' AJMAL MIAN, J.-This petition is directed against the order dated 16-12-1979 passed by the learned Sind Labour Appellate Tribunal at Karachi in Appeal No, WCK 14 of 1979.
2. The brief facts leading to the filing of the above writ petition are that the petitioner's husband late Fardil Khan was working as a Coolie in the Respondent No, 2, Pre-Stressed Pipe Factory. While he was in service, he expired. The petitioner his widow lodged a claim with Respondent No, 2 in respect of various items including gratuity, claim on account of group insurance and salary for the earned leave etc. Since the Respondent No, 2 did not accede to the petitioner's demand as made, she filed Case No, 67 of 1976 under section 8(2) of the Workmen's Compensation Act, 1923 before the Commissioner for Workmen's Compensation, Central Division, Karachi for the following four items : Rs, "(1) Group Insurance money payable on death of her husband under Standing Order 10-B(4) of the W.P. Indus- trial and Commercial Employment (Standing Orders)
Ordinance, 1968 12,000.00
(2) Gratuity payable under the Standing Orders Ordinance 4,740.00
(3) Encashment of unavailed earned leave 4,480.00
(4) Arrears of Conveyance Allowance 75.00 ' The above claim was resisted by Respondent No, 2 but the Commissioner under the Workmen's Compensation Act by his order dated 11-6-1979 allowed the following amounts :
(1) In respect of Group Insurance 13,500.00
(2) Interest on the amount of Group Insurance from 27-11-1975 at 10% 4,775.00
(3) Gratuity 4,725.00
(4) Encashment of earned leave 242.67
(5) Conveyance Allowance 64.25 Total : Rs, 23,272.92'
' Respondent No, 2 being aggrieved by the above order filed the above Appeal No, WCK-14 of 1979, which was allowed by Respondent No, I on the ground that since Respondent No, 2 have KDA (Employees Service) Regulations, 1972 (hereinafter referred to as the Regulations) the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968 (hereinafter referred to as the Ordinance) was not applicable. Petitioner being aggrieved by the above order has filed the present petition.
3. (a) In support of the above petition Mr. Mohammad Ahmad, learned counsel for the petitioner has urged as follows :
(1) That there are no statutory rules and therefore proviso 1 to clause (c) of subsection (4) of section 1 of the Ordinance is not applicable.
(ii) That in any case Respondent No, 3 (i,e, the Commissioner under the Workmen's Compensation Act) had the jurisdiction in respect of items which were not covered by the KDA Regulations.
(b) On the other hand Mr. Ibrahim Dasti learned counsel for the Respondent No, 2 has contended as follows : (i)That since the Regulations have also been framed under the statutory power they are at par with the statutory rules.
(ii) That all the items are covered by the Regulations or the resolution of the governing body and therefore the provisions of the Ordinance cannot be pressed into service.
(c) Mr. Saeed A. Shaikh learned Advocate-General, Sind who has appeared on Court's notice to assist the Court has made the following submissions (i)That the Regulations for the purposes of the proviso to clause (c) of subsection (4) of section 1 of the Ordinance can be equated with the statutory rules.
(ii) That the jurisdiction of Respondent No 3 was excluded by virtue of the above proviso to clause
(c) only in respect of the items which are covered by the statutory Regulations and not in respect of other items.
4. In order to appreciate the respective contentions of the learned counsel for the parties, it may be advantageous to reproduce hereinbelow relevant portion of section 1 with the above proviso of the Ordinance, which reads as follows : "(1) Short title, extent and commencement.-(1) This Ordinance may be called the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
(2) It extends to the whole of Pakistan
(3) It shall come into force at once
(4) It applies to -
(a) every industrial establishment or commercial establishment wherein twenty or more workmen are employed, directly or through any other person whether on behalf of himself or any other person ; or were so employed on any day during the preceding twelve months ; and
(c) such classes of the industrial and commercial establishments as Government may, from time to time, by notification in the official Gazette, specify in this behalf : ' Provided that nothing in this Ordinance shall apply to industrial and commercial establishments carried or by or under the authority of the Federal or any Provincial Government, where statutory rules of service, conduct or discipline are applicable to the workmen employed therein." ...
' A plain reading of the above relevant portion of section 1 of the Ordinance indicates that it is applicable to whole of Pakistan immediately upon the publication of the Ordinance. It further indicates that it is applicable to every industrial establishment or commercial establishment wherein twenty or more workmen are employed directly or through any other person on behalf of himself or any other person or were so employed on any day during the preceding twelve months.
It is also evident that the Government may, from time to time by notification in the official Gazette make the provisions of the Ordinance applicable to such classes of the industrial and commercial establishment as may be notified. However, the first proviso quoted hereinabove provides that nothing in the Ordinance shall apply to industrial and commercial establishments carried on by or under the authority of the Federal or any Provincial Government, where statutory rules of service, conduct or discipline are applicable to the workmen employed therein.
' There cannot be any cavil to the factum that respondent No, 2 is an establishment carried on by or under the authority of the Provincial Government. In this view of the matter, the question in issue is, whether there are statutory rules of service, conduct or discipline applicable to the workmen employed by respondent No, 2 in their factory in order to exclude the application of the Ordinance.
In this regard, it may be pertinent to observe that under Article 14 of the KDA Order, 1957 (President Order No, 5) (hereinafter referred to as the Order) the Provincial Government has been authorised to make rules not inconsistent with the provisions of the Order for the purposes of giving effect to the provisions of the Order whereas under Article 15 the Authority I e. The Authority as defined in section 2(b), namely KDA has been empowered to frame regulations including relating to conditions and terms of service, provident fund and pensions and also on any matter for which provision is required for the efficient discharge of the business of the Authority. It may also be pointed out that Article 16 provides that all Rules and Regulations made under the Order shall be published in the official Gazette and shall come into force upon such publication. It may also be highlighted that above Article 14 of the Order provides that in case of inconsistency between the Rules and the Regulations, the Rules shall prevail. It is, therefore, evident that the' Regulations are inferior as compared to the Rules under the Order in view of the fact that the former are to be framed by the Authority whereas the latter are to be framed by the Government. Be that as it may, it can be concluded that the words "statutory rules of service, conduct of discipline" employed in above-quoted proviso to clause (c) of subsection (4) of section 1 of the Ordinance, include the Regulations of service, conduct or discipline.
5. As regards the second contention Mr. Mohammad Ahmad learned counsel for the petitioner, it may be observed that has relied upon the following cases ;
(1) National Shipping Corporation v. Sind Labour Appellate Tribunal and 2 others (PLD 1975 Kar.
274), in which a Division Bench of the erstwhile High Court of Sind and Baluchistan while considering the question whether the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 were applicable to the employees of National Shipping Corporation in presence of certain statutory rules under the Shipping Act, 1923 held that the National Shipping Corporation does not come within the proviso of section 1 of the Standing Order as it is neither an establishment carried on by or under the Authority of the Central Government nor it has statutory rules governing the employment of his employees. It was further held that the dismissal in violation of Standing Order No, 15 was illegal.
(ii) I. C. P. Employees' Front, Karachi through its General Secretary v. Presiding Officer, Vth Sind Labour Court, Karachi and another (PLD 1976 Kar. 1176). In the above case the question before the learned Single Judge of this Court was, whether the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance were applicable to the employees of the I.
C. P., it was held that since there were no rules/regulations framed by the Central Government in regard to payment of bonus to employees of I. C. P. Standing Order 10-C was applicable.
(iii) Water and Power Development Authority through its Chairman, Lahore v. Commissioner for Workmen's Compensation & Authority, Lahore and another (PLD 1977 Lain. 1156), in which it was held by a learned Single Judge of the Lahore High Court that the provisions of the Payment of Wages Act, 1936 were applicable to the WAPDA employed in generating, transforming or transmitting power whose wages do not exceed Rs, 1,000 per month.
' On the other hand Mr. Dasti has referred to the case of Karachi Development Authority v. Presiding Officer, Viii Sind Labour Court, Karachi and 2 others (1), in which a learned Single Judge of the erstwhile High Court of Sind and Baluchistan held that the effect of KDA Employees (Efficiency and Discipline) Regulations, 1970 is that cases which would have normally been covered by West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 would be covered by the regulations.
6. We are inclined to hold that the application of the provisions of the Ordinance by virtue of the above-quoted proviso to clause (c) o subsection (4) of section 1 is excluded to the extent of the matters provided for either under the statutory rules or statutory regulations and not in respect of the matters which are not covered by the provisions of the Regulations. We find that Regulation 104 covers the question of con-I veyance, whereas Chapter XIV from Regulations No, 251 to 271 deal with the question of leave. We have further noticed that clause (3) of Regulation 216 provides that notwithstanding anything contained in these Regulations, the Authority may, on compassionate grounds, grant a sum not exceeding six months' pay as compassionate gratuity to the dependents of a non-gazetted employee who has died in service and whose services have been good, efficient and faithful. In view of the above provision, the item of gratuity is also covered though the other clauses of above Regulation 216 deal with the question of special contribution to the fund. We are therefore left with two items namely claim on account of group insurance and the amount of interest awarded in respect thereof. Mr. Dasti was unable to cite any Regulation covering the above items. However he has referred to the Regulations No, 219 and 246 dated
(1) PLD 1976 Kar. 514 15-6-1971 and 25-6-1977 passed by the governing body of the Authority adopting the group insurance as adopted by the Government. The above resolutions cannot be treated at par either with the statutory rules or statutory regulations. We are, therefore, of the view that the Commissioner under the Payment of Wages Act was competent to adjudicate upon the petitioner's claim in respect of the above two items namely the claim pertaining to the group insurance and the amount of interest thereon. We are also inclined to hold that the view of the learned Sind Labour Appellate Tribunal that the provisions of the Ordinance are not applicable by virtue of the above proviso to clause (c) of subsection (4) of section 1 of the Ordinance in presence of statutory regulations is contrary to law, to the extent of the items which are not provided for under the Regulations.
' We therefore allow the above petition and declare the impugned order without lawful authority and of no legal effect to the extent of the above items namely the claim pertaining to the group insurance and the amount of interest thereon. The case is remanded back to the learned Sind Labour Appellate Tribunal with the direction to decide the appeal on merits in respect of the above two items.
' The petition is disposed of with no order as to costs..