1. ANWARUI. HA'?, C. J.-This appeal, by the leave of the Court, seeks to call in question the judgment of the Lahore High Court dated the 4th of June 1976, by which a constitution petition filed by respondents 3 to 6 against the orders of their retrenchment made by the appellant, namely, the Islamabad Club, were set aside.
2. The respondents 3 to 6 were working as Malis (Gardeners) in the Islamabad Club. As the Club was running into losses, its Administrator decided to retrench certain employees, as a result of which the services of the four respondents and some other employees were terminated by giving them one month's pay in lieu of notice. The respondents took the matter to the Junior Labour Court under section 25-A of the Industrial Relations Ordi--nance, 1969, contending that in terminating their services the employer had not observed the principle of "last in, first out", as enshrined in Standing Order No. 13, appended to the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The application was, however, dismissed by the Junior Labour Court. The appeal filed by the respondents also met the same fate before the Punjab Labour Court mainly on the ground that the burden of proof that the respondents were senior to the persons who had been retained by the employer, was on the respondents, but they had not been able to discharge this burden.
3. Aggrieved by these orders of the Labour Courts, the respondents invoked the writ jurisdiction of the Lahore High Court. Their petition was accepted by a learned Judge on the reasoning that in view of the legal provisions con--tained in Standing Order No. 13, a duty had been cast on the employer and he bad to show that he had discharged the same in accordance with law, but the Manager of the Club had taken up an evasive position by saying that he was not aware of the seniority of the Malis employed by the Club. The learned Judge has further observed that it was the Manager of the Club who had the record of service of the employees, and he was under a statutory duty to exercise the power of retrenchment in a particular manner, but he had failed to satisfy the Court that he had observed the requirements of the relevant Standing Order.
4. Leave to appeal was granted in this case on the 12th of November 1976, to examine the contention that the Islamabad Capital Territory being a cen--trally administered area, in respect of which only the President of Pakistan could make laws, Standing Order No. 13 embodied in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, had no application and, therefore, the learned Judge in the High Court was in error to apply the principle embodied therein.
5. We have heard the learned counsel on both sides at some length on the question on which leave to appeal was granted. It has, however, to be remark--ed in the first instance, that the question raised before us was not raised on behalf of the Islamabad Club either before the Labour Courts or in the High Court, and for this reason it has rightly been contended on behalf of the respondents that it should not be permitted to be raised for the first time, on this short ground alone this appeal could be disposed of.
6. Even otherwise, we are of the view that there is no merit in the conten--petition that the West Pakistan Ordinance is not applicable to the Islamabad Capital Territory. The learned counsel for the respondents appears to us to be right in submitting that the view taken in this behalf by Lahore High Court in Master Khusrow Amir Khan Niazi v. Province of Punjab and 2 others PLD 1975 Lah. 819, is correct.
7. The Federal Government was shifted from Karachi to Rawalpindi under President's Order No. 20 of 19110, called the Seat of Government Order, 1960. Although it was promulgated on the 1st of August 1960, it was deemed to have taken effect on the 20th day of October 1959. Article 2 of this Order provided that : "From the commencement of this Order and until the President makes any further Order in this behalf Rawalpindi shall be the Principal Seat of the Government of Pakistan". Article 3 of this Order provided that, subject to any directions as the President or the Chief Adminis--trator of Martial Law may give, nothing in Article 2 of this Order would be construed as affecting the executive authority of the Province of West Pakistan. This Order further provided that Karachi shall, however, continue to be administered as a Federal Territory.
8. The area of the Federal Capital of Islamabad was determined under the Capital of the Republic (Determination of Area) Ordinance, 1963 as required by clause (2) of Article 211 of the Constitution, but this Ordinance did not make any provision as to the laws applicable to the Federal Capital area.
9. By President's Order No. 1 of 1970, called the Province of West Pakistan (Dissolution) Order, 1970, the Province of West Pakistan was dissolved, and in its place the four Provinces of Baluchistan, the North-West Frontier Province, the Punjab and Sind were constituted, besides two centrally administered areas, namely, the Islamabad Capital Territory and the centrally administered Tribal Area. In clause (2) of Article 5 of this Order, it was provided that the centrally administered areas shall be administered by the President acting to such extent as he thinks fit, through such officers as be may appoint. Under Article 6 the President was given exclusive power to legislate in relation to the Islamabad Capital Territory. In Article 19, it was enjoined that all existing laws shall continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature or other competent authority. Clause (2) of the same Article give power to the President and the Governor respectively to make the necessary adaptations in the existing federal and provincial laws.
10. Under the Interim Constitution of 1972 and the 1973 Constitution the Federal Capital of Islamabad has continued to be a distinct territory under Federal administration, but no specific provisions seem to have been mad for its governance, with the result that the previous arrangements have t continue. The result of these successive legal instruments in that the laws, which were applicable to the territory of Islamabad before the dissolution of the Province of West Pakistan, and the designation of Islamabad as a federally administered area, would continue to operate as existing laws, until repealed or altered by the competent Legislature. The only amendment brought to our notice was the one made by President's Order No. 4 of 1975 called the Federal Adaptation of Laws Order, 1975, by means of which the words "the Province of West Pakistan" occurring in subsection
(2) of section 1 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, were substituted by the word "Pakistan", with the result that the Ordinance now extends to the whole of Pakistan except the Tribal Areas. As the 1968 Ordinance was an existing law in the Islamabad area on the date the Province of West Pakistan was dissolved, namely, the Ist of July 1970, and Islamabad was constituted into a federally administered area, the same would continue to apply until provision to the contrary is made by the appropriate Legislature On this view of the matter, it would appear that Standing Order No. 13 only which reliance has been placed by the High Court, is applicable to industrial and commercial establishment situated in the Federal Capital of Islamabad.
11. It was next contended by the learned counsel for the appellant that even though the 1968 Ordinance may be deemed to be an existing law for the purpose of Article 19 of President's Order No. 1 of 1970, yet on the dis--solution of the Province of West Pakistan and the separation of Islamabad Capital Area from the Province of Punjab and its designation as a centrally administered area, the relevant central law, namely, Ordinance III of 1960, automatically became operative in Islamabad, notwithstanding its repeal, in so far as West Pakistan was concerned, under section 10 of the 1968 Ordinance. Mr. Siddiqui drew our attention to Article 143 of the Constitution in support of his submission that in case of a conflict between a provincial and federal law, the latter would prevail.
12. The argument is misconceived, as by the mere fact of being constituted into a centrally administered area under President's Order No. 1 of 1970. All the existing provincial laws operating in the Islamabad area could not auto--matically be replaced by the relevant central laws, unless specific provision in this behalf was made by the President or the Parliament. We have already seen that President's Order No. 1 of 1970 intended to con--tinue the operation of the existing laws in the centrally administered areas, even after their separation from the Province of West Pakistan.
13. Such being the case, there could be no question of the Central Ordinance III of 1960 automatically coming into operation in the Islamabad Capital area.
14. It was somewhat feebly contended by the learned counsel for the appellant that, in any case, the Ordinance would not apply to the Islamabad Club as it was a Government Establishment. We notice that this point was not raised in the proceedings before the Labour Courts or even in the High Courts nor was leave to appeal obtained on this point. There is no material on the record to show that the Islamabad Club is not a Club in the accepted sense of the word, but, in fact, a Government establishment. Even otherwise, the proviso to subsection (4) of section I of the Ordinance lays down that Government establishments would be exempt from the operation of this Ordinance only where statutory rules of service, conduct or discipline are applicable to the workmen employed therein. It is not the case of the appellant that any such statutory rules have been promulgated in respect of the employees of the Islamabad Club. For this reason as well the Islamabad Club cannot claim exemption from the operation of the Ordinance.
15. The appeal, therefore, fails and is hereby dismissed. In view of the legal questions involved, the parties are left to bear their own costs.
16. MUHAMMAD HALEEM, J.-I agree.
17. NASIM HASAN SHAH, J.-I agree.