ABDUL HAYEE KURESHI , J.-The present appeal under section 3(2) of the Law Reforms Ordinance, 1972 has been filed by Messrs Pakistan Burmah Shell Limited to impugn a judgment of the learned Single Judge dated 25-5-1976 in Constitutional Petition No. 609/74. The said petition was filed by the appellant to challenge an order of the respondent, namely Central Labour Commissioner where four respondents Nos. 3 to 6, namely, Babu, Muhammad Sadiq, Ghulam Mir, Din Muhammad, who are the employees of the present appellant were ordered to be re-instated in service. We have heard Mr. Syed Sharifuddin Pirzada and Mr. Salim Akhtar for the appellant and Mr. Nasir Aslam Zahid for the respondent.
2. The brief facts of the case are that respondents Nos. 3 to 6 were employed by the appellant who carries on the business of Petroleum and Petroleum Products. By an arrangement of the employers and employees a provident fund scheme was devised which necessitated making of a declaration by the employees in regard to the dates of their birth. Each one of the respondent-employees had disclosed their age which was in--corporated in their books maintained under the Employment (Record of Service) Act, 1952, and the rules framed thereunder. On the basis of their declaration the appellant had notified the respondents Nos. 3 to 6 about such dates on which they would attain their superannuity age. It seems the respondents challenged such communication on the premises that the entries in the service books were incorrect. The respondents moved the Central Labour Commissioner (respondent No. 1) for relief and the said Commis--sioner extended such relief in favour of the respondents by determining their age. A final order was passed by the said Commissioner directing reinstate--ment of the respondent employees in service. Such order was also published in accordance with the rules framed under the Essential Services (Maintenance)
Act, 1952.
3. It is necessary to state that employment in concerns dealing with Petroleum and Petroleum Products have been notified in accordance with the provisions of section 3 of the Essential Services (Maintenance) Act, 1952.
4. When this appeal came up for hearing before the Division Bench of this Court Mr. Sharifuddin Pirzada pointed out several judgments of this Court as also a judgment of the Lahore High Court and averred that there was conflict of authority on the point of application of the provisions contained in sections 3, 6 and 7-A of the Essential Services (Maintenance) Act, 1952 and the Rules framed thereunder. To put it clearly the point that was raised by Mr. Sharifuddin Pirzada was that the word "regulate" contained in section 6 of the said Act did not mean determination of disputes or individual grievances of the employees working in the concerns to which the provisions of Essential Services (Maintenance) Act, 1952 were extended. On such point there was an obvious conflict in decision that the Division Bench formulated two points on which Constitution of a Full Bench was requested. The said two points are the following :- "(1) Whether the provisions of all other enactments cease to apply to an employment or class of employment as soon as the notification is issued by the Central Government under section 3 of the Act to such employment or class of employment or the inapplicability of the provisions of the other Act is only to the extent of inconsistency between the provisions of the other Acts and Pakistan Essential Services (Maintenance) Act, 1952, and the actual `Regulation of wages and other terms and conditions of the services' under the Act ?
(ii) What is the effect of introduction of section 7-A in the Act on other laws and to what extent the applicability of the provisions of the other Acts is affected by extension of the provisions of the Act to an employment or class of employment ? '
The learned Chief Justice agreed with the view expressed by the Division Bench and referred the questions for- determination of the Full Bench.
5. At the time of hearing of the case by the Full Bench Mr. Sharifud--din Pirzada bad requested that a third question may also be framed to the following effect :-- "Whether the Commissioner can adjudicate an industrial dispute ?"
Mr. Nasir Aslam Zahid did not object to the framing of this third question. Mr. Sharifuddin Pirzada has, however, pointed out the case of Bakhshi Rustom Ali v. Province of West Punjab (PLD 1960 Lah.
957to contend that the Full Bench has the powers to add to or amend the original questions referred to the Full Bench. In that case from Lahore the Full Bench in order to correctly identify and particularise the problem observed that in fact the question referred to the Full Bench should have been in a different form. The question referred was then substituted by another question to create a proper focus for the scope of enquiry by the Full Bench. Mr. Sharifuvuin Pirzada has also pointed out the case of Farid Khan v. The State (PLD 1965 Pesh. 31). In this case Anwar--ul Haq, J. (as he then was) observed as follows :- "We consider, however, that the question referred to us by the learned Single Judge is not the only question which needs consideration in this case, and that by answering this question alone the controversy is not finally resolved. The question has still to be answered as to how the cases of convicts sentenced to transportation for life before the issue of Provincial Government's memorandum of the 22nd day of May, 1961 are to be regulated. In view of the fact that there is already a Division Bench decision in the field, the correctness of which is being challenged, it would be appropriate if the entire matter is dealt with by this Full Bench."
On such position the Full Bench took the view that it would be appropriate if the entire matter was dealt with by the Full Bench and the Bench indeed did proceed to consider even the other contentions which were raised before it.
6. The power of a Full Bench to amend or add to the question referred for its opinion is without doubt available. The only limitation perhaps would be that the new question should also be relateable to the issues involved in the main case referred to the Full Bench. If the new question is also relateable to the existing issues before Full Bench it would only be proper if the new question is determined so that the entire controversy is disposed of. We have, therefore, decided to determine the new question which has been proposed for determination by Mr. Sharifuddin Pirzada.
7. In fact that entire controversy in this case centres around the scope of powers of the Central Labour Commissioner in matters involving or requiring adjudication of an industrial dispute between the employee and employer. On the answer to this question would depend the result of the main appeal itself because there is no other controversy in the case on the shoving of counsel on either side. We are conscious that on a reference to the Full Bench, normally such Bench expresses an opinion and leaves the making of the final order to the Bench which would ordinarily deal with cases of the said type. In this case, however, the position is different because the only point is in regard to the powers of the Central Labour Commissioner to adjudicate an industrial dispute so that if the opinion of the Full Bench is expressed hardly anything would then remain for decision by the Division Bench. In this particular appeal the opinion of the Full Bench would completely dispose of the appeal itself. In such circumstances we have thought it proper to dispose of the main appeal itself so that unnecessary duplication work is avoided. '
8. For the purpose of brevity we propose to refer the Essential Services (Maintenance) Act, 1952 as "the Act" and the Industrial Relations Ordinance, 1969 as "the Ordinance", Central Labour Commissioner as "the Commis--sioner", respondents Nos. 3 to 6 as "the employees" and appellant Pakistan Burmah Shell as "the Employer".
9. In order to appreciate the scope of this case it is necessary to detail the history of some relevant statutes. As early as in 1941, viz. During the Second World War Ordinance known as Essential Services (Maintenance) Ordinance, 1941 was promulgated presumably with the intention to curb strikes and lock-outs for the necessity of keeping the wheels moving so that war effort was not retarded. It seems this Ordinance was kept alive on the statute book until 1952 by which time the Indian Sub-continent was divided into two different countries. In 1952 Essential Services (Maintenance) Act was enacted and by sectionof the said Act the earlier Ordinance of 1941 was repealed. The obvious purpose of the new enactment was to replace the old Ordinance which was temporary legislation by an enactment having the characteristic of permanency. It may be pointed out that earlier to 1.971 there was no enactment that identified or provided s6ttling industrial disputes as such, save the Trade Unions Act of 1926 or Trade Disputes Act, 1929. The Trade Unions Act, 1926 only provided for the registration and recognition of Trade Unions, rights and liabilities of registered Trade Unions, elections of officers of the Trade Unions, and matter ancillary thereto. Chapter...... Of that Act however defined unfair labour practices and unfair practices of the employer. An Industrial Court was established but its main. Function was to determine the question regarding the recognition of Trade Union by the employer. In short no machinery was provided for redress of individual grievances of workers. Some offences were created which were triable by the Courts of Magistrate. Subsequently, of course, Industrial Disputes Act was enacted in 1947 and Industrial Relations Ordinance in 1969. These two statutes more or less provide a fuller compendium of rights and liabilities of employers and employees, the venue and method of redress of grievances, either of the employer or the employee, registration of Unions, Collective Bargaining Agents, etc.
10. The Act was enacted on 14-12-1952 and it has undergone many amendments. For the purpose of this the relevant provisions, viz. Sections 3, 6 and 7-A are reproduced hereinbelow;-- "3.-(1) This Act shall apply to every employee under the Central Government, and subject to the provisions of subsection (2), to any employment or class of employment which the Central Government may, by notification in the official Gazette, declare to be an employ--ment or class of employment to which this Act applies.
(2) No declaration under subsection (1) shall be made in respect of any employment or class of employment unless the Central Government is of opinion that such employment or class of employment is essential-
(a) far securing the defence or the security of Pakistan or any part thereof ;
(b) for the maintenance of such supplies services as relate to any of the matters with respect to which the (Central Legislature has power to make laws and are essential to the life of the community.
(3) A declaration under subsection (1) shall remain in force for a period of six months which the Central Government may, by notification in the official Gazette, extend for further period not exceed--ing six months at any time."
6.-(1) The Central Government may make rules regulating or em--powering 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 applies.
(7) When any such rules have been made or when any directions regulating wages of conditions of service have been given by any authority empowered by such rules to give them, any person failing to comply therewith is guilty of an offence under this Act.
7-A. The provisions of this Act shall have effect notwithstanding anything to the contrary contained in the Trade Unions Act, 1926 or Industrial Disputes Ordinance, 1959, or any other law."
The three sections quoted above, as these stand today, were either subs--tituted for the original provisions of the Act by Essential Services Maintenance (Adaptation) Order, 1956 (P. O. 13 of 1956) or Pakistan Essential Services (Maintenance) Ordinance, 1965 (Ordinance V of 1965). Section 8 of the Act defines the employment or class of employment to which the Act was made applicable. This Act applies to all employments under the Federal Government or to such employment, be it of a Government statutory body or even private employer, to which the provisions of the Act were made applicable by a notification. It may at this stage be stated that the employment in concerns dealing with distribu--tion of petroleum products have been duly notified for the purpose of the Act. There is no dispute on that point. Section 6 of the Act provides for a power to the Federal Government to make rules regulating the wages and other conditions of service of persons or any class of persons to whom the Act by virtue of notification under section 3 is made applicable. This section also provides for a power to the Federal Government to appointment a "specified person" to perform the functions of regulating the wages and other conditions of service of persons to whom the Act is made applicable. Subsection (2) of section 6 again provides for prosecution of such persons who violate the directions either of the Federal Government or the person authorised by it in matters of wages and conditions of services. Section 7-A is in the nature of an ouster provision. It provides that notwithstanding the provisions contained in Trade Unions Act, 1926 or Trade Disputes Act, 1929 or any other Act, the provisions of the Act shall have effect. It would thus seem that in the matter of wages or conditions of service of persons to whom the provisions of the Act are extended all other enactments including the Indt4strial Relations Ordinance, Workmen's Compensation Act, Pay--ment of Wages Act, Trade Unions Act, and a host of other enactments in the field, relating to wages and conditions of services would have no application. To identify the problem in :he instant case the sole point is whether a person to whom the provision of the Act apply can in any matter whatsoever approach any authority statutory, or otherwise save the Federal Government or the person specified under section 6 for redress of his grievances. To put the question in a narrower compass whether the Federal Government or the person specified by or under section 6 of the Act has the power to redress all or any of the grievances of employees to the exclusion of all other functionaries under the various statutes.
11. At this stage it is first of all necessary to determine the mode o the. Principles which should be called in aid for the purpose of interpretation of the provisions of the Act. The Act is declaratory and penal by its very nature. It has a purpose, besides others of depriving the remedy which is available to all other employers or employees, viz. Moving the Labour Court or other institutions in such matters as fall within its ambit or the rules framed thereunder. In a way it would be said that the Industrial Relations Ordinance which has all the characteristics of a beneficial statute is also - sought to be ousted in some respects. The nature of the provisions of the Act was considered by Shafi-ur-Rehman, J as Judge of Lahore High Court in the case of General Manager, Heavy Mechanical Complex v. Mr. Bashir Malik PLD 1977 Lab. 982. No doubt this judgment has been overruled by an other judgment of the Division Bench of the Lahore High Court in the case reported in the same volume at page 998, but as far as the enuniciation of the principles of interpretation propounded by Shafi-ur---Rehman, J. Are concerned the Division Bench that overruled the decision did not differ from the view of Shafi-ur-Rehman, J. In the judgment of Shafi-ur-Rehman, J.
At page 989 of the report reliance was placed on the text book "Statutory Law" Sedgwick (Second Edition) at page 287 and the following passage appearing in the book of the author was quoted with approval "The more correct version of the doctrine appears to be that statutes of this class or to be fairly construed and faithfully applied according to the intent of the Legislature, without unwarrantable severity on the one and or unjustifiable leniency on the other, in cases of doubt the Court inclining to mercy."
Shafi-ur-Rehman, J. Called the Act a penal statute so that it required to be strictly construed. The learned Judge, however, pointed out that strict construction is not the exact converse of liberal construction nor does it imply that the words should be given the narrowest meaning in fact as is the concept understood whenever strict construction is demanded in interpretation of statute it only means that something which is not with the letter as well as spirit of the law cannot be read into it unless the intention of the Legislature to have used such other words is manifest. In the discussion a reference is also made to the judgment of the Supreme Court in the case of Pakistan Tobacco Company Limited v. Pakistan Tobacco Company Employees' Union and others PLD 1961 SC 402At page 424 of the report appears the view of Hamood-ur---Rehman, J. (as his Lordship then was) in the same context. His Lordship was considering the provisions of the Industrial Disputes Act. That Act provided for a separate machinery and different normal relation to the otherwise full right of the employer to "hire and fire" the employees. In such context the learned Judge observed that the Industrial Disputes Act, drastically abridged or curtailed the right of an employer under the general law of the land in the matter of relationship of master and servant. 1n the view of his Lordship such an Act has "to be construed with reasonable strictness and not be given a meaning wider than the words used will justify when read together with the other provisions of the statute keeping in view its scheme and purpose". On the basis of these principles the conclusion has to be that the provisions of the Act have to be construed strictly but if a doubt arises in regard to the meaning or import of any provision then such interpretation should be accepted which would be in favour of the employer on the process that the Act is legislation in derogation of the right of the employer to lay down the terms and conditions of service and also fix the wages of his employees.
12. In the light of the above principles of interpretation it is proposed to examine the import of section 6 of the Act from the angle whether the Commissioner could adjudicate the dispute between the employer and the employees in regard to the employees having attained the age of retirement. Section 6 provides for general legislation on the subject by the- Federal Government.
Such legislation to be undertaken by framing rules. The same section also delegates powers to "the specified authority" in the matter of regulation of wages and other conditions of service of the employees. Such specified authority for the purpose of this case is the Commissioner but by more recent appointment the powers have been conferred on the National Industrial Relations Commission which is a body owing existence to the provisions of Industrial Relations Ordinance.
The rules framed by the Federal Government or any document regulating the wages and other conditions of the services. Therefore, or legislative in character. The tam have necessarily to be termed legislative functions as the effect on such rules or other directions, be the same issued by the Federal Government or the specified authority would have all the characteristics of law in the matter of wages and conditions of services of the employees in concerns to which the Act is made applicable. What is more is that the rules framed in pursuance of the provisions of section 6 of the Act have to be published in the Gazette.
13. The. Point that now requires consideration is whether the Act or the Rules framed by the Government or any other document, be it termed regulation or by any other name, provides for a power to the Commissioner to adjudicate in regard to dispute arising between the employers and employees in relation to their wages or terms and conditions of service by application of such rules or regulations. In this context it is necessary to reviewthe case-law on the subject. This exercise is undertaken for two purposes---to understand the scope of the word "regulate" and to find if any scheme or modalities have been devised by the Government or the Commissioner for adjudication of dispute. The first case in point is of Syed Manzoor Ali Rizvi v. National Bank of Pakistan 1973.P I, C 94In this case an industrial dispute had risen between the, employee and the employer and conciliation proceedings were commenced under section 5 of the Industrial Disputes Ordinance of 1959: Such proceeding bore no fruit so that a certificate was given to such effect. . The point was raised that section 7-A of the Act had barr6d the jurisdiction of the industrial Court. The learned Judge considered the provi--sions of the Act together with the rules and came to the conclusion that the same constituted a method for settling industrial disputes and such method was different from the method prescribed by the Industrial Disputes Ordinance. The learned Judge further observed that the fact of issuing of a certificate to the effect of failure of conciliation did not necessarily confer any jurisdiction on the Industrial Court if the jurisdiction was otherwise ousted under section 7-A of the Act. In fact the learned Judge held that as soon as the Act was extended to any employment the result was total exclusion of the applicability of the Industrial Disputes Ordinance and the Labour Court stood divested of its jurisdiction to entertain disputes of the nature of industrial disputes. The next case was the case of Employees' Union v. Pakistan Machine Tool Factory 1974 PLC 201. The learned Judge considered the incidence of contemporaneous existence of a general Act and a special Act and came to the conclusion that while two such enactments were in the legislative field, the provisions of the special Act would always override the provisions of the general Act. In such context the learned Judge took the view that the Act also regulated the procedure for setthing disputes besides affecting the rights of the employer and the workman. It would be profitable to reproduce the relevant passage appearing at page 205 of the report which reads as follows :- "The scheme of the Act and the rules framed thereunder is that the grievances of the workmen and industrial disputes between the employer and the workmen were to be attended to, by the Central Labour Commissioner who had a final say in the matter. It is true that it provided no right of appeal and whittled down many other rights. But it does constitute a method for settling the industrial disputes, though different from the one under the Ordinances referred to above. The two methods are mutually inconsistent and, therefore, the one prescribed under the Act and the rules, has prevail. The said Act not only regulates the procedure for setting the dispute but also affects the rights of the employer and the workmen by virtue of Notification in question."
It may be stated that the case of Manzoor Ali was referred to in this judgment and agreement was expressed. It may also be noticed that the words "conditions of service" appearing in section 6 of the Act were construed by the learned Judge as embracing questions not only relating .To employment or non-employment or the terms of employment of any person,but also the jurisdiction to regulate the wages and other conditions of service, as vesting in the "specified authority". The next case in point is that of General Manager, Heavy Mechanical Complex v. Bashir Ahmad Malik. This decision was overruled on appeal and the Appellate Judgment appears at page 998 in the same Volume. Reference is, however, being made to this judgment in order to appreciate the process of reasoning adopted by the learned Judge. The learned Judge took notice of the fact that two authorities existed, apparently equally competent and therefore, if ascendancy of one authority over the other is manifest the supersession of the other authority follows by natural implication. On such premises the learned Judge held that jurisdiction of Labour Courts stood ousted in respect of such matters as were .Within the domain of powers of the specified authority.
In regardto the scope of powers of the specified authority the learned Judge expressed as follows;- - "The directions can be on specific matters as well as on general policy matters. The directions can relate to an individual as well as to a class or to an establishment. Therefore, no such limitation can be inferred where the mode of exercise of this regulatory power is by issuing directions. What actually is an important and a distinctive feature of the Act is the subject-matter of the content of the regulatory power. It is in this case the wages and the conditions of service. These do include the minutest detail and every item assimilable to wages or the terms of employment. Therefore not only the mode in which the regulatory powers is required to be exercised but also the matters in respect of which it can be exercised lend support to the conclusion that it may relate to every item individual or collective, particular or general, the only limitation being that it should be wages or conditions of service. In determining the meaning of `regulating' the manner, and the matters in respect of which such power is required to be exercised must necessarily be kept in view."
14. On a reading of the judgment one cannot loss sight of the fact that the learned Judge also surveyed what is termed departmental practice and the considered various judicial pronouncements in regard to the force of such practices. The cases of National Bank of Pakistan Staff Union v. National Bank of Pakistan, Karachi (1968 PLC 51and of Karachi Port Trust Labour Union v. Karachi Port Trust (1968 PLC 76were specifically referred to. In that context reference may be made to the case of Bashir Ahmad Khan v. Mahmood Ali Khan Chaudhry (PLD 1960 SC 195a case from the Supreme Court of Pakistan. On a concession of the Attorney-General of Pakistan and all counsel appearing the binding force of departmental practices was summed up by Cornelius, J.
(as he then was) in the following words :- "It may be conceded that the sources from which these opinions were obtained were competent, by reason of their experience, to express them. Yet these opinions are clearly not binding upon a Court which is required to interpret the rule and stands today although they may be called in aid for the purpose of reaching a proper interpretation."
In another case from the Supreme Court, Koh-i-Noor Company Ltd. v. Sind Employees' Social Security Institution (PLD 1977 SC 197an argument was raised on the basis of departmental practice having binding force but the Supreme Court by reference to its previous judgment held the argument to be untenable because departmental consideration of a Statute though relevant is not binding on the Court. Even in the case of United Nether-land Navigation Company v. The Commissioner of Income-tax PLD1965SC412), some departmental instructions issued by the Central Board of Revenue were cited before the Supreme Court and such instructions being found to be in accord with the view of the Court, Kaikaus, J. Observed that "it is true that instructions have no legal force, but it does tell us the interpretation which the Department has itself accepted" It would thus seem that aid of Departmental practice is. Hardly an aid in judicial interpretation although the Court might take notice of the interpretation put on the provisions of law in dealing with cases as departmental level.
15. The next case to which a reference may be made is that of Karachi Electric Supply Corporation v. National Industrial Relations Commissions (PLD 1980 Kar.269This case was decided by a Division Bench and the learned Judge made a reference to the case of General Manager, Heavy Mechanical Complex v. Bashir Ahmad Malik and also to the Division Beach judgment in the Intra--- Court Appeal. The learned Judges in paragraph 8 of the judgment considered the question of extent and scope of the direction that could be issued by the specified authority for regulating the wages and conditions of service as also the question whether the specified authority could only issue general regulations as distinct from examining the grievances in individual cases. The point was resolved by stating that in a dispute between the employer and the employee in respect of the service to which the Act applies, grievances could be redressed by issuing directions in that behalf.
The next case that merits consideration is that of A. Javed v. National Industrial Relation Commission (PLD 1978 Kar. 64which is a Division Bench Judgment. In this case apparent conflict between the Act and the Ordinance was considered by the Bench. The question related to formation and registration of Trade Unions. The learned Judge of the Bench on comparison of the two Statutes came to the conclusion that the objects underlying the enactment of the Ordinance were much wider and materially different from the objects underlying the Act. There can be no doubt that Trade Unions or like bodies have been instituted listed for the purpose of canvassing the rights of workman in relation to their wage or conditions of service. The learned Judge on finding that the Act did not contain any provisions relating to the rights liabilities, etc. Of Trade Unions came to the conclusion that in absence of any overlapping between the Ordinance and the Act the provisions of the Ordinance should be given effect to. It would imply that the Bench was not pursuaded to take the view that on a notification under section 3 of the Act being issued in respect of any class of service the total jurisdiction of the Industrial Court or the Labour Court stood ousted.
The departure is indeed marked. There can be no two opinions that Trade Unions and Collective Bargaining Agents tire bodies recognised for adjudication in matters of wages or terms of service of employees. The learned Judges summed up their conclusion at page 76 of the report in the following mode-- "On a careful comparison of the respective provisions in the said Act and in the said Ordinance in regard to the powers, functions and liabilities of registered Trade Unions. We are of the considered opinion that except in regard to matters relating to strikes, giving notices of strike, disobedience of lawful orders given to employees in the course of their employment, absenting themselves from work, departing by employees from any area where they are required to reside by an order issued under the said Act and in regard to any employee in respect of whom rules regulating their wages and conditions of service have been framed under section 6 of the said Act, the two statutes do not overlap and are not inconsistent with each other, the said Ordinance confers a number of other rights and privileges upon and makes provision for their performance of several other functions by and the liabilities of, registered Trade Unions.
These other matters in our view, are not affected by the provisions of 'the said Act, and, consequently, be performed by registered Trade Unions even where the provisions of the said Act are made applicable to their members."
It would, however, appear that the Division Bench held that in cases where rules have been framed under section 6 of the Act in relation of wages and conditions of service the provisions of the Act and the Ordinance overlap, the provisions of the Act would prevail. The learned Judge who wrote the judgment on behalf of the Division Bench in the case of A. Javed decided case, namely Pakistan Burmah Shell v. Sind Labour Court PLD 1978 Kar. 109while sitting singly. In the case the learned Judge while sitting singly again observed that since the Act had made certain provisions in regard to the termination of service of a workman, such workman, for the reason of the Act having been made applicable to his service, can have resort only to the provisions of the said Act and not to the provisions of any other law dealing with the same matter. The earlier decision in the case of A. Javed was noticed by the learned Judge and it had been stated by the learned Judge that the provisions of the Act and the Ordinance were different and it was only in cases when the enactments overlap that there would be an in--consistency. It would be seen that there was a marked departure in the latter judgment of the learned Judge sitting single as from the earlier Division Bench judgment wherein it was expressed that unless there was overlapping between the Act and the Ordinance the jurisdiction of the respective functionaries under the Act and the Ordinance would stand preserved.
16. We will now examine some cases in which contrary view has been taken. One of such cases is that of A. Javed to which reference has already been made. The judgment of the learned Single Judge in the case of General Manager, A. v. Mechanical Complex, was overruled by the Division Bench in the Intra Court Appeal. The judgment of the appellate Bench is reported in the same Volume at page 998. The Division Bench by reference to dictionary meaning of the word "regulate" examined the concept of that word. They came to the conclusion that the power to regulate meant a power to issuance of regulations, rules, bye-laws, precepts, instructions or directions of general nature but do not envelope the power to settle any dispute that may arise in pursuance or application of such regulations, etc. Nor does such power to regulate imply a power to lay down a procedure for settling any such dispute. In such context it was observed as follows:- "A perusal of the case-law and the meaning of word `regulate' given above, would show that the power to regulate relates to issuance of regulations, rules, bye-laws, precepts, instructions or directions, which are general in nature and not only prescribe with precision the subject-matter with the necessary details but may also lay down a procedure for settling any dispute that may arise in pursuance thereof. These regulations would fix the rights and liabilities of the concerned parties and it would be their violations or a dispute thereunder that would have to be settled in their light. The existence of the terms and conditions is thus necessary before there could be any dispute or its settlement. In the present case the regulations could be on the pattern as laid down in the rules or standing orders for the labour or other employees, informing the employees and the employers of their rights and obligations. They could also lay down a procedure for the redress of any grievance that might arise in enforcing the right and obligations. Under section 3 (2)(b) the previous terms and conditions have been guaranteed as the specified authority cannot alter those terms to the disadvantage of an employee. The provisions of West Pakistan Standing Orders Ordinance which contain these terms were applicable to the respondents and they provide a forum for redress of any grievance that may arise thereunder. The specified authority, if it wanted to change the forum or terms and conditions of the should have framed regulations in the light of rule 3(2),,respondents, but admittedly nothing thereunder has been-done. Respondent No. 1 acted as a forum in place of Labour Court. The observations made by the learned Single Judge that the provisions under discussion dealt with `directions' and not rules the promulgation of which required certain formalities, e. g. publication in a Government Gazette, is very sound as the rules could be made only by the Central Government the specified authority could issue regulations and the same could relate to an individual as well as to a class or to an establishment but this could be done as a matter of general policy and not by way of settling a particular controversy. The rules, regulations, bye-laws, etc. Come first and their enforcement or the resolution of disputes thereunder comes later."
The other case in point is that of Chairman, Water & Power Develop--ment Authority v. Punjab Labour. Court 1976 PLC 749. The employee in this case had been charge-sheeted and his service was terminated so that he moved an application under section 34 of the Ordinance. It was contended on behalf of the employer that section '7-A of the Act totally ousted the jurisdiction ofthe Labour Court. The learned Judge observed that the mere fact of ice in the WAPDA being covered by the notification issued under sere section 3 of the Act does not necessarily result in the Labour Court being barred from entertaining applications under section 34 of the Ordinance. The learned Judge proceeded further to observe as follows:- "Under the provisions of the Pakistan Essential Services (Maintenance) Act, 1952, certain penalties are prescribed against the disobedience of any lawful order issued in the course of employment for abandoning employment, departing from certain specified area by persons engaging in certain employment and violation of rules regulating the wages and conditions of service. But these provisions have nothing to do with the termination of service by the employer against the employee."
The bar created by section 7-A of the act was held to be not applicable.
17. Having detailed the impact of the several conflicting judgments the question needs to be determined by relation to the scope of the word "regulate" and also to see whether section 7-A of the Act operates as a ` complete bar to adjudication even of individual grievances or industrial disputes. The word "regulate" is not defined in the Act. The true import and meaning of this word has, therefore, to be determined by reference to dictionaries as also by reference to the rules framed by the Federal Govern--ment. Such rules would indicate how the Federal Government has interpreted this word. Although the Act was promulgated in 1952, rules were for the :first time framed on 2-7-62 by notification Bearing No. S. R. O. 42 (R) rate s its relevant for the purpose and the same is hereinbelow produced:- "3.-(1) The Centra 1 Labour Commissioner is hereby empoweredregulate, 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 Central Labour Commissioner shall not-
(a) prescribe any terms or conditions without taking into consideration the views of the employers of the persons concerned, or 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 the 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 Central Government, the wages or allowances of any person 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 be published in the official Gazette."
Sub-rule (1) of rule 3 is more or less a. Paraphrase of section 6 of the Act, sub-rule (2) is couched in negative language and provides for a power to the Commissioner to regulate the wages and other conditions of service subject to some acts being done by him an incident to the actual regulating of the wages and other conditions of service. Clauses (a) and (b) of this sub-rule provide for a power to the Commissioner to prescribe terms and conditions of service but only after obtaining the views of the employer or persons whose terms and conditions are regulated. Sub-rule (b) states that the Commissioner cannot prescribe any such terms or conditions which adversely affect the right to which a person is entitled before the enactment of the rules of 1962, whether by virtue of any law or under the terms of any award. Or contract between the employer and employee. Sub-rule (1) again provide that the Commissioner cannot specify any condition in regard to the termina--tion of employment of any person except after obtaining the previous sanction of the Central Government. The reading of these rules would seem to indicate that the power conferred by sub-rule (2) of rule 3 relates only t to the doing of an act touching generally the terms and conditions of service of a class or category of persons. Additionally the reading of these rules does not even by implication confer a power to the Commissioner to settle individual grievances. To amplify this statement the present case provides 'a very apt illustration. It is common ground between the parties that the age of retirement of the respondents Nos. 3 to 6 continued to be 55 years but the point in dispute is whether these respondents had attained the age of 55 years. The determination of this question would involve adjudication on the respective data provided in the case of each individual. Such data would need to be considered by the authority for the purpose of arriving at a conclusion on facts. Sub-rules (a) and (b) only provide for a power to prescribe the terms and conditions, but the mere fact of an authority having a right to prescribe, does not envelope in it the power to determine whether the terms and conditions prescribed are being correctly and faithfully followed or not. The two concepts are entirely different because while prescribing terms more or less legislative functions are being performed and while determining whether the terms and conditions are being faithfully followed judicial or quasi- judicial functions have to be performed. The nature of the power and the duties that flow therefrom are entirely different. In such context a reference to another direction given by the National Industrial Relations Commission on 23-10-1978 is also meaningful. This document had been published in the Gazette of Pakistan, Extraordinary (II) of 27th January, 1979, at paga 254. Such directions are reproduced hereinbelow:-- "In exercise of the powers conferred by section 6 of the Pakistan Essential Services (Maintenance)
Act, 1952, read with rule 3 made thereunder, 1, 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:-
(i) 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 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 Commissioner 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 months, the specified Authority may condone the delay on good cause shown."
A reading of this document which is called a declaration would indicate that by publication of this direction what :he National Industrial Relations Commission purports to do is to regulate the terms and conditions of service. In fact the word "regulate" is used in the body of the so-called declaration but by the mere use of the word "declaration" at the top, the character of the document and the spirit thereof is not altered. It is a step in the regulation of the terms and conditions of service. It would seem that as recently as January ,1979 the Commission became conscious of the fact that the original Rules of 1962 did not provide for a power to adjudicate individual. Grievances and the publication of this co-called "declaration" necessary. However, this declaration will not react on the present case because the cause of action accrued much earlier than January, 1979 and the Commission has no power to legislate retrospectively.
17. We now proceed to interpret the word "regulate" by reference to some dictionaries and case- law. The Concise Oxford Dictionary defines this word as "control by rule, subject to restrictions, moderate, adapt to requirement". Stroud's Judicial Dictionary referring to the case of King v.
Henderson P I. D 1977 Lab. 998states the meaning as whenever an Act authorised the waking of rules for regulating matters under it that does not validate a rule which creates a new jurisdiction.
Words and Phrases (Vol. 36-A) refers to the case of Hollywood Jockey Clud. v. Stein and defines this word as meaning "to direct by a rule or restriction". The same book refers to numerous cases from various jurisdictions and in a summary this word is said to mean adjust by rule, method, of established mode; to direct by rule or restriction; to subject to governing principles or laws.
Webster's New International Dictionary defines this word as meaning "to govern or direct according to rule ; as, laws which regulate the succession of season more narrowly, to bring under the control of law or constituted authority; to make regulations for or concerning; as, to regulate the industries of country". Black's Law Dictionary defines the words as "to fix, establish or control, to adjust by rule, method, or established mode; to direct by the rule or restriction, to subject to governing principle of laves". Ballanatine's Law Dictionary (III Edition) defines the word as meaning "to replace confusion with order, to control or direct, to place and enforce limitation and restriction upon conduct of foster, protects, control and restrain". This word has also been judicially interpreted in some cases .And three of such cases are referred to in paragraph 8 of the judgment of the Division Bench of Lahore High Court in the case of General Manager, Heavy Mechnical Complex v ..Mamoon A. Kazi P I. D 1977 Lab. 998The conclusion of the learned Judges in the matter of the true import of the word "regulate" shall be found in paragraph 11 of the said judgment. It is not necessary to reproduce the same as it is already reproduced in an earlier portion of this judgment.
18. On the consensus of judicial authority and dictionary meanings of the word "regulate" it appears that the word truly and faith-full implies only a power to create circumstances and to lay down principle or rules, to continue the existence of an existing state of affairs in a fair or proper manner.
It further connotes the obtaining of a sort of uniformity E in matters of conduct so that arbitrariness, whimsicality and capriciousness is avoided. It may also mean that the creation of such state of affairs that the concerned citizens or persons likely to be affected by the exercise of the power to regulate know what are their rights and their obligations in the matters which fall within the ambit of matters so regulated, it clothes the functionaries with a power to lay down a code of conduct with precision. No dictionary seems to point to the word as meaning a power to apply the principle or rule and determine whether the right or obligations of the persons affected by such regulation are correctly performed or fulfilled. After all laying down a rule is different from enforcing the same, it is commonly understood that the Police has the power to regulate the traffic and in pursuance of that power they can make some rules or lay down some directions. But when it comes to determination whether a rule has been infringed recourse has to be made to another authority appointed for the purpose. Instances of this kind can be multiplied by reference to the functions of various statutory authorities having the power to regulate within a particular ambit. It may therefore be stated without fear of contradiction that the word "regulate" means implementation of the same so as to determine the question in regard to application of the rule or infringe--ment of the same.
19. It will now be proper to examine the process of reasoning adopted in the several cases referred to above. In the case of Employees' Union v. Pakistan Machine Tool Factory the learned Judge for whom we have enormous respect has stated that the scheme of the Act and the rules framed thereuner provide machinery to attend to the grievance of the workmen and Industrial Disputes.
On an examination of the Act and the rules framed thereunder we have not been able to read anything in them to even remotely suggest that any machinery or modalities have been provided for deciding any Industrial dispute. The learned Judge has stated that the Act not only regulates the procedure for settling the disputes but also affects the right of the employer and the workmen.
In fact on a reading of the Act and the rules one finds a situation that no procedure is provided for settling any dispute. The next case is Manioor All v. National Bank of Pakistan (1975PLC94), . The learned Judge in that case observed that on seeing the Act, together With the rules that have been framed or .Nay be framed under section 6, a method has been constituted for settling an industrial dispute. We have no difficulty in stating that the rules do not devise any method for settling industrial disputes. In the case of Karachi Electric Suppl Corporation v. N.
1. R. C. (1979PLC196), the learned Judge who wrote the judgment on behalf of the Division Bench observed that the power to regulate wages included settlement of individual disputes and redressing of individual grievances which might arise in enforcing the rights and obligations. Again in the case of Pa:Ustan Burmah Shell v. Sind Labour Court PLD 1979 Kar.109), the learned Judge came to the conclusion that since the Act had made certain provisions in regard to the determination of terms and conditions of service of a workman to whom the Act extended, the workman could only resort to the provisions in the Act for the purpose of enforcing his rights in matters concerning his terms and conditions of service and the other remedies by way of invoking the jurisdiction of the Labour Court were barred.
It would thus seem that this view has been adopted in the various judgments on the following basis;;--
(1) That the Act or the rules made provisions for settlement of individual grievances;
(2) that on application of the provisions of the Act to any class of employment the jurisdiction of each and every functionary created under any other enactment gets ousted.
We propose to deal with the second point first, section 7-A of the Act only produces the effect of the provisions of the Act prevailing not--withstanding anything to the contrary contained in any other law. In short this section presupposes. The existence of some provisions in dero--gation of the provisions of other law but in the absence of any such provisions in the Act or the rules nothing can possibly prevail. The situa--tion is in the nature of intersecting circles. Such portion of the circle representing the--law as also covers the portion of the circle of the overridden law would prevail despite the over-ridden circle having provisions to the contrary. The point was considered at - length by the Bench that decided the case of Javed v. National Industrial Relations Commission (PLD 1978 Kar. 64and the full import of section 7-A has been examined. Their Lordships in paragraph 44 of the said judgment stated the position as follows :- "With great respect for the views expressed in the two decisions, we are inclined to the view that there would be inconsistency between the two methods only where the wages and conditions of service have actually been regulated under the said Act and that mere issuance of a notification applying the provisions of the said Act to any class of employees or the framing of rules by the Federal Government under section 6 of the said Act delegating its powers to prescribe or regulate the wages and conditions of service of employees to whom the provisions of the Act have been made applicable, would not necessarily mean, without actually regulating their wages and conditions of service under the said Act, that the provisions of the said Ordinance relating to their wages and the terms and conditions of employment, and their right to seek redress in respect of such matters under the said Ordinance would stand excluded."
In this judgment the cases of Syed Manzoor Ali (1973 PLC 34and Employees' Union (1974 PLC 201were considered and their Lordships have expressed that in these two judgments a somewhat different view had been taken. In short if the Act or the rules made no provisions for adjudication by the specified authority it shall be construed as absence of a provision which in the nature of things cannot prevail over the provisions of the Ordinance for the simple reason that such provisions do not exist. Additionally it has been observed in some cases that the word "regulate" envelope within it the power to decide individual grievances even involving disputed facts. We have considered the word in its various connotations and by reference to the several dictionaries, common parlance and case-law. We are of the firm opinion that the word regulate does not mean to decide a dispute or adjudicate between rival contentions specially on facts. The word "regulate" is a verb and corresponding noun would be "regulations". In the history of Indo-Pakistan Sub-Continent several regulations occupy the legislative field and reference may be made to Frontier Crimes Regulations, Bengal Regulations, etc. All these regulations are a bundle of laws or rules and in these laws or rules if specific authority is not devised for resolution of individual cases recourse is always had to the other Courts or Tribunals. In the instant case by the notification dated 27-1-1979 an authority has indeed been devised for adjudication of the disputes but earlier to that no such authority existed. By virtue of the Act or the rules Sub--rules (2)(a) and (h) of rule 3 only generally prescribe a power to fix terms and conditions of service and that two after compliance with the necessary formalities detailed in the sub-rules and similarly sub-rule (2);d) confers a power on the Commissioner to specify the conditions on which employ--ment of any person may be terminated. The language is general in its tenor and does not even remotely indicate the existence of a power to adjudicate in individual cases. Even otherwise the very fact of the sub-rules referring to or providing for consultation or sanction either by or with employers or employees or the Federal Government would seem to indicate: that reference is made to terms and conditions of employees collectively and not individually.
20. We are conscious that the Act is a special kind of legislation aimed at keeping the wheels moving and preventing any retardation of industrial output. It may even tae termed as emergency legislation and indeed the original Essential Services Ordinance, 1941, was promulgated during the Second World War and was designed to augment war efforts. In such legislation of the emergency type very often provisions are made for avoidance of lengthy litigation or prevention of actions of sophistication. This may be so but still there is nothing in the Act or the rules to point to the fact or depriving the individual workman of his remedies under the Ordinance or other laws. We are clearly of the view that since the Act and rules do not make any provisions for redress of individual grievances the Commissioner could not adjudicate in any matter of this nature.
21. The three questions which require answer by this Full Bench are answered as follows;-- "(1) The provisions of other enactments do not cease to apply to employments on the issue of notification under section 3 of the Act and only such provisions of other enactments shall be inapplicable as are inconsistent with the provisions of the Act or the rules framed thereunder.
(2) Section 7-A will extend applicability of provisions of the Act only to such extent to which the Act or the rules framed thereunder create a machinery for determining the question as to wages and terms and conditions of service.
(3) Commissioner cannot adjudicate an industrial dispute.
22. Having determined these questions we remit the main case to the Division Bench for disposal.
NAIMUDDIN, J.-The following two questions have been referred to the l Full Bench by a Division Bench of this Court comprising of my learned brothers Abdal Hayee Kureshi and Saeeduz Zaman Siddiqui, JJ., who are also the members of the Full Bench;-- "(1) Whether the provisions of all other enactments cease to apply to an employment or class of employment as soon as the notification is issued by the Central Government under section 3 of the Pakistan Essential Services (Maintenance) Act, 1952 extending the provisions of the Act to such employment or class of employment or inapplicability of the provisions of the Act is only to the extent of inconsistency between the provisions of the other Act and the West Pakistan Essential Services (Maintenance) Act, 1952 and the actual regulation of wages and other terms and conditions of service under the Act ?
(2) What is the effect of introduction of section 7-A in the Act on other laws and to what extent the applicability of the provisions of the other Acts is affected by extension of the provisions of the Act to any employment or class of employment ?"
2. During the course of arguments Mr. S. Sharifuddin Pirzada, the learned counsel for Pakistan Burmah Shell Limited, the appellants, relying on Bakhsh Rzutom All v. The Province of West Punjab (then the State of West Pakistan, Lahore) through The Chief Secretary, West Pakistan, Lahore PLD 1960 Lah. 957requested that the following additional question may also be framed, or the question already referred to us be amended.
"Whether the Central Labour Commissioner, respondent No. 1 could adjudicate an industrial dispute."
Mr. S. Sharifuddin Pirzada also requested that the entire matter be disposed of by us and in this connection he referred to Farid Khan v. The State PLD 1965 Pesh. 31
3. I have had the benefit of reading the opinion proposed to be delivered by my learned brother Abdul Hayee Kureshi, J. With utmost respect to his Lordship I do not find myself in agreement with the same for the reasons hereinafter appearing.
4. Before I proceed to give my own reasons I may very briefly state the relevant facts, which are as follows :- The appellants are engaged in the business of distribution of petroleum and petroleum products throughout Pakistan. On 2-9-1964, they entered into a settlement with the Karachi Petroleum Workers' Union, Respon--dent No. 2, whereby inter alia the age of retirement of workmen in employment with the appellant for all purposes was fixed at 55 years. The appellants it is claimed on examination of their records found that respondents Nos. 3 to 6 would be reaching the retiring age of 55 years in the year 1973. Therefore, the appellants by their letter dated 2-3-1973, notified them that they would retire from the service of the appellants with effect from 31-12-1973.
Respondents Nos. 3 to 6 questioned the claim of the appellants that they (respondents Nos. 3 to 6) would be reaching the age of 55 years in the year 1973. It appears that respondents Nos. 3 to 6 thereafter made a joint representation to the Director, Labour Welfare, Sind, respondent No. 1, who, by a direction published in the official Gazette, dated 16-4-1974 ordered the re-instatement of respondents Nos. 3 to 6.
It is claimed that the appellants had objected the jurisdiction of respondent No. 1 to hold enquiry on the complaint of respondents Nos. 3 to 6 and that they were not given due opportunity to represent their case. However, I am not concerned with these pleas while answering the questions referred to us.
5. It is not disputed that the appellants were at the relevant time in employment which had been declared under section 3 of the Pakistan Essential Services (Maintenance) Act, 1952 as amended by Pakistan Essential Services Maintenance (Adaptation) Order, 1956, and the Pakistan Essential Services (Maintenance) Ordinance, 1965 (hereinafter called the Act), to be an employment to which the Act was made applicable.
6. Before I take up the questions referred to us and the additional question raised before us by Mr. Pirzada and discuss them, I may state that in my opinion the answer to the question `whether respondent No. 1 in exercise of the powers conferred on him by the Pakistan Essential Services (Maintenance) Rules, 1962 (hereinafter called the Rules) framed by the Central Government in exercise of powers conferred by subsection (1) of section 6 of the Act, could direct the appellants to re-instate respondents Nos. 3 to 6, would be quite helpful in answering the questions.
7. In order to appreciate various points raised in arguments it would be convenient if I reproduce hereinbelow the provisions of sections 6 and 7-A of the Act and rule 3 of the Rules. Sections 6 and 7 read;-- "6.-(1) The Central 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 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.
7-A. The provisions of this Act shall have effect, notwithstanding anything to the contrary contained in the Trade Unions Act, 1926 or the Industrial Disputes Ordinance, 1959 or any other law."
Rule 3 of the Rules reads;-- "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 wages and other conditions of service under sub-rule (1), the Central Labour Commissioner shall not-
(a) prescribe any terms and conditions without taking into considera--tion 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 Central Labour Commissioner 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 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 be published in the official Gazette."
8. It will be seen from the above-quoted provisions that the Central Government is autherised to make rules regulating or empowering a specified authority to regulate wages and other conditions of service of persons or 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 the Act applies.
The representation which was dealt with by respondent No. 1 and on v 61ch he issued direction of re-instatement of respondents Nos. 3 to 6 related to terns and conditions of services of persons engaged in the employment to which the Act applied.
9. However, the further question is, whether the respondent No. 1 could issue the impugned direction ? The answer would be found in the meaning and scope of the word "regulate" used in section 6 of the Act as well as in rule 3 of the Rules. This word is not defined in the Act. Therefore, to know the meaning of the word I have to refer to its dictionary meanings and also to take into account the subject or occasion on which it is used and a the subject which is intended to be achieved.
10. Reliance on dictionaries has been deprecated but in modern times, they have increasingly been taken in account.
Here I may quote a passage from `Maxwell on Interpretation of Statutes', Eleventh Edition, page 31, which reads as follows :- "Reliance on dictionaries has been deprecated, but, in modern times, they have increasingly been taken in account I continue to thank, said Lord Macnaght "that the word (mine, defined by Dr. Johnson as to include a quarry) was used . . . . In the sense which, if I am not mistaken, every English Judge who had occasion to consider the meaning of the word before Farie's case was decided took to be its ordinary signification. It seems to me that on such a point the opinions of such Judges as Kindersley V. C., Turner, L. J. And Sir George Jessel are probably a safer guide than any definitions or illustrations to be found in dictionaries'. (Midland R. V. Robinson (1890) 15 App. Cas. 10 at page 39), Lord Provost of Glasgow v. Farie (1886) 13 App. Cas. 657)."
It was said by Lord Coleridge in R. v. Petters ((1886)16 Q B D 636at p. 642 that, "I am quite . . . . . That dictionaries are not to be taken as authoritative . . . . . Of the meanings of the words in Acts of Parliament but it is well known rule of Courts of Law that words should be taken to be used in their ordinary sense, and we are therefore sent for instruction. To there books". He then cited Johnson's and Webster's definitions of the word, "credit".
It was said by Crove, J., in Wakefield L. B. v. Lee ((1876) 1 Ex: D 363that "except in Mathematics, it is difficult to frame exhaustive definitions of the words "they must be construed with reference to the subject-matter to which they are applied". Earlier, Abbot, C. J. Said in R. v. Hall ((1822) 1 B & C 123at p.
136 that "Now, the meaning of particular words in Acts of Parliament as well as other instruments, is to be found not so much in a strict etymological propriety of language, nor even in popular use; as in the subject or occasion, on which they are used, and the object that is intended to be attended.
11. I, therefore, propose to examine the meaning of the word "regulate" as given in dictionaries, then in the light of the principles stated above.
12. Webster's New International Dictionary (Second Edition) defines the word "regulate" to mean, "to govern or direct according to rules ; as laws which regulate the succession of seasons more narrowly, to bring under the control of law of constituted authority, to reduce to order". Its synonyms given therein are : Adjust, dispose, methodize, arrange, direct, order, rule, govern, control.
Black's Law Dictionary defines the word to mean, ".'to fix, establish, or control, to adjust by rule, method or established mode ; to direct by rule or restriction, to subject to governing principles of law".
Ballantine's Law Dictionary (Third Edition) defines the word as "to replace confusion with order,, to, control, for direct. To place and enforce limitation and restriction upon conduct, to foster, protect, control and restrain''.
Roger's Treasure of English Words and Phrases (1962 Edn.) gives meaning of the word as adjust; order, control and the word, 'order' means, "dispose, arrange".
13. From the above meaning of the word `regulate' it is clear that power to regulate- includes the power to fix, to establish, to control, to direct, to adjust, to order, to dispose, to arrange which includes the power to dispose of; settle, and fix. It is, therefore, clear the respondent No. 1 could under the powers to regulate, issue directions in. -relation to any matters concerning wages and other terms and conditions of service of persons engaged in an employment or class of employment to which the Act - applied and whereby disputes between employer and. Employees were settled or whereby the rights of the employees and the employer could be protected or whereby the actions of the employer or the employees could be controlled.
14. Now, T shall examine the question in the light of the object which the Act intended to achieve, I may first state the historical background of the Act and analyse its provisions.
15. During the War, on 20-12-1941, the Essential Services (Maintenance) Ordinance, 1941 (Ordinance XI of 1941) was, promulgated. This was an emergency legislation made during the Second World War. The preamblethere read : "Whereas an emergency has arisen which renders it necessary to make provision for the, maintenance of certain essential services" . . .
The Ordinance provided in section 3 that it should apply to all employment under the Crown and to any employment or class of employment which the Central Government- or a Provincial Government, being of opinion that such employment or class of employment was essential for securing the defence of British India the public safety, the maintenance of public order or the efficient prosecution of war, or for maintaining supplies or services necessary to the life; of the community, might by notification in the official Gazette, declare to be an employment to which the Ordinance applied section 4 enabled orders to be made directing employees affected by the Ordinance not to leave a particular area. Section 5(a) provided that any person engaged in my employment or class of employment to which the Ordinance applied who disobeyed any lawful order given to him in the course of such employment, was guilty of offence under the Ordinance.
Section 6 thereof provided as follows :- - "5.-(1) The Central Government or a Provincial Government may make rules regulating or empowering a specified authority to regulate the wages and other conditions of service of persons or 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 Ordinance applied.
(2) When any such rules have been made or when any directions regulating wages or condition 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 Ordinance."
Section 7 provided penalties, and subsection (1) directed that no Court '' take cognizance of any offence under the Ordinance .Except upon complaint in writing made by a person authorised in that behalf by the Central or a Provincial Government.
16. This Ordinance was repealed and replaced by the Act on 14-i2-1952, when it came into force. It applies to every employment under the Central Government and under section 3 it can be made applicable, subject to the provisions of subsection (2), to any employment or class of employment which the Central Government may by notification in the official Gazette declare to be an employment or class of employment to which the Act applied. Further, the Act can be made applicable to any employment or class of employment only when the Central Government is of the opinion that such an employment or class of employment is essential (a) for securing the defence or security of Pakistan or any part thereof of (b) for the maintenance of such supplies or services as relate to any of the matters with respect to which the Central Government has power to make laws and are essential to the life of the Community. However, the. Significant thing about the application of the Act to employment or class of employment other than the employment under the Central Government, is that the provisions thereof can be applied only for a period of six months which period is extendible for further periods not exceeding six months at any time.
Therefore, under section 6 of the .Act specified authority could regulate wages and other conditions, of service of persons engaged in any employment or class of employment declared under section 3 to the employment or class of employment to which the Act applies, for a period of six months extendable for further periods not exceeding six months at any time. Therefore, it appears that the object of application of the Act to-,-other, establishment is that the defence and security of Pakistan or any part- thereof should not be jeopardised or the means of supplies and services which are essential to the life of community should not be disturbed due to any dispute on difference between the employer and the employee, and such differences should be resolved by the authority specified by the Central Government.
17. It was contended that this power was legislated in nature and only such directions could be issued as concerned policy matters or were general in nature but it could not be exercised in individual cases. But in my opinion, it is riot so, for f firstly, the rule-making power it not exclusively legislative in character but rather administrative in nature, secondly. Respondent had been authorised under the Rules to regulate the wages and other terms and conditions subject to restriction conditions mentioned in sub-rule (2) of rule 3 of the Rules. Therefore, exercise of power under rule 3 of the Rules is clearly administrative. Here I may quote a passage from the "Statutory Construction" by Crawford, 1940 Edn., page 30 which reads as follows : "The authority to make rules and regulations in order to carry out express legislative purpose, or to effect the operation and enforcement of law, is not power. Exclusively legislative in character but is rather administrative in its nature."
Insupport of the above statement, the learned author made reference to State v. Atlantic Coas Line R. Co. 56 Fla 617, and Powell `Separation of Powers' (8 UPs. Law Rev: 129).
18. As regards the question, whether they could be exercised in individual cases or note I may refer to clause (c) of sub-rule (2) of rule 3 of the Rules, which prohibits the Central Labour Commissioner fromincreasing wages or allowances of any persons in respect of whom a dispute exists -with the employers without the previous sanction in writing of the Central Government. This power contemplates settlement of dispute as to wages between employees and employers by respondent No. 1. Although the words "persons" and "employers" have been used in plural but, according to the provisions of section 13 (2) of the General Clauses Act, 1897, words in singular in a statute include the plural, and vide versa. Therefore, respondent No. 1 could increase wages in individual cases also, but only) after obtaining sanction in writing of the General Government. This he could do only through directions. Now, if he could increase wage or allowance in individual cases he could as well issue directions in matters concerning other terms or conditions of service subject to the condition mentioned in rule 3 of Rules. However, I may mention that in one of the cases which were cited before us in which contrary view has been taken namely, General Manager, Heavy Mehanical Complex Taxila v. Mr. Bashir Ahmad Malik Member, National Industrial Relations Commisson and another (PLD 1977 Lah. 982) reliance is placed for the meaning of the word "regulate", on Said Omer v. Federation of Pakistan (PLD 1956 Lah. 382The relevant observation is as follows :- "The word `regulating', therefore, must be given its due meaning while construing the section, it is in fact, the keyword of the section. Wehave reached the conclusion that the section empowers the Central Government to issue orders or directions of a policy nature generally, regarding the administration of evacuee property because only the administration could be said to have been regulated."
However, firstly, the words and expressions used in one Act cannot ordinarily be interpreted with reference to the meaning or expression of the word used in another Act. I may here quote a passage from Ram Narain v. The State of Utter Pradesh and others (AIR 1957 SC 18) which reads as follows "It was rightly pointed out that it is no sound principle of construction to interpret expression used in one Act with reference to their use in another Act. The meanings of words and expressions used in an Act must take their colour from the context in which they appear.
I amrefer to a decision of a Full Bench of Lahore High Court namely. Burhanuddin v. Emperor (AIR 1946 Lah. 158wherein at page 164, A. Rashid, J. (as he then was) observed as follows;- "I agree with the learned counsel for the accused that words in a latter enactment cannot ordinarily be construed with reference to, the meaning given to those or similar words in an earlier statute."
Secondly, in the judgment on which reliance is placed, it was further observed as follows :-- "It is true that the use of the expression `any evacuee property' would seem to indicate that the order or direction can relate to a single unit of evacuee property also (underlining* is mine). It is not, however, difficult to consider of cases in which such directions may be found necessary in the national interest, instance in respect of an evacuee steel factory the Central Government might deem it expedient to direct them for a certain period of time, a particulartype of steel will be produced to the exclusion of other varieties. Similarly, in respect of properties specific directions may be considered necessary in respect of the Management of that property.
Then this case has been distinguished by Shaft-ur-Rehman, J. In General Manager, Heavy Mechanical Complex, Taxilav. Bashlr Ahmad Malik, Member, H. I. R. C. PLD 1977 Lah. 982, in the following words :- "The case cited by the learned counsel for the petitioner is distin--guishable for more than one reason. In the first place what was sought to be regulated by executive fiat in that case as the judicial power already exercised under the Rotation Ordinance at a stage when the orders thereunder had attained finality. The power of regulating the affairs was not claimed under law under which the finality of the orders has been achieved but under a different supervision which had left unimpaired the adjudicatory power. Another distinguishing feature of that case the Government had itself expressly provided finality of the orders of the Rehabilitation Commissioner (General) and prohibited` agitation against it with the .Government. It was therefore hold that the regulatory power was not availed for imparing the finality of judicial order though regulatory power was held to extend the matters which could be specific and particular."
19. It will be seen that under the. Act certain rights of employers and employees have been curtailed. Under section 4 of the Act a direc--tion can be issued to any person or persons engaged in such employ--ment not to depart out of such area or areas as may be specified in such order.
Under section 5 (1) (a) of the Act any person engaged in any employment or class of employment; cannot disobey any lawful order given in the course of such employment, or attempt to persuade any person to disobey any such order or refuses to work, or to continue or t absent himself from work. Further, it prohibits an employer, without reasonable excuse, to discontinue the employment of such person or by closing an establishment in which such person is engaged cause the discontinuance of his employment.
Any breach of these provisions is made an offend punishable by a Court of law on a complaint by an authorised servant mentioned in section 7 of 'the Act. Thus it is a legislation which curtails or affects the rights of both the employers and the employees. Now, if the Legis--lature has curtailed certain rights of the employers and the employees it has simultaneously under section 6 provided making of rules or empower--ing a specified authority to issue order or directions to control wages and other terms and conditions of service which power, in my opinion, if we keep the meaning of the word regulate in view, includes authority to redress grievances in respect of wages and other terms and conditions of service and, to settle disputes relating to the same. In view of the nature of the legislation which was an emergency legislation when it initially came in the form of an Ordinance in war time and which still retains that character in its application to the employment or class of employment is intended to be attained in my opinion, the exercise of power in such cases has to be of summary nature. Therefore, PLD 1962 SC 403 cited by Mr. S. Sharifuddin-Pirzada is distinguishable.
There is no doubt that violation of certain provisions of the Act, the rules and orders and directions passed thereunder are made offence but the offender is to be tried by a Court.
20. During the course of arguments reference was made to notifi--cation dated 27-1-1979, issued by the Chairman, National Industrial Relations Commission, which .'is now Specified Authority under the Act which is published in the Gazette of Pakistan, Extraordinary Part II, dated 27-1-1979, page 254, which reads as follows "In exercise of the powers conferred by section 6 of the Pakistan Essential Services (Maintenance)
Act, 1952 read with rule 3 made thereunder, I, Ataullah 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 employ--ment 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 Gazetted 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 cause of action, bring in writing, his grievance in respect of any right guaranteed to him or under any law, Settlement or award for the time being in force relating to wages and other conditions of 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 applicant, if as may be necessary, and may pass such directions as may be deemed just and proper in the circumstances of the case.
Provided that 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 months, the specified Authority may condone delay on good cause shown."
This direction provides procedure for person who is governed by the Act and who is aggrieved as to how he should approach the speci--fied Authority. But issuance of this direction does not in any manner bring the settlement of dispute or redress of grievance within the compe--tence of the specified Authority to decide such dispute or grievance if the authority otherwise has no power to decide the same and issue direction relating to wages and other terms and conditions of service.
In my view such power is given by using the word `regulate' in section 3 of the Act and the Rules. If the word `regulate' does not include the power to settle and decide dispute between the employer and the employee covered by the Act then the issuance of the above mentioned direction providing a procedure, cannot make the exercise of the power valid.
20-A. So far as section 7-A of the Act is concerned its meanings are plain and clear and admit no ambiguity. The provisions of the Trade Unions Act, 1926, Industrial Disputes Ordinance, 1959, and other enactments have to yield to the provisions of the Act in matters covered by the Act. Disputes relating to wages and other terms and conditions of service including `termination of service of an employee in an employment or class of employment governed by the Act are some of such matters. Any enactment made and enforced after the passing of the Act will also not affect the operation of the provisions of the Act unless the subsequent enactment express or by necessary implication excludes the operation of the act partly or wholly in respect of any matter governed by Act. In fact no such enactment was brought to our notice. In the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which is a provincial law and which in its Standing Order 12 provides the conditions for termination of employment, does exclude the operation of the Act and it could not being a provincial law.
I shall further deal with this matter a little later.
21. Now, I will refer to cases on the questions under consideration which have been referred to us during the course of arguments by both the sides. But before I refer to these cases in detail I would say that the view of this Court consistently, with the exception of the case, has been that the specified authority has power to entertain grievance petitions relating to wages and other terms rind conditions of service from persons governed by the Act. Now, I may first refer to Syed Mansoor Ali Rizvi v. Messrs National Bank of Pakistan, Karachi and 3 others 1973 PLC 94This case was decided by Dorab Patel, J. (now Judge of the Supreme Court). In this case the dispute related to termination of service of the employee. After referring to the various provisions of the Act his Lordships in paragraphs 3 and 4 of the report observed as follows :- "The other sections are not relevant to the arguments advanced before me but I have to point out that the Attorney-General drew my attention to the notification issued by the Central Government on 2-7-1962 under section 6, which I have quoted. The notification is also very important and by it the Central Labour Commissioner was empowered to regulate `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'. As the Central Government has discretion to vary the powers delegated to the Central Labour Commissioner, I would only point out here that this notification expressly empowers the Central Labour Commissioner to increase the wages or allowances of any person in respect of whom a dispute exists with his employers and to specify conditions on which the employment of any person may be terminated.
Thus, it will be seen that the said Act, together with the rules that have been framed or may be framed under section 6, constitute a method for settling industrial dispute which is very different from the method prescribed in the Ordinance. The learned Attorney-General therefore submitted that as these two methods were mutually inconsistent they both could not be extended at the same time to any employment or industry. Accordingly, his further submission was that the effect of section 7-A of said Act was that as soon as the said Act was extended to any employment the result was to exclude totally the applicability of the Ordinance which was surrendered by the said Act. Therefore in the instant case, the Attorney-General supported the view of the Industrial Court that it was divested of its jurisdiction to entertain the dispute before it on issue of the notification of 8th December, 1966."
After discussions the other submission of the learned counsel for the petitioner, his Lordship dismissed the petition.
22. The next case to be noticed, which was decided thereafter by Agha Ali Hyder, J. (as his Lordship then was) is that of Employees' Union v. Pakistan Machine Tool Factory, Landhi and 2 others PLD 1974 Kac. 201In this case the petitioners submitted a grievance petition under section 25-A of the Industrial Relations Ordinance against their dismissal which was dismissed in limine `` on the ground that the remedy, if any, was available from the Director, Provincial Labour Welfare, Karachi.
The petitioners then filed appeal before the Sind Labour Court which was also dismissed for want of jurisdiction. These orders were impugned in the petition decided by Agha Alt Hyder (as his Lordship then was), with regard to the jurisdiction of the Director, Provincial Labour Welfare, Karachi and it: was observed in paragraphs 11 and 12 of the report as follows :- "Section 6(1) of the Act, however, gave-powers to the'-Central Govern--ment to make rules, regulating and empowering z specified Authority to regulate the wages and other conditions of service of persons or any class of persons engaged in any employment or class of employmentdeclared under section 3 to be an employment or class of employment to which the Act applies." The `conditions of service' with questions relating to the employment or non- employment or the terms of employment of any person, and the jurisdiction to regulate the wages and the other conditions of service, has been vested on the authority under the Act. The contention of Mr. Ali Amjad learned counsel for the petitioner that the rules gave no rowers to the Central Labour Commissioner to hear any grievance against the dismissals, and therefore no machinery had been created -under the rules for the re-instatement of workman, has no force.
The scheme of the Act and the rules framed thereunder, is that the grievances of the workmen and the industrial disputes between the employer and the workmen were to be attended to, by the Central Labour Commissioner who had a final say in the matter. It is true that it provides no right of appeal and whittled down any other rights, but it 'does constitute a method for settling the industrial disputes, though different from the one under the Ordinance referred to above. The two methods are mutually inconsistent and therefore the one prescribed under the Act and the rules, has to prevail. The said Act not only regulates the procedure for settling the dispute but also affects the rights of the employer and the workmen by virtue of the Notification in question. This was the view taken in Syed Mansoor Ali Rizvi v. Messrs National Bank of Pakistan, Karachi and 3 others being Misc. Appeal No. 18 of 1968, under the Industrial Disputes Ordinance, 1969, which was decided by the learned Single Judge on 9-1-1973 reported in 1973 PLC 94. I am in respectful agreement with the same."
23. Then came the judgment under Appeal out of which the present questions have arisen reported in PLD 1:976 Kar. 1118. It was observed by Agha Ali Hyder, J. (as his Lordship then was) as follows :- "Regulate, according to the Concise Oxford Dictionary, means `control by rule, subject to restrictions, moderate, adapt, to requirements, adjust (machine clock), so ,that it may work accurately' According to Black's Law Dictionary regulate means `to fix, establish, or control, to adjust by rule, method or established mode, to direct by rule or restriction, to subject to governing principles of law'. As to be found in Roger's Treasures of English Words and Phrases, regulate means 'adjust, arrange direct', and arrange includes `dispose, place, straighten up, vide to dispose of, settle, fix (underlining" is mine) apportion, entangle. I am clearly of opinion that the respondent No. 1 was competent to proceed with the matter, as it related to the conditions of the service of the said respondents. The fact that there is no forum for appeal under the Act need not -be examined, because this had come up for consideration in the two cases referred to earlier."
24. Then were reported the decisions of Lahore High -Court in the case of the General Manager, Heavy Mechanical Complex, Taxila v. Bashir Ahmad Malik, Member, N. L R: C. And PLD 1977 Lab. 998 but before I discuss them I would refer to the decision in Javid, President Pakistan International Airlines Corporation Employees' Union, Karachi v, National Industrial Relations Commission, Government of, Pakistan, Islamabad; through its Chairman and another PLD 1978 Kar. 64This is a Division Bench decision in which the opinion was written by Mr. Justice Channa. In this case the dispute related to registration of the petitioner as Trade Union.
It was observed by Channa, J. At page 71 of the report as follows :- "Whereas the object of the said Act is to ensure the maintenance of Essential Services, whether in peace or in war, even under difficult conditions and circumstances, the object of the said Ordinance is very different. Its object according to its preamble, is to amend and consolidate the law relating, firstly, to the formation of Trade Unions, secondly the regulation of relations between employers and workmen, thirdly the avoidance and settlement of differences and disputes arising between employers and workmen, and fourthly matters connected therewith and ancillary thereto.
It is quite clear from the reading of the preamble that the field to which the said Ordinance extends is much wider and also materially different from that covered by the said Act, though in certain limited matters, the two statutes may overlap. So far as the formation of Trade Unions, their rights, liabilities and responsibilities are concerned, the said Ordinance alone makes provisions in that behalf, while the said Act is wholly silent on that subject. The provisions in. The said Ordinance relating to the rights, liabilities, etc., of registered Trade Union are contained in sections 7-b, 10, 14, 17, 18, 20, 21, 52, 54, 55, 56 and 61. It may also be pointed out that a registered Trade Union under certain circumstances is entitled to be declared as Collective; Bargaining Agent and the further rights, liabilities and responsibilities of the Collective Bargaining Agent are detailed in sections 22
(11) & (12), 23, 23-A(l) (a), 23, (b) (2) (a), 24(2), 25-A(1) (3) (4) and (6), 26, 32, 34, 39 and 43." '
But subsequently in Pakistan Burmah Shell Ltd. v. Sind Labour Court No. IV, Karachi and another wherein the question of jurisdiction of Court to adjudicate a question of termination of services of an employee governed by the Act directly arose, Channa, J. Observed in paragraph 18 of the judgment as follows :- "The objection of Mr. Noor Muhammad to the maintainability of the proceedings in the Labour Court against the petitioners by reasonsof the applicability of the Pakistan Essential Services (Maintenance) Act, 1952, hereinafter referred to as the Act, however, has con--siderable force. It is an admitted position that in the notification, dated 14-1-1976, the Government of Pakistan bad made the provisions of the Act applicable inter alia to all employments in or in connection with organisations dealing with the distribution or marketing of oil. It was not disputed by Mr. Nasir Zahid that the petitioners are engaged in the distribution and marketing of oil and that even the petrol pumps managed by the contractors deal in the distribution and marketing of oil. The provisions of the Act override the provisions of any other law which may be inconsistent therewith, in view of the provisions contained in section 7-A of the Act. In the case of Manaoor Ali v. National Bank of Pakistan 197'3 PLC 94 it was held by a learned Single Judge of this Court that having regard to the provisions of the Act, the Labour Court was divested of its jurisdiction to maintain proceedings under section 31 ox the Industrial Disputes Ordinance, 1969 relating to the termination of employment of a workman, if the provisions of the Act had ,been made applicable to the employment of such workmen. A similar view was taken by this Court in the case of Employees'
Union v. Pakistan Machine Tool Factory 1974 PLC 201. Mr. Nasir Zahid, however, sought to rely upon a Division Bench decision of this Court I ii the case oaf A. Javed v.
National Industrial Relations Commission, P L f3 1978 Kar. 54 to which I was a party wherein it has been held that the object of the Act, and the I. R. O. Are different and that the provisions of the ';Statute, except in regard to matters which are provided for in both the Statutes, would not be deemed to overlap or to be inconsistent. The main grievance of respondent No. 2 in his complaint before the Labour Court is that his services have been wrongly terminated. It is not disputed that the Act makes it punishable for an employer to terminate the services of a workman to which the provisions of the Act have been applicable except for a reasonable excuse. Mr. Nasir Zahid conceded that in view of the aforesaid provisions in the Act, the complaint of respondent No. 2 in respect of the. Actual termination of his employment was not maintainable by the trial Court. He, however, submitted a two-fold argument in support of his contention that the proceedings before the Labour. Court upon the complaint of respondent No. 2 were nevertheless maintainable. His first argument was though the Act provides punishment for termination of employ--ment, it makes no provision for the re-instatement of a workman whose services have been wrongly terminated and the payment to him of back benefits, which provisions are only contained in the I. R. O. He accordingly maintained that for he purpose of these benefits, which have been specifically claimed by respondent No 2 in his complaint, there was no conflict or rep between the Act and the I. R. O., and hence the provisions of section 7-A of the Act would not be a bar to the maintainability of the complaint so far as these benefits are concerned. I am unable "I agree with this submission of the learned counsel. Since the Act has made certain provisions in regard to the termination of services of a workman, the workman to whom the "provisions of the Act have been made applicable can have resort only to the said provisions of the laws dealing with the same matters or consequential matters'."
Significantly the present appellants in the above-cited case had taken a contrary stand and had succeeded and now their stand is different, 24-A. He has reiterated the same view on 12-12-1.979, sitting as Labour Appellate Tribunal Sind in Muhammad Usman v. Pakistan Industrial Mills Corporation Ltd. (1980 IF L C 513
25. Mushtak Ali Kazi, J. Sitting in Division Bench with Agha Ali Hyder, J. In Karachi Electric Supply Corporation v. National Industrial Relations Commission and another maintained the view expressed in the case noticed hereinbefore in the following words :- "The term 'regulate the wages' under its plain meaning was found to include the fixing of the amount, or adjusting the same. The power to regulate wages, therefore, included settlement of individual grievances that might arise in enforcing the rights and obligations."
26. Having reviewed the reported decision of this Court on the questions under consideration, now, I proceed to examine the cases decided by the Lahore High Covert. The first case is by Shafi-ur- Rehman, J. Dealing with the contention that the power to regulate by framing rules or by giving directions does not include power to adjudicate in the individual cases or settle disputes between the: employers and the workmen, in paragraph 23 of the judgment, his Lordship observed as follows :- "It is true that the use of the word rule does suggest what the learned counsel has in mind .For further limiting the meaning of the expression 'regulating'. The; mode in which a power is to be exercised may as well determine its scope and effect."
As held in Pakistan v. Abdul Hamid (PLD 1961 SC 105 "A statutory rule has certain visible characteristic which must be looked for and cannot be dispensed with when the question arises of claiming upon the basis of such a rule, a right in law. A rule requires to be expressed with precision, and yet to possess generality so as to be capable of application to a large number of cases. If it leaves scope; for discretion., that should be expressly provided for. Ordinarily it is necessary also that the making and promulgation of a rule should be attended t)y certain formalities, e.g. publication in a Government Gazette. Bust in these cases before us we have to deal with the word discretion and not rule for ascertaining the scope and content of the regulatory power. The directions can be on specific matters as well as on general policy matters. The direction can relate to an individual ass . Well as to a class or to an establishment. Therefore, no such limitation can be inferred where the mode of exercise of this regulatory power is by issuing directions. What actually is an impor--tant and a distinctive feature of the Act is the subject-matter or the content of the ' regulatory power. It is in this case the wages and the conditional of service. These do include the minute detail and every item assailable to wages or the terms of employment. Therefore, not only the mode in which the regulatory power is require to be exercised but also the matters in respect of which it can be exercised lend support to the conclusion that it may relate to every item individual or collective, particular or general, the only limitation being that. It should be wages or conditions of service. In determining the meaning of 'regulating' the manner, and matters in respect of which such power is required to be exercised must necessarily be kept in view."
His Lordship also referred to a number of cases decided by the Labour Courts and on the basis of those decisions reached the conclusion that the depart--mental practice was also in accordance with the view taken by his Lordship.
27. At this stage, I may mention that it was submitted by Mr. S. Sharifuddin Pirzada that the departmental practice though a relevant consideration but it cannot override the statutory provisions. He referred to Bashir Ahmad Khan v. Muhammad Ali Khan Chowdhury and others (PLD1960SC195), The United Netherlands Navigation Co. Ltd. v. The Commissioner of Income--tax, South Zone (West Pakistan), Karachi (PLD1965SC412), Nazir Ahmad v. Pakistan and II others (PLD 1970 SC 453), K. F. Shaifta v. Settlement and Rehabilitation Commissioner. Lahore and another (1974 SCMR 465and Kohinoor Chemical Co. Ltd. And another v. Sind Employees' Social Security Institution and another (PLD 1977 SC 197 In the first named case it was observed by Cornelius, J. (as his Lordship then was) that it might be conceded that the sources from which the information mentioned in the judgment were obtained were competent, by reason of their experience, to express him, but those information were clearly not binding upon a Court which was required to interpret the rule as it stood then although they might be called in aid for the purposes of reaching a proper interpretation.
In the second named case, it was said by Kaikaus, J. That the instruction under consideration in that case was quite in accord with their view, though it was true that the instruction has no legal force, but it did tell their Lordhips the interpretation which the Department had been accepting.
In the case of Nazir Ahmad, Sajjad Ahmad Jan, J. At page 459 of the report observed as follows :- "The departmental practice has followed the right course in the implementation of the relevant rule but whether right or wrong, it will be extremely unfair to make a departure from it now after a lapse of so many years and to disturb rights that have been settled by a long and consistent course by this practice. In the case of the appellant, the seniority initially accorded to him has held the ground continuously for ten long years until it was disturbed by the impugned order. This, to say the least, is bound to weaken the faith of the employees in the attitude and behaviour of the Department. A passage from Crawford, Statutory Constitution (1940 Edition) at page 399 may be usefully reproduced to point out the effect of 'departmental construc--tion' that is to say, the construction which is placed in practice on the provisions of a statute or rules by the administrative authorities who are charged with the execution of the statute or the rules. The learned author observed: 'Where the executive construction has been followed for a long time an element of estoppel seems to be involved. Naturally many rights will grow up in reliance upon the interpretation placed upon a statute by those, whose duty it is to execute it. Often. Grave injustices would result should the Courts reject the Construction adopted by the executive authorities."
In the case of K. F. Shaifta, Anwarul Haq, J. (as his Lordship then was) after referring to the interpretation put by the Department on the notification under consideration observed that the High Court was right to take note of the departmental practice. His Lordship placed reliance on Nazir's case.
In the last mentioned case again Anwarul Haq, J. (as his Lordship then was) held the departmental construction of the statute though relevant was not binding on the Court.
From the observations made in the above-cited cases it is clear that the departmental construction of the statute is relevant, though, if it is manifestly contrary to law it has to be disregarded. In the instant case the reference to departmental practice by Shafi-ur-Rehman, J.
Was therefore not irrelevant. Further, the opinion of the Judges as to the meaning of the words has to be given due weight as was said by Lord Macnaghton, J. (supra)
28. As Intra-Court appeal was filed against the decision of Shafi-ur---Rehman, J. In The General Manager, Heavy Mechanical Complex Taxila v. Mr. Mamoon A. Kazi, Senior Member National and Industrial Relations Commission, Islamabad, wherein the Division Bench referred to the dictionary meanings of the word "regulate" as given the Webster's New International Dictionary, Second Edn., Black's Law Dictionary, 3rd Edn. The Division Bench also referred to American decisions wherein this word has been discussed and to Said Omar's case in details and came to the following conclusion :- "A perusal of the case-law and the meaning of word `regulate' given above would show that the power to regulate relates to issuance of regulations, rules, bye-laws, precepts, instructions or directions which are general in nature and not only prescribe with precision the subject matter with the necessary details but may also lay down a procedure for settling any dispute that may arise in pursuance thereof. Those regulations would fix the rights and liabilities of the concerned parties and it would be their violation or a dispute thereunder that would have to be settled in their light.
The existence of .The terms and conditions is thus necessary before there could be any dispute of its settlement. In the present case the regulations could be on the pattern as laid down in the Rules or Standing Orders for the labour or other employees, informing the employees and the employers of their rights and obligations. They could also lay down a procedure for the redress of any grievance that might arise in enforcing the rights and obligations. They could also lay down procedure for the redress of any grievance that might arise in enforcing the rights and obligations.
Under rule 3 (2) (d) the previous terms and conditions have been guaranteed as the specified authority cannot alter those terms to the disadvantage of an employee: The provisions of West Pakistan (Standing Orders) Ordinance which contains those terms were applicable to the respondents and they provide a forum for redress of any grievance that may arise thereunder. The specified authority if it wanted to change the forum or terms and conditions of the respondents, should have framed regulations in the light of rule 3(2), but admittedly nothing thereunder has been done: Respondent No. 1 acted as a forum in place of Labour Court. The observations made by the learned Single Judge that the provisions under discussion dealt with `directions' and not `rules' the promulgation of which requires certainformalities, e.g. publication in a Government Gazette, is very sound as the rules could be made only by the Central Government. The specified authority could issue regulations and the same could relate to an individual as well as to a class or to an establishment but this could be done as a matter of general policy and not any way of settling a particular controversy. The rules, regulations, bye-laws, etc., come first and their enforcement or the resolution of disputes thereunder comes later. We are, therefore, of the view that respondent No. 1 acted without lawful authority in passing the impugned order without framing a regulation to that effect."
Their Lordships of the Division Bench also referred to the dictionary meaning of the words `prescribe' and `regulate' as given in the above--mentioned dictionaries and further came to the conclusion that the use of these terms also left no manner of doubt that respondent 1 had been delegated legislative power to regulate wages and other terms and conditions of service.
I have already discussed the meaning of the word `regulate' to show that the power to regulate, includes powers to issue directions and settle disputes even in the individual cases. I have also dealt with the nature of the power in earlier part of this opinion, and come to the conclusion that the power to be exercised by the specified authority under the Rules is not legislative power but is administrative power. I have already referred to clause (e) of sub-rule (2) of rule 3 of the Rules and stated that this clause clearly provides that individual disputes as to increase in wages can be settled by the specific authority. Now, a perusal of the rules particularly,Clause (b) of rule 3 therefore, shows that the specific authority has been given power by the Rules to regulate wages and other terms and conditions but in doing so the specified authority is prohibited from prescribing terms and conditions which may adversely affect the rights to which a person was entitled to immediately before the publication of the Rules by virtue of any law or under the terms of any award, agreement or contract duly made and y operative. This in other words, would mean that the terms and condition which were governing the relationship between the employer and employee at the time of promulgation of the Rules have been preserved and therefor these terms and conditions have become the terms and conditions prescribed under the Rules unless they are changed in accordance with the Rules. Under rule 3, sub-rule (2), clause (a) (ibid) in the exercise of power for prescribing the terms and conditions which are not adverse to the rights to which a person is entitled. The authority is required to take into considera--tion the views of the employer and also the views of the representative of such person. Further restrictions have been imposed on the exercise of powers under clauses (c) and (d), sub-rule (2), rule 3 of the Rules. Under these clauses wages or allowances of a person in respect of whom a dispute exists with the employer cannot be increased without previous sanction of the Central Government in writing so also the condition' on which the, employment of any person can be terminated, cannot be prescribed without previous sanction in writing of the Central Government. These in my opinion, provide the manner of settling the dispute with regard to wages and other terms and conditions of the person falling under the Rules.
For acting under these rules, in my opinion, it is not necessary to have any particular procedure for if it was necessary, the Central Governmentwould have provided by the Rules. Further, for the exercise of power 'to regulate' the wages and other terms and conditions of service under section of the Act, I am of the opinion, it was not necessary to frame rules laying down any particular procedure to be followed by specified authority I. Think the matter of following any procedure generally or specially is left to the discretion of the specified authority, keeping in view the object and nature of the legislation. It is well settled that the operation of an Act of Parliament does not depend on the framing of rules under the Act unless the Act itself so provides, or, unless the provisions of the Act cannot be given effect to without the framing of rules. See : N. U. A. Khan v.
Rana M. Sultan an another (PLD 1974 SC 228 Lastly, I have already pointed out that the- meaning of a 'word' of expression or phrase cannot ordinarily be construed with reference to the meaning given to that in an earlier or other statute for the meaning of the word or expression or phrase must take its colour from the context in which it is used. This principle in my opinion, would be all the morel applicable to the use of words or phrases or expressions in foreign judgments.! This is all with utmost respect to their Lordships.
29. Now, I would take up the last case namely, Chairman, Water & Power Development Authority, Lahore and 3 others v. Punjab Labour Court 111(1976 PLC 740), wherein contrary view was taken. In this case the relevant facts were that the services of respondent 2, who was a storekeeper, M. P. O., WAPDA Lyallpur were terminated on account of misconduct. He filed an application under section 34 of the Industrial Relations Ordinance, 1969, before the Punjab Labour Court, Central Zone, Lahore.
The case was later on transferred by the Labour Appellate Court to Punjab Labour Court III, Lyallpur for disposal. The said Court accepted the application of respondent 2 on the ground that he was condemned unheard and n;, enquiry as contemplated by the rules and principles of natural justice was at all instituted against him and, therefore, ordered his re-instatement.
The Order of Labour Court was challenged in writ petition and before the High Court it was urged that the respondent has no locus standi. to apply to the Labour Court under section 34 of the Industrial Relations Ordinance, 1969 in respect of his individual grievance and it was only Collective Bargaining Agent or an employer who could have moved in the matter. It was also contended that for the redress of individual grievance recourse could be made to the procedure laid down in section 25-A of the Ordinance before the Junior Labour Court and as such the Punjab Labour Court No. III, Lyallpur had no jurisdiction in the matter. It was next contended on behalf of the petitioner that the respondent No. 2 was, at the time of termination of his services working as Storekeeper, M.
P. O. WAPDA at Lyallpur which was an employment to which the Pakistan Essential Services (Maintenance) Act (XXX III of 1952) was made applicable. It was held by the Court in regard to the last contention as follows :- "This provision does not oust the application of section 34 of the Industrial Relations Ordinance, 1969. As such in my considered opinion, the petition made by respondent No. 2 before the Labour Court under section 34 was fully competent."
After referring to the case of representative of the WAPDA Workers' Union and others v. Fazil Khalid Khan and others on which reliance was placed "Even otherwise, I find that this objection was neither specifically taken in the writ petition nor was it ever raised before the Labour Court and as such the petitioner is estopped by his conduct from raising this objection."
It seems that various other provisions of the Act were not considered by the Court. The scope of the provision of section 3 of the Act or rule 3 of the Rules or the meaning of the word `regulate' used therein does not appear to have been considered. In fact what seems to have weighed with the Court equally if not more was the fact that the objection to the jurisdic--tion on this ground was neither specifically taken in the petition nor was it ever raised before Labour Court.
30. Having reviewed the cases cited or noticed on the questions under consideration and following the view of Dorab Patel, J. In the case of Syed Manzoor Ali Rizvi v. Messrs National Bank of Pakistan and 3 others and Shafi-ur-Rehman, J. In the case of General Manager, Heavy Machnical Company, Texila v. Bashir Malik Member, N.
1. R. C. And the Division Bench decision reported in 1980 PLC 196 on the first question referred to the Full Bench, I am of the opinion that the provisions of all other enactments as regards the wages and other terms and conditions of service cease to apply to an employment or class of employment as soon as the notification under section 3 of the Pakistan Essential Services (Maintenance) 1 Act 1952 is issued by the Central Government extending the provisions of the Act to such employment or class of employment and the provisions of other enactments as regards other matters cease to apply to the extent of inconsistency betw9en their and the provisions of the Act.
As regards the second question I am of the opinion that the effect of introduction of section 7-A in the Act is the same as mentioned above and the provisions of other enactments are effective to the extent mentioned in the answer to the first question. .
As regards the additional question I agree with my learned brother Abdul Hayee Kureshi, J. That the same could be considered by the Full Bench and accordingly, 1 have considered the same and for the reasons already stated. I am of the opinion so far as the disputes relating to wages and! Other terms and conditions. Between the employer and employee governed by and under the Act are concerned such disputes could be decided by the specified authority which at the relevant time was the Central Labours Commissioner.
As regards the decision of the Appeal on merits it would suffice to say it is agreed that the Division Bench which referred the questions to the Full Bench will decide the same for arguments were advanced by both the parties before the Full Bench on the three questions referred to above and not on the merits of the case.