DECISION These three appeals have been heard together as they involve a common issue namely whether the jurisdiction of the Labour Courts to entertain grievance petition in respect of termination of services is ousted in case of workmen and employees to whom the provisions of the Pakistan Essential Services (Maintenance), Act, 1952, has been made applicable.
2, Appeal No. KAR-106 of 1982 has been filed by Shah Jawaid who was employed as a flight steward in the Pakistan International Air--lines Corporation. He was dismissed from service vide order, dated 15th September, 1981, on the ground that he had fraudulently obtained employment with the P. I. A. And had made a false declaration in respect of his educational qualifications.
3. Appeal No. KAR-131 of 1982 has been filed by Muhammad Mansur, who was employed as a Senior Office Assistant (time-keeper) in the Karachi Electric Supply Corporation. He was dismissed from service of the Corporation vide letter, dated 13th April, 1981, on the ground of habitually committing acts subversive of discipline.
4. In appeal No. KAR-133 of 1982, the appellant is Shahid Hussain, who was employed at the relevant time as flight steward in the P. I. A. On 31st July, 1980, he was suspended from his duty and later on, on 29 January, 1981, he was issued with a show-cause notice alleging that at the time of his employment in the P. I. A. He had submitted a false and forged educational certificate. He was ultimately dismissed from service vide order, dated 15th September, 1981
5. It is not disputed that the provisions of the Pakistan Essential Services (Maintenance) Act, 1952, are applicable to the establishments of the P. I. A. And the K. E. S. C. The said Act has been madeth appli--cable to the P. I. A. With effect from 15th August, 1981 by clause l0 of Martial Law Regulation No. 52 issued by the Chief Martial Law Administrator. As regards the K. E. S. C. The provisions of the Act have been made applicable to its employees by Notifications issued under the Act from time to time. The latest Notifications on the subject, which is on the record of the case, is dated 30th May, 1981 and was published in the Gazette of Pakistan Extraordinary of 1st June, 1981
6. All the three appellants have challenged the orders of their dis--missal through grievance petitions before the learned Fourth Labour Court which has dismissed the grievance petitions on the ground that by reasons of the application of the provisions of the Pakistan Essential Services (Maintenance) Act, 1952, the Labour Courts have no jurisdic--tion to entertain the grievance petitions, This decision is based on the judgment of their Lordship of the Supreme Court in the Case of K. L. S. C. Ltd. v. N.
1. R. C. (PLD 1982 SC 113).
7. I have heard Mr. M. L. Shahani, who appeared for appellant Shah Jawed, Mr. Ali Amjad, who represented appellants Shahid Hussain and Muhammad Mansur, Mr. Abdul Hafiz, who appeared for the P. I. A. And Mr. Safiullah Siddiqui, who represented the K. E. S. C.
8. Mr. M. L. Shahani sought to argue that the judgment of the Supreme Court in the case of K. E. S. C.
Has not examined the question of the entitlement of a worker to file a grievance petition before a Labour Court under section 25-A, I.R.O. And, therefore, the jurisdiction of the Labour Court to entertain the grievance petition of worker to whom the provisions of the Pakistan Essential Services (Maintenance) Act, 1952, have been made applicable is not excluded. He further submitted that the Pakistan Essential Services (Maintenance) Act, 1952, merely provides for a penalty. In case an employee's services have been unreasonably terminated and further even the initiation of the criminal proceedings or the filing of the complaint is not in the hands of the aggrieved workers but this power has been conferred on the authorised Government servants, while under the I. R. O. And the Standing Orders the aggrieved worker has himself the right of moving the Labour Court for redress of civil right. According to the learned counsel the penalty clause does not in any way effect or detract from the enforcement of a civil liability through the Courts set up for adjudication of such rights. In support of his contention he relied upon the passages appearing at pages 412 to 414 of the book instituted "Principles of Statutory Interpretation," 2nd Edition, by G. P. Singh. The learned counsel also sought to rely on certain passages in the case of A. Javed v. Pakistan International Airlines (PLD 1978 Kar. 64), which according to him-support his contention that the civil Court retain jurisdiction to adjudicate upon the rights of workmen to whom the pro--visions of the aforesaid Act have been made applicable.
9. Mr. Ali Amjad, the learned counsel for the appellant Muhammad Mansur and Shahid Hussain, wanted to address arguments on certain aspects of the case which according to him have not been dealt with by their Lordships of the Supreme Court in the case of Karachi Electric Supply Corporation particularly the issues of ouster of jurisdiction of the Labour Courts and the effect of clause (b) of sub-rule (2) of rule 3 of the Pakistan Essential Services (Maintenance) Rules, 1962, prohibit--ing the Central Labour Commissioner from prescribing any terms or conditions of workmen which may affect adversely the rights to which they were previously entitled, but I have not considered it necessary to go into these aspects of the case in view of the pronouncement of their Lordships of the Supreme Court in the case of Karachi Electric Supply Corporation. In that judgment their Lordships pointed out that the Act is an emergency piece of legislation where cessation of individual employment or class of employment is forbidden without reasonable excuse having regard to its object. In this behalf the learned Chief Justice of Pakistan, who delivered the judgment on behalf of the. Supreme Court, observed as follows:- "The Pakistan Essential Services (Maintenance) Act, 1952, owes its origin to the Essential Services (Maintenance) Ordinance (11 of 1941) which was enacted primarily for the object of securing the defence of "British India," the public safety the maintenance of public order, the efficient prosecution of war and maintaining supplies or services necessary to the life of the community; and section 3 of that Ordinance applied to all employment under the "Crown" and to any employment or class of employment which the Central Government or Provincial Government considered it essential to apply to such employment or class of employment. On expiry of this legislation it was re-enacted from time to time and finally it crystallized as "The Pakistan Services (Mainte--nance) Act, 1952" after partition. This legislation has, therefore, to be construed in the context of an emergency legislation where cessation of individual employment or class of employment is forbid--den without reasonable excuse having regard to its object, namely.
Maintenance of certain essential services."
10. The learned Chief Justice, while concluding that the sole remedy available to an aggrieved workman, to whom the provisions of the Essential Services Act have been made applicable, was to take steps to institute criminal proceedings under section 7 of the Act observed as follows:- "Section 5 deals with the cessation of employment either at the behest of the employer or the employee. It would thus include termina--tion of service according to the terms and conditions, discharge, dismissal, absence or abandonment and retrenchment. The direction issued in terms of rule 3(2d) concerning the termination of employment will also be covered in view of the were and tell 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".
Therefore, if the respondents felt aggrieved either by their termina--tion of service or 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."
11. The above judgment of their Lordships of the- Supreme Court came up for consideration before a Division Bench of the Karachi High Court in the case of KhudaBuksh v. Pakistan Steel Mills Corporation C. P. No. 636 and 1755 of 1980, in which the Division Bench repelled the contention that the Labour Courts have jurisdiction to entertain grievance petitions filed by workmen to whom the provisions of the Act have been made applicable against termination of their services and observed as follows :- "He has also pointed out that section 7-A of the Act provide that the provisions of the Act shall have effect notwithstanding any--thing to the contrary contained in the Trade Unions Act, 1926 (XVI of 1926) or the Industrial Disputes Ordinance, 1959 (LVI of 1959) or any other law. It has been urged by him that only the provisions, which were inconsistent in the Labour Law are exclud--ed 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 violation any provision of the Act or the direction of the specified authority but clues 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 application of all the provisions- of the Trade Unions Act, 1926, or the I. R. O. Of 1959 or any .Other law but excludes the application to the extent of inconsistency. It is true that under section 7 of the .Act, the Court trying the offence has no power to order reinstate--ment, but can award imprisonment 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 K E SC's case, particularly with reference to the afore--said Lahore case of 1977 and Pesharwar case of 1980 to the effect that no other forum can 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 unreported order dated 16th December, 1981, passed in the aforesaid petition for special leave No. K-114 of 1981, particularly in view of the fact that in the above KESC's case, the judgment was given by the Full Bench comprising of learned three Judges upon having of a regular appeal, whereas the above order was passed by a Bench compris--ing of 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."
12. In the above judgment, their Lordships of the High Court referred to their unreported judgment in the case of Aqeel Ahmed Ansari v. P.
1. A. And 2 others (C. P. No. 20 of 1978), in which their Lordships of the High Court had remanded for rehearing the case of a worker to whom the provisions of the Essential Services Act had been made applicable but expressly dis--sented from the view taken therein, which view was based on the learned counsel of the P.I.A. Conceding that the Labour Courts have jurisdic--tion . . . .
13. Mr. M. L. Shahani also sought to rely on the observation made by Zafar Hussain Mirza, J. In, the case of Abdur Rasheed v. Saeed Ibrahim and 2 others (Civil Petitions for Special Leave to Appeal No. K-114 of 1981). In that case the contention raised was that the Supreme Court in the case of K E SC had construed the scope of section 6 of the Act so as to exclude all other remedies available under the law to an aggrieved employee governed by the Act and confine remedy to him to criminal prosecution as provided under section 7 of the Act. Their Lordships, however, did not decide this issue and observed as follows : "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 on this matter, 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 o the observations referred to above.
14. The above observation in my respectful view would not appear to indicate that the issue regarding the jurisdiction of the Labour Courts to entertain grievance petitions filed by workmen, to whom the provisions of the Act have been made applicable, against the termination of their services is still undecided by the Supreme Court and remain an open question. It may be pointed out that in the above case their Lordships were only hearing a petition for special leave to appeal and had not heard full arguments on the subject.
15. I may in the end point out that as for back as in August, 1978, in the case of Pakistan Burmab Shell Ltd. v. Sind Labour Court No. IV (PLD 1978 Kar. 109) I had taken the view that a workman to whom the provisions of the Pakistan Essential Services (Maintenance) Act, have been made applicable B can have resort, in respect of his grievance of termination of services, only to the provisions of the said Act and not to the provisions of other, laws dealing with the same matter or consequential matters.
16. For the reasons discussed by me above, 1 find no merit in these three appeals and would, according, dismiss them.