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Official Citation: 2025 IHC 245709
Court / Jurisdiction: Islamabad High Court
Parties: PIAC vs FOP & others
Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2025 IHC 245709. In this matter between PIAC and FOP & others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Islamabad High Court (Honourable Mr. Justice Inaam Ameen Minhas) AUTHOR JUDGE: Honourable Mr. Justice Inaam Ameen Minhas DECISION DATE: 08-DEC-2025 CASE NO: Writ Petition-1928-2021 CITATION: 2025 IHC 245709 PARTIES: PIAC VS FOP & others LAW / SECTION: under section 3(1) of ESA 1952, the Federal Government declared all classes of employment within the PIAC|under section 3(1) of ESA 1952, declared PIACL as an “essential service” vide notification dated 28.04.2020|Under section 6(1) of ESA 1952|under section 7 of the ESA 1952 SUBJECT: N.I.R.C., REMARKS: NIRC / Pay: In previous round the matter was referred to chairman NIRC for decision wherein the circular by PIA regarding reduction of salary was set aside PIA impungns orders. ============================================================ JUDGMENT SHEET ISLAMABAD HIGH COURT, ISLAMABAD JUDICIAL DEPARTMENT
WRIT PETITION NO. 1928 OF 2021
PAKISTAN INTERNATIONAL CORPORATION LTD. VERSUS QASIM QADIR AND OTHERS
Petitioner by: M/s Shahid Anwar Bajwa and Mujtaba Ahmed Bajwa, Advocates. Respondents No. 1 to 17 & 20 by: M/s Badar Iqbal Chaudhary and Syed Ahmad Hassan Shah, Advocates. Respondent No. 22 by: Mr. Fahad Khan Tareen, AAG. Assisted by: Muhammad Yahya Khan Niazi, Judicial Law Clerk. Date of Hearing: 21.10.2025
INAAM AMEEN MINHAS, J:- Through the instant writ petition, the petitioner impugns the order dated 07.05.2021 (“Impugned Order”), passed by the Chairman, National Industrial Relations Commission (“Chairman”), whereby the Chairman affirmed his jurisdiction as the competent authority to regulate wages during the subsistence of Pakistan Essential Services (Maintenance) Act, 1952 (“ESA 1952”) and set aside the Circular dated 10.06.2020 on the subject “PIA EMPLOYEES PAYS DURING COVID-19 PANDAMIC” (“Circular”). Additionally the petitioner seeks a consequential direction for dismissal of the application filed by the private respondents. 2. The brief facts of the present matter are that in view of the catastrophic circumstances created by the COVID-19 pandemic, the Federal Government, through Notification dated 28.04.2020, declared the services of petitioner/Pakistan International Airlines Company Limited (“PIACL”) to be essential services under ESA 1952, with the stated objective of ensuring the smooth functioning of flight operations, public safety, and the welfare of the people. By exercising its powers under section 3(1) of ESA 1952, the Federal 2 W.P. No.1928/2021
Government declared all classes of employment within the PIACL as classes of employment to which the ESA 1952 would apply. Subsequently, following the approval by the Board of Directors, the PIACL issued the Circular effecting a reduction and deduction of salaries of its employees, including the private respondents. Feeling aggrieved, the private respondents filed Writ Petition No. 2396 of 2020 before this Court, which vide order dated 15.09.2020 (“referral order”) was transmitted to the Chairman for disposal in accordance with the jurisdiction vested in the forum. The learned Chairman, thereafter decided the matter in CMA No. 7 (141/2020) and passed the Impugned Order, whereby the Chairman affirmed his jurisdiction as the competent authority to regulate wages during the subsistence of ESA 1952 and set aside the Circular and disposed of the application filed by the private respondents. 3. The learned counsel for the PIACL contended that this Court vide the referral order transmitted the matter to the Chairman with the direction to decide it strictly in accordance with law and within the jurisdiction conferred upon him under ESA 1952 read with the Essential Services (Maintenance) Rules, 1962 (“Rules 1962”). However, the Chairman, assumed for himself the power to examine and declare the impugned Notification ultra vires, an exercise which by its nature constitutes adjudication rather than regulation and therefore falls outside the statutory mandate vested in him. Learned counsel emphasized that the Chairman himself reproduced Black’s Law Dictionary’s definition of “adjudication,” demonstrating that the matter before him involved the judicial resolution of a dispute which he was not empowered to undertake. Reliance was placed upon section 7 of the ESA 1952 as well as judgment titled KESC v. NIRC (PLD 1982 SC 113), in which it was held that the power to regulate, cannot be expanded to include adjudication, particularly when the legislative framework already prescribes penal consequences for violations. 4. The learned counsel for the PIACL further asserted that the observation of the Chairman suggesting that PIACL may approach him for reduction of wages is in direct conflict with rule 3(2)(b) of the Rules 1962. He further contended that the Chairman failed to consider the force majeure circumstances arising from the COVID-19 pandemic, which constituted an Act of God and materially affected the employer’s financial capacity. The learned counsel 3 W.P. No.1928/2021
argued that the Impugned Order has the effect of enhancing wages and allowances of the private respondents which is in violation of rule 3(2)(c), which prohibits any such increase without the prior written sanction of the Federal Government where a dispute exists. The learned counsel maintained that the declaratory relief sought by the private respondents regarding the Notification dated 10.06.2020 was adjudicatory in nature and therefore outside the competence of the Chairman. Lastly, it was argued that the Chairman’s finding that the Notification violated section 3(6)(iii) of the PIAC (Conversion) Act, 2016, overlooks the extraordinary circumstances created due to pandemic, and that nothing in the ESA 1952 restricts the employer’s authority to manage the commercial affairs of the organization or to take decisions necessitated by emergent and unprecedented situations. 5. Conversely, the learned counsel for the private respondents supported the Impugned Order by contending that the PIACL’s challenge to the Impugned Order rests on an artificial distinction between adjudication and regulation, which deliberately ignores the fundamental question i.e. whether PIACL possessed the authority to reduce or deduct the salaries of its employees once the Federal Government had made the ESA 1952 applicable to it. The learned counsel argued that in light of section 6 of ESA 1952 read with rule 3 of the Rules 1962, PIACL had no such authority and the Chairman, therefore, correctly held in the concluding paragraph of the Impugned Order that PIACL’s act of reducing salaries constituted an illegal assumption of powers exclusively conferred upon the Chairman under law. As to the PIACL’s assertion that the Chairman engaged in adjudication, it was submitted that the Chairman explicitly clarified that he was not adjudicating but merely pointing out PIACL’s unlawful usurpation of authority. It was further argued that section 7 of ESA 1952 is entirely irrelevant to the controversy, and the decision in KESC vs. NIRC, (PLD 1982 SC 113) in fact supports the position of the private respondents rather than that of PIACL. The learned counsel further submitted that the plea of force majeure is wholly misconceived, has no application to the facts of the case, and was never raised by PIACL before the Chairman. 6. The learned counsel for the private respondents further contended that the Chairman has not increased wages or allowances but has merely declared 4 W.P. No.1928/2021
the PIACL’s actions to be an unlawful usurpation of powers conferred by law on the Chairman and with respect to the declaratory relief prayed for in Writ Petition No. 2396/2020, it was contended that vide the referral order, the Chairman, confined himself strictly to issues falling within his competence under ESA 1952 and exercised only those regulatory powers relating to terms and conditions of employment, including wages and salary. It was argued that this Court, by referring the matter to the Chairman, did not require adjudication, nor did the Chairman undertake adjudication, and that PIACL is deliberately misconstruing the nature of the proceedings to justify its own unlawful actions. The learned counsel asserted that the salary reduction undertaken by PIACL is in violation of ESA 1952, the Rules framed thereunder, and the PIAC Act, and that PIACL cannot interpret these laws in a manner that serves its own interests or justify its actions under the guise of commercial exigencies. Accordingly, the Impugned Order is a speaking, reasoned and cogent decision, reflecting due consideration of the statutory framework as well as judicial precedents, and is well within the exclusive jurisdiction of the Chairman, to regulate terms and conditions of service of employees subject to ESA 1952. 7. I have heard the learned counsel for the parties and perused the record with their able assistance. 8. It is undisputed that the Federal Government by exercising powers under section 3(1) of ESA 1952, declared PIACL as an “essential service” vide notification dated 28.04.2020, resulting in the application of the statutory regime governing essential services to all classes of its employment. Following this declaration, PIACL on its own reduced the salaries of its employees vide a Circular, which was assailed before this Court in Writ Petition No. 2396 of 2020. This Court vide the referral order transmitted the matter to the Chairman for disposal in accordance with law. Thereafter, the Chairman passed the Impugned Order, whereby he affirmed his jurisdiction as the competent authority to regulate wages during the subsistence of ESA 1952 and set aside the Circular and disposed of the application filed by the private respondents. Therefore, the following question arises for determination:- i) Whether the Chairman acting under the framework of the ESA 1952 and the Rules 1962, could lawfully hold that the PIACL’s 5 W.P. No.1928/2021
decision to reduce salaries of its employees constituted an illegal assumption of authority, and whether such conclusion amounted to an act of adjudication falling outside his lawful mandate? 9. In order to address the question framed, it is essential to examine the legal framework governing the matter. Relevant sections of ESA 1952 is reproduced hereunder:- “2. Interpretation. In this Act, unless there is anything repugnant in the subject or context, “employment” includes employment of any nature whether paid or unpaid, and whether in or out of Pakistan.” “3. Employment to which this Act applies. ____ (1) This Act shall apply to every employment under the Federal Government, and, subject to the provisions of subsection (2), to any employment or class of employment which the Federal Government may, by notification in the official Gazette, declare to be an employment or class of employment to which this Act applies.” 10. A plain reading of the above provisions demonstrates that section 2 of the ESA 1952 adopts an expansive definition of “employment,” encompassing all forms of employment, irrespective of remuneration or territorial limits. Further, under section 3(1), the Federal Government is empowered to declare any employment or class of employment as an essential service through a notification in the Official Gazette such as in the present case, PIACL was declared an essential service vide notification dated 28.04.2020, thereby bringing all categories of its employment within the ambit of the statutory regime governing essential services. 11. Under section 6(1) of ESA 1952, the Federal Government may make rules to regulate itself or empower a ‘specified authority’ to “regulate wages and other conditions of service” of persons to whom ESA 1952 is made applicable. Relevant portion is reproduced hereunder:- “6. Regulation of wages and conditions of service.___(1) The Federal 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.” 6 W.P. No.1928/2021
12. Under rule 3 of the Rules 1962 the Chairman, is the “specified authority” vested with the power to regulate wages, hours of work, and other terms and conditions of service during the subsistence of ESA 1952. Relevant portion is reproduced hereunder:- “3. (1) The Chairman 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 chairman 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 Chairman 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 Federal 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 Federal Government, any condition on which the employment of any person may be terminated. (3) All directions of the Chairman, regulating wages and other conditions of service under sub-rule (1) shall be published in the official Gazette.” 13. It is evident from the above that rule 3 of the Rules 1962 empowers the Chairman and vests in him the exclusive authority to regulate wages, hours of work, and conditions of employment. The question that thus arises for consideration is whether, during the subsistence of an ESA notification, which vests exclusive authority in the Chairman to regulate wages, the employer can simultaneously exercise such power, and if not, what would be the legal consequence of any decision so taken by the employer. The Chairman’s resolution of the jurisdictional issue does not amount to adjudication in the judicial sense. Rather, it is a preliminary and necessary determination flowing 7 W.P. No.1928/2021
from the regulatory authority vested in him by statute. The exercise of this exclusive statutory power is not a declaration of rights or liabilities, but a regulatory assessment of jurisdiction, and therefore cannot be equated with a judicial determination of a dispute. This regulatory assessment is permissible and sometimes unavoidable since oftentimes a regulator must decide whether the conduct brought before it conforms to the statute it administers. 14. Moreover, it is a settled principle of law that where a statute prescribes that a thing is to be done in a particular manner, it must be done in that manner alone and not otherwise. The legislature has vested the authority to regulate wages exclusively in the Chairman, and when the Federal Government, through the ESA 1952 declares a service to be essential, the exercise of such power stands vested in that statutory functionary. Any purported assumption or exercise of the same power by the employer during the subsistence of the notification would, therefore, be without lawful authority and of no legal effect, being non est in the eyes of law. To hold otherwise and to permit the employer to concurrently regulate the wages of employees, notwithstanding the express mandate of the ESA notification and the scheme of the ESA 1952, would defeat the very object of the statute and render section 3 redundant. Such an interpretation is impermissible, as it would negate the legislative intent underlying the conferment of exclusive powers upon the Chairman during the notified period and undermine the efficacy of the statutory framework governing essential services. 15. This Court shall now address the main question i.e. whether the Chairman exceeded his jurisdiction by examining the validity of the salary- reduction Circular by PIACL, declaring it contrary to law, and thereby allegedly engaging in “adjudication” as opposed to “regulation”. In order to address this question, it is necessary to examine how the superior Courts have interpreted the situation. In the case of Karachi Electric Supply Corporation Limited vs. National Industrial Relations Commission, (PLD 1982 Supreme Court 113) the Honorable Supreme Court drew a distinction between the power to regulate and power to adjudicate under ESA 1952. The Court held that: “In conclusion, therefore, the power to regulate the wages and conditions of service and the violation of the Rules or directions are distinct for in the former the specified authority is merely 8 W.P. No.1928/2021
enjoined to determine the wages and other conditions of service by issuing directions while the violations are dealt with as entailing penal consequences.” The upshot of the Supreme Courts holding above is that the Chairman, being specified authority under ESA 1952 does not have the power to adjudicate in matters of termination or dismissal from service, for such matter constitutes an offence under section 5 of ESA 1952, and offences can only be adjudicated by Magistrate First Class, and not the specified authority under the ESA 1952 and the Rules 1962. 16. In another case reported as Pakistan Television Corporation vs. M. Babar Zaman and others, (1989 SCMR 1549), the Honorable Supreme Court while dealing with a matter pertaining to termination, reiterated the distinction of the two powers i.e. power to regulate and the power to adjudicate under the ESA 1952. It was held that:- “It is the ‘Chairman’ so defined in Rule 2, who has been empowered by Rule 3 “to regulate 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”. The Authority of the Federal Government is enshrined in section 6 of the Act which authorizes the Federal Government to make rules, “regulating or empowering a specified authority to regulate the wages and other conditions of service of persons or any class of persons engaged in any employment of class of employment declared under section 3 to be an employment or class of employment to which this Act applies… The provisions of the Act and their examination in K.E.S.C’s case establish a distinction between the regulatory powers (exercisable by the Federal Government or an authority specified by it under section 6 of the Act) punitive powers exercisable by a servant of the Government empowered to file a criminal complaint in writing under section 7 of the Act) and the adjudicatory powers in other respects left untouched by the Act. The regulatory powers was held in that decision not to extend, encroach upon or affect in any manner the adjudicatory set up.” 17. The upshot of the above is that there is a clear and deliberate distinction between regulatory powers exercisable by the Federal Government or its designated authority under section 6, punitive powers exercisable by the Magistrate through criminal prosecution initiated by an authorized government servant under section 7, and adjudicatory powers, which in all other respects remain unaffected and intact. It was thus conclusively held that the regulatory 9 W.P. No.1928/2021
authority conferred by ESA 1952 neither extends to nor encroaches upon, in any manner whatsoever, the adjudicatory set up. The above referred precedents relied upon by the learned counsel for the PIACL do not directly address the situation since the present matter is not a case of termination or violation of offences under section 5 or imposition of penalties under section 7 of the ESA 1952. Thus, in a case of res integra, a balanced and pragmatic approach must be adopted, upon due consideration of all relevant factors, which must be examined holistically to reach a just conclusion. 18. It would not be out of place to state that the Chairman when he regulates wages as the empowered authority, conceptually, is a part of the executive and is vested with authority to regulate wages. Where an act or omission does not call for penalty, the Chairman may make a direction to the relevant executive authority and as a matter of propriety, policy and practice the direction or recommendation is to be given effect. The process culminates in the issuance of a direction, enforced by the executive, whereby one executive functionary (the Chairman) reviews the exercise of authority by another and issues directions to ensure compliance with the ESA 1952, which are abided by as a matter of policy. The regulatory competence conferred upon the Chairman under ESA 1952 and the Rules of 1962 is exclusive and purposefully structured to this effect. 19. At this juncture it is appropriate to reproduce the relevant portion of the Impugned Order:- “9. The upshot of the above discussion is that the increase or decrease in salary definitely comes within the definition to regulate and which powers have only been bestowed under the Pakistan Essential Service Maintenance Act, 1952 and Essential Service Rules, 1962 on the Chairman of National Industrial Relations Commission and in which respect notification has been issued applicability of said Act and Rules to the classes of employment in PIA. Instead of adopting a proper procedure under the law to invoke the said jurisdiction vested in the Chairman NIRC for regulating the wages, the respondent has taken upon itself the powers and jurisdiction to proceed with the matter which is totally against the law and the powers have been exercised which the respondent does not have at all and in violation of law such process cannot be allowed unchecked. It is not open to the respondent for doing, an illegal act taking the vested rights provided under the Statute to others and later on when the same 10 W.P. No.1928/2021
is challenged by taking stance that it is adjudication taking shelter under this pretext that it does not come within the meaning ‘regulate’ and acceptance of these arguments would amounts to allow the illegal act of usurping the power of Chairman of the Commission conferred on him under the law. It is not adjudication in the strict sense as it is not an attempt to resolve the controversy between two or more parties but pin pointing the illegal assumption of power by the respondent to decrease the monthly salary which is function of the Chairman NIRC, the authority specified under Pakistan Essential Services (Maintenance) Rules 1962. It would also amount to give a premium of such illegal steps taken by the respondent. Therefore, the impugned Circular No.10/2020, dated 10.06.2020 titled PIA EMPLOYEES PAYS DURING COVID-19 PANDAMIC, issued in excess of jurisdiction is not sustainable and is set aside, however, it is for the respondent if they are so advised to agitate the matter to regulate the wages by the Authority specified under the Pakistan Essential Service Maintenance Act, 1952 and Essential Service Rules, 1962 subject to all legal and valid objections and these findings would not be an obstacle to approach under the aforesaid provision to justify their claim. The petition in above terms is disposed of. The file be consigned to record room after its completion.” 20. It is evident from the foregoing that the act of the Chairman assumes the character of adjudication in a declaratory sense, inasmuch as he exercised judicial power not vested in him nor conferred by the ESA 1952, by declaring the Circular to be not sustainable and setting it aside. In this context is appropriate to state that judicial power is the authority to interpret the law in relation to disputed facts, to render binding determinations affecting rights and obligations, and to enforce such determinations. These functions are quintessentially judicial in nature and, within the constitutional scheme founded upon the separation of powers, cannot be assumed or exercised by legislative committees or executive functionaries under the guise of regulatory or quasi-judicial authority, since the exercise of such power is exclusively reserved for courts and tribunals forming part of an independent judiciary. Hence, the explicit declaration of setting aside the Circular does…
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