' The petitioner was appointed as Commercial Assistant vide letter Exh.P.1 on the consolidated salary of Rs,1,200 per month. His services were terminated vide office order dated 24-8-1982 Exh.P.4 on the ground that his post stood abolished, and his services were no more required. The petitioner challenged the aforesaid order in this petition on the ground that no valid reason existed for the removal of the petitioner and that the plea regarding the abolition of the post was false and baseless.
2. The petition was resisted on the ground that since the post of Commercial Assistant was abolished, therefore, the petitioner could not claim as a matter of right to hold that post. It was also alleged that the grievance notice was not given in accordance with law. Besides that it was alleged that the petitioner was appointed by the then Chief Executive of the respondent, although he did not qualify for the post of Commercial Assistant. It was, therefore, urged that the petitioner was rightly removed from service.
3. The petitioner entered the witness-box as P.W.1 and supported his case. In rebuttal Ahmed Slah- ud-Din, Manager Administration, Pakistan Times, Rawalpindi appeared as R.W.1 to state that the post of Commercial Assistant stood abolished and hence the services of the petitioner were no more required. In addition to that the witness contended that the petitioner was appointed by the ex-Chief Executive, although he did not possess the requisite qualifications.
4. I have heard the learned counsel for the parties. The learned counsel for the petitioner contended that the mere plea regarding the abolition of the post would not justify the removal of the petitioner until and unless it was proved that the post was abolished for want of requirement. It was, therefore, alleged that there should be evidence to show that the post was abolished as there was no work left for carrying on the said post. Reliance was placed on 1978 PLC 249 (IV Labour Court Punjab), 1978 PLC 260 (IV Labour Court Punjab), 1983 PLC 901 (Labour Court Sind) and 1983 PLC 1070 (Labour Appellate Tribunal Punjab).
5. The learned counsel for the respondent however contended that it is statutory duty of an employer to see that the necessity regarding the retrenchment or otherwise of any post is bona fide or not. It was, therefore, alleged that if an employee was removed due to the retrenchment of post, then the Courts should be slow to interfere with such order. Reference was made to 1984 PLC 173 (Labour Appellate Tribunal Punjab), 1984 PLC 1104 (Labour Appellate Tribunal Punjab), 1977 PLC 122 (III Labour Court Punjab) and 1980 PLC 353 (Labour Appellate Tribunal Sind).
6. I have taken into account the above contentions raised from both sides and have also gone through the record. It appears that each case has to be decided on its own merits while coming to the conclusion if the retrenchment was bona fide or not. In the instant case the petitioner contended that the post was still retained but he was removed without any lawful excuse. However he did not say anything that the respondent acted with positive male fide to deprive him of the job.
On the contrary he alleged thai one Mushtaq Shah and Basharat were still working at the post of Commercial Assistant of the respondent. However during his cross-examination he was unable to say about the present place of posting of those persons. He alleged that they were probably working at Lahore. He also added that he did not know as to what was their post or rank. However he alleged that both of them were Managers. In the same breath he said that Basharat and Mushtaq Shah were working against the post of Commercial Assistants. In the same sentence he corrected to say that Ghaffar Ahmed was working as Commercial Assistant. It, therefore, follows that the petitioner was not sure if there was any post of Commercial Assistant at present in the office of the respondent and if so, which person was working over there. In fact he rambled about to take few names but that would not suffice to say that the post of Commercial Assistant still existed. He however denied he had any relationship with the previous Chief Executive namely Mr. Sulehri. In rebuttal of his evidence Ahmed Slah-ud-Din R.W.1 stated that the post of Commercial Assistant was specially created by Mr. Sulehri for absorbing the petitioner. However, after the exit of Mr. Sulehri the post of Commercial Assistant was abolished by his successor in office. He also added that the aforementioned Mushtaq Shah was working as a Clerk in Lahore office whereas Basharat was working as Clerk in their office. Iqbal Butt and Ghaffar were allegedly working as Lino Operator and messenger respectively.
' Writ Petitions Nos, 4851, 4140 of 1979; Writ Petition No,5503 of 1981; Writ Petition No,1810 of 1982; Writ Petition No, 5129 of 1983 and Writ Petition No,5098 and 4902 of 1984.
' In these writ, petitions the Labour Courts have decided the cases against the employees and the orders have been challenged by them in constitutional petitions. The banks, however, support the orders of the Labour Courts, inter alia, also on the ground that the Labour Court had no jurisdiction.
Since the question of jurisdiction is of primary consideration in these writ petitions as well as the petitions brought by the banks these petitions are being taken up together with the other connected petitions.
7. The banks were nationalised by the Banks (Nationalisation) Act, 1974. The same year by Ordinance XIX of 1974 sections 38-A to 38(1) were added to the Industrial Relations Ordinance, 1969.
These provisions permitted the Federal Govt. To constitute a Wage Commission for fixing rates of wages and determining all other terms and conditions of service in respect of the workers of the banks. A Wage Commission was constituted the same year. It gave its award and after regular intervals successive Wage Commissions have given their awards. The provisions and the provisions of this Ordinance applicable to such award, including the provisions of sections 51 and 55, so far as may be and with the necessary modifications shall apply to the decision of the Wage Commission."
8. The case of the employees is that the provisions of section 22(B) 3(a) relate only to criminal matters and the opening words of the provisions (in relation to cases based on allegations of unfair labour practices) govern the rest of the provisions of this clause. A closer scrutiny will, however, show that this clause consists of two parts. The first part relates to the trial of offences in relation to cases based on allegations of unfair labour practices brought before the Commission, and, the second part relates to enforcement of, or for redress of the individual grievance in respect of any right guaranteed or secured to any employer or worker by or under any law or any award or settlement. It is difficult to assume that the matter of redress of individual grievance in respect of any right guaranteed or secured is the same thing as trial of offences for unfair labour practices.
The contention of the employees that this clause relates only to criminal matters and not to civil remedies is, therefore, not based on sound reasons. Section 38(D) of the Ordinance gives the status, of an award of the Full Bench of the N.I.R.C., to the decision of the Wage Commission. But what is more significant is that the provisions of the Industrial Relations, Ordinance have been made applicable to such award with necessary modifications. These modifications have to be read in the light of the A provisions of section 22(B) 3(a) under which the Benches of the National Industrial Relations Commission are to perform the functions of a Labour Court. The only logical conclusion regarding the jurisdiction of the Labour Court vis-a-vis N.I.R.C., therefore, is that in case of the award of the Wage Commission it is the National Industrial Relations Commission which has to act as Labour. Court and not Labour Court established under the Industrial Relations Ordinance.
This proposition is, further elucidated by section 22(D) which provides for appeals not only against order of sentence but also against an award or a decision given by a single Bench of the Commission. The appeal lies to the Full bench in the same manner as an appeal to the Appellate Tribunal against the decision of the Labour Court. The N.I.R.C. Is, therefore, to perform the same function as the Labour Court does, in the case of the award of the Wage Commission and in doing so its jurisdiction is not confined to dealing with cases of unfair labour practices only. The jurisdiction of the labour Courts on the other hand is ousted in view of the provisions of section 22- A(11) of the I.R.O.
9. The second question relates to the scope of the term "award" defined in section 2(ii) of the I.R.O.
Section 2(ii) reads as follows:- "'Award' means the determination by a Labour Court, Arbitrator or Appellate Tribunal of any industrial dispute or any matter relating thereto and includes an interim order."
Section 25(A) talks of the grievance of a worker under anyaward. The term 'award' as defined in section 2(ii) speaks only of three awards, the awards, given by Labour Court, an ' Arbitrator or Appellate Tribunal. It cannot be stretched to include a fourth award such as the award given by the Wage Commission, as the term "any award" in section 25(A) has to be viewed only in the light of the term 'award' defined in section 2(ii). It has been argued at considerable length that the Industrial Relations Ordinance being a beneficial legislation it is necessary to give a wider meaning to the term 'award' so as to include the Wage Commission Award in it, but the principle of beneficial construction can be invoked only where the language of the legislation is ambiguous and requires interpretation. In the present case the word 'any award' means only one of the three awards mentioned in section 2(ii) and therefore, cannot be expanded to include the award given by the Wage Commission. If it was intended by the Legislature to include the award of the Wage Commission in term 'award', it could easily have amended the law when sections 38(A) to 38(1) of the I.R.O. Were brought on the Statute book in 1974, or even in 1972 when section 25(A) was introduced by Ordinance IX of 1972 when N.I.R.C. Was established under section 22(A) also by the same Ordinance. It is quite clear, therefore, that the Wage Commission award cannot be enforced as an award under section 25(A).
7. The third question relates to the Standing Orders Ordinance and whether it has been replaced by the Wage Commission award. This is important because under the Standing Order 12(3) the termination of service of a workman can be challenged under section 25(A) of the I.R.O. And in case the Standing Orders Ordinance is no longer applicable, the workers will have to fall back upon the definition of a worker or workman given in section 2(xxviii) of the I.R.O. As regards the supersession of the Standing Orders Ordinance the Punjab Labour Appellate Tribunal has itself consistently held that the Wage Commission award has replaced the Standing Orders Ordinance and this view has not been separately challenged by any of the employees. The Punjab Labour Appellate Tribunal, however, relies on the proviso to section 1(4) of the Standing Orders Ordinance in order to hold that the Standing Orders Ordinance is not applicable. There are good grounds to support this conclusion. The proviso to section 1(4) of the Standing Orders Ordinance, 1968 excludes the application of the Standing Orders Ordinance from Industrial and Commercial establishments carried on by or under the authority of the Federal or Provincial Government. Where statutory rules of service, conduct or discipline are applicable to a worker employed therein.
8. Under section - 5 of the Banks (Nationalisation) Act, 1974 the ownership, management and control of all banks stand transferred to the Federal Government, Under section 4 of the Act, "the Federal Government or a Corporation wholly owned or controlled by the Federal Govt. Shall have the exclusive right to establish a bank". It is clear, therefore, that henceforth the Federal Govt. Alone can establish a bank and the ownership, a management and control of the existing banks stands transferred to it. It has been argued on behalf of the employees that the nationalised banks are being run by a Banking Council and not by or under the authority of the Federal Government. There is, however, no force in this argument because the term authority shall have to be viewed in terms of the authorisation visualised by section 4 of Act of 1974 under which the Federal Government alone can establish a bank. It cannot, therefore, be held that the nationalised banks are not being run by or under the authority of the Federal Government. The case of the National Shipping Corporation v. Sind Labour Appellate Tribunal and 2 others 1975 PLC 1 is, therefore, quite distinguishable from the fact of the present case.
9. As regards the nature of the rules applicable to the employees of the banks, section 38-A bf I.R.O.
Itself enjoins upon the Wage Commission, the responsibility of fixing rates of wages and determining all other terms and conditions of service of workers of the banks. The authorisation thus having flown directly from the statute, the rules framed by the Wage Commission cannot but be statutory in nature. It is the source of power and not the form of its exercise which is important.
10. It was argued that by asking the Wage Commission to frame the service rules, the legislature has abdicated from its function. The rules are thus ultra vires of the constitution. There is, however, no force in this argument. The legislatures now leave matters of detailed regulations more and more to the executive. The legislature in the present case, therefore, has not made any excessive, delegation of its authority, by asking a subordinate statutory authority to frame service rules.
11. The Punjab Labour Appellate Tribunal was justified in holding that the Standing Orders Ordinance stands excluded on account of the proviso to section 1(4) of the Ordinance, but it should also have considered the effect of section 38(1) of the 1.R.O. Which also excludes the application'of Standing Orders Ordinance. Under this provision the provisions of sections 38A) to 38(H) shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the coming into force of the Industrial Relations (Amendment) Ordinance, 1974. Therefore the award of the Wage Commission given under section 38(A) will have effect notwithstanding the provisions of the Standing Orders Ordinance. In view of these considerations it is clear that the West Pakistan (Standing Orders)
Ordinance has been superseded by the Wage Commission Award.
12. This brings us to the question of the dismissed employees and whether they are workers under section 2(xxviii) of the I.R.O. Under this provision only such dismissed employees are covered by the definition of a worker whose dismissal is connected with or is a consequence of an industrial dispute or has led to a dispute. The argument advanced on behalf of the workers is that the term "is employed" used in the opening words of the definition, even though, used in the present tense, has to be read as "has been employed" and thus includes all dismissed employees. There is, however, no scope for straining the definition to this extent. The law has specifically included only one category of the 'has been'. All the other categories of 'has been will, therefore, be outside the scope of the definition of workers. An interesting argument was advanced on behalf of the workers to show that all dismissed employees fall in the category of workers. It was argued that section 25(A)(4) treats all applications as industrial disputes and since industrial dispute is defined as a dispute concerning employment or non-employment of a person, therefore, the dismissal of all employees is necessarily connected with a dispute. This argument is, however, no more than a clever calculation. In the presence of the clear language of section 2(xxviii) there is no room for finding a contradictory interpretation. If the Legislature intended to include all the dismissed employees in the category of workers there was nothing preventing it from saying so specifically, rather than leave it to the guess work and calculation of the lawyers. The Indian Legislature made their intention known by adding section 2-A, a deeming clause, to treat dismissal etc. Of an individual workman to be an industrial dispute. This does not however, mean that a dismissed employee has no remedy. He can still seek his remedy, but he can do it only through the Collective Bargaining Agent or through a civil suit.
13. The above discussion shows, that by amendments in the I.R.O. a specific role has been assigned to the N I R.. It has to perform both penal and remedial functions to the exclusion of the Labour Courts. Wage Commission and their awards are the exclusive preserves of the N.I.R.C. The latter function of the N.I.R.C. Is preventive in nature as the Wage Commission can be asked to act well in advance of the arising of an actual dispute and without going through the motions and stresses of raising of a dispute. These changes in law are, therefore, progressive, in keeping with the history of labour legislation.
14. In view of the above discussion it is clear that the Labour Court has no jurisdiction in the case of bank employees covered by the Wage Commission Award. The orders of the Labour Courts and the Punjab Labour Appellate Tribunal are, therefore, of no legal effect. The writ petitions brought by the banks are, therefore, allowed. Writ petitions Nos, 4851 and 4140 of 1979; 5503 of 1981; 5098, 4902 of 1984; 5129 of 1983 and 1810 of 1982 are, however, dismissed although for reasons different from these given by the Labour Court. There shall be no order as to costs.