' Since these two appeals involve common question of law, they are being disposed of by this common order.
2. The facts leading up to the appeal No, KAR-145/85, filed by the appellant, Malik Sakhawat Ali, briefly stated are that the appellant was employed as a Welder in the respondent's establishment on 17th March, 1982. His services were terminated with effect from 17th October, 1982. He served a grievance notice, dated 25th October, 1982 on the respondent-establishment. The respondent- establishment replied to the grievance notice, vide letter, dated 10th November, 1982 wherein it took the plea that appellant's services were retrenched in accordance with the provisions of Standing Order 13 of the Standing Orders Ordinance, 1968. Thereafter, the appellant filed an application under section 25-A, I. R.
0. 1969, before IVth Sind Labour Court at Karachi on 5th January, 1983 for his re-instatement in service with back benefits. The respondent establishment filed a reply statement to the grievance application, wherein a legal objection was raised to the effect that the employment of the respondent establishment was declared as an Essential Services, vide Notification, dated 4th November, 1982 and, therefore, the Labour Court has no jurisdiction to entertain the application under section 25-A, I. R.
0., 1969. The learned Labour Court by its order, dated 22nd March, 1983 dismissed the application filed under section 25-A, I. R.
0., 1969 holding that it had no jurisdiction to entertain the application. Aggrieved by this order, the appellant has come up in the appeal.
3. The facts leading up to the appeal No, KAR-146/83, filed by the appellant, Muhammad Ashfaq Shah, briefly stated are that the appellant was employed as Typist-cum-Clerk in the respondent establishment with effect from 31st January, 1981. His services were terminated on 25th October, 1982. He served the grievance notice, dated 31st October, 1982 on the respondent-establishment.
The respondent in the reply to the grievance notice, vide letter, dated 13th November, 1982 took the plea that the appellant's services were retrenched in accordance with the Standing Order 13 of the Standing Orders Ordinance, 1968. Thereafter, the appellant filed an application under section 25-A, I. R.
0. Before the learned IVth Sind Labour Court for his reinstatement in service along-with back benefits on 5th January, 1983. The respondent-establishment filed the reply statement in the Labour Court to the grievance petition raising a preliminary legal objection to the effect that the employment of the establishment was declared Essential Service, vide Notification, dated 4th November, 1982 and, therefore the Labour Court had no jurisdiction to entertain the application under section 25-A, I. R.
0. The learned Labour Court, vide its common order, dated 25th March, 1983 dismissed the application of this appellant also, holding that it had no jurisdiction to entertain it. This appellant also aggrieved by the order has come .Up in the appeal.
4. I have persued the material evidence available on the record and have also heard the learned Advocates of the parties, Mr. Riaz Hussain Baloch for the appellants and Mr. Naeem Bukhari for the respondent-establishment. There is no dispute about the Notification, dated 4th November, 1982 having been correctly issued by the Central Government being competent to do so. However, the learned counsel appearing on behalf of the appellants has mainly contended that the case of the present appellants shall not be governed by the provisions of Pakistan Essential Services (Maintenance) Act, 1952, as on the dates, the services of the appellants were terminated, the Notification, dated 4th November, 1982 having been published in the Gazette of Pakistan on 7th November, 1982 was not in force. He has further contended that the appellants acquired a right to initiate the proceedings under section 25-A, I. R.
0., as soon as their services were terminated i,e,, of the appellant, Malik Sakhawat Ali on 17th October, 1982 and of appellant, Muhammad Ashfaq Shah on 25th October, 1982, and since the Government issued the notification declaring all classes of employment under the respondent- establishment as Essential Services on 4th November, 1982 much after the termination of their services, and when they already acquired the right to initiate the proceedings under section 25-A, the jurisdiction of the Labour Court was not barred by the provisions of the Pakistan Essential Services (Maintenance) Act, 1952. He has also contended that in view of the provisions of section 6 of the General Clauses Act, 1897, his right to bring the application under section 25-A, I. R.
0., was not affected. On the other hand, Mr. Naeem Bukhari, the learned counsel for the respondents has contended that the appellants acquired the right to initiate the proceedings in an application under section 25-A, I. R.
0., in the Labour Court only after 15 days after the service of the grievance notice on their employer in case they were dissatisfied with the decision of the employer, or the employer had failed to communicate a decision within the period of 15 days after service of the grievance notices, as specified in subsection (2) and subsection (4) of section 25-A, I. R.
0., and not before that. He has further contended that the grievance notices were replied in the case of appellant, Malik Sakhawat Ali on 10th November, 1982 and in the case of other appellant, Muhammad Ashfaq Shah on 13th November, 1982 and having been dissatisfied with the decision of the employer they acquired the right to move the Labour Court in application under section 25-A, I.
R.
0., on the dates 10th November, 1982 and 13th November, 1982, respectively which were within 15 days of the service of the grievance notices and the notification declaring all classes of employment of the respondent-establishment as an essential service having been issued on 4th November, 1982, much before the appellants had acquired the right to initiate the proceedings under section 25-A, and to invoke the jurisdiction of the Labour Court, the Labour Court had no jurisdiction and could not entertain the grievance applications of the appellants. He has further contended that the provisions of section 7(a) of the Pakistan Essential Services (Maintenance) Act, 1952 do not contemplate the repeal of the Industrial Relations Ordinance, 1969, and, therefore, there would arise no question of applicability of the provisons of section 6 of the General Clauses Act to the case of the appellants.
5. It is undisputed that the service of the respondent establishment has been declared essential service under the Pakistan Essential Services (Maintenance) Act, 1952. It was observed by the Honourable Supreme Court of Pakistan in the case of K. E. S. C. Ltd. v. N. I. R. C. And another that "whereas Statute provides a forum for dealing with the violation no other authority can be substituted 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 between the employer and the employee, arising from the violation of the terms and conditions of service and further that section 5 deals with the cessation of employment either at the behest of the employees or the employee." This Full Bench decision of Hon'ble Supreme Court was followed by the Divisions Bench of the Sind High Court in the case of Khuda Bux v. Pakistan Steel Mills Corporation and others , wherein it was held that in view of the express observations made by the Hon'ble Supreme Court of Pakistan in the above K. E. S. C's case, particularly with reference to the aforesaid Lahore's case of 1977 and Peshawar case 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 the Court to hold otherwise." It would, therefore, appear that the view taken by the Supreme Court is that a person whose employment is regulated by the provisions of Pakistan Essential Services (Maintenance) Act, 1952, if he is aggrieved by the termination of his services for whatever cause or in whatever manner, can have resort only to the forum and according to the procedure provided in the said Act and to no other remedy and in no other manner. Reliance in this respect has also been placed by the learned counsel appearing on behalf of the respondent- establishment on the case of Habib Gul v. Pakistan Television Corporation, Islamabad .
6. I would next come to the contention raised on behalf of the appellants by their learned counsel, Mr. Riaz Hussain Baloch to the effect that the appellants acquired the right to initiate the proceeding under section 25-A, I. R.
0., 1969, before the Labour Court as soon as their services were terminated in the month of October, 1982 on the respective dates as stated above in respect of each of the appellants. On close examination of the provisions of section 25-A, it would clearly appear that the appellants acquired a right on the dates of termination of their services in the month of October, 1982, only to serve the grievance notices on their employer and not to invoke the jurisdiction of the Labour Court in the proceedings in applications under section 25-A, I. R.
0. In the view of sub-clauses (2) and (4) of section 25-A, I. R.
0., the appellants would have acquired the right to invoke the jurisdiction of the Labour Court only in application under section 25-A, after expiry of 15 days after the service of the grievance notices or on receiving the replies with which they remained dissatisfied, as contemplated by sections (2) and (4) of section 25-A, I. R.
0., 1969. Since the Notification under section 3 of the Pakistan Essential Services (Maintenance) Act, 1952, was issued on 4th November, 1982 much before the replies to the grievance notices with which they remained dissatisfied were received by the appellants in the case of Malik Sakhawat Ali1 2 3 on 10th November, 1982 and in the case of Asfaq on 13th November, 1982 and the applications under section 25-A, which were filed still later on 5th January, 1983 the' appellants could not legally invoke the jurisdiction of the Labour Court. I am fortified in this view by the decision of the Hon'ble Sind High Court in the case of Syed Manzoor All Rizvi v. National Bank of Pakistan Karachi and 3 others , relied on by the learned counsel appearing on behalf of the respondent-establishment. It was held therein that the effect of section 7(a) of the Act is that as soon as the Act is extended to any employment, the result was to exclude totally the applicability of the Industrial Disputes Ordinance, 1959, and the Labour Court/Industrial Court was divested of its jurisdiction to entertain disputes on the issuance of the notifications by the Central Government. It was further held therein that the application under section 31 of the Industrial Disputes Ordinance, 1959, filed before the Labour Court after the issuance of the notification under section 3 of the Pakistan Essential Services (Maintenance) Act, 1952, was thus not entertainable by the Labour Court and that it cannot be argued that the notification under section 3 of the Act loses its effect merely because of the issuance of the failure certificate under section 5 of the Industrial Disputes Ordinance, 1959. It would also be advantageous to refer to the following observations of the learned Judge Dorab Patel, J.
(as he then was) who decided the case, in that respect :- "The learned Attorney-General's reply was that the effect of section 7-A of the said Act was more than a mere implied repeal of the Ordinance, but that even if it was assumed that the effect of a notification under section 3 amounted to no more than an implied repeal, it could not help the case of the appellant, because no proceedings were pending before any Industrial Court on the date of the notification under section 3 of the said Act, namely-8th December, 1966. The submission of the learned Attorney-General is correct because the application under section 5 of the Industrial Court (namely respondent No, 3) had been made only on the 31st January, 1967. It is true that a Failure Certificate had been issued on 3rd December, 1966, 5 days before the date of the notification making employment with the bank an essential service. However although the issue of a Failure Certificate is a pre-condition of an application to an Industrial Court under section 5 of the Ordinance, it does not follow from the issue of a Failure Certificate that an Industrial Dispute would necessarily be referred to the Industrial Court. Therefore, I agree with the learned Attorney- General that no proceedings were pending before the 3rd respondent at the date of the said notification of 8th December, 1966."
7. It would suffice to say that there would arise no question of applicability of section 6 of the General Clauses Act in the circumstances of the present case as the provisions of section 7-A of the Pakistan Essential Services (Maintenance) Act, 1952, do not contemplate the repeal of Industrial Relations Ordinance, 1969, or any other enactment mentioned therein.
8. I would, therefore, find no force in the contentions raised on behalf of the appellants for the aforesaid reasons. In view of the bar as a result of the Notification, dated 4th November, 1982 under section 3 of the Pakistan Essential Services (Maintenance) Act, 1952, they cannot legally invoke the jurisdiction of the Labour Court. The impugned order ' passed by the learned Labour Court, therefore, does not call for interference.
9. The two appeals are accordingly dismissed. PLD 1982 SC 113 1983 PLC 16 PLD 1983 Lah. 161 1973 PLC 944 1 2 3 4