AJMAL MIAN, J.-Since these two petitions involve common question of law, we intend to dispose of the saint by this common judgment.
(a) C. F. No. 636/80.-The brief facts leading to the filing of the above Petition are that the petitioner was employed with respondent No. 1 according to the petitioner as a workman. He was removed from service on 7th February, 1978. The above removal order was challenged by the petitioner by filing an application under section 25-A of the 1. R. O., 1969 in the Court of 4th Sind Labour Court , i.e. Respondent No. 3. Upon the service of the notice of the above application, respondent No. t raised a preliminary objection as to the jurisdiction of the Labour Court on the ground that provisions of the Pakistan Essential Services (Maintenance) Act, 1952 (hereinater referred to as the Act) were applicable to its employment which objection was sustained by respondent No. 3 through an order dated 19th September, 1979. The petitioner being aggrieved by the above order filed appeal under section 37 of the 1. R. O. Which was also dismissed by an order dated 21st October, 1979 by respondent No. 2. The petitioner, being aggrieved by the above two orders has filed the present petition.
(b) C. P. No. 1755/80.-The facts leading to the filing of the above petition are that the petitioner was an employee of respondent No.1 and was dismissed from service on 13th December, 1978. He after serving the grievance notice filed an. Application under section 25-A of the I.R.O., 1969 on 24th February, 1979 before respondent No. 2, i.e. Sind Labour Court No. 4, Karachi. Upon service of the notice of the above application, Respondent No. 1 raised a preliminary objection as to the maintainability of the above application on the ground that the provisions of Pakistan Essential Services Act, 1952, were applicable to its employees. The above objection was sustained through an order dated 29th October, 1979. The petitioner being aggrieved by the above order filed An appeal before respondent No. 3, which was dismissed by an order dated 9th January, 1979, The petitioner being aggrieved by the above two orders has filed the present petition.
2. (a) Mr. Shahenshah Hussain, learned counsel for the petitioner in support of the above petitions has urged that since the Supreme Court in the case of Karachi Electric Supply Corporation Ltd. v.
National Industrial Relations Commission NIRC, and another (PLD 1982 SC 113) has held that the specified authority under the Act, i.e. The Chairman, N I R C has no jurisdiction to adjudicate upon individual grievances, it follows that the Labour Courts retain the jurisdiction, particularly in view of section 7-A of the Act. On the other hand, it has been contended by Mr. Kamal Mansur Alam that the Supreme Court in the above-cited case has clearly laid down that the only competent forum to examine the legality of the order of termination is provided for under section 7 of the Act. It was further urged by him that even obiter dictum of the Supreme Court is binding on the High Court.
(b) Mr. Shahenshan Hussain, in support of his above contention has referred to section 7-A of the case of Pakistan Electrical and Mechanical Constructors Ltd. v. Chairman NIRC and another (NLR 1981 Lah. 200) the case of Pakistan Burmah-Shell Ltd. v. Central Labour Commissioner and 2 others (PLD 1982 Kar. 33), unreported judgment dated 23rd February, 1982 given in C. P. No. D-215/78 (Aqeel Ahmed Ansari v. P 1 A and 2 others (1982 PLC 1023) unreported Supreme Court Order dated 16th December, 1981 passed in Civil Petition for Special Leave to Appeal No. 114/81 Abdul Rashid Khan v. Saeed Ibrahim and 2 others and page 153 of Salmond of Jurisprudence, 12th Ed. On the other hand, Mr. Kamal Mansoor Alam has relied upon the aforesaid Supreme Court case of Karachi Electric Supply Corporation v. N 1 R C, the case of General Manager, Heavy Mechanical Complex, Taxila v. Mr. Mamoon A. Kazi, Senior Member N I R C, Islamebad (PLD 1977 Lah. 998), the case of Messrs Indus River Contractors, Tarbella v. Mr. Aziz Ahmed, Member of N I R C.And another (PLD 1980 Pesh. 216), the case of State through Addl. Advocate-General. West Pakistan Ex-Officio Public Prosecutor Kanachi, v. Aziz Ahmed and another (1975 P Cr. L J 105) and the case of Ghous Muhammad v. State (P h D 1978 Lah. 1235).
3. (a) In order to appreciate the respective contentions of the parties, it may be pertinent to quote hereinbelow that relevant observa--tions of the 1-jon'ble Supreme Court in the above case of Karachi Electric Supply Corpn. Ltd.
"In conclusion, therefore, the power to regulate the wages and con--ditions of service and the violation of the Rules or directions are distinct for in the former the specified authority is merely enjoined to determine the wages and other conditions of services by issuing directions while the violations are dealt with as entailing penal consequences. I would, accordingly, approve the unreported Judg--ment of the High Court of Sind in Constitutional Petition No. 146 of 1980 Pakistan Electrical and Mechanical Constructors Limited v. The Chairman, NIRC and another in which the word "regulate" has been construed as not to include adjudication of a dispute by the specified authority.
It is nobody's case that the specified authority had issued directions in regard to the wages or the terms and conditions of service of persons or class of persons serving as employees of the appellant. The High Court nonetheless relied on the Notification No. S. R. O. 97 (1)79, dated 27th of January, 1979, prescribing conditions of service of all persons engaged in any employment or class of employment to which this Act applied for the resolving of disputes arising from retrenchment, discharge. Dismissal or termination from service, which was later withdrawn. The High Court failed to notice that apart from its legality, it had no application to the cases of the respondents which were decided before the issuance of this Notification. Further, in view of the above discussion, I am of the opinion that such provision of a forum was ultra vires the power of the specified authority as the word " regulate" could not be construed to provide a forum in contravention of the provisions of sections 5 and 6 (2) of the Act.
Mr. Talmiz Burney, on behalf of the second respondents, contended that despite the absence of the direction, the word "regulate", as it occurs in the provisions under discussion, empowers the specified authority to resolve the dispute in regard to the termination of service, but this contention has no substance in view of what I have held above in regard to its interpretation in the light of the provisions of the Act.
Section 5 deals with the cessation of employment either at the behest of the employer or the employee. It would thus include termination of service according to the terms and conditions discharge, dismissal, absence or abandonment and retrenchment. The direction issued in terms of rule 3 (2) (d) concerning the termination of employment will also be covered in view of the were and all embracing language of this section. Any discontinuance of employment has necessarily to be judged from the test laid down in the section, namely, that it was "without reasonable excuse".
There--fore, if. The respondents felt aggrieved either by their termination of service or dismissal, they should have taken steps to institute the proceedings as provided by section 7 and in that even: it would have been open to the Court to determine as to whether the termination, according to the terms and conditions of service, or by way of dismissal or, discharge, was without lawful excuse or not as the ex--pression "without reasonable excuse" signifies an excuse which is not lawful.
From the above-quoted passage of the judgment of the Supreme Court, it is evident that the Supreme Court approved the decision of this Court given by a Division Bench, to which one of us was a party (Ajmal Mian, J.) reported in NLR 1981 Labour 200. It is also apparent that the Supreme Court disapproved the reasoning given in the judgments of the aforesaid Lahore and Peshawar High Courts cases reported in PLD 1977 Lab. 998 and PLD 1980 Pesh 216.
(b) Kamal Mansoor Alam has laid emphasis on the following observation of the Supreme Court with reference to the above Peshawar case But this conclusion fails to take into consideration that where a statute provides a forum for dealing with the violation no other authority can be a substitute for it, the moreso when the Act is an emergency legislation and has taken care to exclude the application of other laws which provide a forum for resolving the dispute bet--ween the employer or employee arising from the violation of the terms and conditions of the service."
4. (a) It may be pertinent to refer to the above Lahore and Peshawar cases in order to appreciate the scope of the Supreme Court's above ob--servation relied upon by Mr. Kama] Mansoor Alam.
(i) In the case of General Manager Heavy Mechanical Complex, Taxila v. Mamoon A. Kazi, Senior Member NIRC, Islamabad (PLD 1977 Lah. 998) the facts were that some employees of the management of the Heavy Complex were dismissed from service. Thereupon, they challenged the above action before the Senior Member NIRC, through five applications. The management of the Heavy Complex raised a .Preliminary objection in all the above applications to the effect that the Member bad no authority under the law to entertain the above applications. However, the above objection was rejected and the learned Member of the NIRC set aside the orders of dismissal on the ground that no proper inquiry was held. The manage--ment of the Complex filed 5 constitutional writ petitions challenging. The above order of the learned Member NIRC, which were dismissed by a learned Single Judge of the Lahore High Court and it was held that the Chairman and the Member of the N I R C authorised by him, were the specified authority and, therefore, they had the power to decide the afore--said applications. Upon, inter-Court appeal arising out of the above decision a D. B. Of the Lahore High Court held that in the absence of the framing of regulations under rule 3 (2) of the Pakistan Essential Services (Maintenance) Rules providing a forum other than a Labour Court, the NIRC had no jurisdiction to entertain an individual grievance. After recording the above conclusion the Division Bench declined to allow the 4 High Court appeals out of the 5 appeals on the ground that by allowing the same the Court would be acting in aid of illegality and injustice as admittedly no proper inquiry was held before the passing of the dismissal orders in respect of the private respondents in the said appeals. However the remaining one appeal was allowed as there was a proper inquiry held before the passing of the dismissal order in that case. It is evident that in the above case, the D. B. Was of the view that in the absence of framing of regulations by the specified authority the!
Labour Court retain the jurisdiction. It may be observed that the Supreme Court while consi--dering the above Lahore case did not approve reasoning of the learn-- ed Judges of the Division Bench and pointed out that the effect of section 6 (2) read with section 7 of the Act was not considered, and the fact that section 7 of the Act provides a forum for violation of a rule or direction and accordingly no extended meaning could be given to the word "regulate" vis-a-vis provision of forum in the context of the statutory forum already provided by the Act.
(ii) Reverting to the above Peshawar case, namely, Indus River Con--tractor, Tarbela v. Mr. Aziz Ahmod, Member, NIRC and another (PLD 1980 Pesh. 216), it may be observed that the facts were that a contractor firm was engaged in the essential repair work of Tarbela Dam, the employment of officers and workers under the Petitioner company was declared to be an employ--ment, to which the Pakistan Essential Services (Maintenance) Act, 1952 was made applicable. Respondent No. 2, Mazhar Ali Talpur was em--ployed by the petitioner as the Senior Administrative Officer on a monthly salary of Rs. 2,300 under a letter of appointment dated 1st October, 1978, in which the Petitioner-company provided that his services could be termi--nated on giving him one months notice or one month salary in lieu of a notice. The Petitioner company had a contract with the Water and Power Development Authority under the supervision of an American Company known as TAM. Under clause 4 of the aforesaid contract, it was provided that the Engineer, i.e. TAM were entitled to require the contractor to remove forthwith from the site the agent or any person employed by the contractor. In pursuance of the above clause TAM by a letter dated 16th September, 1979 addressed to the Petitioner --Company required it to remove forthwith from the site respondent No. 2. In response to the above letter his services were terminated in pursuance of the terms of the appointment and of the aforesaid rule 501. There--upon, respondent No. 2 challenged the order of termination of employment by way of a Civil suit which was dismissed.
Against the above order he filed an appeal. He also made an application purporting to be under section 6 of the Essential Services Act to the Chairman, NIRC, which was taken up by a member of the NIRC who issued a direction to the petitioner company to the effect that respondent No. 2 should be allowed to retain the residential accommodation up to 15th November, 1979. It may be mentioned that the Petitioner Company had raised a preliminary objection before the Member NIRC to the effect that he had no jurisdiction in the matter which objection was overruled.
Thereupon, the Petitioner-Company filed a Constitutional Petition. The above Petition was allowed and it was held by a Division Bench of the Peshawar High Court that it fully agrees with the view expressed by the Division Bench of the Lahore High Court in the above-cited case that the specified authority can have tile jurisdiction only when it makes regulations according to the authority vested in it under the 1962 Rules.
It may be pointed out that the above reasoning by the Division Bench of the Peshawar High Court was also not approved by the Supreme Court in the above case of Karachi Electric Supply Corporation Ltd. And in that context it was observed that the Act being an emer--gency legislation excludes the application of other laws, which provides a forum for resolving the dispute between the employer and the employees arising from the violation of the terms and conditions of service.
5. (a) Reverting to the case reported in NLR 1981 Labour 200, it may be stated that in the above case a Division Bench of this Court, to which one of us was a party, (Ajmal Mian, J.) as pointed out herein--above, while holding that the specified authority had no jurisdiction to adjudicate upon an individual grievance and that the jurisdiction could not have been conferred by the specified authority by its own declaration through a notification made inter alia the following observations.
"In our view the specified authority through the notification in fact purported to oust the jurisdiction inter alia of the Labour Courts contained in sections 25-A and 34 of the I.R.O. And the right of appeal contained in section 38 of the aforesaid Ordinance. It may also observed that section 25-A of the IRO provides that worker may bring his grievance before a Labour Court in respect of right guaranteed or secured to him by or under any law or any award of settlement for the time being in force, whereas section 34 con--fers right upon a collective bargaining agent or any employer to apply to a Labour Court for enforcement of any right guaranteed or secured to it or made, by or under any law or any award or settlement. Furthermore, against a decision of a Labour Court under any one of the above sections, an appeal is provided for under section 38 of the I.R.O. The I.R.O. r/w rules/regulations framed thereunder, contain procedure for the trial of a Petition/ Application/ Appeal. As compared to the above provisions, there is no right of appeal provided for in the Act (i.e. In the Pakistan Essential Services (Maintenance) Act, 1952), or the Rules framed thereunder, against a direction issued thereunder, nor there is any procedure provided for hearing individual grievances, in our view a direction issued under the Act and/or the rules, cannot be equated with the power to adjudicate upon an individual dispute by a Labour Court or by the Appellate Labour Court. Whereas the former is more akin to an executive order than a judicial order, the latter is a judicial act which stands entirely on a different footing from an executive order.
We are not inclined to accept the contention of learned counsel for respondent No. 2 that the Chairman NIRC by his own declaration through the notification can oust the jurisdiction inter alia of the Labour Courts."
It may bet noticed that in the above judgment it was inter olia observed that the specified authority by its own notification purported to oust the ,jurisdiction inter alia, of Labour Courts contained in sections 25-A and 34 of the IRO and the right of appeal under section 38 of the' aforesaid Ordinance. The above judgment has been expressly approved by the Supreme Court in the above Karachi Electric Supply Corporation Ltd., and leave to appeal against the above judgment was also declined by the Supreme Court through the aforesaid order dated 16th December. 1981 passed in civil Petition for Special Leave to Appeal No. K-114/81. It is true that in the above case the Division Bench of this Court proceed--ed on the assumption that the Labour Courts retain the jurisdiction in the specified authority under the Act. However, the Supreme Court while declining the leave against the above judgment has not adverted to this aspect.
(b) In the above context, it may be pertinent to refer to the above Karachi case of a Full Bench, comprising of 3 learned Judges, reported in PLD 1982 Kar. 33, in which the majority view was that the provisions of the other enactments do not cease to apply to the employers on the issue of a notification under section 3 of the Pakistan Essential Services Act and that only such provisions of other enactments shall be inapplicable as are inconsistent with the provisions of the Act or the rules framed thereunder.
(c) Similarly in the unreported judgment dated 23rd February, 1982 in C. P. 215/78 (Aqeel Ahmed Ansari v. P I A and 2 others) this Division Bench proceeded on the assumption that the Labour Courts retain jurisdiction to grant relief of re-instatements in the absence of any power vesting in the specified authority to adjudicate upon an individual grievance, However, in this case the learned counsel appearing for the respondents had conceded to the above legal proposition and, therefore, there is no discussion on this aspect in the judgment.
(d) Mr. Shahenshah Hussain has also invited our attention parti--cularly to the last two concluding paras. Of the aforesaid order of the Supreme Court dated 16th December, 1981, passed in the aforesaid peti--tion for Special Leave No. K-114/81, which read as follows :- "Finally, it was urged by the learned counsel that their Lordships in the above-mentioned judgment have construed the scope of section C, so as to exclude all other remedies available under the law to an aggrieved employee governed by the Act and confine his remedies to a criminal prosecution as provided in section 7 of the Act. This submission is based on the following passage from the judgment : "Any discontinuance of employment has necessarily to be judged from the test laid down in the section, namely, that it was "without reasonable excuse". Therefore, if the respondent felt aggrieved either by their termination of service by dismissal, they should have taken steps to institute the proceedings as provided by section 7 and in that event it would have been open to the Court to determine as to whether the termination according to the: terms and conditions of service, or by way of dismissal or discharge was without lawful, excuse or not as the expression "without reasonable excuse" signifies an excuse which is not lawful."
It is a well-recognized principle that any exposition of law in a judgment has to be read in the context of the issues raised therein and the facts of the case from which such issues arise. We would, therefore, leave the matter at that only and would not like to say anything further, since the question whether the present petitioner has any other remedy under any other law for the time being in force, is not a matter which arises for decision in the present case. ---In an appropriate case, perhaps there may be an occasion to further elucidate the scope of the observations referred to above."
On the basis of the above observation of the Supreme Court, it was vehemently urged by Mr. Shahenshah Hussain that the Supreme Court has not finally expressed its views on the question, as to whether the jurisdiction of the labour Courts is also ousted by virtue of the application of the provisions of the Pakistan Essential Services Act.
(e) Mr. Shahenshah Hussain has also referred to para. 6 at page 153 of Salmond on Jurisprudence, 12th Ed. In support of his contention that the Supreme Court in Karachi Electric Supply Corporation Ltd's. Case has not expressly held that Labour Courts have no jurisdiction in respect of employments to which Act has been made applicable. He wishes to press into service doctrine "Precedents sub silentio". It may be advantageous to quote hereinbelow relevant passage, which reads as follows :- Para. 6. Precedents sub silentio or not fully argued. The previous exceptions to the binding force of precedent can all be summed up as cases where the authority of the precedent either is swept away by subsequent higher or equal authority or is undermined by inconsis--tency with previous higher or equal authority. We now come to the more subtle attack upon the authority of a precedent involved in saying that the decision was arrived at sub silentio.
A decision passes sub silentio, in the technical sense that has come to be attached to that phrase.
When the particular point of law involved in the decision is not perceived by the Court or present to its mind. The Court may consciously decide in favour of one party because of point at which it considers and pronounces upon, it may be shown, however, that logically the Court should not have decided in favour of the particular party unless is also decided point B in his favour ; but point B was not argued or con--sidered by the Court. In such circumstances, although point B was logically involved in the facts and though the case had a specific outcome, the decision is not an authority on point B Point B is said to pass sub silentio."
(f) He has also pointed out that section 7-A of the Act provides that the provisions of the Act shall have effect notwithstanding anything to the contrary contained in the Trade Unions Act, 1926 (XVI oft 1926) or the Industrial Disputes Ordinance, 1959 (VI of 1959) or any other law. It has been urged by him that only the provisions, which are inconsistent in the Labour Laws are excluded and not all provisions and, therefore the provisions which are not inconsistent can be pressed into service It was also urged by him that section 7 of the Act only provides penal action for. Viollition any provision of the Act or the direction of the specified authority but does not provide the power to order re-instatement and, therefore, the labour Courts retain jurisdiction to grant the above relief. It is true that section 7-A of the Act does. Not exclude the appli--cation of all the provisions of the Trade Unions Act, 1926, or the IRO of 1959 or any other law but excludes the application to the extent of incon--sistency. It is also true that under section 7 of the Act, the Court trying the offence has no power to order re-instatement, but can award imprison merit to the extent of one year and fine.
6. However, we are inclined to hold that in view of the express observations made by the Hon'ble Supreme Court of Pakistan in the, above KESC's case, particularly with reference to aforesaid Lahore case of 1977 and Peshawar case of 1980 to the effect that no other forum call resolve the dispute between the employer and the employee than the forum provided by the Act, it is not open to this Court to hold otherwise. Nor we can take different view because of the above-quoted observations made by two learned Judges of the Supreme Court in the aforesaid un--reported order dated 16th December, 1981 passed in the aforesaid Petition for Special Leave No. K-114/81, particularly in view of the fact that in the above KESC's case the judgment was given by the Full Bench compris--ing three. Learned Judges upon hearing of a regular appeal, whereas the above order was passed by a Bench comprising two learned Judges while declining to grant leave to appeal. Furthermore, no express observation contrary to the aforesaid judgment given in the KESC's case has been made in the aforesaid order.
As regards other two cases cited by Mr. Kamal Mansoor Alam, namely, 1975 Pakistan Cr. Law Journal 105 and the case reported in 1978 Lahore 1235, it will suffice to observe that in the first case it was held that the observations of the Supreme Court even obiter dicta are entitled to highest respect and whereas in the second case a learned Single Judge of the Lahore High Court took the view that even an obiter dictum of the Supreme Court is binding upon the High Court. In our view, in the above KESC's case the observation of the Supreme Court as to the exclusion of the jurisdiction of the other forum are not merely obiter dicta but they are the conclusions arrived at by the Supreme Court. Nor the doctrine of precedents sub silentio can be pressed into service in the instant case as it cannot be said that the question, whether the Labour Courts have jurisdiction in respect of employ--ments, to which Act applies was not before the Supreme Court while considering the question, whether the specified authority had authority to adjudicate upon an individual grievance, which is manifested by the discussion of the aforesaid Lahore and Peshawar High Courts cases by the Supreme Court.
8. The upshot of the above discussion is that the above two petitions do not merit and, therefore, the same are dismissed. But in the circum-EB stances of the case, there will be no order as to costs.