1. MUHAMMAD HALEEM, ACTG. C. J.-These appeals, by special leave, arise from the judgment of the High Court of Sind dated 18th of April, 1979, by which Constitution Petitions Nos. D-183, D-368 and D- 369 of 1977 and D-34 of 1978 were dismissed.
2. The second respondent in Civil Appeal No. K-85 of 1979 was, pursuant to an agreement of service dated 6th of April, 1972, appointed as Data Processing Manager and was made incharge of the Computer Depart--ment at a monthly salary of Rs. 2,100 with usual allowances. His services were terminable under para. 9 of the agreement on a three months' notice in writing or three months' salary in lieu thereof on either side. On 27th of April, 1976, his serviced were terminated with immediate effect and he was offered three months, salary in lieu thereof. Feeling thus aggrieved, he filed an application before the first respondent in which he stated that his services were wrongly terminated and prayed therein that he should be re-instated. The first respondent took cognizance of his grievance and despite the objection by the appellant as to his jurisdiction to grant the relief, his prayer was allowed.
3. The second respondent in Civil Appeal No. K-86 of 1979 was employed as a Senior Checker in the Security Staff and posted at the relevant time at the Central Stores while the second respondent in Civil Appeal No. K-87 of 1979 was posted at the relevant time as incharge Inspection Branch, Stores Department. Both were found guilty of misconduct on an inquiry held against them for having misappropriated G.
1. Pipes and were accordingly dismissed from service on 23rd January, 1976.
4. The second respondent in Civil Appeal No. K-88 of 1977 was employed as Controller of Stores. He was entrusted with the duty to enquire about the misappropriation and pilferage of stores amounting to lakhs of rupees ; and while giving his evidence before the Enquiry Board, he retracted from his findings in the report in order to save the culprits. He was, thereupon, charge-sheeted and after an inquiry, dismissed from service, These three respondents also filed applica--tions before the first respondent and succeeded as they were ordered to be re-instated. The appellant, accordingly, filed the aforementioned Constitu--tional Petitions to challenge the orders of re- instatement of the first respondent in each of these appeals.
5. Before the High Court two objections were taken by the appellant. The first was that the Senior Member of the first respondent had no jurisdiction to order their re-instatement as the first respondent was not the "specified authority" under section 6(1) of the Pakistan Essential Service (Maintenance) Act, 1952, although it was not denied that the Chairman of the first respondent or any Member, duly authorised by him, fulfilled the definition of the term "specified authority" as provided under section 6(1) of the said Act. The second objection was that in any case the "specified authority" could only regulate the wages and other conditions of service of such respondents to whom this act applied. Therefore, the Member of the first- respondent, who otherwise had no power, could not order for their re-instatement.
6. The High Court relied on the direction dated 23rd December, 1978, issued by the Chairman of the first respondent relating to his power or any Member to whom it was delegated to hear any grievance in respect of any right, guaranteed to an employee 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 of service and consequently held that the Senior Member of the first respondent was empowered to adjudicate the dispute and re-instate the respondents, whose services were terminated. The High Court next held that the specified authority could examine the grievances in individual cases and redress them by issuing directions in that behalf. In other words it had the-,power to adjudicate while construing the words "regulate the wages". On the view thus taken, the High Court held against the appellant in these appeals.
7. Leave to .Appeal was granted to consider the nature and scope of the Rules of 1962 and further as to whether the first respondent had jurisdiction to entertain a petition for re-instatement as a "specified authority" and to redress the grievance under the Pakistan Essential Services (Maintenance) Act, 195.
8. It is common ground that section 6 of the Pakistan Essential Services (Maintenance) Act, 1952.- and the Rules of 1962 are self-contained and over--ride the provisions of the other enactments. In effect, therefore, the power to adjudicate, if any, flowed from these provisions of the Act. It would accordingly be appropriate 'here to reproduce sections-5 and 6 of the Pakistan Essential Services (Maintenance) Act, 1952, and rule 3(1) of the Rules of 1962 :- "5. (1) Any person engaged in any employment or class of employment to which this Act applies who-
(a) disobeys any lawful order given in the course of such employment, or attempts to persuade any person to disobey any such order or refuses to work to continue to work, whether or not acting in combina--tion with, or under a common understanding of, any other person engaged in such employment, or
(b) without reasonable excuse abandons such employm ent or absents himself from work, or
(c) departs from any ,area specified in an order under subsection (1) of section 4 without the consent of the authority making that order, and any employer of a person engaged in an employment or class of employment declared under section 3 to be an employment or -class of employment to which this Act applies, who without reasonable excuse -
(i) discontinues the employm ent of such person, or
(ii) by closing an establishment in which such person is engaged, causes the discontinuance of his employment, is guilty of an offence under this Act.
9. Explanation l.-The fact that a person apprehends that by continuing in his employment. He will be exposed to increased physical danger is not a reasonable excuse within the meaning of clause (b).
10. Explanation 2.-A person abandons his employment within the meaning of clause (b) who, notwithstanding that it is an express or implied term of his contract of employment that he may terminate his employ--ment on giving notice to his employer of his intention to do so, so terminates his employment without the previous consent of his employer.
(2) Whoever instigates or incites any person engaged in any employment or class of employment to which this Act applies to commit an offence under this Act, or knowingly expends or supplies any money or otherwise acts in furtherance of the commission of such an offence, shall be deemed to have committed that offence.
6. (1)-The Central Government may make rules regulating or empower--ing a specified authority to regulate the wages and other conditions of service of persons or of any class of persons engaged in any emp--loyment or class of employment declared under section 3 to be an employment or class of employment to which this Act applies.
(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.
11. Rule 3.-(1) The Central Labour Commissioner 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 stages and other conditions of service under sub---rule (1), the Central Labour Commissioner shall not-
(a) prescribe any terms or conditions without taking into consideration. The views of the employers of the persons concerned, gar the representa--tives 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 Central Labour Commissioner for that purpose ;
(b) prescribe any such terms or condition as may affect adversely the rights to which a person is entitled, immediate 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.
(3) All directions of the Central Labour Commissioner regulating wages and other conditions of service under sub-rule (1) shall If: published in the official Gazette.
12. The Pakistan Essential Services (Maintenance) Act, 1952, owes its origin to the Essential Services (Maintenance) Ordinance (I1 of 1941) which was enacted primarily for the object of securing the defence of "British India", the public safety, the maintenance of public order, the efficient prosecution of war and maintaining supplies or services necessary to the life of the community ; and section 3 of that Ordinance applied to all employment under the "Crown" and to any employment or class of employ--ment which the Central Government or a Provincial Government considered is essential to apply to such employment or class of employment. On expiry of this legislation it was re-enacted from time to time and finally it crystallized as "The Pakistan Services (Maintenance) Act, 1952" after partition. This legislation has, therefore, to be construed in the context of an emergency legislation where cessation of individual employment or class of employment is forbidden without a reasonable excuse having regard to its objects, namely, maintenance of certain essential services. Section 5 of the Act has reference to it. Section 6 provides for the making of the Rules to regulate the wages and other conditions of service. This power can also be delegated to the specified authority and any breach of the Rules or the directions given by the specified authority is punishable as an offence. No Rules were, however, framed until 1962 when by S. R. O. 42(R) dated 2nd of July, 1962, the Central Government framed the Rules. Rule 3(1) empowered the specified authority to regulate the wages and other conditions of service subject to the limitations imposed by sub-rule (2). Such directions of the specified authority were required to be published in the official Gazette. Reading the provisions of the enactment as a whole and taking into consideration the object of the legislation, the word "regulate" in section 6(I) and rule 3(1) has to be construed subject to it.
13. Further, it seems to me that section 5, as worded, puts an overall premium on the cessation of employment, and subsection (2) of section 6 of Act renders the employee or the employer liable to penal action punishable under section 7 for contravening any rule framed by the Central Government or a direction of the specified authority regulating wages or conditions o service of persons or any class of persons engaged in such employment. In Chambers Twentieth Century Dictionary at page 1138 this word is defined to mean, "to control, to adapt, or to adjust by rule". It is synonymous with the word "control" or "govern". Accordingly, in ordinary parlance it implies the right to prescribe and enforce all such proper and reasonable rules as may be deemed necessary and wholesome in conducting an avocation in a proper and orderly manner. This seems to be the proper meaning t be given to this word in the context of guideline as used in section 6(1) of the Act and rule 3(1) of the Rules of 1962. Section 6(l) itself authorises the Central Government to make rules regulating the wages and other conditions of service of persons or any class of persons or it can empowering the specified authority to do so. By thus empowering the specified authority assumes the same functions of making rules concerning wages and other condition of service. It does not further convey the power to the specified authority to adjudicate as is obvious from subsection (2) of section 6 which prescribes the penal action for the violation of the Rules framed or the directions given by the specified authority. In the context of the. Language B of this subsection, the word "regulate" in rule 3(1) could not also b construed to include within its ambit the power to adjudicate a dispute between the employer and the employee for it cannot travel beyond the scope of section 6. If the framers intended to saddle the specified authority with this power then there - would not have been a provision for penal action for the violation of either a rule or a direction. It is also impossible to construe the word "adjudicate" as well by necessary intendment in the absence of- any words to lead to such an inference in section 6 itself. The words "any person" in subsection (2) of section 6 further clinches this interpretation as it is he, either an employer or an employee, who, if he fails to' comply, is liable for penal action ; and as to who should determine it, it can only be one of them as the case may be, for there is nothing in this section to lead to the inference that it is the specified authority who can determine as to whether any person has failed to comply with any rule or direction so as to render him liable to penal action. The onus of disproving such violation is also on the person who violates any rule or direction. This is obvious from section 7(2) and by section 7(3), it is not the specified authority who can lodge a complaint but a servant of any government in Pakistan authorised in this behalf by the Central Government which provision again militates against his power to determine the violation of the rule or direction.
14. In conclusion, therefore, the power to regulate the wages and condition of service and the violation of the Rules or directions are distinct for in the former the specified authority is merely enjoined to determine the wages and other conditions of service by issuing directions while the violations are dealt with as entailing penal consequences. It would, accordingly, approve the unreported judgment of the High Court of Sind in Constitutional Petition No. 146 of 1980 (Pakistan Electrical and Mechanical Constructors Limited v. The Chairman, N. I. R. C. And another) in which the word "regulate" has been construed as not to include adjudication of a dispute by the specified authority.
15. In General Manager, Heavy Mechanical Complex, Taxilla v. Mr. Maroon A. Qazi, Senior Member, N. I.
16. R. C., Islamabad (1) the' judgment turns on the absence of, a regulation in regard to the resolving of a dispute by particular forum but the effect of section 6(2) has not been considered which, read with section 7 of the Act, provides a forum for the violation of a rule D or direction. Accordingly, no extended meaning could be given to the word "regulate" vis-a-vis the provision of a forum in the context of a statutory forum already provided by the Act.
17. In Messrs Indus River Contractors, Tarbela v. Mr. Aziz Ahmad, Member,, N. I. R. C. And another (2) the High Court held that by implication the. Specified authority ~ the subsidiary power of doing all necessary acts to enforce what is laid, down, in the Rules and Regulations. But this conclusion fails to take into' consideration that where a statute .Provides a forum for dealing with the Violation no other authority can be a substitute -for it, the g moreso when the Act is an emergency legislation and has taken care to exclude the application of other, laws which provide a forum for resolving the dispute between the employer and the employee, arising from the violation of the terms and conditions of service.
18. It is nobody's case that the specified authority had issued directions in regard to the wages or the terms and conditions of service of persons or class of persons serving as employees of the appellant. The High Court nonetheless relied on the Notification No. S. R. O. 97(1)-79 dated 27th of January, 1979, prescribing conditions of service of all persons engaged in any employment or class of employment to which this Act applied for the
(1) PLD 1977 Lab. 998 (2) PLD 1980 Pesh. 216 resolving of disputes arising from retrenchment, discharge, dismissal or termination from service, which was later withdrawn. The High Court failed to notice that apart from its legality, it bad no application to the cases of the respondents which were decided before the issuance of this Notification. Further, in view of the above discussion, I am of the opinion that such provision of a forum was ultra vires the power of the specified authority as F the word "regulate" could not be construed to provide a forum in contravention of the provisions of sections 5 and 6(2) of the Act.
19. Mr. Talmiz Burney, on behalf of the second respondents, contended that despite the absence of the direction, the word "regulate", as it occurs in the provisions under discussion, empowers the specified authority to resolve the dispute in regard to the termination of service, but this contention has no substance in view of what I have held above in regard to its interpretation in the light of the provisions of this Act.
20. Section 5 dealt with the cessation of employment either at the behest of the employer or the employee. It would thus include termination of service according to the terms and conditions, discharge, dismissal, absence o abandonment and retrenchment. The direction issued in terms of rule 3(2) (d concerning the termination of employment will also be covered in view o the wide and all embracing language of this section. Any discontinuance o employment has necessarily to be judged from the test laid down in the section, namely, that it was "without reasonable excuse".
21. Therefore, if the respondents felt aggrieved either by their termination of service or dismissal, they should have taken steps to institute the proceedings as provided b section 7 and in that, event it would have been open to the Court to determining as to whether the termination, according to the terms and conditions o service, or by way of dismissal or discharge, was without lawful excuse or not as the expression "without reasonable excuse" signifies an excuse which is not lawful.
22. In the result, therefore, I would hold that the High Court was in error in holding that the specified authority could decide the question in regard to the termination of service of the respondents and allow the appeals with costs. The impugned judgment of the High Court is set aside and the writs issued are recalled.