' The applicant Mr. Sarfraz Ahmed Mirza, at the time of his removal, was serving as Deputy Manager, Admn. And Personnel, in the Central Administration, Office of the Respondent, Pakistan Steel Mills Corporation. The employment of the Respondent has been declared as an Essential Service under section 3 of the Pakistan Essential Services (Maintenance) Act, 1952. Prior to his promotion as Deputy Manager, Administration, the applicant was working as Assistant Manager (Administration) in the Metallurgical Training Centre. On 4th August, 1979, the applicant submitted a request to the General Manager (Admn. And Personnel) that in view of his technical qualifications, he may be posted in the existing vacancy of Deputy Manager in the Metallurgical Training Centre, which according to him existed at that time. This request was not acceded to and the applicant was accordingly informed by General Manager (A & 4) by his letter, dated 27th August, 1979. Again on 30th October, 1979 the applicant submitted another application to the Director (A & P) repeating his request for being posted as Deputy Manager Technical in the Metallurgical Training Centre.
About six weeks thereafter the applicant received a memo. Dated 17th December, 1979 that his Court has the power to try offences arising under I, R.0. And other relevant labor laws.
' No guiding principles have been provided by I. R.0. Regarding adjudication by the Court. The Court, therefore, exercises its own discretion in deciding cases. It looks closely at the circumstances of each case, the background of the dispute and rules fairly, justly and equitably. Thus in pronouncing a judgment "the Court must take into consideration the material brought on record and law applicable to the matters in dispute, but it must not act like a benevolent despot by applying its own ideas of social justice." The Supreme Court further elaborated the term "Social Justice" as whatever is fair, reasonable and equitable and done with a good conscience.1 2 ' Re-instatement of a workman is considered an essential relief in all labor laws and this power is vested in the labor Court. The Court in the case of an unfair discharge of a workman orders re- instatement. If the circumstances warrant, the Court also allows "back benefits".
' The labor Court can exercise powers under the Criminal Procedure Code, 1898, when dealing with an offence. But it is a Civil Court while dealing with industrial disputes. An interesting feature of the Court is that no court-fee is payable on filing, exhibiting or recording any documents or in obtaining any order from the Court.
' The award or decision of the Court is in writing and delivered in an open Court.
(II) LABOR APPELLATE TRIBUNAL: ' The second tier in the Labour Judiciary hierarchy is the Labor Appellate Tribunal. This is actually a Court of Appeals and thus hears appeals against awards of the Labor Courts.
' A Tribunal comprises of one person, who is called a "member" and is a retired Judge of the High Court. The Tribunal is empowered to confirm, set aside, vary or modify an award given by the Labor Court. The Tribunal has the power to punish or discharge a person for contempt of Court and for such proceedings it is deemed to be a High Court. However any person convicted and sentenced for contempt, is allowed to appeal to the High Court against the sentence.
' The order of the Tribunal is final and can only be challenged in the High Court by invoking the writ jurisdiction. No further appeal lies to any Court.
(III) NATIONAL INDUSTRIAL RELATIONS COMMISSION : The NIRC is a project of the Federal Government. The set up and functions of the Commission have been detailed in section 22-A of the I. R.0. The Commission has seven members including the chairman. The chairman is appointed from among the Judges of the High Court. One member of the Commission represents the employers and one represents industry-wise Trade Unions, to advise the chairman.
' The functions of the Commis3ion include the promotion and formation of the federation at the national level. A federation is a union whose membership extends to establishments in more than one provinces. The Commission also adjudicates and determines such industrial disputes where industry-wise Trade Union or a federation is a party.
' The Commission further performs the functions of the Registrar of Trade Unions, regarding Trade Unions which have membership in more than one province. The Commission in certain instances has the powers to punish and prevent unfair labor practices. Proceedings before the Commission cannot be initiated by individuals.1 ' The Commission deals with a lock-out and a strike at the behest of the Federal Government after such lock-out or a strike has been prohibited by the Government. But where the government did not prohibit a strike, and referred the matter to the Commission, and the Commission adjudicated on it, was held illegal and ultra ',fres by the High Court.2 ' No appeal lies against the order of the Commission, however writ jurisdiction of the High Court can be invoked by the aggrieved party, against the decision of the Commission.
NATIONAL LABOR RELATIONS BOARD ' The Wagner Act in 1935 created the N. L. R. B. As a non-partisan and a quasi-judicial agency. The Taft-Hartley Act, in 1947, brought about certain changes in the Board. It was expanded from three members to five members, to be appointed by the President of the States for a 5 year term.
' Among the functions of the Board is complete control over representation cases under section 9, N. L. R. A. Thus the Board has the authority to determine the size of the appropriate bargaining unit and the validity of the union election. Orders in representation cases are issued in one of the three manners: upon the consent of the parties (only if the parties' agreement is in conformity with the statute); after a hearing before a hearing officer or trial examiner; or after an administrative3 investigation. These orders vary widely in form and in content and in most of the cases are issued by the regional directors.3 ' The Board also has the power to adjudicate unfair Labor Practice cases under section 8. However in practice the office of the General Counsel investigates and prosecutes the unfair labor practice cases. The General Counsel is appointed by the President with the approval of the Senate and the Board has nothing to do with his appointment. In turn the General Counsel confers on the regional officer set up in major cities by the Board and the General Counsel, the tasks of investigating and prosecuting unfair Labor Practice cases. At present there are 33 regional offices and each office is headed by a regional director. In an unfair labor practice case, a charge is filed with the regional office within six months of the alleged wrong-doing. The charge is 3. On 15th May 1961, the Board under sections 3(b) of Landrum' Griffin Act, delegated some of its authority over representation matters to regional directors investigated by the field examiners of the regional office. The report of the field examiners is sent to the regional director who determines whether a complaint be issued or not. If he determines not to issue a complaint, then that decision is only appealable to the General Counsel whose decision in this regard is final. If the complaint is issued then the case is tried before an administrative law judge. The respondent files an answer and the hearing is conducted in accordance with the rules of evidence. If no exceptions to the decision of the Judge are filed, the Board endorses the decision. If exceptions are filed, the Board acting through a 3 member bench renders its decision.
' In election cases, election petitions are filed in the regional office, and after an investigation by the regional staff, a hearing is conducted by the hearing officer. However the regional director determines such things as the appropriate bargaining unit, voter eligibility and objections pertaining to the validity of the election. An appeal ties the Board against the decision of the regional director in this regard.
' The Board generally issues orders like the restoration of status quo, several kinds of bargaining orders, retroactive execution of the contract, make whole orders, orders to arbitrate, and hiring hall remedies. These orders are against the employers as well as employees. An order issued by the Board is not self-executing. To enforce a Board order, a petition is filed in the Federal Court of Appeals under section 10(E) of the Act.
' A review of the Board Order by an aggrieved party is provided under section 10(d) in the Federal Court of Appeals.
' Although the basic role of the Board is quasi-judicial, section 6 of the Act empowers the Board to make rules and regulations. The Supreme Court has upheld the quasi-legislative power of the Board.
CONCLUSION ' Unlike the United States, Pakistan has no national labor policy. Different labor policies have been adapted by different governments depending upon the ultimate object of the government.
Unfortunately inconsistent policies of the government led to frequent changes in labor- management relations laws. These frequent changes confused the Courts and left employers and workers uncertain. As a result in the last ten years the triangle of the labor Judiciary, employers and workers has generated considerable confusion.
' Pakistan is probably at the stage where the United States was at the time of the enactment of the Taft-Hartley Act in 1947. In America, unions commanded immense powers after the Wagner Act, 1935 and in Pakistan unions enjoyed similar powers after 1972. The source of power was of course different, but the results were about the same. The Wagner Act granted certain rights to the unions and limited the freedom of employers by law. On the other hand, the Industrial Relations Ordinance, tried to balance the rights of labor and managements, but the governmental policy of the previous regime used and encouraged labor not to work and demand more wages. I. Vaca v. Sipes, 386 U. S.4 5
171. 2. 73 LRRM 1017 (1969).
' Inevitably, the American labor got the Taft-Hartley Act, while Pakistani labor as well as the employers are waiting for the law to change in the light of the report of the First Labor Commission of Pakistan, appointed in 1978. The Labor Commission submitted its report to the government in 1979. The report is based on tons of material provided by the labor-management and independent sources. I sincerely hope that the new law would bring better understanding and respect between the labor and management.
' The present Government in order to increase productivity and lessen the chaos surrounding the Industrial Relations established a high-powered labour commission in 1978 to formulate the national Labor Policy. The Commission prepared a comprehensive questionnaire gnd invited comments, suggestions and advices from all walks of life who encircle the tricky area of labour management relations. Labor and management both were ably represented by their respective Spokesmen, and the net result was the report of the first Labor Commission of Pakistan in a surprisingly short time, which had blessings of all concerned. The report was submitted to the then Labor Minister in the first half of 1979. The report was to be made a basis for the new Labor Policy and the nation was assured of its announcement without delay. Inevitably the American Labor got the Taft-Hartley Act, while Pakistani Labor as well as the employers are waiting for the last eighteen months for the law to change in the light of the report of the First Labor Commission. I sincerely hope that the new law would bring better understanding and respect between the labor and the management.
1. Publisher's note : The author of this article is a practising attorney and a partner in the Law Firm "ATA ULLAH SAJJAID & CO.". He is also a part time Lecturer in Law at the University Law College and an Editor of P. L. C. Services were dispensed with, with immediate effect in pursuance of clause (o) of paragraph 2 of his letter of appointment, dated 27th May, 1976 and that he would be paid three months pay in lieu of notice. He was directed to relinquish the charge of the Deputy Manager (Admn.) on the same day (A. NO. 2, After submitting a grievance notice to the Chairman, dated 19th December, 1979, and as it was rejected, he approached the Commission with the present application under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952 praying for issue of directions that his removal from service in terms of conditions of appointment was illegal and that he may be reinstated with full back benefits.
3. Since no visible or ostensible reason for termination of the services of the applicant was apparent from the notice of termination or the written statement filed by the respondent, I directed Mr. Altaf Mahmud, Manager Personnel to appear and to produce the service record of the applicant. In compliance with my directions, Mr. Altaf Mahmud has come and has produced the service Record, which however, did not show precise reason for termination. However, on questioning him, as to what was the reason for termination of the employment of the applicant, he categorically stated that apart from the power to terminate the services contained in the letter of appointment, there was no other reason for his termination.
4. Section 5 of the Pakistan Essential Services (Maintenance) Act, 1952 provides that it is an offence for an employer to discontinue employment of any person engaged in the employment which has been declared to be an Essential Service under the said Act, without reasonable excuse. Mr. Kamal Mansur Alam, learned counsel for the respondent stated that the right conferred on the employer under letter of appointment to terminate the services by giving three months notice, is itself a reasonable excuse for discontinuing the employment and in this connection he referred to Explanation 2 to section 5 which allows the employee to terminate his employment in accordance with the terms of appointment on giving notice to his employer if the employer consents to the termination. I have considered this submission, but in my opinion, it has no force.
5. The object of making the employment of Pakistan Steel Mills Corporation, as essential employment under the Pakistan Essential Services (Maintenance) Act, 1952 is to provide for security of maintenance of supplies or services under section 3 (2) (b) of the Act. The Act imposes an obligation on the employer as well as on the employee. Neither employee can abandon his employment or absent himself from work without reasonable excuse, nor can the employer discontinue the employment of such persons without reasonable excuse. The reasonableness of an excuse is clearly justiciable by the Specified Authority, which in this case, is the Commission. The contravention of section 5 is a criminal , offence punishable with imprisonment and or fine under section 7 (1) of the Act. Although the Act does not provide for reinstatement of an employee, whose services have been discontinued without reasonable excuse in defiance of section 5 of the Act, the power of the Commission as Specified Authority, to regulate the conditions of service of such employees by ordering his re-instatement can be invoked. The same view was taken by Mr. Mamoon A. Kazi, former Senior Member of the Commission in Sultan Ahntad Geelani v. Karachi Electric Supply Corporation, Karachi in ease No, 18 (118)/76.
6. I am satisfied that respondent has failed to establish excuse, much less treasonable excuse' for terminating the services of the applicant, despite the provision in the letter of appointment entitling the employer to do so by giving notice. The order of termination of the services of the applicant is accordingly set aside. The respondent shall re-instate the applicant in service forthwith in the same post to which he was posted at the time of his termination. The question of payment of salary for the intervening period, since the termination of his services, shall be decided according to the Service Rules of the respondent-Corporation, if any. The application is accordingly allowed.
7. The above directions shall be sent to the Interior Division for Gazette Notification. SC (Pak.) 1957 L L C 666. Ibid. H. C. (Lab.) 1976 L L C 468 H. C. (Kar.) : 1974 L L C 322. H. C. (Lah.) : 1976 L L C 369.