1. ' SHAFIUR RAHMAN, J.--These four appeals and two civil petitions raise common questions of law and have been heard together and are being disposed of by this judgment.
2. ' All these appeals and petitions relate to the terms and conditions of-employment of the employees of the Pakistan Television Corporation (hereinafter referred to as the P.T.V.). Muhammad Babar Zaman, respondent in Civil Appeal No,290 of 1981 was Assistant News Producer, Muhammad Nasim Siddiqui respondent in Civil Appeal No, 291 of 1981 was the Senior Make Up Artist, Ismail Taj respondent in Civil Appeal No,292 of 1981 was the Cameraman, Mr.Zahoor Nazim respondent in Civil Appeal No,293 of 1981 was Assistant Designer (Calligraphy), Mahboob Ahmed Khawaja petitioner in C.P.LA. No,157 of 1983 was an Accountant and Agha Seerat Abbas, petitioner in C.P.LA. No,176 of 1983 was an Assistant Film Editor. In middle February, 1978 some events took place resulting in the take- over of certain stations of the P.T.V. First Information Reports were registered in which the names of Agha Seerat Abbas, Zahoor Nazim and Muhammad Babar Zaman found place. The criminal case was, however, later withdrawn. They were suspended and inquiry was held against them and a termination order simpliciter with one month's notice was passed against the two petitioners. The respondents in Appeals had been suspended and on service of charge-sheet they straightaway invoked the Constitutional jurisdiction of the High Court. The case made out by these respondents was that they continued to be governed by standing Order 15 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, in the matter of discipline. Their suspension could not be continued beyond a period of four weeks in any case, and it had to be by order of suspension for four days at a time. It was also contended by them that the inquiry etc. Had to start within one month of the date of alleged misconduct or of the date on which the alleged misconduct came to the notice of the employer. In their cases it was contended that the misconduct had allegedly taken place on or near about 16th of February, 1978 but the charge- sheets were given in middle of April, 1978. Their petitions were resisted by the P.T.V. Taking up the ground that the respondents were governed by the Pakistan Essential Services (Maintenance) Act (hereinafter referred to as the Act) and that the Standing Orders Ordinance or the Industrial Relations Ordinance was not applicable and that the termination of their employment had taken place in accordance with the Rules of employment specified by the competent authority and made effective by the Federal Government from the 25th of January, 1978 under section 6(1-A) of the Act. Hence no relief could be granted. It was further contended that only an inquiry had to be initiated for determining the extent of their involvement and on no principle Constitutional jurisdiction could be invoked to intefere with it.
3. ' The learned Judge disposed of these and other similar petitions by a consolidated order dated 30-6-1979 and he recorded the following findings:-
(i) "Pakistan Television Corporation had framed its own rules and regulations which cover the terms and conditions of its employees. These were merely rules for domestic use of the Corporation. They had no statutory force."
(ii) "In view of the above discussion I hold that Messrs Muhammad Babar Zeman, Muhammad Nasim Siddiqui, Zahoor Nasim and Ismail Taj are all "workmen" as defined in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968."
(iii) "The respondent-Corporation had the knowledge of this so-called "misconduct" on 16th February, 1978. According to him proceedings for misconduct could be initiated against him within one month of the said date i.e, till 16th March, 1987, while in the instant case he was charge-sheeted on 10th April, 1978."
(iv) "Under Rule 3(2)(b) the previous terms and conditions have been guaranteed and the specified authority cannot alter these terms and conditions to the disadvantage of an employee".
(v) "In other words these rules although operative with effect from 25th January, 1968, would not take away the benefits or privileges or rights which were available to the petitioner under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968."
(vi) "I hold that the rights/privileges and benefits which were available to the petitioner under West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968, i.e, Standing Orders 15(4) and (5) are still available to the petitioner and that he could be proceeded against for any alleged "misconduct" within one month of the date of such misconduct or of the date on which the alleged misconduct came to the notice of the employer and that he could not be suspended for a period beyond 4 weeks in terms of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968."
(vii) "Thus the petitioners could legitimately move this Court against proceedings which were initiated against them before the Inquiry Officer if they could establish that they were beyond his authority or jurisdiction."
4. ' On these findings the following relief was given to the writ petitioners:- "Proceedings before the Inquiry Officer/respondent No,2 are declared to be beyound his authority and jurisdiction. Without entering into other objections which the learned counsel for the petitioner has taken in the case, this writ petition is accepted."
5. ' Aggrieved by these judgments, the P.T.V. Filed Intra-Court Appeals. These were disposed of by a consolidated judgment dated 2-2-1981. Not all the findings recorded by the learned Judge in Chamber were examined for ascertaining their legality and correctness but the decision was given on the following two findings:-
(i) "The contention that the Management did not come to know of the alleged misconduct dated 16-2-1978 until 16-4-1978, is obviously untenable. The Management could not have remained unaware of the taking over of its Television Centres throughout the country and by whom. If it were so, it would not speak very highly of the Management. It knew and prepared a list of employees whose services were sought to be terminated. The learned Single Judge saw the file and found it so."
(ii) "For the reasons given above, the Rules adopted and approved by the Pakistan Essential Services (Maintenance) Act, 1952 read with the Essential Services (Maintenance) Act, 1952 are without lawful authority and of no legal effect. This being so, the main plank of the case of the appellant goes overboard. Arguments regarding their applicability and retrospectivity are, therefore, besides the point."
6. ' The reasons given for holding the rules to be ultra vires were that they were not framed by the Chairman, National Industrial Relations Commission (N.I.R.C.) nor by the senior Member of N.I.R.C., the delegate could not further delegate the delegated powers or override the statutory powers contained in the Standing Orders Ordinance. Respondents were held to be workmen and also to be governed by provisions of Standing Orders Ordinance. However, doubt was expressed about one conclusion drawn by the learned Judge in Chamber, in the following words:- "It was a little doubtful that if the Rules were made regulating the wages and conditions of service of employees taken over under the Essential Services (Maintenance) Act, 1952, would the employees be still entitled to their rights and privileges available to them under the ordinary law i.e, the aforementioned Ordinance, because that might not only entail conflict of jurisdictions but also lead to dilatory procedure of settlement of disputes when that was required to be efficiently settled for the effective running of the essential services. Therefore, the learned counsel for the appellant was asked to argue on the validity of the Pakistan Television Corporation Ltd. Employees Services Rules and he very ably argued the point at length and quoted authorities."
7. ' While dismissing the appeals, the following observations were made:- "It goes without saying, as observed earlier, that the appellant may, if it has any right under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and is so inclined, take action against the respondents which is available to him. The appeals are thus disposed of."
8. Leave to appeal was granted in these four appeals mainly to examine whether the Pakistan Television Corporation Service Rules had been competently framed?
9. ' Agha Seerat Abbas, petitioner after getting the termination order from the employer on 3-7-1978, filed a departmental appeal which remains undisposed of to date. Thereafter, he filed a Constitutional petition. So did the other petitioner Mehboob Ahmed Khawaja. Their petitions came up before the same learned Judge who had written the leading judgment in the Intra-Court Appeals but at the time of hearing the decision of this Court in Karachi Electric Supply Corporation Ltd. v. National Industrial Relations Commission (PLD 1982 SC 113) had become available. The learned Judge by reference to it and the various decisions given subsequently held that the Constitutional petitions were not maintainable. The exact reasons given are reproduced hereunder in extenso:- "Therefore, if the respondents felt aggrieved either by their termination of service or dismissal, they should have taken steps to institute the proceedings as provided by section 7 and in that event it would have been open to the Court to determine as to whether the termination, according to the terms and conditions of service, or by way of dismissal or discharge was without lawful excuse or not as the expression "without reasonable excuse" signifies an excuse which is not lawful". The only right of an employee against wrongful-termination of service recognized by law is a recourse to proceedings under section 7 of the Pakistan Essential Services (Maintenance) Act, 1952. In the case of Khuda Bux v. Pakistan Steel Mills Corporation and 2 others 1983 PLC 16, a learned Division Bench of the Sind High Court held that "in view of the express observations made by the Hon'ble Supreme Court of Pakistan in the above K.E.S.C's. Case, particularly with reference to the aforesaid Lahore case of 1977 and Peshawar case of 1980 to the effect that no other forum can resolve the dispute between the employer and the employee than the forum provided by the Act. It is not open to the Court to hold otherwise." So is the position of this Court. Labour Appellate Tribunal Sind presided over by retired Mr. Justice Z.A.Channa in the case of Maula Bakhsh v. Karachi Electric Supply Corporation Ltd. And two others (1982 PLC 491) after quoting the above observations of the learned Supreme Court held that "It would thus, appear, that the view taken by the Supreme Court is that a person whose employment is regulated by the provisions of the Pakistan Essential Services (Maintenance) Act, 1952 if he is aggrieved by the termination of his services for whatever cause and in whatever manner, can have resort only to the forum and according to the procedure provided in the said Act and to no other remedy and in no other manner". Since the petitioners challenged the termination of their services, they can only have recourse to section 7 of the Essential Services (Maintenance) Act of 1952 as held by the learned Supreme Court of Pakistan and will, therefore, have no right to question the dismissal or termination of their services in any other manner."
10. ' We had the benefit of hearing the arguments from Mr. Aftab Ahmed Khan, Advocate, the learned counsel for the P.T.V. In four appeals and from Mr.Muhammad Ismail Chaudhry, Advocate the learned counsel for the petitioners. As substantial issues of fact and law have been raised on which we have not the benefit of the considered view of the High Court, we propose to deal only with two legal questions both jurisdictional in nature and within the purview of the leave granting order, dealt with by the High Court. The first is whether the Rules framed by the specified authority and Gazetted on 25th May, 1978 and enforced by the Federal Government under section 6(1-A) of the Act from 25-1-1978 are statutory rules or not; and whether they are ultra vires to the Act? The next question to be examined and relatable to the two petitions is whether the decision of this Court in Karachi Electric Supply Corporation's case has the effect of ousting the jurisdiction of all adjudicatory authorities and restricting the redressal to section 7 of the Act.
11. ' On the first question Mr. Aftab Ahmed Khan was of the view that the Appeal Bench of the High Court has omitted to note the definition of 'Chairman' contained in the Essential Services (Maintenance) Rules, 1962 to include a member of that Commission authorized by the Chairman in this behalf. If this definition had been kept in view, the conclusion drawn and the argument given about the delegated power being incapable of further delegation would not have followed. As regards redressal provision, Mr. Ismail Chaudhry, contended that the redress under section 7 is not available to any one affected by the impugned actions of the employer but it is a power reserved for a servant of any Government in Pakistan authorized in this behalf by the Federal Government who alone has been made competent to file a criminal complaint in the matter. It is no relief to the affected employee, no redressal in the matter of observance of the Rules and their enforcement.
12. ' As regards the question relatable to the four appeals, we find that `Chairman' has been defined in Rule 2 clause (b) of the Essential Services (Maintenance) Rules, 1962 in the following words:- "'Chairman' means the Chairman of the National Industrial Relations Commission constituted under the Industrial Relations Ordinance, 1969 (XXIII of 1969), and includes a member of that Commission authorized by the Chairman in this behalf."
13. It is the 'Chairman' so defined in Rule 2, who has been empowered by Rule 3 "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." The Authority of the Federal Government is enshrined in section 6 of the Act which authorises the Federal Government to make rules, "regulating or empowering a specified authority to regulate the wages and other conditions of service of persons or 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". The gazatted Rules themselves mention at least at two places that the Member, framing it had been duly authorized by the Chairman vide concluding words of para. 1 of the Gazetted Order. It also finds mention in para. 4 that the Member who has exercised the power had been so authorized under Rule 2(b) empowering the Chairman to so authorise him. The definition of the Chairman in N.I.R.C.
14. Rules or elsewhere was not relevant for the purpose, as power exercised and requiring examination was one under the Act and the rules framed thereunder. There being specific provision with regard to it, aid from outside was uncalled for. On the express words of the Rule, the authority exercised by the member, Mr. Bashir Ahmed Malik in framing the rules was competently possessed by him. On that view of the matter the decision of the Intra-Court appeals must be set aside and the proceedings remanded to the appeal Bench for decision afresh on all the controverted questions of fact and law arising in the appeals, quite a few of which had been taken note of and dealt with by the learned Judge in Chamber.
15. ' As regards the civil petitions, we hereby convert them into appeals and allow them because our understanding of the decision in Karachi Electric Supply Corporation's case is that no such ouster of jurisdiction has taken place as was applied by the learned Judge in Chamber. The following observations made by this Court in Karachi Electric Supply Corporation's case have to be kept in the forefront:--
(i) "The legislation has, therefore, to be construed in the context of an emergency legislation where cessation of individual employment or class of employment is forbidden without a reasonable excuse having regard to its objects, namely, maintenance of certain essential services. Section 5 of the Act has reference to it. Section 6 provides for the making of the Rules to regulate the wages and other conditions of service. This power can also be delegated to the specified authority and any breach of the Rules or the directions given by the specified authority is punishable as an offence."
16. "Section 6(1) itself authorities the Central Government to make Rules regulating the wages and other conditions of service of persons or any class of persons or it can empower the specified authority to do so. By thus empowering, the specified authority assumes the same functions of making rules concerning wages and other conditions of service. It does not further convey the power to the specified authority to adjudicate as is obvious from subsection(2) of section 6 which prescribes the penal action for the violation of the Rules framed or the directions given by specified authority. In the context of the language of this subsection, the word "regulate" in Rule 3(1) could not also be construed to include within its ambit the power to adjudicate a dispute between the employer and the employee for it cannot travel beyond the scope of section 6. If the framers intended to saddle the specified authority with this power then there would not have been a provision for penal action for the violation of either a rule or a direction."
17. "Such provision of a forum was ultra vires the power of the specified authority as the word "regulate" could not be construed to provide a forum in contravention of the provisions of sections 5 and 6(2) of the Act."
18. ' The adjudicatory power in view of these observations was left intact and separate from the regulatory power for which provision had been made. The only observation contained in the K.E.S.C.'s judgment which could possibly give strength to the conclusion drawn in the impugned judgment is in the concluding portion, in the following words:-- ' Any discontinuance of employment has necessarily to be judged from the test laid down in the section namely,that it was "without reasonable excuse". Therefore, if the respondents felt aggrieved either by their termination of service or dismissal, they should have taken steps to institute the proceedings as provided by section 7 and in that event it would have been open to the Court to determine as to whether the termination, according to the terms and conditions of service, or by way of dismissal or discharge, was without lawful excuse or not as the expression "without reasonable excuse" signifies an excuse which is not lawful."
19. ' The scheme of the Act shows that in section 5 are enumerated the offences. Subsection (2) of section 6 envisages additional offences in the following words:- "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."
20. The penalties and procedures are prescribed in section 7 and what is to be noted is subsections (3) and (4) of section 7 which provide as hereunder:- "(3) No Court shall take cognizance of any offence under this Act except upon complaint in writing made by a servant of any Government m Pakistan authorized in this behalf by the Federal Government.
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (V of 1898) an offence under this Act shall be cognizable."
21. Finally section 7-A provides as hereunder:- "The provisions of this Act shall have effect, notwithstanding anything to the contrary contained in the Industrial Relations Ordinance, 1969 (XXIII of 1969), or any other law."
22. Keeping in view these provisions it is clear that it is a servant of any JC Government in Pakistan authorized by the Federal Government who alone is competent to administer the law by taking note of breaches and violations within the scope of its authorization and by filing complaints in respect of them at his discretion. The remedy provided is of a criminal prosecution. The parties directly affected, whether employers or the employees, have been conferred no right or benefit to seek redress or to obtain it within the purview of the Act.
23. ' The provisions of the Act and their examination in K.E.S.C.'s case establish a distinction between the regulatory powers (exercisable by the Federal Government or an authority specified by it under section 6 of the Act) punitive powers (exercisable by a servant of the Government empowered to file a criminal complaint in writing under section 7 of the Act) and the adjudicatory powers in other respects left untouched by the Act. The regulatory power was held in that decision not to extend, encroach upon or affect in any manner the adjudicatory set up. When it is provided in section 7-A of the Act that "the provisions of this Act shall have effect, notwithstanding anything to the contrary contained in the Industrial Relations Ordinance, 1969 (XXIII of 1969) or any other law" the impact is created only to the extent of contrariety and not in the domain where there is no contrariety.
24. Section 3 applies the Act to every employment under the Federal Government and in spite of the Act there is an established adjudicatory system of Service Tribunals for Civil Servants. Similarly, those who fall in the category of workmen and are not exempted from application of Industrial D Relations Ordinance can have recourse to the Labour Courts. Those who are excluded from the Labour Courts also can resort to Constitutional jurisdiction if the rules governing them happen to be statutory as recognized in the case of the Principal, Cadet College Kohat and another v.
25. Muhammad Shoaib Qureshi PLD 1984 SC 170.
26. ' In the case of Khuda Bux v. Pakistan Steel Mills Corporation and 2 others 1983 PLC 16 this question directly came up for consideration in the light of this Court's judgment in K.E.S.C.'s case and the following observations at page 22 of the report of the High Court judgment deserve reproduction:- "It may be noticed that in the above judgment it was inter alia observed that the specified authority by its own notification purported to oust the jurisdiction inter alia, of Labour Courts contained in sections 25-A and 34 of the I.R.O. And the right of appeal under section 38 of the aforesaid Ordinance. The above judgment has been expressly approved by the Supreme Court in the above Karachi Electric Supply Corporation Ltd. And leave to appeal against the above judgment was also declined by the Supreme Court through the aforesaid order dated 16-12-1981 passed in Civil Petition for Special Leave to Appeal No,K-114/81. It is true that in the above case the Division Bench of this Court proceeded on the assumption that the Labour Courts retain the jurisdiction in the absence of vesting of jurisdiction in the specified authority under the Act. However, the Supreme Court while declining the leave against the above judgment has not adverted to this aspect."
27. It is clear to us that the provisions of the Act supersede every other provision only to the extent of contrariety and not beyond. For matters not covered by the provisions of the Act, the ordinary law will have application particularly in the matter of adjudication.
28. ' In the cases before us, it was contended that the employees of the Pakistan Television Corporation could not invoke the forum of Labour Courts for redressing their grievances because by Ordinance No, XV of 1975, an amendment was made in subsection (3) of section 1 which was given effect to from a restrospective date, namely the 16th day of February, 1978. Pakistan Television Corporation and the Pakistan Broadcasting Corporation were added by clause(d) excluding them from application of Industrial Relations Ordinance. Similarly, by Ordinance No,XXXVI of 1978 promulgated on 27th day of August, 1978, subsection (1-A) was added from the 25th day of January, 1978, which is in the following words:- "(1-A) Notwithstanding any provision in any such rules or directions regulating wages and other conditions of service, including any rules made or directions given before the commencement of the Pakistan Essential Services (Maintenance) (Amendment) Ordinance, 1978, as to the day on which they shall come into force, the Federal Government may direct that they shall be deemed to have taken effect on such day, not preceding the day on which such rules were made or directions were given, as the Federal Government may specify."
29. This provision has the effect of making the direction of the specified authority the command of the Federal Government as from restrospective date and any relief sought within its purview may be sought for by invoking the Constitutional jurisdiction of the High Court.
30. ' In view of what has been stated, the appeals are allowed and the judgment of the Appeal Bench of the High Court is set aside and the proceedings in these four appeals are remanded to the High Court for adjudicating it in accordance with law. The judgment impugned in the two civil petitions converted into appeals, is set aside and the proceedings are remanded to the High Court for decision of the questions of law and fact raised therein afresh, in the light of the observations made. No order as to costs.