' ABDUL SHAKURUL SALAM, J.-This order will dispose of Intra Court Appeals Nos. 202/79, 203/79, 204/79 and 206/79 as these are connected matters.
2. Relevant facts for the disposal of these appeals are as follows :- ' Muhammad Babar Zaman, respondent in the first appeal, is a News Producer in the Pakistan Television Corporation. His duties are to collect the news items from Teleprinters and then on the directions of the News Editor to translate them into the relevant language. He works under the control and instructions of News Editor who is the head of the Department. Muhammad Nasim Siddiqui, respondent in the second appeal, is a Senior Make-Up Artist in the Pakistan Television Corporation. He is under the control of the Programme Manager, Ismail Taj, respondent in the third appeal, is a Cameraman. Zahoor Nazim, respondent in the fourth appeal, is a Calligraphist.
3. On 16-2-1978, there was a take-over of the Pakistan Television Centres. Persons responsible were arrested and criminal cases registered. However, the cases were withdrawn on the directions of the Martial Law Administrator, Zone 'A'. On 84-1978, Ordinance XV of 1978 Industrial Relations (Amendment) Ordinance, 1978 was promulgated to be effective from 16-2-1978 excluding the employees of the Pakistan Television Corporation from the purview of the Industrial Relations Ordinance, 1969. On 16-4-1978, the aforementioned persons were charge-sheeted for misconduct on the ground of absence from duty from 16/17th February to 20th February, 1978 and the first three for taking part in the subversive activities of taking over the Television Centre, Lahore and the fourth for striking in sympathy. They were also suspended from service the same day i,e, 16-4-1978.
Enquiry proceedings were initiated against them. They filed Constitutional petitions on 13-6-1978 challenging the aforesaid acts taken against them, inter alia, on the ground that in view of the provisions of section 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, henceforth to be called Ordinance, no action for the alleged misconduct could be taken against them after a period of one month from the date of such misconduct or the date on which the alleged misconduct came to the notice of the employer. It was urged that the alleged misconduct of absence and taking over T. V. Had taken place on 16.2-1978 and obviously the employer could not have remained unaware of the same. Nor, could they be suspended for more than 4 days at a time, not exceeding for weeks in total, per subsection (5) of section 15 of the aforesaid Ordinance, which period had already gone by. The proceedings against them were sought to be quashed. The petitions were admitted for regular hearing and it was directed that no final order in the proceedings against the writ petitioners shall be passed. This happened in early part of July, 1978. On 27th August, 1978, subsection (1-A) was added to section 6 in the Pakistan Essential Services (Maintenance) Act, 1952 by Ordinance XXXVI of 1978, whereby it was enacted that "Notwithstanding any provision in any such rules or direction regulating wages and other conditions of service, including any rules made or directions given before the commencement of the Pakistan Essential Services (Maintenance) (Amendment) Ordinance, 1978, as to the day on which they shall come into force, the Federal Government may direct that they shall be deemed to have taken effect on such day, not preceding the day on which such rules were made or directions were given, as the Federal Government may specify". In pursuance of this power, the Federal Government issued a Notification No, S. R.
0. 1070(1)/78 on 28th August, 1978 amending a previous Notification of the Ministry of Interior No, S. R.
0. 639(1)178 dated 24th May, 1978, whereby it was said that the "Pakistan Television Corporation Ltd.
Employees' Service Rules will come into force with effect from the date of Gazette Notification" by saying that for the words "date of Gazette Notification", "25th January, 1978 shall be substituted". The idea is clear that the writ petitions filed by the aforementioned persons relying on the Standing Orders Ordinance, 1968, were intended to be rendered ineffective by the plea that the aforementioned Ordinance would not be applicable because of proviso one to section 1 of the aforesaid Ordinance which lays down that "Provided that nothing in this Ordinance shall apply to industrial and commercial establishments carried on by or under the authority of the Federal or any Provincial Government, where statutory rules of service conduct or discipline are applicable to the workmen employed therein", as Pakistan Television Corporation Limited Service Rules had been made retrospectively effective from 25-1-1978.
4. The plea aforesaid was, of course, tenaciously urged before the learned Single Judge hearing the writ petitions. It was also urged that even if the Ordinance was applicable, the charge-sheets could be issued within one month of the date of alleged misconduct or the date when the alleged misconduct came to the notice of the .Employer. It was urged that the Pakistan Television Corporation, appellant, came to know of the alleged misconduct on 16th of April, 1978 when the Managing Director ordered issuance of charge-sheets. Thus it was within time. It was also contended that the writ petitions were premature, and the remedy under Article 199 of the Constitution was not available against the appellant being a private limited Company and performing no functions in connection with the affairs of the Federation.
5. The learned Single Judge held that even if Pakistan Television Corporation Limited Employees'
Service Rules applied, then too, the case of the writ petitioners was covered by the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, because rule 2.11 of the aforesaid Rules provides "Nothing in these rules shall deprive the employee/employees of any right, privilege guaranteed by or under any law, settlement, agreement or award."
Further, that in view of rule 3(2) (b) of the Essential Services (Maintenance) Rules, 1962 made in pursuance of section 6 of the Pakistan Essential Services (Maintenance) Act, 1952, the rights and privileges of the writ petitioners were also prc tected. The contention that section 7(A) of Pakistan Essential Services (Maintenance) Act, 1952 and the Rules of 1962 framed thereunder, amount to the ouster of provision of any other enactment and that whenever there were any overlapping between the Act (Pakistan Essential Services (Maintenance) Act) and those of any other enactment, provisions of the Act would prevail, was repelled in view of the Division Bench judgment in the General Manager, Heavy Mechanical Complex Taxila v. Mamoon A. Kazi wherein it was laid down that "if the provisions of the Act were not in conflict with the Ordinance, then the latter would prevail to that extent". As regards the contention that even if the Ordinance was applicable, the appellant came to know of the alleged misconduct only on 16-4-1978, the learned Single Judge after a perusal of the file found that that was not correct. As regards the contention that the writ petitions were premature, the learned Judge held that if the proceedings were illegal, writ of Prohibition was the appropriate remedy. The contention that petitioner under Article 199 of the Constitution did not lie against Pakistan Television Corporation was repelled in view of Full Bench judgment of this Court in Muhammad Aslam Saleemi v. Pakistan Television Corporation. The learned Judge, finally, accepted the writ petitions vide order dated 30-6-1979. The Management has come up in the afore-titled appeals.
6. Learned counsel for the appellant has submitted that in view of the Full Bench judgment, he will not argue that the High Court has no jurisdiction to grant the relief as against the Pakistan Television Corporation but will reserve his right to argue the point later on if that becomes necessary. His plea that the petitions was premature, in the circumstances of the facts stated above, is also without force because the ordinary remedy under the Industrial Relations Ordinance, 1969 available to the writ petitioner on the date of the alleged misconduct was taken away from them by the amending Ordinance XV of 1978 and after they had filed the writ petitions, obtained interim orders, the enforceability of the Pakistan Television Corporation Limited Employees' Service Rules from the back date would not render the petitions as premature when those were not so when filed. The contention that the Management did not come to know of the alleged misconduct dated 16-2-1978 until 16-4-1978, is obviously untenable. The Management could not have remained unaware of the taking over of its Television Centres throughout the country and by whom. If it were so, it would not speak very highly of the Management. It knew and prepared a list of employees whose services were sought to be terminated. The learned Single Judge saw the file and found it so. But the Management did not proceed to take any action in accordance with law then prevailing until it itself was armed with authority with retrospective effect. The contention of the learned counsel for the respondents that commencement of the enquiry thereafter was only a force to give effect to the pre-determined decision is not too wide the mark. It may be a little overstated. But the circumstances do not inspire confidence.
7. Now, I come to the crucial and decisive question as to whether the Pakistan Television Corporation Rules would oust the operation of West Pakistan (Standing Orders) Ordinance, 1968.
The learned Single Judge proceeded on the assumption that even if the Rules were applicable, the operation of the Ordinance was not rendered inapplicable. I was a little doubtful that if the Rules were made regulating the wages and conditions of service of employees taken over under the Essential Services (Maintenance) Act, 1952, would the employees be still entitled to their rights and privileges available to them under the ordinary law i,e, the aforementioned Ordinance, because that might not only entail conflict of jurisdictions but also lead to dilatory procedure of settlement of disputes when that was required to be efficiently settled for the effective running of the essential services. Therefore, the learned counsel for the appellant was asked to argue on the validity of the Pakistan Television Corporation Ltd. Employees' Service Rules and he very ably argued the point at1 2 length and quoted authorities. Then, he was requested to proceed further on the assumption, as the learned Single Judge had made, that the Rules were applicable, He argued the case with clarity and precision and referred to numerous decisions.
8. Learned counsel appearing for the respondents, of course, supported the judgment and they referred to many cases as well.
9. The argument of the learned 'counsel for the appellant was that the Pakistan Television Corporation Service Rules framed by N. I. R. C. By virtue of rule 3(2) (b) of the Essential Services (Maintenance) Rules, 1962, promulgated by the Federal Government in exercise of powers conferred on it by subsection (1) of section 6 of the Pakistan Essential Services (Maintenance) Act, 1952, were valid and have also been made effective from the back date i,e, 25-1-1978 by Notification of the Federal Government dated 28-8-1978 issued in pursuance of added subsection (1-A) by Ordinance, XXXVI of 1978 promulgated on 27-8-1978 to section 6 of the Pakistan Essential Services (Maintenance) Act, 1952. It was submitted that the Rules could be so made effective from a retrospective date if that was authorised by the Legislature, as in this case. Further, that the directions given by the N. J. R. C. In virtue of the authority under section 6 of the Essential Services Act of 1952 amount to rules and in any case directions can be given by the competent authority which will also amount to statutory rules. Consequently, by virtue of section 7-A of the Essential Services (Maintenance) Act, 1952, provisions of the Standing Orders Ordinance, 1968 will give away and would not apply. Moreover, proviso one to section 1 of the Standing Orders Ordinance, 1968 itself renders the Ordinance inapplicable to employees for whom there are statutory rules and for the respondents there are statutory rules in the form of Pakistan Television Corporation Ltd. Service Rules. Elaborate arguments were addressed from both sides.
10. At this stage, relevant provisions may be quoted. Section 6 of the Essential Services (Maintenance) Act, 1952 is as follows :- "(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 applied.
(1-A) . . . . . .
(2) When any such rules have been made or when any directions regulating wages or conditions of service have been given by an authority empowered by such rules to give them, any person failing to comply therewith is guilty of an offence under this Act.
' In exercise of the above authority, the Federal Government promulgated the Essential Services (Maintenance) Rules, 1962. Rule 3 reads as follows :- "(1) The Chairman, National Industrial Relations Commission 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 effect adversely the rights to which a person is entitled immediately before the publication of these rules, by virtue of any law, or under the terms of any award, agreement or contract duly made and operative ;
(c) increase, without the previous sanction in writing of the Central Government, the wages or allowances of any persons in respect of whom a dispute exists with the employers ; or
(d) specify, without the previous sanction in writing of the Central Government, any condition on which the employment of any person may be terminated."
11. Now I come to the Pakistan Television Corporation Employees' Service Rules. As would appear from the Gazette Notification of the Ministry of Interior dated 24-5-1978 S. R. O. 639(1)/78, on the direction of the Chairman N. I. R. C. In connection with the dispute between the Pakistan Television Corporation Ltd., Rawalpindi and its various Employees and Workers' Unions, Mr. Bashir Ahmad Malik, Member, N. I. R. C. Took up the matter on 25th of January, 1971. It was stated in the order of the aforesaid date that : "The Pakistan Television Corporation Limited, Rawalpindi (Petitioner) which is covered by Pakistan Essential Services (Maintenance) Act, 1952 and the rules made thereunder, submitted 8 copies of the Pakistan Television Corporation Services Rules to the Chairman, National Industrial Relations Commission, which rules related to the terms and conditions of service of the employees of the Pakistan Television Corporation Limited, and were stated to be in force for the last several years, and it was prayed that the Chairman, N. I. R. C. Being vested with powers under section 6 of the Act, 1952, may regulate conditions of service of the employees of the Corporation, and approve the draft rules submitted by the petitioner and declare them rules regarding the terms and conditions of service of the employees of the Pakistan Television Corporation under section 6 of the Act, 1952 read with rule 3(1) of the Rules made thereunder. The learned Chairman of the Commission was pleased to authorize me in this behalf.
(2) Comments were invited and received from the respondent-Unions of the Corporation, whereafter the parties were given a few opportunities to hold bilateral negotiations so as to arrive at mutual agreement regarding the proposed rules, and it gives me pleasure to observe that both the parties negotiated with each other with a spirit of give and take, and the result was that most of the service rules were mutually agreed upon after minor changes therein, and only some of the rules about which the parties could not reach at any agreement were referred to me, and I was requested to decide as to what the rules in dispute should be. The rules which were referred for decision by me are annexed with this order as Annexure "A" and my decision in respect of these rules and the form in which these rules were framed by me vide my order dated 1st September, 1977 is annexed with this order as Annexure "B".
(3) Thus the service rules mutually agreed to by the parties and those framed by me were finally cyclostyled and compiled and 5 copies of these service rules were submitted to me by the Management. The representative of the respondents and that of the Management gave statements on 5th January, 1978 which were duly recorded, wherein the service rules so submitted were admitted to be correct and acceptable to both the parties, and I was requested to approve and adopt the same as service rules finally framed by me as the Specified Authority under the Pakistan Essential Services (Maintenance) Act, 1952 and the rules made thereunder, and to send the same for publication in the official Gazette.
(4) In view of the above facts, I as the Specified Authority under the Pakistan Essential Services (Maintenance) Act, 1962 and the rules framed thereunder do hereby adopt and approve these service rules Annexure 'C' which should be deemed to be the service rules framed by me as such, regulating the terms and conditions of service of the employees of the Pakistan Television Corporation Limited, throughout Pakistan. These rules will be known as the "Pakistan Television Corporation Limited Employees Service Rules" and will come into force with effect from the date of Gazette Notification (now it will be from 25-1-1978)."
' The Rules Annexure 'C' are Pakistan Television Corporation Limited Employees' Service Rules. It is these Rules which require examination of their validity.
12. The contentions of the learned counsel for the appellant are quit sound that under the Pakistan Essential Services (Maintenance) Act, 1952 vide section 6, the Federal Government was authorized to "make rules regulating or empowering specified authority to regulate the wages and other conditions of service", and that the Federal Government has made the Essential Services (Maintenance) Rules 1962, whereby under rule 3(1), the "Chairman", N. I. R. C. Was "empowered to regulate, subject to the other provisions of this rule, the wages and other conditions of service of persons class of persons engaged in any employment or class of employment to which these rules apply. But the question arises whether the Rules in question have been made by the Chairman, N. I.
R. C. Apparently not. It is clear from the Gazette Notification dated 24-5-1978, that it is not the Chairman, N. I. R. C. But the Member, N. I. R. C. Who has "adopted and approved" the Rules. Now, it is well known that a delegate cannot further delegate his powers, as per maxim delegatus non potest delegare, and obviously a sub.. Delegate cannot further delegate to a third body. In the Pakistan Essential Services (Maintenance) Act, 1952 vide section 6, the Federal Government was delegated the powers "to make the rules regulating or empowering a specified authority to regulate the wages and other conditions of service". In exercise of this power, the Federal Government made the Essential Services (Maintenance) Rules, 1962, and vide rule 3(1) empowered the "Chairman", N. I. R.
C., to regulate the wages and conditions of service. The delegation by the Federal Government to the Chairman, N. I. R. C., became lawful by virtue of the Statute, but the Chairman could not further delegate or authorize the Member to regulate the wages and other conditions of service. It was contended that he could do so by virtue of the definition of Chairman in section 2(1 )(b) of the National Relations Commission, (Procedure and Functions) Regulation, .973 wherein it is stated that "'Chairman' means the Chairman of the Commission and includes the Senior Member nominated him to perform the functions and exercise the powers of the Chairman in his absence". But there is nothing on the record to show that the Member who "adopted and approved" the Rules was the Senior. The contention that official acts are presumed to be regularly performed cannot run contrary to the record. The Gazette Notification shows that the Rules were "adopted and approved" by the Member and not the Senior Member. Secondly, which is more important, is the fact that these Regulations were made under section 22 of the Industrial Relations Ordinance, 1969 by the Commission for regulating its procedure and the performance of its functions (italics is mine), and not for regulating the power and authority of the Chairman conferred on him by the Essential Services (Maintenance) Rules, 1962 promulgated by the Federal Government in exercise of powers under section 6 of the Essential Services (Maintenance) Act, 1952 whereby the Federal Government was authorized to make rules regulating or empowering a specified authority to regulate the wages and conditions of service". Therefore, the Regulations do not extend to cover the authority of the Chairman as a "specified authority". Thirdly, the "specified authority' by the Federal Government cannot by its own fiat create another "specified authority" as the Member who "adopted and approved" the Rule seems to think when he describes himself as "Specified Authority" in the beginning of the last paragraph of the proceedings dated 25-1-1478 gazetted on 24-5-1978 quoted in extenso above, but he has only been authorized by the Chairman as he himself says at the end of the first paragraph ibid that "the learned Chairman of the Commission was pleased to authorize me in this behalf". The learned Chairman could not create or make anybody a "specified authority".
The "specified authority" has to come about under the rules framed by the Federal Government under section 6 of the Essential Services Act, 1952. Thirdly, a delegate (Chairman) from a delegate (Federal Government) who itself is a delegate (from the Legislature) can hardly be supposed to have a right to further delegate legislative authority. If permissible, the process can go ad infinitum.
Fourthly, can it be possible that the law made at the fourth hand or fortieth for that matter should have the swa y over the Statutes made by the Legislature itself ? As contended by the learned counsel for the appellant that the Rules so made by the Member on the authority of the Chairman who was empowered by the Federal Government who in turn was authorized by the Legislature to make rules will apply notwithstanding any Statute like West Pakistan (Standing Orders) Ordinance, 1968. The contention on the face of it is untenable. If it were otherwise, the entire legislative process would be thrown in the whirlpool of confusion. Even in administrative spheres, "Where the exercise of discretionary power is entrusted to a named officer-e.g. a chief officer of Police, a medical officer of health, a town clerk or an inspector-another officer cannot exercise his powers in his stead unless express statutory provision has been made for the appointment of a deputy or unless in the circumstances the administrative convenience of allowing a deputy to act as an authorised agent, clearly outweighs desirability of maintaining the principle that the officer designated by statute should act personally. . . ." "The maxim delegatus non potest delegare has not the whole been applied more strictly to the further sub-delegation of sub-delegated powers than to the sub- delegation of primary delegated powers. This is in accordance with the maxim expressio unius est exclusio alterius : where Parliament has expressly authorised sub-delegation of a specific character, it can generally be presumed to have intended that no further sub-delegation shall be permissible", so says S. A. De Smith in his "Judicial Review of Administrative Action" at pages 179 to
180. A word may be said that the proceedings before the Member, N. I. R. C. Appear to start as Case No, 18(35)177 with the parties arrayed as "Pakistan Television Corporation Ltd., Rawalpindi v.
Pakistan Television Corporation Employees & Workers' Union, Karachi, T. V. Centre, Stadium Road, Karachi etc. But obviously the matter .Was being taken as framing of rules for the wages and conditions of service of the employees of the Pakistan Television Corporation Ltd. Therefore, the proceedings were obviously of legislative character and have culminated in the Pakistan Television Corporation Limited Services Rules. For the reason given above, the Rules adopted and approved by the Pakistan Essentia Services (Maintenance) Act, 1952 read with the Essential Service C (Maintenance) Rules, 1962, are without lawful authority and of no legal effect. This being so, the main plank of the case of the appellant g overboard. Arguments regarding their applicability and retrospectively are therefore, besides the point.
12. The matter is, therefore, covered by the provisions of the Wes Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Thereunder vide section 15(4), the appellant could not issue charge-sheets nor, initiate proceedings with a view to dismissal after a month of the alleged misconduct or the date of knowledge of the employer.In the present case, there is no doubt whatsoever that the appellant came to know and must, as a reasonable employer, have come to know that the alleged misconduct had taken place on 16-2-1973 and the charge-sheets issued on 16-4-1978 were out of time ; nor, could he have under section 15(5) of the Ordinance, suspended the respondents for more than 4 days a time and not exceeding total period of for weeks. The respondents have remained under suspension since April, 1978 to date.
This is patently illegal and arbitrary. Whatever rights may be available to the appellant under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, of course, the .Appellant can exercise.
13. The contention that the respondents were not "workers" according to the definition of "Workmen" as given in clause (I) of section 2 of t aforesaid Ordinance is not forceful, though appears to be specious. T respondents are News Producer, Senior Make-Up Artist, Cameraman an Calligraphist.
The learned Single Judge, on the basis of affidavits filed by the parties, came to the conclusion that the respondents were workers. Definition of the workman under the aforesaid provision is : "Workman means any person employed in any Industrial or Commercial Establishment to do any skilled or unskilled, manual or clerical work for hire or reward."
' The contention that only manual or clerical workers are covered by the definition whether they are skilled or unskilled, is tenuous indeed, but without substance. If it was so intended, the definition would be : "Workman means any person employed in an Industrial or Commercial Establishment to do any skilled or unskilled-manual or clerical-work for hire or reward."
' Then, workman whether skilled or unskilled would relate to manual or clerical. But the definition as it is means any person employed in any industrial or commercial establishment to do any skilled or unskilled or manual or clerical work for hire or reward. I am aware that I am putting "or" in-between unskilled and manual but that is the sensible construction of the statute keeping in view the aim and object of the statute which is "to amend and consolidate the law relating to industrial employment". And it is permissible to add a "or", or, "and" while construing a statute to give effect to the intention of the law-maker. Even in a penal statute "in" and "or" were inserted in the statute to give effect to the intention. In Adler v. Georgea prohibition upon being In the vicinity of any prohibited place" and obstructing certain persons on duty there, was construed as referring to being "in or in the vicinity of" the place. An accused person was thus disabled to escape conviction by pleading that while actually within the perimeter of a Royal Air Force Station, he had not literally been in its vicinity or neighbourhood. The Ordinance intended to amend and consolidate the law relating to industrial employment and in the Industrial Relations Ordinance, 1969 "Worker and Workman" were defined to mean "any person not falling within the definition of employed who is employed (including employment as a supervisor or an apprentice) in an establishment or industry for hire or reward. Therefore, the ideas of defining "Workman" in the definition was not to exclude workers except manual or clerical. Inartistic or incorrect punctuation of the draftsman cannot defeat the intention of the law. As seen above, either putting the dash in between unskilled and manual, and, clerical and work ; or, putting "or" in between unskilled and manual, will make the sense clear and the purpose of the statute will be served, which is primarily meant to help the needy workers. Construction of a statute is to advance' remedy and suppress mischief and not the other way round. This is the rule of interpretation of long standing. Sophistry in interpreting the meaning of workman to exclude the workers is uncalled for. In this view of the matter, the conclusion arrived at by the learned Single Judge on the basis of affidavits produced before him that the respondents are workers, calls for no interference.
14. In view of what has been stated above, the appeals above-titled have no force and are, therefore, dismissed with costs. It goes without saying, as observed earlier, that the appellant may, if it has any right under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and is so inclined, take action against the respondents which is available to him. The appeals are thus disposed of.
1977 PLC 532 PL D 1977 Lah. 852 (1964) 2 Q B 7