writ petition on assumption that said Act was in fact applicable to petitioner-Company.
Nawab Syed Rounaq Ali v. Chief Settlement Commissioner P L D 1973 S C 236 and Mohammad Aqil v. Sind Labour Appellate Tribunal and another P L D 1978 Kar. 649 ref.
(h) Precedent- -- Ratio decidendi and obiter dicta - Distinction - Observations neither deciding nor necessary for decision of controversy in issue in a particular case are obiter dicta - Precedent inapplicable in cases of distinguishable facts or change in law.
Abdul Ghafar and another v. Iqbal Begum P L h 1975 Lab. 524 ; Messrs Johnson & Johnson (Pakistan) Ltd. v. Zubair Ahmed 190 P L C 622 Karachi Shipyard and Engineering Works Ltd. v. Abdul Ghafar 1980 P L C 688 ; Inayatullah and others v. Shah Muhammad and others P L D 1961 Lab. 372 ; Shahbaz Khan v. Labour Court 1977 S C M R 103 and Probodh Kumar Das v. Dantamara Tea Company A I R 1939 P C 186 ref.
(i) Industrial dispute-
-- Adjudication - Jurisdiction - Jurisdiction of civil Courts can be invoked in absence of jurisdiction of Labour Courts. (j) Industrial dispute-
_ Master and servant-Principle of-Cannot be pressed into service where employment covered by Pakistan Essential Services (Main tenance) Act, 1952-Pakistan Essential Services (Maintenance) Act, (LIII of 1952), S. 3. Syed Akbar Al i Bokhari v. State Bank of Pakistan and 7 others P L D 1977 Lah. 234 ref. -
(k) Pakistan Essential Services (Maintenance) Act (Lill of 1952)-
Ss. 3 & 6 - Notification under S. 3 - Expiry of period of notification - Effect - Application filed during operative period of notification but order of Specified Authority passed after expiry of such period-Whether applicant had acquired valuable right of remedy under the Act--Whether effect of such notification was akin to a temporary statute-Temporary legislation-Proceedings under Expiry of temporary statute - Consequences stated - Interpretation of statutes.
Crown v. Haveli P L D 1949 Lah. 550 ; Crown v. Ghulam Muhammad P L D 1950 Lah. 479 ; Malik Nisar Ahmad v. Crown P L D 1956 Kar. 535 ; State v. Muhammad Sharif P L D 1960 236 ; Akhtar Mahmood v. District Magistrate, Lahore P L D 1564 Lah. 93 ; Abdul Majid Ahmad Bawany and 7 others v. Hlrd Sind Labour Court, Karachi and 3 others P L D 1979 Kar. 549 ; State v. Mlv. Muhammad Jamil and others P L D 1965 S C 681 ; Hussain and others v. Fancy Foundation P L D 1975 S C 1 ; Saeed Ahmed v. State P L D 1964 S C 266 ; Syed Abul Aala Maududi and others v. Government of Pakistan P L D 1964 S C 673 ; Sona and another v. State P L D 1970 S C 264 and S. M. Junaid v. President of Pakistan P L D 1981 S C 12 ref.
F. A. Vellani and A. A. Fazeel for Petitioners.
Khurshid Anwar Sheikh and Mamoon Kazi for Respondents.
Dates of hearing : 26th, 27th and 28th January, 2nd, 5th and 8th February, 1981.
JUDGMENT
AJMAL MIAN , J.-Since the above petitions involve some common question of law, we intend to dispose of the same by this common judgment.
(a) The brief facts leading to the filing of Petition No. 146/80 are that the petitioner is a company within the meaning of the Companies Act, 1913 having its paid up capital of Rs. 1 Lac and having employed more than 50 workers. It carries on the business as construction contractor specialising in the erection of poles and towers for carrying on overhead transmission lines for electricity and laying of such transmission lines. It also acts as indentors for suppliers of electric equipments and goods. Respondent No. 2 is the union of the employees of the petitioner. It is an admitted posi tion that the provisions of Pakistan Essential Services (Maintenance) Act, 1952 (hereinafter referred as the Act) were made applicable to the peti tioner's employees through notification from time to time commencing from 14th January, 1976. According to the petitioner, the above Act continued to apply to the petitioner during the following two periods :-
(b) 14th January, 1976 to 13th July, 1976 (b) 27th August, 1976 to the end of 1979.
Respondent No. 1 is the authority specified under section 6 of the Act read with Essential Services (Maintenance) Rules, 1962 (hereinafter referred to as the Rules).
It seems that on 12th September, 1975 respondent No. 2 made an application to the Federal Government under section 5 of the Companies Profits (Workers Participation) Act, 1968 (hereinafter referred to as the Act of 1968) for seeking a decision that the above Act of 1968 was applicable to the petitioner. It further seems that the above application remained pending with the Federal Government. On or about 11th May, 1977 by Amending Act XVII of 1977, the power of the Federal Government to decide the above question was taken away by substituting the original sub section (1) to section 5. However, after the above amendment, the Section Officer, Government of Pakistan (Labour Division) through a letter, dated 8th April, 1978 addressed to the petitioner informed it that "since the Pakistan Electrical and Mechanical Constructors Ltd., only erect the poles connected with wires and are not responsible for the transmission of distri bution of electrical energy nor their work is involved to subjection of goods or material to any manufacturing assembly, finishing or other arti ficial or natural process, which changes the original condition of poles or wires as to add to their value the Company's Profits (Workers Participation) Act, 1968 is not applicable to the said company."
It also seems that on 31st March, 1979 respondent No. 2 Union instituted a petition under section 6 of the Act before respondent No. 1, praying therein, that the petitioner be directed to establish the workers participation fund since 4th July, 1968 i.e. the date of the enforcement of the Act of 1968 and to contribute to the fund 5% of profit earned during every year since July, 1968 upto and also to disburse the benefits from the fund to all the eligible workers. The above application was granted by respondent No. L through the impugned order dated 22nd August, 1979 gazetted in the Gazette of Pakistan, Extraordinary, October 11, 1979 Part 11 (Annexure `M' to the petition). The petitioner being aggrieved by the above order filed the present petition inter alia for declaration that respondent No. 1 had no jurisdiction under the Act or under any other law to entertain respondent No. 2's above petition etc,
Respondent No. 2 has filed a written statement to the petition, wherein various averments of the petitioner have been denied. It has been averred that the Act, 1968 is applicable to the petitioner-Company. It has also been denied that the petitioner does even engage in the transforma tion, generation, conversion, transmission or distribution of electrical energy. It has been averred that the petitioner's above averment stands contradicted by the works undertaken and executed by the petitioner Company as shown in the list (Annexure `B/1'). It has been further averred that respondent No. 2 had no information about the decision of the Federal Government, dated 8th April, 1978 till the filing of the above petition and it has been averred that the petition was competent before respondent No 1 It has also been averred that the above petition is not competent.
(b) Reverting to Petition No. 956/60, it may be stated that the brief facts leading to the filing of the above petition are that petitioner No. 1 is the Managing Director of M/s. Pakistan State Oil Ltd., (hereinafter referred to as the Company), which is being controlled and managed by petitioner No. 2, i.e. Board of Management set up under section 7 of Act XVII of 1974. Respondent No. 2 was in the employment of M/s. Karnaphully Paper Mills Ltd. in late East Pakistan and his services were transferred to M/s. Dawood Petroleum Ltd., on 1st, July, 1969 (Annexure `B' to the petition). It seems that on 1st January, 1979 the Federal Govern ment took over the management of M/s Dawood Petroleum Ltd., under section 5 of Act XVII of 1974 and appointed the Managing Director of the said Company under section 6 of the said Act. Subsequently the name of M/s Dawood Petroleum Ltd. was changed by the Federal Government to M/s Premier Oil Co. Ltd. The above Company, M/s. Premier Oil Co. Ltd. was amalgamated with M/s Pakistan National Oil Co. with effect from the 30th December, 1976 under section 15 of Act 17 of Act, 1974 and section 8 of the Esso Undertaking (Vesting) Ordinance, 1976. Upon the above amalgamation respondent No. 2 became the employee of the Com pany Le. of M/s Pakistan State Oil Ltd., by virtue of section 16 of the aforesaid Act 17 of 1974 read with Article (e) of the said amalgamation scheme. The last post which respondent No. 2 held in the Company was that of the Secretary of the Company with the rank of a General Manager. It further seems that on 15th November, 1979 the services of respondent No. 2 were terminated (Annexure `G' to the petition). It has also been averred in the petition that by virtue of his employment in the Company respondent No. 2 was also designated as the Secretary of petitioner No. 2 (i.e. Board of Management) and that the designation of the. Secretary of the Board of Management was ex officio and did not carry any emoluments and there was no employer as such. It also seems that respondent No. 2 instituted Miscellaneous Case No. 18(1)/80 against the petitioners under section 6 of the Essential Services Act (hereinafter referred to as the Act), wherein he prayed for a declaration that the action of the petitioners in terminating respondent No. 2's service was without lawful authority. He also sought relief of re-instatement with full back benefits. Respondent No. I thereupon, issued notices to the petitioners and directed them to appear on 9th February, 1980. In response to the above notice, the petitioners filed written statement/para wise comments denying therein, the various allega tions made by respondent No. 2. It was also pleaded that respondent No. 2 had no locus standi to file and maintain his application as the termination of service was simpliciter and that there was no right guaranteed or secured under the law to be enforced. The petitioners also challenged the jurisdiction of respondent No. 1 to entertain the above application. It has been averred that on 14th February, 1980 respondent No. 1 after hearing the arguments of the parties on the preliminary objections raised by the petitioner reserved the case for orders. However, the case was fixed, on 15th June, 1980 for the evidence of the parties. It has been further averred that on 10th April, 1980 respondent No. 1 rejected some of the preliminary objections raised by the petitioners, but failed to give any decision on other preliminary objections. The petitioners being aggrieved by the above order filed the present petition, in which inter alia the peti tioners have sought a declaration to the effect that respondent No. 1 has no jurisdiction to entertain respondent No. 2's above application under the Act and also sought a direction for restraining respondent No. 1 from proceeding with the said application.
Respondent No. 2 has filed a counter affidavit to the above petition in which inter alia, it has been denied that respondent No. 1 has no jurisdic tion to entertain his aforesaid application. It has been averred that the termination of his service was illegal, ultra vires of the powers of petitioner No. 1 and in complete disregard of the service conditions. The various other allegations contained in the petition have also been denied.
(1) Now we intend first to take up the contentions raised by the learned counsel for the parties in Writ Petition No. 146/80.
(a) Mr. Vellani, learned counsel for the petitioner has urged the following points :-
(i) That in view of the majority judgment of the Full Bench in the case of M/s Pakistan Burma Shell Ltd. v. The Central Labour Commissioner and others given on 30th June, 1980, in High Court Appeal No. 41/76, reported in P L D 1982 Kar. 33, respondent No. 1 had no jurisdiction to entertain respondent No. 2's claim for establishing the workers' participation fund.
(ii) That the petitioner in fact is not covered by the Act of 1968.
(iii) That the decision given by the Federal Government on 8th April, 1978 in pursuance of the power vested in it -under un amended section 5 of the Act of 1968 had become final and, therefore, respondent No. 2 could not have reagitated the above claim again before respondent No. 1, through the petition under section 6 of the Act.
(b)On the other hand Mr. Khurshid Shaikh, learned counsel for respondent No. 2 has urged the following points
(i) That the petitioner having failed to raise any objection as to the jurisdiction of respondent No. 1 before the latter, cannot be permitted to raise the same before this Court,
(ii)That respondent No. 2's case is distinguishable from the aforesaid majority judgment of the Full Bench inasmuch as the Notification July dated 27th January, 1979 issued by respondent No. 1. was not in ''the field at the time when the dispute was agitated before the specified authority, from which the above High Court appeal arose, and which notification conferred requisite power on the specified authority
(iii)That even otherwise, respondent No. 1 had the power to issue direction of the nature in question by virtue of the provisions of section 6 of the Act read with Rule 3 of the Rules.
(iv)That this Court would not exercise its discretionary jurisdiction under Article 199 in order to perpetuate an injustice, which had been caused by the petitioner by not establishing the workers participation fund.
(v)That the petitioner is covered within the ambit of the 'Act oft 1968 and the scheme framed thereunder.
3. (a) It may be pertinent to take up the first contention of the learned counsel for respondent No. 2 noticed hereinabove, namely, that the petitioner having failed to raise the objection pertaining to jurisdiction before respondent No. 1, is estopped from raising the same before this Court. In our view, the above contention is devoid of any force inas much as in paras. 16 and 17 of the para wise comments submitted by the petitioner before respondent No. 1, it was specifically pleaded that respondent No. 2's claim for the alleged statutory payment would be outside the scope of regulation under section 6 of the Act read with Rule 3 of the Rules. The petitioner has also raised the above plea inter alia in paras. 16 and 24 of the present petition., Even otherwise, the question of wan A of jurisdiction can be permitted to be raised first time in a writ petition in a fit case.
b(i) Reverting to the basic question, as to whether respondent No. 1 had the jurisdiction to entertain the application or not and whether the majority, view in the aforesaid High Court Appeal is applicable to the instant case or can it be distinguished, it may be observed that prior to the above Full Bench case the consistent view of this Court, except in one case namely A. Javed, President of P: I. A's. Employees' Union, Karachi v. N. 1. R. C. (P L D 1978 Kar.' 64) was that the specified authority under section 6 read with section 7-A of the Act and Rule 3 of the Rules had the power to adjudicate upon individual grievances with the exclusion of the Labour Courts. In this connection a reference may be made to the case of Syed Manzoor Ali Rizvi v. M/s. National Bank of Pakistan, Karachi and 3 others (1973 P L C 94) decided by Dorab Patel, J. (as his Lordship then was), the case of Employees' Union v. Pakistan Machine Tool Factory, Landhi and 2 others (1974 P L C 201) decided by Agha Ali Hyder, J. (as his Lordship then was) the case of A. Javed President International Airlines Employees' Union, Karachi v. N. 1. R. C. Government of Pakistan, referred to hereinabove, in which a Division Bench held that the provisions of the Pakistan Essential Services (Maintenance) Act, 1952 and the provisions relating to the registration of Trade Unions given in I.R.O., 1969 were not inconsistent and, therefore, could have been pressed into service. In this case a somewhat different view found favour with Channa J. sitting with S. A. Nasrat J. Furthermore, in the case of Pakistan Barmah Shell Ltd. and 3 others v. Sind Labour Court (P L D 1979 Kar. 109) Channa, J. sitting singly took the view that the specified authority had the jurisdiction to entertain an application of a worker against the order of termination of service and not the Labour Court. In other words, Channa, J, did not follow strictly his previous judgment namely, the aforesaid case reported in P L D 1978 Kar. 64. The above view was reiterated by him in the case of Muhammad Usman v. M/S Pakistan Steel Mills Ltd. (1980 P L C 513). Again in the case of the Karachi Electric Supply Corporation, Mushtaq Ali, J. sitting with Agha Ali Hyder, J. (as his Lordship then was) held that the term "regulate the wages" includes the fixation of the amount or adjustment of the same and the power of settling individual dispute regarding individual grievance that might arise in enforcing the rights and obligations.
Apart from the above Karachi cases, it may be pertinent to point out that Shafiur Rahman, J. (as his Lordship then was) in the case of the General Manager, Heavy Mechanical Complex Taxila v. Mr. Bashir Ahmad Malik Member, National Industrial Relations Commission (P L D 1977 Lab. 982) took the view in line of the above Karachi cases and held that the specified authority had the jurisdiction to entertain individual grievances. It was further held that the jurisdiction of two authorities equally competent should have no conflict or clash between them and that if the ascendency of one over the other is manifest the super session of the other follows by necessary implica tion and, therefore, because of section 6 of the Pakistan Essential Service (Maintenance) Act, 1952, the jurisdiction of Labour Court was ousted. However, in the inter-Court appeal filed against the above judgment of Shafiur Rahman, J. a D. B. of the Lahore High Court took a contrary view and it was held that the specified authority had no jurisdiction to entertain individual grievances in the absence of any regulations/rules specifying the forum different from the one given in the Standing Orders Ordinance. It may be observed that the above D. B's judgment has also been reported in the same volume i.e. P L D 1977 Lah. 998.
(ii) in the above background of the case-law, the following two ques tions were referred to the Full Bench comprising of 3 Judges, by the then Hon'ble Chief Justice
"(1) Whether the…
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