' AIMAL MIAN, J. -Since the above petitions involve some common question of law, we intend to dispose of the same by this common judgment.
(a) The brief facts leading to the filing of Petition No, 146/80 are that the petitioner is a company within the meaning of the Companies Act, 1913 having its paid up capital of Rs, 1 Lac and having employed more than 50 workers. It carries on the business as construction contractor specialising in the erection of poles and towers for carrying on overhead transmission lines for electricity and laying of such transmission lines. It also acts as indentors for suppliers of electric equipment's and goods. Respondent No, 2 is the union of the employees of the petitioner. It is an admitted position that the provisions of Pakistan Essential Services (Maintenance) Act, 1952 (hereinafter referred as the Act) were made applicable to the petitioner's employees through notification from time to time commencing from 14th January, 1976. According to the petitioner, the above Act continued to apply to the petitioner during the following two periods :-
(a) 14th January, 1976 to 13th July, 1976 (b) 27th August, 1976 to the end of 1979.
' Respondent No, 1 is the authority specified under section 6 of the Act read with Essential Services (Maintenance) Rules, 1962 (hereinafter referred to as the Rules).
' It seems that on 12th September, 1975 respondent No, 2 made an application to the Federal Government under section 5 of the Companies Profits (Workers Participation) Act, 1968 (hereinafter referred to as the Act of 1968) for seeking a decision that the above Act of 1968 was applicable to the petitioner. It further seems that the above application remained pending with the Federal Government. On or about 11th May, 1977 by Amending Act XVII of 1977, the power of the Federal Government to decide the above question was taken away by substituting the original subsection
(1) to section 5. However, after the above amendment, the Section Officer, Government of Pakistan (Labour Division) through a letter, dated 8th April, 1978 addressed to the petitioner informed it that "since the Pakistan Electrical and Mechanical Constructors Ltd., only erect the poles connected with wires and are not responsible for the transmission of distribution of electrical energy nor their work is involved to subjection of goods or material to any manufacturing assembly, finishing or other artificial or natural process, which changes the original condition of poles or wires as to add to their value the Company's Profits (Workers Participation) Act, 1968 is not applicable to the said company."
' It also seems that on 31st March, 1979 respondent No, 2 Union instituted a petition under section 6 of the Act before respondent No, 1, praying therein, that the petitioner be directed to establish the workers participation fund since 4th July, 1968 i,e, the date of the enforcement of the Act of 1968 and to contribute to the fund 5% of profit earned during every year since July, 1968 upto and also to disburse the benefits from the fund to all the eligible workers. The above application was granted by respondent No, 1 through the impugned order dated 22nd August, 1979 gazetted in the Gazette of Pakistan, Extraordinary, October 11, 1979 Part II (Annexure 'M' to the petition). The petitioner being aggrieved by the above order filed the present petition inter alia for declaration that respondent No, 1 had no jurisdiction under the Act or under any other law to entertain respondent No, 2's above petition etc. ' Respondent No, 2 has filed a written statement to the petition, wherein various averments of the petitioner have been denied. It has been averred that the Act, 1968 is applicable to the petitioner- Company. It has also been denied that the petitioner does even engage in the transformation, generation, conversion, transmission or distribution of electrical energy. It has been averred that the petitioner's above averment stands contradicted by the works undertaken and executed by the petitioner-Company as shown in the list (Annexure `B/1'). It has been further averred that respondent No, 2 had no information about the decision of the Federal Government, dated 8th April, 1978 till the filing of the above petition and it has been averred that the petition was competent before respondent No,
1. It has also been averred that the above petition is not competent.
(b) Reverting to Petition No, 956/60, it may be stated that the brief facts leading to the filing of the above petition are that petitioner No, 1 is the Managing Director of M/s. Pakistan State Oil Ltd., (hereinafter referred to as the Company), which is being controlled and managed by petitioner No, 2, i,e, Board of Management set up under section 7 of Act XVII of 1974. Respondent No, 2 was in the employment of M/s. Karnaphully Paper Mills Ltd. In late East Pakistan and his services were transferred to M/s. Dawood Petroleum Ltd., on 1st, July, 1969 (Annexure to the petition). It seems that on 1st January, 1979 the Federal Government took over the management of M/s Dawood Petroleum Ltd., under section 5 of Act XVII of 1974 and appointed the Managing Director of the said Company under section 6 of the said Act. Subsequently the name of M/s Dawood Petroleum Ltd. Was changed by the Federal Government to M/s Premier Oil Co. Ltd. The above Company, M/s. Premier Oil Co. Ltd. Was amalgamated with M/s Pakistan National Oil Co. With effect from the 30th December, 1976 under section 15 of Act 17 of Act, 1974 and section 8 of the Esso Undertaking (Vesting) Ordinance, 1976. Upon the above amalgamation respondent No, 2 became the employee of the Company i,e, of M/s Pakistan State Oil Ltd., by virtue of section 16 of the aforesaid Act 17 of 1974 read with Article (e) of the said amalgamation scheme. The last post which respondent No, 2 held in the Company was that of the Secretary of the Company with the rank of a General Manager. It further seems that on 15th November, 1979 the services of respondent No, 2 were terminated (Annexure 'G' to the petition). It has also been averred in the petition that by virtue of his employment in the Company respondent No, 2 was also designated as the Secretary of petitioner No, 2 (i,e, Board of Management) and that the designation of the. Secretary of the Board of Management was ex officio and did not carry any emoluments and there was no employer as such. It also seems that respondent No, 2 instituted Miscellaneous Case No, 18(1)/80 against the petitioners under section 6 of the Essential Services Act (hereinafter referred to as the Act), wherein he prayed for a declaration that the action of the petitioners in terminating respondent No, 2's service was without lawful authority. He also sought relief of re-instatement with full back benefits.
Respondent No, 1 thereupon, issued notices to the petitioners and directed them to appear on 9th February, 1980. In response to the above notice, the petitioners filed written statement/parawise comments denying therein, the various allegations made by respondent No,
2. It was also pleaded that respondent No, 2 had no locus standi to file and maintain his application as the termination of service was simpliciter and that there was no right guaranteed or secured under the law to be enforced. The petitioners also challenged the jurisdiction of respondent No, 1 to entertain the above application. It has been averred that on 14th February, 1980 respondent No, 1 after hearing the arguments of the parties on the preliminary objections raised by the petitioner reserved the case for orders. However, the case was fixed, on 15th June, 1980 for the evidence of the parties. It; has been further averred that on 10th April, 1980 respondent No, 1 rejected some of the preliminary objections raised by the petitioners, but failed to give any decision on other preliminary objections.
The petitioners being aggrieved by the above order filed the present petition, in which inter alia the petitioners have sought a declaration to the effect that respondent No, 1 has no jurisdiction to entertain respondent No, 2's above application under the Act and also sought a direction for restraining respondent No, 1 from proceeding with the said application.
' Respondent No, 2 has filed a counter affidavit to the above petition in which inter alia, it has been denied that respondent No, 1 has no jurisdiction to entertain his aforesaid application. It has been averred that the termination of his service was illegal, ultra vires of the powers of petitioner No, 1 and in complete disregard of the service conditions. The various other allegations contained in the petition have also been denied.
(2) Now we intend first to take up the contentions raised by the learned counsel for the parties in Writ Petition No, 146/80.
(a) Mr. Vellani, learned counsel for the petitioner has urged the following points :-
(I) That in view of the majority judgment of the Fat Bench in the case of MIs Pakistan Burma Shell Ltd. v. The Central Labour Commissioner and others given on 30th June, 1980 in High. Court Appeal No, 41/76, reported in PLD 1982 Kar. 33, respondent No, I had no jurisdiction to entertain respondent No, 2's claim for establishing the workers' participation fund.
(ii) That the petitioner in fact is not covered by the Act of 1968.
(iii) That the decision given by the Federal Government on 8th April, 1978 in pursuance of the power vested in it under unamended section 5 of the Act of 1968 had become final and, therefore, respondent No, 2 could not have reagitated the above claim again before respondent No, 1' through the petition under section 6 of the Act.
(b) On the other hand Mr. Khurshid Shaikh, learned counsel for respondent No, 2 has urged the following points :
(i) That the petitioner having failed to raise any objection as to the jurisdiction of respondent No, 1 before the latter, cannot be permitted to raise the same before this Court.
(ii) That respondent No, 2's case is distinguishable from the aforesaid majority judgment of the Full Bench inasmuch as the Notification dated 27th January, 1979 issued by respondent No, 1, was not in the field at the time when the dispute was agitated before the specified authority, from which the above High Court appeal arose, and which notification conferred requisite power on the specified authority.
(iii) That even otherwise, respondent No, 1 had the power to issue direction of the nature in question by virtue of the provisions of section 6 of the Act read with Rule 3 of the Rules.
(iv) That this Court would not exercise its discretionary jurisdiction under Article 199 in order to perpetuate an injustice, which had been caused by the petitioner by not establishing the workers participation fund.
(v) That the petitioner is covered within the ambit of the Act of 1968 and the scheme framed thereunder.
3. (a) It may be pertinent to take up the first contention of the learned counsel for respondent No, 2 noticed hereinabove, namely, that the petitioner having failed to raise the objection pertaining to jurisdiction before respondent No, 1, is estopped from raising the same before this Court. In our view, the above contention is devoid of any force inasmuch as in paras. 16 and 17 of the parawise comments submitted by the petitioner before respondent No, 1, it was specifically pleaded that respondent No, 2's claim for the alleged statutory payment would be outside the scope of regulation under section 6 of the Act read with Rule 3 of the Rules. The petitioner has also raised the above plea inter alia in paras. 1 and 24 of the present petition. Even otherwise, the question of wan of jurisdiction can be permitted to be raisedfirst time in a writ petition in a fit case.
(b) (i) Reverting to the basic question, as to whether respondent No, 1 had the jurisdiction to entertain the application or not and whether the majority view in the aforesaid High Court Appeal is applicable to the instant case or can it be distinguished, it may be observed that prior to the above Full Bench case the consistent view of this Court, except in one case namely A. Javed, President of P. I. A's. Employees' Union, Karachi v. N. I. R. C. was that the specified authority under section 6 read with section 7-A of the Act and Rule 3 of the Rules had the power to adjudicate upon individual grievances with the exclusion of the Labour Courts. In' this connection a reference may be made to the case of Syed Manzoor Ali Rizvi v. MIs. National Bank of Pakistan, Karachi and 3 others decided by Dorab Patel, J. (as his Lordship then was), the case of Employees' Union v. Pakistan Machine Tool Factory, Landhi and 2 others decided by Agha Ali Hyder, J. (as his Lordship then was) the case of A. Javed President International Airlines Employees' Union, Karachi v. N. I. R. C. Government of Pakistan, referred to hereinabove, in which a Division Bench held that the provisions of the Pakistan Essential Services (Maintenance) Act, 1952 and the provisions relating to the registration of Trade Unions given in I.R.O., 1969 were not inconsistent and, therefore, could have been pressed into service. In this case a somewhat different view found favour with Channa J. Sitting with S. A. Nasrat J. Furthermore, in the case of Pakistan Barmah Shell Ltd. And 3 others v. Sind Labour Court Channa, J. Sitting singly took the view that the specified authority had the jurisdiction to entertain an application of a worker against the order of termination of service and not the Labour Court. In other words, Channa, J, did not follow strictly his previous judgment namely, the aforesaid case reported in PLD 1978 Kar.
64. The above view was reiterated by him in the case of Muhammd Usman v. MIS Pakistan Steel Mills Ltd. . Again in the case of the Karachi Electric Supply Corporation, Mushtaq Ali, J. Sitting with Agha Ali Hyder, J. (as his Lordship then was) held that the term "regulate the wages" includes the fixation of the amount or adjustment of the same and the power of settling individual dispute regarding individual grievance that might arise in enforcing the rights and obligations.
' Apart from the above Karachi cases, it may be pertinent to point out that Shafiur Rahman, J. (as his Lordship then was) in the case of the General Manager, Heavy Mechanical Complex Taxila v. Mr. Bashir Ahmad Malik Member, National Industrial Relations Commission took the view in line of the above Karachi cases and held that the specified authority had the jurisdiction to entertain individual grievances. It was further held that the jurisdiction of two authorities equally competent should have no conflict or clash between them and that if the ascendency of one over the other is manifest the supersession of the other follows by necessary implication and, therefore, because of1 2 3 4 5 6 section 6 of the Pakistan Essential Service (Maintenance) Act, 1952, the jurisdiction of Labour Court was ousted. However, in the inter-Court appeal filed against the above judgment of Shafiur Rahman, S. a D. B. Of the Lahore High Court took a contrary view and it was held that the specified authority had no jurisdiction to entertain individual grievances in the absence of any regulations/rules specifying the forum different from the one given in the Standing Orders Ordinance. It may be observed that the above D. B's judgment has also been reported in the same volume i,e. PLD 1977 Lah.
998.
(ii) In the above background of the case-law, the following two questions were referred to the Full Bench comprising of 3 Judges, by the then Hon'ble Chief Justice : "(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 Acts 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 ?
(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 Act is affected by extention of the provisions of the Act to an employment or class of employment ?"
' However, the Full Bench during the hearing of the case framed the following third question on relying upon the case of Bakshi Rustam Ali v. The Province of the West Punjab : "(3) Whether the Commissioner can adjudicate the industrial dispute.
' The majority view namely, Abdul Hayee Kureshi, J. (as his Lordship then was) concurred with by Saeeduzzaman, J, gave the following answers to the above questions : - "(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 to applicability of the 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."
However, Naeemuddin, J. In his minority judgment relying upon the aforesaid Karachi cases and the Lahore case decided by Shafiur Rahman, J. (as he then was) took a contrary view on the basic point in issue and answered the above questions as follows :- "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 All Rizvi v. Messrs National Bank of Pakistan and 3 others, 1973 PLC 94 and Shafiur Rahman, J. In the case of General Manager, Heavy Mechanical Complex, Taxila v. Bashir Ahmad (Member, N. I. R. C.) PLD 1977 Lab. 982 and the Division Bench decision reported in PLD 1980 Kar. 196, on the first question referred to 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) Act, 1952 is issued by the Central Government extending the provision 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 between them 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 affected to the extent mentioned in the answer to the first question.7 ' 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, I have considered the same for the reasons already stated, I am of the opinion so far as 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 Labour Commissioner."
(iii) A perusal of the majority view indicates that according to it, the term "regulate" used in section 6 of the Act read with Rule 3 does not empower the specified authority to adjudicate upon an individual grievance. In this regard, it may be pertinent to quote hereinbelow a few extracts from the majority judgment, which reads as follows :- ' The reading of these rules could seem to indicate that the power conferred by sub-rule (2) of rule 3 relates only 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.
"On the consensus of judicial authority and dictionary meaning of the word "regulate" it appears that the word truly and faithfully implies only power to create circumstances and to lay down principles 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 in matters of conduct so that arbitrariness, whimsicality and capriciousness is avoided. It may also mean 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 principles or rules and determine whether the rights or obligations are correctly performed or fulfilled. After all laying down a rule is different from enforcing the some. It is commonly understood that the police has the powers 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 a fear of contradiction that the word "regulate" would mean and imply laying down of rules but does not mean implementation of the same as to determine the question in regard to application of the rule or infringement of the same."
"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.
' 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 matters of this nature."
4. (a) It was urged by Mr. Khurshid Anwar Sheikh, learned counsel for respondent No, 2 that if the Notification dated, 27th January, 1979 (hereinafter referred to as the notification) would have been issued prior to the filing of the application/petition before the specified authority, from which the above High Court Appeal arose, the majority view would have been different. His further submission was that in fact the majority view had taken note of the aforesaid notification and from the reading of the observations contained in the majority judgment in respect of the above notification, it seems that the learned Judges proceeded on the assumption that the above notification was valid. He has relied upon the observation appearing in the majority judgment at lines Nos, 851 to 868 and lines Nos, 1052 to 1054 onwards in support of his above submission, which read as follows :- "A reading of this document which is called a declaration would indicate that by publication of this direction what the 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 in January, 1969 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 so-called 'declaration' became 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."
"In the instant case by the Notification, dated 27th January, 1979 an authority has indeed been devised for adjudication of the disputes but earlier to that no such authority existed."
' On the other hand Mr. Vellani has urged that the validity of the above notification was not in issue before the Full Bench and, therefore, any observation in respect thereof in the majority judgment would be at the most obiter dictum, and cannot be taken as a decision as to bind this Court. He has also invited our attention to the following observation made by Naimuddin, J. In the minority judgment which reads as follows :- "This direction provides procedure for person who is governed by the Act and who is aggrieved as to how he should approach the specified authority. But issuance of this direction does not in any manner bring the settlement of dispute or redress of grievance within the competence 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."
' It was urged by Mr. Vellani that the specified authority (i,e, the Chairman N. I. R. C.) could not have conferred jurisdiction upon himself by issuing a declaration through a notification if the terms 'regulate' used in section 6 of the Act and Rule 3 of the Rules did not include the power to adjudicate upon the individual grievances as has been held in the majority judgment of the Full Bench. There is no doubt that the dires of the notification were not before the Full Bench and, therefore, any observation in the judgment would be at the most an obiter dictum and not a decision in the matter. Since the majority view is binding on us on the question that the provisions of section 6 of the Act and Rule 3 of the Rules do not empower the specified authority to adjudicate upon individual disputes, we will have to examine the validity of the notification on the above basis.
(b) The notification has been issued under section 6 of the Act read with, Rule 3. In our view if the power to adjudicate upon individual grievances cannot be spelled out from the provisions contained in the Act and the C Rules, framed thereunder, the notification cannot hold ground. The specified authority cannot confer jurisdiction upon itself in respect of matters, not, relatable to any scheme or direction issued by it for regulating the wages and other terms of service.
' It may be pertinent to reproduce hereinbelow the above notification which reads as follows :- "25. The Gazette of Pakistan Extra., Jan. 27, 1979.-Ministry of Interior, Islamabad, the 27th January, 1979.
S. R. O. 97 (l)/79.-The following directions of the Chairman. National Industrial Relations Commission, regarding the conditions of service of all persons or of any class of persons engaged in any employment or class of employment declared under section 3 of the Pakistan Essential Services (Maintenance) Act, 1952 (LII of 1952), to be an employment or class of employment to which the said Act applies are hereby published as required by sub-rule (3) of the Pakistan Essential Services (Maintenance) Rules, 1962, namely :-- NATIONAL INDUSTRIAL RELATIONS COMMISSION ISLAMABAD DIRECTIONS ' No, 14 (24) 174-Admn. I dated 23rd December, 1978-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 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 :
(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 arising of the cause of action, bring, in writing his grievance in respect of any right guaranteed to him by or under any Law, I 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 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 the applicant, and the employer and after such further inquiry, 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.
[No, 7/47/78-Poll. I (2).] Chairman, National Industrial Relations Commission Specified Authority under the Act.
S.K.O. NAQVI Deputy Secretary"
(c) It may be noticed that the specified authority through the above notification purported to confer jurisdiction upon itself in respect of any right guaranteed to any person covered under the Act by or under any law, settlement or award for the time being in force relating to the wages and other conditions of service including retrenchment, discharge, dismissal or termination from service.
' In our view the specified authority through the notification in fact purported to oust the jurisdiction inter alia of the Labour Court contained in sections 25-A and 34 of the I. R.
0. And the right of appeal contained in section 38 of the aforesaid Ordinance. It may also be observed that section 25-A of the I. R.
0. Provides that a worker may bring his grievance before a Labour Court in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force, whereas section 34 confers 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.
0. The I. R.
0. Read with rules/regulations framed thereunder, contains 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 act which stands entirely on a different footing from an executive order. We are not inclined to accept the contention of the learned counsel for respondent No, 2 that the Chairman N. I. R. C. By his own declaration through the notification can oust the jurisdiction inter alia of the Labour Courts.
' In this connection it may be pertinent to refer to the case of Mls. Indus River Contractors, Tarbela v.
Mr. Aziz Ahmad Member, N. I. R. C., wherein the vires of the aforesaid Notification, dated 27th January, 1979 were considered and it was held by Division Bench of the Peshawar High Court that the above notification does not confer jurisdiction upon the specified authority to adjudicate upon individual grievances. It was further held that in order to press into service section 6 of the Act or Rule 3 the specified authority first to prescribe the wages in terms of the above provisions. It may be pertinent to reproduce hereinbelow paras. 13 and 14 of the above judgment, which read as follows : "13. The learned counsel for respondent No, 2, when confronted with this position, contended that the regulations have actually been framed by the specified authority and, therefore, it does not lie with the petitioner-Company to say that the specified authority cannot adjudicate on the matter in dispute. He referred to the regulations framed by Notification No, S. R.
0. 97-(1)/1979, dated 27th January, 1979, reproduced in para. 7 above, and contends that it was after framing of these regulations that the specified authority was clothed with the jurisdiction and respondent No, 1 who is the specified authority assumed jurisdiction by the impugned order. The learned counsel for the petitioner-Company has, however, rightly pointed out that the regulations relied upon by the learned counsel for respondent No, 2 are not the regulations as contemplated by 1962 Rules.
14. A bare reading of the 1962 Rules would show that the Federal Government never conferred any juisdiction on the specified authority to frame regulations of omnibus nature as it has done. Sub- rule 2 (a) provides for taking views of the employer. Sub-rule 2 (b) prohibts the specified authority to change the terms and conditions if such change adversely effects the rights of employees that already exist. Again the previous sanction of the Federal Government is necessary under sub-rules 2 (c) and 2 (d). All this shows that before prescribing the wages and terms and conditions of serivce the specified authority has to take into consideration certain matters and has to do certain things and unless those things are done the regulations would not be in order. The regulations of 27th January, 1979, reproduced above, are not the regulations laying down wages or the terms and conditions. These are only procedural in nature providing for the manner in which a grievance can be taken to the specified authority and the manner of hearing of such grievance. Since the terms and conditions of the employment of respondent No, 2 with the petitioner-Company have not been regulated, the specified authority, in my view, had no jurisdiction to take up the matter of settling the dispute arising out of the termination of the service of respondent No,
2. The remedy in this case lies with the civil Court as the respondent had no right to go to the Labour Court constituted' under the I. R.
0., he not being a worker or a workman within the definition of that Ordinance."
5. (a) The above conclusion leads us to examine the contention of the learned counsel for respondent No, I that under section 6 read with rule 3 of the Rules, respondent No, I was competent to issue a direction to the petitioner to the effect that it should establish the workers participation fund under the Companies Profits (Workers Participation) Act, 1968. There is no doubt that under the above provisions of the Act and the Rules, the Specified Authority has the power 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 employee or class of8 employees to which the Act applies. But sub-rule (2) of Rule 3 prohibits the Specified Authority from prescribing any terms of conditions without taking into consideration the view of the employer of the person concerned or the representative of such employers except where such views are not received within the time fixed by him. It also prohibits prescribing of any terms or conditions, which may affect adversely the right to which a person is entitled immediately before the publication of the rules by virtue of any law or under the terms of any award, agreement or contract duly made operative. It further prohibits increasing of wages or allowances without the previous sanction of the Federal Government in writing of any person in respect of whom a dispute existed with the employers, or to specify without the previous sanction in writing of the Federal Government any condition on which the employment of any person may be terminated. . In the instant case there is no doubt that a dispute as to the petitioner's obligation to establish the workers participations fund and as to the petitioner's liability to contribute towards the above fund under the Act of 1968, existed at the time of filing of the petition by respondent No, 2 before respondent No, 1 on 31st January, 1979 inasmuch as respondent No, 2 made an application, on 12th September, 1975 to the Federal Government for a decision that the above Act was applicable to the petitioner-Company, which application was decided by the Federal Government against respondent No, 2 by the aforesaid order, dated 8th April, 1978.
(b) It was also urged by Mr. Khurshid Anwar Shaikh that proviso (b) to sub-rule (2) of Rule 3 of the Rules only prohibits the prescribing of any such terms or conditions, which may affect adversely the right, to which a person was entitled to immediately before the publication of the rules by virtue of a common law or under the terms of any award, agreement or contract, duly made and operative, but it does not prohibit a direction for the enforcement of a right in favour of the person named in the above clause. In our view the above contention is devoid of any force inasmuch as respondent No, 1 through the impugned order has purported to enforce an alleged right allegedly accrued to respondent No, 2 upon the enforcement of the Act of 1968 (i. e. The Companies Profits (Workers Participation) Act, 1968), which has nothing to do with the prescribing of the terms and conditions under the Act in respect of the persons covered under the said Act. It is an admitted position that respondent No, 1 has not adverted to the question, as to whether, it would be appropriate to provide' the establishment of the workers participation fund compulsorily as a part of regulating the wages and other terms and conditions of service. If respondent No, 1 while regulating the wages and other conditions under section 6 read with Rule 3 would have provided certain percentage of profit, which was to be contributed by the petitioner or other companies like of the petitioner as a part of a scheme, in that event, it could have was within the ambit of section 6 of the Act read with Rule 3 of the Rules., While probably successfully contended that the said act of respondent No, 1 While exercising power under the above section and the Rule, respondent No, 1 will have to examine the wage structure/wages structures of the persons, whose wages and other conditions of service, he intends to regulate. Whereas, in the instant case, this aspect was not taken into consideration by the respondent No, 1 as pointed out hereinabove.
(c) The questions before respondent No, 1 were, whether the Companies Profits (Workers Participation) Act, 1968 was applicable to the petitioner Company, and whether the petitioner was obliged to establish the workers participation fund with effect from date of enforcement of the above Act, namely, 4th July, 1968. The alleged right claimed by respondent No, 2 allegedly accrued to them in July, 1968 by the enforcement of the above Act of 1968. In our view in the circumstances of the present case, the impugned order has no nexus with the power to regulate wages and other conditions of service as envisaged under section 6 of the Act, read with rule 3 of the Rules.
We are inclined to hold that respondent No, 2's alleged right to the workers' participation fund is not relateable to section 6 of the Act and Rule 3 of the Rules and, therefore, the latter provisions could not have been pressed into service for adjudicating upon the claim in question unless we hold that the term 'regulate' used in section 6 of the Act and Rule 3 of the Rules include the power to adjudicate upon individual grievances, which view we are not free to take in view of the aforesaid majority judgment of the Full Bench.
We are also not inclined to agree with the contention of the learned counsel for respondent No, 2 that in fact the impugned order is a direction and not a decision. In our view the perusal of the impugned order will indicate that for all intents and purposes, it is a decision in respect of a dispute between the petitioner and respondent No, 2 which existed at the time when the Act (i. e. The Pakistan Essential Services (Maintenance) Act, 1952), was made applicable to the petitioner- Company.
(d) It was also vehemently urged by Mr. Khurshid Anwar Shaikh, learned counsel for respondent No, 2 that the reasoning of the majority judgment contained in lines Nos, 927 to 933 of the judgment quoted herein-above in para. 3 (b) (iii) to the effect that the same authority cannot be the framer of the rules/regulations and also the authority to adjudicate upon a dispute arising on account of a breach of such rules/regulations is not sound. In support of the above contention, he has relied upon Craise on. Statute Law, p. 314-15, 7th Edition, Statutory Construction by Crawford 1940 Edition, p.19, and Maxwell on the Interpretation of Statutes, 11th Edition at page 291. It will suffice to observe that the majorit view of the Full Bench is binding on us and, therefore, we do not consider it proper to sit as a Court of appeal and to hold that the reasoning which found favour with the learned two Judges constituting the majority view was not sound.
(e) ' It was also urged by Mr. Khurshid Anwar Shaikh, that in the majority judgment, it has been held that an industrial dispute cannot be adjudicated upon by the specified authority but it has not been held that no direction of the nature under reference can be issued. He has referred to the definition of the term 'industrial dispute' given in the I.R.O., in order to show that the alleged direction in issue is not covered by the aforesaid definition. In our view the definition of the above term contained in section 2 (xiii) of the I.R.O. Cannot be pressed into service for the purpose of interpreting the majority judgment of the Full Bench. From the reading of the majority judgment, it is evident that the term 'industrial dispute' used in question No, 3 framed by the Full Bench was not used in restricted sense or in terms of the definition given in the I.R.O. From the tenor of the judgment, it is clear that in fact the question mooted before the Full Bench was as to whether an individual grievance can be subject-matter of adjudication by the specified authority in view of the provisions of section 6 of the Act and Rule 3 of the Rules.
( f) Reverting to the respective contentions of the learned counsel for the parties on the question, as to whether the petitioner-Company was covered by the Act of 1968, it will suffice to observe that whereas Mr. Vellani has vehemently urged that the petitioner-Company does not fall within the ambit of the Act and the scheme framed thereunder, whereas it was vehemently contended by Mr. Khurshid Anwar Shaikh that in view of the nature of the works executed by the petitioner, it is evident that the petitioner-Company does in fact come within the compass of the aforesaid Act and the scheme. In support of his above contention he has referred to respondent No, 2's written statement and also to Annexure 'RN to show what type of works were executed by the petitioner- Company. In our view, it will not be appropriate for us to comment upon the merits of the above respective contentions, since it would be for the competent forum to adjudicate upon the K above issue, as we are inclined to hold that respondent No, 1 had no jurisdiction to entertain an individual grievance of the nature which was the subject-matter before him.
(g) Reverting to Mr. Vellani's contention that the decision given by the Federal Government on 8th April, 1978 in pursuance of the powers vested in it under the unamended section 5 of the Act, 1968.
Had become 'final and hence respondent No, 2 could not have re-agitated the above claim again before respondent No, 1 it may be observed that whereas it was urged by Mr. Khurshid Anwar Shaikh that the above decision is not a bar for agitating the above point before the competent forum. His further submission was that though respondent No, 2 had filed an application under section 5 on 12th September, 1975, but the same was not decided for more than 2 (1/2) years and that it was decided at a time when the Federal Government had ceased to have any power to decide in view of the amendment in L section 5 of the Act by Act XVII of 1977. He also pointed out that no hearing was given to respondent No, 2 before deciding the above application and in fact the alleged decision contained in the Section Officer's letter dated 8th April, 1978 was addressed to the petitioner alone. Mr. Khurshid Anwar Sheikh has also relied upon the case of Younus v. Monnoo Motors and another . It will suffice to observe that in our view it is not necessary to decide 'the above contention for the disposal of the above petition and, therefore, we have refrained ourselves from commenting upon the merits of the above contention.
(h) With reference to Mr. Khurshid Anwar Shaikh's contention that this Court would not exercise its discretionary jurisdiction under Article 199 in order to prepetuate an injustice, which has been caused by the petitioner by not establishing the workers participation fund, it may be observed that reliance has been placed on the case of Nawab Syed Rounaq Ali v. Chief Settlement Commissioner and the case of Muhammad 'AO v. Sind Labour Appellate Tribunal and another ' In the first case while interpreting the provisions of the Registration of Claims (Displaced Persons)
Act (III of 1957) and of certain notifications issued thereunder, it was held by the Supreme Court that the Superior Courts would refuse to perpetuate something, which would be patently unjust or unlawful. In the above Supreme Court case the facts were that the Deputy Claims Commissioner's Orders verifying the claims of certain persons (which were legal and without jurisdiction), were set aside by the Officer on Special Duty, who had also no jurisdiction. It was observed by Supreme Court that the High Court could legitimately refuse to set aside the latter's order under Article 199 of the Constitution. Whereas in the above second case of Karachi, a Division Bench held that the order which was sought to be set aside was not shown to have caused injustice to the parties, but on the contrary it cured the manifest illegality. It was further held that though the order of the Labour Court was without jurisdiction but the High Court would not set aside the same, because it would neither "foster justice nor right a wrong". It may be observed that there cannot be any cavil to the proposition that in a fit case the High Court may decline to exercise its constitutional jurisdiction under Article 199, if it will result in miscarriage of justice instead of fostering justice. However, in our view, the above principle cannot be pressed into service in the instant case inter alia for the reason, that it is an admitted position that the Act of 1968 came into force in July, 1968, whereas the respondent union first time on 12th September, 1975 (i. e. After the expiry of more than 7 years) made an application to the Federal Government under section 5 of the said Act for a declaration that the provisions of the Act and the scheme framed thereunder M were applicable to the petitioner-Company. It seems that respondent No, 2, union was itself not clear about the applicability of the above Act of 1968 to the petitioner-Company. It is also an admitted position that till today the workers' participation fund has not yet been established and, therefore, this Court will not be disturbing the working of such fund by declaring the order of respondent No, 1 as without lawful authority. Since the application of the above Act .To the petitioner-Company is in issue between the parties, in our view, it will not be just and proper to dismiss the petition on the assumption that the said Act in fact is applicable to the petitioner-Company.
6. (a) Reverting to the contentions raised by the learned counsel for the parties in the other above connected petition, namely, Petition No, 956/80, it may be observed that Mr. Fazeel has urged the following points :
(i) That there is no power vested in the Specified Authority to adjudicate upon individual grievance, particularly in view of the majority judgment of the Full Bench given in the High Court Appeal No, 41/76.9 10 11
(ii) That under Article 175 (2) of the Constitution it has been provided that no Court shall have any jurisdiction save as is' or may be conferred on it by the Constitution or by or under any law, and that in view of the above provision no jurisdiction can be inferred by implication of respondent No, 1 in the absence of any provision in the Act (i,e, the Pakistan Essential Services Act, 1952).
(iii) That the petitioner-Company, on 13th August, 1980 ceases to be an essential service, and, therefore, even otherwise, the specified authority has ceased to have any jurisdiction.
(iv) That the relationship between the petitioner and respondent No, 2 was that of master and servant and that the jurisdiction of the civil Courts for a suit for the recovery of damages and for or any other appropriate relief for any alleged breach is not barred by the provisions of section 7 (A) of the Act, since there is no inconsistency between the provisions of the above section and the provisions relating to the vesting of jurisdiction in the civil Courts.
(v) That since respondent No, 2's services were terminated under section 16 of the Petroleum Products (Federal Control) Act, 1974 read with Article 4 (e) of the scheme framed thereunder, the above action was protected by virtue of section 28 of the above Act and, therefore, respondent No, 1 could not have entertained respondent No, 2's petition/application.
(vi) That the specified authority even otherwise had no jurisdiction to regulate respondent No, 2's terms and conditions in view of the fact that respondent No, 2's terms of service were to be regulated by the provisions of the aforesaid Petroleum Products (Federal Control) Act, 1974 and the scheme framed thereunder which contains the terms and conditions inter alia of petitioner No, 2's employees.
(vii) That even otherwise, under the provisions of the Essential Services Act, and the rules framed thereunder, respondent No, I had no power to order re-instatement of respondent No, 2 as the violation of any of the provisions of the Act and the Scheme entailed penal action provided for, in the Act but does not invalidate the order of terminating service.
' It may be observed that Mr. Fazeel, learned counsel for the petitioner has confined his arguments to the contentions noticed hereinabove in paras. (i) and (iii) for the reason that these two contentions go to the root of the matter. However, he has reserved his right to urge the remaining contentions before the competent forum if need arises.
(b) Whereas Mr. Mamoon Kazi, learned counsel for respondent No, 2 has canvassed the following points.
(i) That the object of the Act and the Rules framed thereunder is to maintain peace and harmony in the services, to which the Act is made applicable and that there is bound to be some disputes and, therefore, the specified authority by necessary implication has the power to adjudicate upon the same.
(ii) That the effect of the application of the Act is that a Union cannot raise an industrial dispute and that since prior to the enactment of section 25-A of the I.R.O. In 1972, there was no other provision which could have been invoked by an employee covered by the Act in order to get redress for his individual grievance, it cannot be presumed that the Legislature intended to create vacuum.
(iii) That the Full Bench Judgment is distinguishable from the instant case inasmuch as the Notification, dated 27th January, 1979 was not in the field and that respondent No, 2 had made his petition under the above notification read with section 6 and not under Rule 3.
(iv) That the notification has been issued, by the specified authority in the exercise of the powers to frame rules as the delegatee of the Federal Government and, therefore, the said notification has validly conferred jurisdiction upon respondent No, 1 to adjudicate upon an individual grievance.
(v) That since respondent No, 2 belonged to the staff of the managerial category, the provisions of the Standing Orders Ordinance, 1968 and of the I.R.O. Were not applicable to him, and, therefore, there was no question of involving ouster of the Labour Courts jurisdiction.
(vi) That there is a distinction between a direction issued by the specified authority in exercise of power under section 6 of the Act and a direction given in pursuance of the notification inasmuch as whereas the former constitute a statutory rule/regulation, whereas the latter is an executive act.
(vii) That in the case of respondent No, 2 the principle of master and servant cannot be pressed into service in view of the application of the provisions of the Essential Services Act.
(viii) That respondent No, 2's case does not involve ouster of civil Courts' jurisdiction but in fact respondent No, 2 had two remedies available to him, namely, either to approach the specified authority under the notification, or to file a suit for appropriate reliefs.
7. (a) Reverting to Mr. Fazeel's contention that this specified authority (i,e, respondent No, 1) has no power to adjudicate upon individual grievances, particularly in view of the majority judgment quoted hereinabove in para. (3) (b) (iii), it may be observed that he has also relied upon the decision given by a Division Bench of this Court recently in C.P. No, 331/78 (to which one of us was a party), in which the above majority judgment of the Full Bench was followed and it was declared that the specified authority had no jurisdiction to adjudicate upon an individual grievance.
Whereas Mr. Mamoon Kazi has vehemently urged that the Full Bench case has no application to respondent No, 2's case. His further submission was that in fact respondent No, 2's petition before the respondent No, 1 was in consonance with the decision of the Full Bench's majority view as well as in accord with case of A. Javed, President of P.I.A. Corporation Employees' Union v. N. I. R. C. And the Lahore D.B. Case namely, General Manager, Heavy Mechanicnl Complex, Taxila v. Mr. Mamoon Kazi, . In support of the above contention he has particularly invited our attention to lines Nos, 851 to 868, 1052 to 1054 of the majority judgment, quoted hereinabove in para. 4 (a). It may again be observed that the question, as to whether the notification has validly conferred the jurisdiction upon respondent No, 1 to adjudicate upon individual grievances was not an' issue before the Full Bench and, therefore, any observation made in respect thereof would at the most constitute an obiter dictum and not a decision as to be binding on us. The notification was referred to in the majority judgment in order to demonstrate that admittedly respondent No, 1 had no jurisdiction to entertain any petition in respect of an individual grievance by virtue of section 6 of the Act and Rule 3 of the Rules prior to the above notification. It may be noticed that the words used in the above- quoted extract from lines Nos, 851 onwards are "what the National Industrial Relations Commission purports to do is to regulate the terms and conditions of service. The use of the word 'purports' is clearly indicative of the fact that the question as to whether a notification of the nature under reference could have been validly issued was not an issue before the Full Bench. We have already given reasons hereinabove in para. (4) (b) and (c) for holding that even by virtue of the said notification the specified authority is not vested with the power to adjudicate upon individual grievances.
Mr. Mamoon, has referred to the case of Abdul Ghaffar and another v. Lqbal Begum in order to point out a distinction between ratio decidendi of a case and an obiter dictum. In our view no authority is needed to support the proposition that all observations in a judgment Cannot be treated as ratio decidendi of the case and that the observations, which do not decide and which are not necessary to decide controversy in issue in a particular case, are obiter dicta. It may be observed that we have examined the Full Bench judgment. Keeping in view the above distinction and because of the above distinction, we have held that the observations in respect of the notification are at the most obiter dicta.
' Mr. Mamoon Kazi has also referred to the case of Messrs Johnson & Johnson (Pakistan Ltd.) v.
Zubair Ahmed the case of Karachi Shipyard and Engineering Wooks Ltd. v. Abdul Ghaffar and the case of Inayatullah and others v. Shah Muhammad and others in support of his further contention that a precedent is not binding if the facts of the case, to which the same is sought to be made applicable are distinguishable.12 13 14 15 16 ' In the first case the Sind Labour Appellate Tribunal distinguished the case of Shahbaz Khan v.
Labour Court decided by the Supreme Court on the ground that substituted provisions of Standing Order 12 by Act 5 of 1972 were not brought to the notice of the Honourable Supreme Court nor the fact that the services of the employees involved were terminated in connection with or as a consequence of an industrial dispute. In the second ease which is also a case decided by the Sind Labour Appellate Tribunal, the aforesaid Supreme Court case of Shahbaz Khan v. Sind Labour Court was again distinguished inter alia for the aforesaid reasons.
' Whereas in the above Lahore case of 1961 it was urged by the learned counsel for the appellant that the plaintiff was not entitled to press into service the provisions of section 53-A of the Transfer of Property Act. In support of the above contention reliance was placed on an observation of the Privy Council in the case of Probodh Kumar Das v. Dantamara Tea Company to the effect that the right conferred by section 52-A is a right available to the defendant to protect his position and that the section' is so framed as to impose a statutory bar on the transferor but confers no active title on the transference. While construing the above observation of the Privy Council, it was held by a Division Bench, that from observation, a converse proposition cannot be inferred namely, that a plaintiff cannot press into service the provisions of section 53-A of the Transfer of Property Act. In our view there cannot be any cavil to the proposition that a precedent becomes inapplicable to the facts of a particular case if the facts are distinguishable or some change in the law since then has been brought about validly. The above cases cited by Mr. Kazi in our view have no application to the instant case.
(b) Reverting to Mr. Mamoon Kazi's contention that the object of the Act and the rules framed thereunder is to maintain peace and harmony in the services, to which the Act is made applicable and in that process there is bound to be some disputes and, therefore, by a necessary implication, the specified authority has the power to adjudicate upon individual grievance, it may be observed that the main object of the Act seems to be not to disturb the services, to which the Act is made applicable by putting an embargo on the right of an employee to leave his service or on the right of an employer to terminate the service of any employee without reasonable excuse. The contravention of the above provision entails a criminal action under section 7 of the Act. However, there is no provision either in the Act or in the Rules providing that the specified authority can adjudicate upon individual grievances not arising out of any scheme or direction issued by the Federal Government or the specified authority in exercise of their power to regulate wages and other terms of service. There is substance in the contention of M/s. A. A. Fazeel and Vellani that the jurisdiction to adjudicate upon cannot be inferred by implication but there should be express conferment of jurisdiction. Reliance was placed by the learned counsel on Maxwell on the Interpretation of Statutes, 12th Edition p. 159, wherein the author has made the following observation :- "It is also presumed that a statute does not create new jurisdiction or enlarge the existing ones, and express language is required if the Act is to be interpreted as having this effect."
' It may be observed that the author in support of the above proposition has relied upon the case of Attorney-General v. Sillem and some other recent cases given in the bottom of p. 159 of the above book. In this connection, it may also be pertinent to observe that Article 175 (2) of the Constitution of Pakistan, referred to hereinabove in para. (6) (a) (ii) in fact is a provision incorporating the above principle of Interpretation of Statutes by providing that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.
' However, Mr. Khurshid Anwar Shaikh in order to urge a converse proposition of law has referred to Maxwell on Interpretation of Statutes 11th Edition p. 128, wherein the Author has pointed out that the English Courts while construing the provisions of the County Courts Admiralty Jurisdiction Act, 1868 have held that jurisdiction in respect of certain admiralty matters was conferred by implication. It17 18 19 will suffice to observe that the above proposition was not advanced by the Author as a general principle of interpretation. The observation was made with particular {{FOOTNOTE}}
(1) 1864 10 H L C 704 ' reference to the above Act. Furthermore, in view of the above Article 175 of the Constitution, the above observation cannot be pressed into service.
(c) Reverting to the contention of Mr. Mamoon Kazi that prior to the enactment of section 25-A of the I.R.O. There was no forum available for an employee, who was made subject to the Act and the Rules fran d thereunder, to agitate his grievance as the right of strike was not available and, therefore, no industrial dispute could have been raised, it will suffice to observe that it is an admitted position that when respondent No, 2 approached the specified authority in the instant case, section 25-A of the I.R.O. Was very much in the field as it was enacted in 1972. Furthermore, since respondent No, 2 admittedly belonged to the staff of managerial category, the provisions of I.
R.
0. Or of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 were not applicable to him. Even otherwise, we are of the view that mere fact that no forum akin to Labour Courts for agitating an individual grievance was available to an employee in the service covered by s the Act and/or under a notification issued thereunder would not have been itself sufficient to confer jurisdiction by implication of law in order to fill in any alleged vacuum.
Furthermore, in the absence of jurisdiction in the Labour Courts, the jurisdiction of the civil Courts could have been invoked.
(d) Reverting to Mr. Kazi's contention that the notification has been issued by the specified authority as the delegatee of the Federal Government in the exercise of rules making power and, therefore, it constitutes a statutory rule/regulation framed under the Act, and hence the jurisdiction upon respondent No, 1 was validly conferred, it may be observed that this contention is directly linked with the question, as to whether any power to adjudicate an individual grievance can be spelled out from section 6 of the Act. If the Federal Government could not have adjudicated upon individual grievance by virtue of the provisions of the above section 6, it follows from it that, its delegatee also cannot adjudicate upon the same. Similarly, if the Federal Government could not have framed a rule in pursuance of the power conferred on it under suction 6 of the Act empowering itself to adjudicate upon an individual grievance without regulating wages and other terms of service the delegatee cannot also frame such a rule. A delegatee cannot do what the delegator cannot do himself. In our view, even if it is to be held that respondent No 1 in fact had framed a statutory rule regulation by the notification, in that event also, it would not make any, difference as to the validity of the notification for the aforesaid reason, namely, that if section 6 of the Act itself does not empower the Federal Government or the specified authority to adjudicate upon an individual grievance as has been held by the majority judgment of the Fall Bench, it follows from it, that the same cannot be done by a rule.
(e) Reverting to the learned counsel for the respondent No, 2's two contentions, noticed hereinabove in paras. (v) and (vi), it may be observed that it was vehemently urged by Mr. Mamoon Kazi that there is distinction between a direction issued in exercise of the power under section 6 of the Act and in pursuance of the notification inasmuch as a direction issued' under the above section constitutes a statutory rule/regulation, whereas a direction under the notification constitutes merely an executive act/order it may be observed that in furtherance of the above argument, it was also contended by Mr. Kazi that breach of a direction issued in pursuance of the provisions of section 6 of the Act, attracts the penal consequence provided for in the Act, whereas a breach of a direction issued under the notification does not entail any such consequence. To put it precisely, it was urged by the learned counsel for respondent No, 2 that there is no machinery provided for the enforcement of a direction issued under the notification and that it is left to the20 person concerned to enforce it by invoking other provisions of the appropriate law. It was also urged by him that since respondent No, 2 belonged to the managerial staff category, the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance of 1968 and or of the I, R.
0. Provisions of any other Labour Law were not applicable to him and, therefore, there was no question of ouster of jurisdiction of the Labour Courts and that respondent No, 2 had the option either to invoke jurisdiction of a civil Court for an appropriate relief or to approach the specified authority In our view the above first contention of the learned counsel for respondent No, 2 is self- contradictory, inasmuch as, if the direction issued under the notification cannot be enforced, it will in fact amount to an exercise in futility. We are inclined to hold that a breach of a direction if competently, issued in the form of a statutory rule/regulation, or in pursuance of a statutory rule/regulation, will entail penal consequences provided for in the Act/I rules/regulations.
' Reverting to the above second contention, it will suffice to observe that it is not necessary to go into the question that vesting of power with the specified authority to adjudicate upon individual grievances will involve ouster of civil Court jurisdiction or not.
' It was also urged by Mr. Kazi that the specified authority acts as a person designate under the notification and not as the specified authority within the meaning of section 6 of the Act and Rule 3 of the Rules. His further contention was that in fact the specified authority though acting under the notification by chance happens to be the specified authority, but in fact and in law, it is a third person. In our view even if the above contention of the learned counsel for respondent No, 2 is to be accepted as correct, it will not validate the notification. It may again be observed that it section 6 itself does not contain the power to adjudicate upon individual grievances as has been in the majority judgment in the Full Bench Case, the specified authority by framing a rule/regulation cannot confer jurisdiction upon itself/himself and/or upon any other person to adjudicate upon the same. It may also be pertinent to point out that under the notification, the specified authority has not only purported to confer jurisdiction upon itself to adjudicate upon individual grievances but in fact has also empowered itself to refer such a dispute to any member of the N. I. R. C. Which "seems to be beyond the ambit of section 6 of the Act and Rule 3 of the Rules".
( f ) With reference to Mr. Kazi's contention that the principle of master and servant cannot be pressed into service in the case of respondent No, 2 in view of the application of the provisions of the Act, it may be observed that in support of the above contention he has relied upon the case of Syed Akhtar All Bokhari v. State Bank of Pakistan and 7 others in which the petitioner was an employee of the State Bank, who' had filed the petition challenging the order of the State Bank dismissing him from service. It was urged by the learned counsel for the State Bank that relationship between the respondent and the petitioner was that of master and servant and, therefore, the principles applicable to such a case where applicable to the petitioner. However, Karam Elahi Chauhan, J. (as his Lordship then was) held that in view of the application of the provisions of Essential Services Act, the principles governing the relationship of master and servant cannot be pressed into service. In our view it is not necessary to examine the above question in detail as it is not required to be adjudicated upon for disposing of the petition.
8. (a) The only contention which remains to be considered is of Mr. Fazeel, namely, that the provisions of the Act have ceased to be applicable to the petitioner-Company with effect from 13th August, 1980 on account of the commission of the aforesaid company's name in the fresh notification dated 13th September, 1980. It was further urged by him that the effect of the above withdrawal is that the specified authority has ceased to have any jurisdiction. In support of the above contention Mr. Fazeel has referred to the case of Crown v. Haveli the case of Crown v.
Ghulam Muhammad , the case of Malik Nisar Ahmad v. Crown , the case of State v. Muhammad Sharif and the case of Akhtar Mahmood v. District Magistrate Lahore 21 22 23 24 25 26
(1) Referring to the case of Crown v. Haveli it may be stated that the question before the Full Bench of the Lahore High Court was as to whether a prosecution could continue in respect of an alleged offence committed during the continuance of a notification issued under the Punjab Disturbed Area Act, 1947, in respect of Sialkot District, even after the expiry of the period mentioned in the notification, it was held that no prosecution could continue on the expiry of the said notification.
(ii) With reference to the case of Crown v. Ghulam Mohammad it may be observed that the question before the Lahore High Court was whether after the expiry of a temporary Act (Namely, Prevention of Corruption Act, 1947) retrial could be ordered by the High Court in a revision. It was held that as a general rule, unless there was some special provision to the contrary, after a temporary Act had expired no proceeding could be taken upon it and it had ceased to have any further effect. It was further held that an offence against a temporary Act must be provided and published before the Act expires.
(iii) As regard the case as Malik Nisar Ahmad v. Crown, it will suffice to observe that it was urged by the learned counsel for the appellant before a learned Single Judge that the effect of the application of an Act through a notification for specified period is in the nature of a temporary statute. In support of the above contention reliance was placed on the case of Habibullah v. Crown Inamullah, J. Observed that there was much force in the argument, but no decision was given on the above point.
(iv) Reverting to the case of State v. Muhammad Sharif it may be observed that a D. B. Held that section 6 of the General' Clauses Act could not be pressed into service in respect of a temporary ' statute. It was further held that the repeal a day before the expiry of the Control of Essential Commodities Ordinance, V of 1956 (a temporary statute) did not make section 6 of the General Clauses Act, 1897 applicable as to save the prosecution under the aforesaid Ordinance, even after its expiry on 18th November, 1956.
(v) With reference of the case of Akhtar Mahmood v. District Magistrate Lahore, it may be observed that the District Magistrate, Lahore issued a notification under section 144 of the Cr. P. C. On 11th November, 1963 for a period of 2 months prohibiting dancing in a restaurant, known as Peoples'
Restaurant. In the above notification, he purported to save anything done, action taken, obligation, liability, penalty or punishment incurred, investigation, inquiry or proceeding pending even after the expiry of the above notification. It was held by Ortcheson, J. That "even if the order of the learned Magistrate had enjoyed the status of a statute, which of course, it does not it would have been a temporary statute and the law relating to such enactment has been laid down in the Crown v.
Havel'. On the basis of the above Lahore Full Bench case, the petition was accepted and it was held that the notification purporting to save the aforesaid acts/actions etc. Was ultra vires of the power of the District Magistrate.
(vi) From the above-cited cases following principles are deducible.
1-(a) That on the expiry of a temporary statute or a notification issued thereunder no proceeding can be continued in respect of an offence committed under the said statute or notification.
2-(a) That the provisions of section 6 of the General Clauses Act, 1897 cannot be pressed into service in respect of a temporary statute in the absence of any express provision indicating that the repeal of the temporary statute will not affect any investigation, legal proceeding or remedy in respect of any right, privilege, obligation, liability, penalty, forfeiture or punishment etc. 3-(a) That application of a permanent statute through a notification for a specified period may be akin to a temporary statute and, therefore, the provisions of section 6 of the General Clauses Act, in such a case would not be applicable.
(b) On the other hand, it was vehemently urged by Mr. Mamoon Kazi, that respondent No, 2 had acquired a valuable right in the form of a remedy under the Act read with the notification before respondent No, 2 and, therefore, the above valuable right is not affected by the fact that the27 provisions of the Act (i,e, Pakistan Essential Services Act) have ceased to be applicable to the Petitioner No, 2 company. In support of the above submission he has referred to the case Abdul Majid Ahmed Bawany and 7 others v. 3rd Sind Labour Court, Karachi and 3 others , the case of State v. Moulvi Muhammad Jamil and others , the case of Hussain and others v. Fancy Foundation , the case of Saeed Ahmed v. State , the case of Syed Abul Aalla Moududi and others v. Government of Pakistan , the case of Sona and another v. State , and the case of S. M. Junaid v. President of Pakistan .
(i) Reverting to 1979 Karachi, it may be observed that in the above case a Division Bench has held that the right of appeal becomes vested as soon as an action commences and such right can only be extinguished if Legislature expressly so provides or conclusion of extinction can be justified on the basis of doctrine of necessary intendment. The above observations were made by the Division Bench while construing the provisions of the Labour Laws Amendment Ordinance (IX of 1972), whereby inter alia certain provisions of the I.R.O. Were amended.
(ii) With reference to 1965 SC, it may be stated that the Supreme Court was considering the effect of amendment in sections 256 and 257 of the Cr. P. C. By the West Pakistan (Amendment) Act (XVIII of 1964), The effect of the amendment in section 256 was that no witness, who had been cross- examined before the charge was framed could be recalled for further cross examination, whereas the effect of the amendment in section 256 was that the accused-person was debarred from recalling a prosecution witness, who had already been cross-examined. With reference to the above amendments, it was held by the Supreme Court that the general principle is that when the law is altered during the pendency of an action rights of the parties are decided according to the law as it existed when the action began unless a new statute shows a clear intention to vary such rights. It was also observed that the general principle seems to be that the alterations in procedural law are retrospective, whereas any change in substantive law is prospective unless otherwise provided for.
(iii) Reverting to 1975 SC it may be observed that in the above case the Supreme Court while considering the effect of the amendment on section 5 of the West Pakistan Urban Rent Restriction (Amendment) Ordinance (XXI of 1965), held that the above amendment being in substantive law made during the pendency of action, rights of parties were to be decided according to law existing when action began unless provision made to the contrary.
(iv) As regards 1964 SC 266, it may be stated that their Lordships of the Supreme Court while considering the effect of the provision of section 165-B (which was enacted with effect from 6th June, 1962) held that the effect of the above amendment was to make an act an offence, which was not so prior to the amendment and that the above action was not procedural but was matter of substantive law and hence the amendment was not retrospective in effect.
(v) With reference to 1964 SC 673, it will suffice to observe that in the above case inter alia it was held that a notification could not be retrospective in effect.
(vi) Reverting to 1970 SC, it may be observed that in the above case it was held by the Supreme Court that in view of the provisions and section 6 of the West Pakistan General Clauses Act, the repeal of Frontier Crimes Regulation by virtue of section 34 of the Act VII of 1963 shall not affect any investigation, legal proceeding, or remedy in respect of any such right, privilege, application, liability, penalty, forfeiture or punishment and that any such investigation legal, proceeding or remedy may be instituted, continued or in force and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or regulation had not been passed. It was further held that the trial of criminal cases had to be in accordance with the rules and procedure in force at the time of the commencement of the trial.
(vii) As regards 1981 SC (Shariat Appellate Jurisdiction), it will suffice to observe that in the above case a distinction between the procedural and substantive law was considered, and it was held28 29 30 31 32 33 34 that section 3 of the Limitation Act, 1908 deals with only procedural aspect and that the Shariat Bench was debarred from examining the validity of any law relating to procedure of any Court or Tribunal.
(a) The rulings relied upon by Mr. Mamoon Kazi, learned counsel for respondent No, 2, discussed hereinabove, are not directly on the point in issue. There cannot be any cavil to the proposition that an amendment in a substantive law is deemed to be prospective and not retrospective in the absence of an express provision or that an amendment in procedural law is retrospective or that a right of appeal is a substantive right etc. However, the point in issue before us is, whether an application/petition which was filed by respondent No, 2 before respondent No, I under the Act (i,e, the1 Pakistan Essential Services Act, 1952) and the rules framed hereunder, can be continued to be prosecuted notwithstanding that the provisions of the Act have ceased to apply to petitioner No, 2 company with effect from 13th September, 1980 (i,e, after the filing of the said application) but before the conclusion of the same. If we were to hold that the effect of the application of the provisions of the Act (i,e, the Pakistan Essential Services Act, 1952) to petitioner No, 2 company for a specified period was akin to a temporary statute in that event, it must follow that the proceedings which have not been concluded before the withdrawal of the notification cannot be continued the cases relied upon by Mr. Fazeel, learned counsel for the petitioners referred to hereinabove, are more directly on the point in issue. However, in our view it is not necessary to decide the above point since we are holding that respondent No, 1 could not have taken cognizance of respondent No, 2's application/petition for the reasons already discussed hereinabove.
9. (a) Mr. Mamoon Kazi has also urged that the use of the word 'and' in subsection (1) of section 6 of the Act between the word 'wages' and other conditions of service' are to be construed disjunctively and not conjunctively and, therefore, the specified authority could issue the Notification, dated 27th January, 1979 without even regulating the wages as the notification constitutes prescribing of a term of service. In support of his submission, he has referred to the case of Miss F. Dobash v. Sind Labour Appellate Tribunal and the case of Kori v. State .
(i) In the first case a Division Bench while construing the word 'and' used in section 19(1) of the I.R.O., 1969, held that if it was to be construed in conjunctive sense, it would lead to absurd consequences and, therefore, it should be construed disjunctively.
(ii) Whereas in the Karachi case of 1963 the question before the Full Bench was whether the expression 'shall also be liable to fine' used in section 326, P.P.C. Is mandatory in nature as to compel the Court to impose fine as well. It was held that the word 'liable' confers discretion on the Court in the matter of fine. In other words the word 'shall' was construed as 'may'.
(b) In our view the above contention of the learned counsel for respondent No, 2 does not alter the basic legal position, namely that if the power adjudicate upon individual grievances cannot be spelled out from section 6 of the Act read with Rule 3 of the Rules as has been held in the aforesaid' majority judgment of the Full Bench, such power cannot be derived from the notification issued under the above provisions as has been observed byl Naimuddin, J. In his aforesaid minority judgment.
10. In view of the above discussion, we, therefore, allow the two petitions with no order as to costs and declare that the impugned order in Petition No, 146/80 is without lawful authority and consequently the respondents are restrained from acting thereupon. In Petition No, 956/80 we declare that the proceedings initiated by respondent No, 2 before the respondent No, 1 are without lawful authority and in consequence thereof the respondents are restrained from prosecuting the same. PLD 1978 Kar. 64 1973 PLC 94 1974 PLC 20135 36 1 2 3 PLD 1979 Kar. 109 1980 PLC 513 PLD 1977 Lab, 982 PLD 1960 Lab. 957 PLD 1980 Pesh. 216 PLD 1974 Kar. 811 PLD 1973 S 230 P P 1978 Kar. 649 PLD 1977 Lah, 998 PLD 1975 Lah. 524 1980 PLC 622 1980 PLC 688 PLD 1961 Lab. 372 1977 SCMR 103 AIR. 1939 P C 186 1864 10 H L C 704 PLD 1949 Lah. 550 E L D 1977 Lah. 234 PLD 1949 Lah. 550 PLD 1950 Lah. 479 PLD 1956 Kar. 535 PLD 1960 Lah. 236 PLD 1964 Lah. 93 PLD 1955 Lah. 396 PLD 1979 Kar. 549 PLD 1965 SC 681 PLD 1975 SC I PLD 1964 SC 266 PLD 1964 SC 673 PLD 1970 SC 264 PLD 1981 SC 12 PLD 1979 Kar, 302 PLD 1963 Kar. 256