The question for determination in this appeal is whether the provisions of the Pakistan Essential Services (Maintenance) Act. 1952 oust the jurisdiction of an Industrial Court orLabour Court to adjudicate industrial dispute: as regards any class of employ--ment declared to be an essential service in the said Act.
2. The Ist respondent is a bank and I shall refer to it as the employer. Towards the end of 1966, there was an industrial dispute between the employer and its workmen of the branch concerned.
Accordingly, conciliation proceedings were commenced under section 5 of the Industrial, Disputes Ordinance, 1959 (hereafter called the Ordinance). As the Conciliation Officer---s effort, were not successful he issued the usual Failure Certificate on 3rd December 1966. Therefore, it was for the workmen to file an application before the West Pakistan Industrial Court at Karachi, which they `did on 31st January 1967. Now the appellant was one of the workmen involved in this industrial dispute referred to the said Industrial Court, and according to him he was illegally dismissed on 24th June 1967, he filed an application for relief before the said Court under section 31 of the Ordinance on 17- 7-1967. Meanwhile, however, by a notification dated 8th December 1966, the Central Government had declared all classes of employment under the employer "to be employment to which the said Act shall apply:" I Lay explain here that the Act was the Pakistan Essential Services (Maintenance)
1952, and I shall also refer to it as the said Act. In this notification, the employer's claim was that the West Pakistan Industrial Court had lost its jurisdiction to hear the appellant's application under section 31 of the Ordinance. Accordingly, it filed an application on 1-9-67 for the dismissal of that application. The 3rd respondent took the view that the provisions of section 7-A of the said Act made it clear" that his jurisdiction was barred as soon as the Government had issued its notification on 8th December 1966. Accordingly, by -his order date I 8th November 1967, he dismissed the application filed by the appellant under section 31 of the Ordinance. And aggrieved by this order, the appellant filed an appeal in this Court, which had come up for hearing before me earlier in the year. After hearing Mr. All Amjad on 18-9-1972 I came to the conclusion that notice to the Attorney-General was necessary in view of the nature of the question raised in the appeal. I directed accordingly, Ihave now heard the appeal with the able assistance of the Attorney- General.
3. As the question is of the effect of the extension of the said Act to all classes of employment with the employer, I would first briefly refer to the provisions of the said Act. Its preamble states that "it is expedient to make provision for the maintenance of certain essential services." Section 1 is formal.
Section 2 states: " . . . . . Unless there is anything repugnant in the subject or context, employment Includes employment of any nature whether paid or unpaid and whether in or out of Pakistan." This very wide definition no doubt has reference to the objects of the said Act. Then, as to section 3, in so far as it is relevant, it empowers the Central Government, by a notification, to apply the said Act to any employment or class of employment. However, subsection (2) of the section prescribes that such a notification can be issued only if the Central Government is of opinion that the extension of the said Act to any employment or class of employment is essential for securing the defence or the security of Pakistan. . " or "for the maintenance of such supplies or services as relate to any of the matters with respect to which the (Central Legislature) has power to make laws and are essential to the life of the community". Further, declarations under this section can be made only for 6 months at a time. The effect of section 4 Is that once the said Act has been extended to any employment or class of employment, the Central Government or an officer duly authorised may direct any person or persons engaged in such employment trot to leave it or not to leave each area or areas as may be specified in his order. Section 5 prescribes penalties for violating orders passed under section 4.
Section 6 is very important and reads as follows:- "(1) The Central Government may make rules regulating or empowering a specified authority 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 employment or class of employment to which this Act applies.
(2) When any such rules have been made or when any directions regulating wages or conditions of service have been given by an authority empowered by such rules to give them, any person failing to comply therewith is guilty of an offence under this Act."
Section 7 prescribes penalties for offences punishable under the said Act. Section 7-A reads as follows:-- "The provisions of this Act shall have effect, notwithstanding to the contrary contained fn the Trade Unions Act, 1926,9or the Industrial Disputes Ordinance, 1959, or any other law.--- The other sections are not relevant to the arguments advanced before me, but I have to point out that the Attorney-General drew my attention to the notification issued by the Central Government on 2.7-1962 under section 6, which I have quoted. The notification is also very important, and by it the Central Labour Commissioner was empowered to regulate "the wages and other conditions of service of persons or class of persons engaged in any employment or class of employment to which these rules apply". As the Central Government has discretion to vary the powers delegated to rite Central Labour Commis--sioner, I would only point out here that this notification expressly empowers the Central Labour Commissioner to increase the wages of allowances of any person in respect of whom a dispute exists with his employers and to specify conditions, which the employment of any person may be terminated.
4. Thus, it will be seen that the said Act, together with the rules that nave been framed or may be framed under section 6, constitute a method for settling industrial disputes which is very different from the method prescribed in the Ordinance. The learned Attorney. General therefore submitted that as these two methods were mutually inconsistent they both could not be extended at the same time to any employment or industry. Accordingly, his further submission was that the effect of section 7-A of the said Act was that as soon as the said Act, was extended to say employment the result was to exclude totally the applicability of the Ordinance which was superseded by the said As Therefore, in the instant case, the Attorney General supported the view of the Industrial Court that it was divested of its jurisdiction to entertain the dispute before it err issue of ins notification of 8th December 1966.
5. Mr. Ali Amjad did not challenge the validity of that notification, and he also submitted that the Ordinance and-the said Act prescribed methods for settling industrial disputes, which were mutually inconsistent. But his further submission was that the difference between these two methods for settling industrial disputes was not merely of procedure but also of substantive rights.
In this connection he contended that the scheme under the said Act curtailed the rights of the workmen because 4-a workman was aggrieved by a decision of the Central Labour Commissioner he could not file an appeal against it, whereas he could challenge the decision of the Industrial Court in an appeal before the High Court. I do not need to set out Mr. All Amjad's submission on this aspect of the case, because it is obvious that the said Act regulates not only the procedure for settling industrial disputes but it also effects the rights of the employer and of the workman. But I do not see how this helps the case of the appellant, because the Ordinance has been superseded by the said Act in consequence of the notification of 8-12-1966. However, according to Mr. Ali Amjad, this notification only amounted to an implied repeal of the Ordinance, so that it could not be given retrospective effect as It affected substantive rights, therefore it could not affect any proceedings pending under the Ordinance on 8-12-1966, and as according to Mr. All Amjad proceedings in the present case were pending on that date the impugned order was illegal. In support of this argument, learned counsel referred me to an order of Mr. Justice Inamullah as Chairman of the Sind Appellate Tribunal in Sher Muhammad and others v. Management of Electrical & Mechanical Workshop (1970 P L C174 ).
6. The learned Attorney General---s reply was that the effect of section 7-A of the said Act was more than a mere implied repeal of the Ordinance, but that even if it was assumed that tray effect of a notification under section 3 amounted to no more than an implied repeal, it could not help the cast of the appellant, because no proceedings were pending before any Industrial Court on the date of the notification under section 3 of tile said Act, namely 8th December 1966. The submission of the learned Attorney-General is correct because the application under section 5 to the Industrial Court (namely respon--dent No- 3) had been made only on the 31st January 1967. It is true that a Failure Certificate had been issued on 3rd December 1966, 5 days before thin date of the notification making employment with the bank an essential service. However, although the issue of a Failure Certificate is a pre-condition of an application to an Industrial Court under section 5 of the; Ordinance, it does not follow from the issue of a Failure Certificate that an industrial dispute would necessarily be referrer' to thin industrial Court. Therefore I agree with the learned Attorney- General that no proceedings were pending before the 3rd respondent at the date of the said notification of 8th December 1966.
7. I know turn to the judgment of the Sind Appellate Tribunal on which -Mr. Ali Amjad relied. There, as in the present case, the learned Chairman had to construe the effect of a notification under section 3 of the said Act, by which employment with the appellant was declared an essential service. This notification had been issued after the dispute of the appellant had been referred for adjudication to the Industrial Court and therefore the learned Chairman held that as the notification could not be given retrospective effect it did not divest the Industrial Court of its jurisdiction to entertain the Industrial dispute before it. But unlike the case cited, the Industrial dispute in the present case was referred to the Industrial Court long after the notification under section 3 of this said Act, therefore the judgment cited is distinguishable on the facts and there is nothing in it to support Mr. Ali Amjad's argument that .a notification under section 3 of the said Act loses its effect merely because of the issue of a Failure Certificate under section 5 of the Ordinance.
8. Mr. Ali Amjad's only other argument was that ' as the appellant's application under section 31 of the Ordinance had been admitted for adjudication by the 3rd respondent, the 3rd respondent was bound to decide it. In support of this submission learned counsel merely referred me to a judgment of the Indian Supreme Court reported in Tata Iron & Steel Co. v. S. N. Modak (1966 PLC 503), but before I examine this judgment it is necessary to refer to the relevant provisions of the Ordinance as they are not identical with the corresponding Indian Statute. According to section 30, In so far as it is relevant, "No employer shall, during the pendency . . . . . . . Or proceedings before a Court in respect of anIndustial dispute. --- --- (a)..
(b) Save with the permission of the court during the pendency of the proceedings before the court, dicharge, dismiss otherwise punish any such workman except for misconduct not connected with such dispute.--- Subsection (2) gives similar protection to officers of Trade Unions and prescribes that they shall not be discharged or dismissed for misconduct "not connected with the Industrial dispute . . .except with the previous permission of the Court . . . . . . . Section 31 contains the provisions "for adjudication in the case of contravention of section 30". The appellant's contention was that he had been dismissed after the industrial dispute hasbeen referred to the 3rd respondent without the permission of the 3rd respondent, therefore he was entitled to relief undersection 31,and Mr. All Amjad's submission was that the 3rd respondent should have decided this section 31 application itirrespective of the outcome of the main industrial dispute.But according to the bank, this section 3: application was notmaintainable because the appellant had not been dismissed formisconduct connected with the industrial dispute that had beenreferred to the 3rd respondent. Mr. Ali Amjad then submitted that the appellant had been dismissed because he was an officer of the Trade Union concerned in the industrial dispute, so that his case felt under section 30 (2). But this is a plea of fact, which was not raised even before the 3rd respondent so I will not go into it. And on the other hand, as submitted by the learned Attorney-General, section 31 is ancillary to section 30, therefore an Industrial Court can entertain an application under section 31 only when it arises out of an industrial dispute which it is competent to entertain and decide. But as in the instant case, the dispute had been referred to the 3rd respondent after he had lost his jurisdiction to entertain it, I agree with the learned Attorney-General that the 3rd respondent in consequence was not competent to entertain the application under section 31 either. It is true that the judgment of the Indian Supreme Court on which Mr. Ali Amjad relied contains observation that an application under section 33 of the Indian Statue (which is similar but not identical to section 31 of the Ordnance) can continue even though the industrial dispute out of which It arises is disposed of.
However, in the present case, an industrial dispute was not pending before the 3rd respondent within the meaning of section 30 of the Ordinance, and there is nothing in the judgment cited to support the view that an application under section 33 of the Indian Statute would be maintainable before a Court which was not competent to entertain the main industrial dispute. Accordingly, this judgment is also distinguishable on the facts, and it is not necessary for me to go into the wider question as to whether an Industrial Court is competent to decide an application under section 31 of the ordinance after the adjudication of the main industrial dispute during the pendency of which section 31 was invoked.
9. No other argument was advanced. The appeal is without merit and is dismissed without, costs.
However, the appellant will be free to pursue his remedies under the said Act if any. I also thank the Attorney-General for his assistance.