' SHAH ABDUL RASHID, J.-The petitioner Indus River Contractors, Tarbela Dam is a company incorporated under. The Companies Act, 1913. It is for the time being engaged in the essential repair work of Tarbela Dam in the North-West Frontier Province. The employment of officers and workers under the petitioner-Company has been declared to be an employment to which the Pakistan Essential Services (Maintenance) Act, 1952 (hereinafter referred to as the 1952 Act), applies. Mazhar Ali Rajput (respondent No, 2) was employed by the petitioner-Company on the basis of a letter of appointment dated 1-10-1978 as Senior Administrative Officer on a monthly salary of Rs, 2,300. Para. 6 of the letter of appointment provides that the services of respondent No, 2 could be terminated by the petitioner-Company on giving him one month's notice or salary in lieu thereof. It appears that the petitioner-Company has also made rules regulating the services of Pakistani Officers with wages of Rs, 991 per month or more in which category respondent No, 2 also falls. Rule 5.01 of these rules also lays down that the appointments under the petitioner-Company are liable to be terminated on one month's notice or pay in lieu thereof.
2. The petitioner-Company has a contract with Water and Power Development Authority relating to the execution of the work to be done at site by them on certain conditions. An American Company -known as TAM are the engineers and consultants. One of the conditions, which is embodied in sub-clause (4) of clause 16 of the contract, is as under :- "(4) The Engineer shall be at liberty to object to and to require the Contractor to remove forthwith from the Site the Agent or any other person employed by the Contractor or any sub-contractor who in the opinion of the Engineer misconducts himself or is incompetent or negligent in the proper performance of his duties or whose employment is otherwise considered by the Engineer to be undesirable and such person shall not be again employed for the purposes of or in connection with the Contract without the written permission of the Engineer. Any person so removed shall be replaced as soon as possible by a competent substitute approved by the Engineer."
3. The aforesaid clause was invoked by TAM in a letter of 16-9-1979 addressed to the petitioner- company requiring it to remove forthwith from the site of work the person of respondent No, 2 as, according to them, he was considered to be undesirable who was unduly interfering in the operation of the site. The petitioner, in compliance with the aforesaid direction and on the authority of para. 6 of the letter of his appointment dated 1-10-1978 and rule 5.01 of the Rules governing the terms and conditions of the category of employees to which he belonged, by its letter dated 16-9- 1979, informed respondent No, 2 that in the circumstances it had no choice but to discontinue his employment with immediate effect. He was directed to collect his dues and to vacate the residential accommodation occupied by him and to clear Tarbela Site within twenty-four hours of the receipt of the letter.
4. Respondent No, 2 challenged the order of termination of his employment by way of civil suit filed in the Court of Senior Civil Judge, Abbottabad on various grounds. The suit was, however, dismissed by the said Judge by his order dated 21-10-1979. Respondent No, 2, aggrieved by the order of dismissal of his suit, filed an appeal before the District Judge on 6-12-1979. He also made an application purporting to be under section 6 of the 1952 Act to the Chairman, National Industrial Relations Commission, ,Islamabad (hereinafter referred to as the N. I. R. C.) praying for issuance of an order of his re-instatement in the service of the petitioner-Company. The matter was taken up by Mr. Aziz Ahmad, (respondent No, 1), a Member of the N. I. R. C. And he, on a submission made in this behalf by respondent No, 2 issued a direction to the petitioner-Company as an interim relief to the effect that respondent No, 2 "should retain the possession of the residential accommodation allotted to him upto the 15th November, 1979".
5. In the main petition of respondent No, 2 before the N. I. R. C. For re-instatement, the petitioner inter alia challenged the jurisdiction of the N. I. R. C. In the matter but this objection was repelled by respondent No, 1 by his order dated 8-12-1978 holding that he has jurisdiction to adjudicate on the points involved in the petition. The petitioner-Company has now invoked the extraordinary jurisdiction of this Court under Article 199 of the Constitution for a declaration that the aforesaid order of respondent No, 1 assuming jurisdiction in the matter is without lawful authority. It has also prayed for the quashment of the order.
6. The learned counsel appearing for the petitioner-Company and respondent No, 2 have read the entire 1952 Act and the Rules and Regulations made thereunder and have relied on numerous authorities touching most of the points involved in the present petition. In order to examine the specific points, raised at the time of arguments, reference may first of all be made to the 1952 Act.
This is a short Act containing only 11 sections. Section 1 relates to title, extent and commencement.
Section 2 defines the term "employment". Section 3 deals with the application of the Act to different employments. This section provides that the Act shall apply to every employment under the Federal Government and also to any other employment or class of employment which the Federal Government by notification declared to be an employment or class of employment to which the Act applies (such an employment shall hereinafter be referred to as an essential Service).
Subsection (2) of section 3 ibid provides for certain conditions in which the Federal Government cannot make declaration in respect of certain employments and class of employments.
Subsection (3) of this section lays down that a declaration issued under this section shall remain in force for a period of six months only but it may be extended from time to time for a like period.
Section 4 gives powers to order persons engaged in Essential Service to remain in a specified area.
Section 5 provides for penalty in respect of offences created therein and also provides that an employer of a person in Essential Service shall be guilty of an offence under this Act if he, without reasonable excuse :-
(1) discontinues the employment of an Essential Service Employee ; or
(ii) by closing an establishment in which such person is engaged causes the discontinuance of his employment.
' Section 6 empowers the Federal Government to make rules regulating or empowering the Specified Authority to regulate the wages and other terms and conditions of service of persons of Essential Service Employees and further lays down that failure to comply with the rules or regulations made under this section shall be an offence. Section 7 is partly substantive and partly procedural. It provides for the mode in which a complaint can be made and also lays down the quantum of punishment of offences created by the 1952 Act. It also provides the forum for trial of such offences. The last provision of this section is contained in subsection (5) which is to the effect that an offence under the 1952 Act cannot be tried except by a Magistrate of the First Class and that it can be tried summarily in accordance with the procedure laid down for summary trials in the Code of Criminal Procedure (Act V of 1898). Section 7-A which was inserted in 1965 provides that the provisions of the 1952 Act shall have effect notwithstanding anything contained to the contrary in the Trade Unions Act, 1926, and the Industrial Disputes Ordinance, 1959, or any other law.
Section 8 places bar on the legal proceedings in respect of the acts done in good faith under the statute. Section 9 saves the effect of laws imposing liability to National Service. Section 10 repeals the Essential Services (Maintenance) Ordinance, 1941, and makes certain savings in respect of the acts done under the said Ordinance.
7.-The Federal Government, in exercise of the powers under section 6(1) of the 1952 Act, made Pakistan Essential Services (Maintenance) Rules, 1962 (hereinafter referred to as the 1962 Rules).
These rules are reproduced hereunder in entirety. They read as follows :- "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 Federal 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) "Chairman" means the Chairman of the National Industrial Relations Commission constituted under the Industrial Relations Ordinance, 1969 (XXIII of 1969), and includes a member of that commission authorised by the Chairman in this behalf.
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) directions of the Chair-man, regulating wages and other conditions of service under sub-rule
(1) shall be published in the official Gazette."
7-A. The learned counsel appearing for the petitioner, while referring to the 1962 Rules, has pointed out that the Federal Government has not itself made any rules in respect of the petitioner- Company and its employees although the Chairman of the N. I. R. C., as defined in the 1962 Rules (hereinafter referred to as the Specified Authority), has framed certain omnibus regulations which cover all the Essential Services. He has placed on record a copy of these Regulations which were issued by the Ministry of Interior under S. R.
0. No, 97(1)/79 dated 27-1-1979. They read as follows "S. R.
0. 97(1)/79.
"DIRECTIONS"
' In exercise of the powers conferred by section 6 of the Pakistan Essential Services (Maintenance)
Act, 1952 read with rule 3 made thereunder, I, Attaullah Sajjad, Chairman of the National Industrial Relations Commission as Specified Authority under the Act direct that the conditions of service of all persons engaged in any employment or class of employment declared under section 3 of the Act to which this Act applies, shall from the date of publication of these directions in the official Gazette be regulated as follows :---
(1) Any person, engaged in any employment, or class of employment declared an employment to which the Pakistan Essential Services (Maintenance) Act, 1952, applies, may, within two months of the arising of the cause of action, bring, in writing, his grievance in respect of any right guaranteed to him by or under any law, settlement or award for the time being in force relating to wages and other conditions of service including retrenchment, discharge, dismissal or termination from service, to the notice of the Chairman of the National Industrial Relations Commission acting as Specified Authority under the said Act.
(2) On receipt of such an application, the Chairman or a Member of the said Commission authorised by him in this behalf shall hear the applicant, and the employer and after such further enquiry, if any, as may be necessary, may pass such directions as may be deemed just and proper in the circumstances of the case : ' Provided that a group of employed persons, having a common grievance against the same employer, may make a joint application : ' Provided further that if the grievance is brought after the expiry of two mouths, the Specified Authority may condone the delay on good cause shown."
8. The learned counsel appearing for the petitioner-Company has challenged the order of the specified Authority in resuming jurisdiction on several grounds but I shall take up only those points, the decision on which is necessary for the disposal of this petition. He has first of all contended that the I. R. O. And all other laws cease to operate immediately when an employment is declared to be an Essential Service. He contends that the violations of the provisions of the 1952 Act, the 1962 Rules and the regulations made thereunder by the specified Authority are only penal in nature and that no redress by way of enforcing a right of civil nature such as of reinstatement in case of unauthorised termination of service can be given by any forum. In this connection he pointed out that if the 1952 Act is read as a whole it would give no other impression that the enforcement of law and the rules and regulations made thereunder is possible by coercive method of awarding punishment and not by invoking the restoration or enforcement of the civil right. A somewhat similar question had come up before the Industrial Court of West Pakistan in the case of Azizul Haq v. Chairman, WAPDA (1) and that Court held that once the terms and conditions of service are regulated by the Authority the same cannot be challenged but if there arises any dispute about the violation of terms and conditions of service regulated by the Specified Authority then the Specified Authority can come into picture and proceed to adjudicate upon the dispute Identical view was taken by the same Court in the case of Syed Manzoor Ali Rizvi v. National Bank of Pakistan (2). In the case of Karachi Electric Supply Corporation v. National Industrial Relations Commission
(3) the High Court, while dealing with a similar objection, observed that the word "regulate" occurring in subsection (1) of section 6 of the 1952 Act is not only confined to making of the rules or regulations but it also includes determination of age of superannuation and re-instatement of retired employees. The Court observed that the power to regulate wages included settlement of individual disputes and redressing of individual grievances that might arise in enforcing rights and obligations. In respect of the particular case which came up before the Court, it held that the dismissal of an employee, without proper enquiry, can be set aside by the specified Authority which is empowered to adjudicate upon the individual disputes relating to fixation of wages and terms and conditions of service. In the case of Mr. A. Javaid v. N. I. R. C. (4) it was held by the Sind High Court that the 1952 Act does not necessarily mean that the provisions of the I. R.
0. Stand excluded. The Court came to the conclusion that where there was a dispute regarding the registration of a Trade Union and certification of Collective Bargaining Agent, the I. R. O. Is applicable with full force as the provisions thereof are not inconsistent with the provisions of the 1952 Act. In the case of Employees' Union v. Pakistan Machine Tools Factory, Lam& (5) the Sind & Baluchistan High Court held that the 1952 Act, in substance, not only prescribes the procedure for settling disputes but it also affects rights of workers and employers. The matter was exhaustively discussed by a Single Judge of the Lahore High Court in the case of General Manager, Heavy Mechanical Complex, Taxila v. Bashir Ahmed Malik, Member, N. I. R. C. (6). It was held that the powers of the Specified Authority are plenary, compulsive, specific and untrammelled by any technical rule of procedure and that the word "regulate" occurring
(1) 968 PLC 608 (2) 1968 PLC 126
(3) PLD 1980 Kar. 269 (4) 1978 PLC 132
(5) 1974 PLC 201 (6) PLD 1977 Lab. 982 ' In section 6(1) of the 1952 Act included the power of adjudication. This matter was taken to a Division Bench of the Lahore High Court in Inter-Court appeal and in the case of General Manager, Heavy Mechanical Complex, Taxila v. Mamoon A. Qazi, Senior Member, N.
1. R. C. (1) it was observed that the word "regulate" includes power to give direction in any particular dispute.
9. The same question was considered by the Chairman and five Members of the N. I. R. C. In the case of Burmah Shell Employees' Union v. Burmah Shell Ltd. (2) and the majority view was that the 1952 Act was not inconsistent with the I. R. O. And that the Specified Authority does not lose its jurisdiction to adjudicate in case of a dispute arising out of the fixation of wages or terms and conditions of an employee and that the said Authority can settle the dispute arising out in these matters.
10. In the scheme of the 1952 Act, as already stated, it is provided that when an employment is declared to be an Essential Service the Federal Government or the Specified Authority shall have power to regulate the wages and other conditions of Essential Service Employees. The meanings of the word "regulate" were discussed by the Division Bench in the aforesaid case of the General Manager, Heavy Mechanical Complex, Taxila v. Mamoon A. Qazi. The Court was of the opinion that the word "regulate" was wide enough to include a power to give direction in any particular dispute. I have myself given consideration to the specific point. Apparently the provisions of section 6(1) of the 1952 Act merely mention the word "regulate' and do not specifically say that the specified Authority shall have power to adjudicate upon individual disputes or that the enforcement of the la and rules and regulations made thereunder could be enforcible only b coercive method of punishment. In this regard the well-known maxim quando lex aliquid concedit concedere videtur et illud sine quo res ipse case not palest which means that whoever grants a thing is deemed also to gran that without which the grant itself would be of no effect. If the argument of the learned counsel for the petitioner are accepted then the result would be that whereas the specified Authority will be able to prescribe wag and terms and conditions of employees it will not be clothed with power to compel the employer to act according to the rules or regulations. It is well-settled principle of jurisprudence that in case something is authorised or is, as a matter' of duty, required to be done by any statute when if it is not found possible to do that thing unless some other thing not authorised in expressed terms is also done then that something has to be supplied b necessary intendment. The rule is that when any statute confers power it by implication, also gives power of doing all things which are necessar to the execution of the object of that power. It the word "regulate", I its meaning, is restricted to prescribing the terms and conditions of the employees and their wages and is not interpreted to include the enforcement of what has been prescribed, then the statute becomes a dead letter. In my view in such cases the subsidiary power of doing all necessary acts in enforcin what is laid down in the rules and regulations has to be inferred impliedly. To my mind when a statutory duty is prescribed and the statute does not provide for any remedy for the breach then the right of civil action impliedly occurs to a person who is affected by the breach. Any other interpretation would render the statute substantially ineffective.
(1) PLD 1977 Lab. 998 (2) 1980 PLC 149
11. The learned counsel for the petitioner-Company argued that the present is a case of an employer and employee who are subject to the jurisdiction of a Court of ordinary civil jurisdiction.
He contends that the ouster of jurisdiction of a Court which existed prior to the enactment must not, easily or lightly, be inferred. According to him whenever there is ouster of such jurisdiction the Legislature is expected to say so expressly. At the most, he contended, it can be said that such ouster can be impliedly inferred from the language of the statute expressing the legislative intendment, but then in case of there being two views the one favouring the continuance of jurisdiction has to be preferred. While advancing his arguments the learned counsel vehemently urged that when there is no express ouster, the encroachment on the existing jurisdiction should not be impliedly inferred without there being any indication for that inference. In the present case, it was argued, if there had been no hurdle of 1952 Act and the respondent No, 2 had been a "worker" or a "workman" then undoubtedly the Labour Court constituted under the I. R.
0. Would have power to settle the matter of the terms of service. As he does not come under the category of employees he could, as he has done, take his grievance to the civil Court on his civil right being affected. The learned counsel referred to section 9, C. P. C. Which confers exclusive jurisdiction with the exclusion of all other forums on the civil Court to decide such a dispute. I am, however, of the opinion that in any case even if either interpretation was permissible I should prefer to give effect to an interpretation which confers exclusive jurisdiction on the Specified Authority to deal with the matter and not to cave it with the civil Court. It is well settled principle of interpretations of status that where alternative interpretations are possible that interpretation is to followed which would be consistent with the smooth working of the system that the statute provides for regulating and the other alternative is to be rejected which would introduce confusion, uncertainly or friction of the working of the system. As already observed the word "regulating" occurring in section 6(1) of the 1952 Act gives exclusive jurisdiction to the specified Authority not only to prescribe wages and terms and conditions of service but it also impliedly confers jurisdiction on the Specified Authority to adjudicate on the disputes of civil nature. No doubt ordinarily the exclusion of the jurisdiction of a civil Court cannot be inferred without express provision or necessary intendment, nevertheless when a special tribunal is created that tribunal might be presumed to have been invested with the exclusive jurisdiction to determine the matters with which it has to deal with.
12. In view of what I have said above I am of the opinion that when the Specified Authority starts functioning under section 6(1) of the 1952 Act, the jurisdiction of the Labour Court in respect of the workers and the workman and the jurisdiction of a civil Court in respect of the other employees cease to exist and all matters which arise out of the terms prescribed by the Specified Authority have to be settled by the said Authority itself.
13. The learned counsel then contended that even if it is assumed that the jurisdiction of the Specified Authority extends to the settling of individual disputes of civil nature then such disputes can be gone into for settlement only if the rules and regulations have been framed. In this case, it was urged, that the Specified Authority has not, in accordance with the provisions of section 6(1) of the 1952 Act and the 1962 Rules, framed any regulations and, therefore, it cannot assume jurisdiction to adjudicate in the matter in dispute specially when respondent No, 2 does not remain employee after having been removed from service before the framing of any rules or regulations.
In this respect the learned Single Judge in the case of General Manager, Heavy Mechanical Complex, Taxila v. Bashir Ahmad Malik, Member, NIRC, referred to above, was of the view that the Specified Authority got jurisdiction immediately when any employment was declared to be an Essential Service and that the making of regulations is not a condition precedent. This view was, however, not accepted by the Division Bench in the same case and it was observed that the regulations and bye-laws come first and their enforcement or the resolution of disputes thereunder comes later. The Division Bench held that in cases where regulations have not been framed, the specified Authority in assuming jurisdiction acts without lawful authority. The reason given was that before making of regulations certain conditions imposed by rule 3 of 1962 Rules have to be complied with and unless those conditions are complied with, the regulations would not be deemed to exist in respect of which the Specified Authority could assume jurisdiction. This view was not, however, accepted by the Full Bench of the N. I. R. C. In the case of Burmah Shell Employees' Union v. Burmah Shell Limited, referred to above. It was held in that case that framing of regulations or issuance of directions is not a condition precedent for the exercise of jurisdiction by the specified Authority. This was the same view which the learned Single Judge of the Lahore High Court had taken and to which the Division Bench in Inter-Court Appeal did not agree. In reaching that conclusion the N. I. R. C. Appears to have relied on the case M. U. Khan v. Rana M. Sultan (1) in which it was held that where the designated authority failed to frame the rules, as directed by the Statute, the appointment of a certain person was not illegal even if the qualifications have not been laid down. In my view the principles laid down in the case of M. U. Khan v. Rana M. Sultan, referred to above, are not applicable to the present case. In that case the law had provided that the appropriate Government may appoint a duly qualified person to be Chief Inspector of Mines.
The Government did not lay down any qualifications for the appointment of the Chic f Inspector but nevertheless appointed one to that job. The Supreme Court held that the failure of the Provincial Government to frame necessary regulations did not prevent it from appointing a Chief Inspector. It was observed that if the intention was to make an appointment in accordance with the regulations then the Legislature would have stipulated to the effect that "the appropriate Government may by notification in the official Gazette appoint a person qualified in accordance with the regulations made . . . . To be Chief Inspector of Mines". The present case, however, is quite different. Here the Specified Authority can regulate the wages and terms and conditions of the Essential Service Employees. Unless the regulations are made then the employer would not know as to what he had to do. The question of violation of any regulation, therefore, would not arise as the Specified Authority would not compel a person to do a thing which he has not been asked to do by a valid rule or regulation. It is pertinent to note that the Specified Authority cannot make regulations beyond the scope of the 1962 Rules. Sub-rule (2) of rule 3 of the 1962 Rules provides that while regulating the wages and other conditions of service the Specified Authority shall not prescribe any terms and conditions without taking the views of the employer nor shall it increase, without previous sanction in writing of the Federal Government, the wages or (1) PLD 1974 SC 248 allowances of a person. It also provides that the Specified Authority shall not, without the previous sanction in writing of the Federal Government, specify any condition on which the employment of any person may be terminated. Again the Specified Authority cannot prescribe any such terms or conditions as may affect adversely the right to which a person is already entitled. All these provisions go to show that the Specified Authority comes into picture only when it has regulated the wages and terms and conditions of service of service of Essential Service Employees. In my view the Specified Authority having come into being and having neglected to perform its duty in prescribing the wages and conditions of service of the employees of the petitioner-Company cannot assume jurisdiction if the term and conditions of service of an employee are affected. I am, therefore, in full agreement with the views expressed by the Division Bench of the Lahore High Court in the aforesaid Inter-Court appeal that the Specified Authority gets jurisdiction only when it makes regulations according to the authority vested in it under the 1962 Rules.
13. The learned counsel for respondent No, 2, when confronted with this position, contended that the regulations have actually been framed by the Specified Authority and, therefore, it does not lie with the petitioner-Company to say that the Specified Authority cannot adjudicate on the matter in dispute. He referred to the regulations framed by Notification No, SRO-97-(1)/79 dated 27-1-1979, reproduced in para. 7 above, and contends that it was after framing of these regulations that the Specified Authority was clothed with the jurisdiction and respondent No, 1 who is the specified Authority assumed jurisdiction by the impugned order. The learned counsel for the petitioner- Company has, however, rightly pointed out that the regulations relied upon by the learned counsel for respondent No, 2 are not the regulations as contemplated by 1962 Rules.
14. A bare reading of the 1962 Rules would show that the Federal Government never conferred any jurisdiction on the Specified Authority to frame regulations of omnibus nature as it has done. Sub- rule 2(a) provides for taking views of the employer. Sub-rule 2(b) prohibits the specified Authority to change the terms and conditions if such change adversely affects the rights of employees that already exist. Again the previous sanction of the Federal Government is necessary under sub-rules 2(c) and 2(d) All this shows that before prescribing the wages and terms and condition of service the Specified Authority has to take into consideration certain matters and has to do certain things and unless those things are done the regulations would not be in order. The regulations of 27-1- 1979, reproduced above, are not the regulations laying down wages or the terms and conditions.
These are only procedural in nature providing for the manner in which a grievance can be taken to the specified Authority and the manner of hearing of such grievance. Since the terms and conditions of the employment of respondent No, 2 with the petitioner-Company have not been regulated, the specified Authority, in my view, had no jurisdiction to take up the matter of settling the dispute arising out of the termination of the service of respondent No,
2. The remedy in this case lies with the civil Court as the respondent No, 2 had no right to go to the Labour Court constituted under the I. R.
0., he not being a 'worker or a workman within the definition of that Ordinance.
15. Several other points were raised by the learned counsel for the petitioner-Company at the time of arguments but since the matter can be disposed of on the question of jurisdiction of respondent No, 1 acting as Specified Authority it is not necessary to discuss them here.
16. The result is that I accept this petition and declare that the order of respondent No, 1 in assuming the jurisdiction in the matter is without lawful authority and of no legal effect. He is ordered to refrain from proceeding further in the matter. There shall be no order as to costs.