This is an appeal by Pakistan International Airlines Corporation, Karachi, through the Managing Director, wherein the orders of the Labour Court, Peshawar, dated 13-2-74, setting aside the order of termination of service of Mr. Akhtar Ali Qureshi and re-instating him from the date from which his services were terminated, have been challenged.
2. The facts leading to the termination of service of Mr. Akhtar Ali Qureshi are as under: Mr. Akhtar Ali Qureshi was a permanent employee in the Pakistan Inter--national Airlines Corporation (hereinafter to be called as the P. I. A.) and- was posted as Senior Traffic Assistant at Multan. He was transferred to Dacca, where after about 16 days he was granted 12 days medical leave and he came to Peshawar. He was to report back for duty, at Dacca on the 12th of September 1971. It is alleged that on account of non-availability of seats he could not attend to duty on the date fixed. He, therefore, sent a telex message to Dacca that he will be arriving by the next available flight. In reply it is alleged he received the telex message Exh. P. B. Dated 12th September 1971, at Peshawar, informing him that his services were terminated. Mr. Akhtar Ali then filed an application under section 34 of the I. R. 9., 1969, before the N.W.F.P. Labour Court and prayed for quashing of the order of termination of his service, which order was issued on the 12th of September 1971. The learned Labour Court recorded 'the evidence ' of the parties and in conclusion of the proceedings, he by his order dated 13-2-74 accepted the petition and set aside the order of termination of service issued to the petitioner, directing the respondent "to re-instate the petitioner with effect from the date on which his services were terminated." Parties were left to bear their own costs.
3. The P. I. A. Through its Managing Director, Karachi, h4S come up on appeal under section 37(3) of the I. R. O.
4. Mr. Zahurul Haq, learned counsel for the respondent, raised two preliminary objections (1) that the appellant had no right of appeal under section 37(3) of the 1. R. O., and (2) that the Standing Orders (The West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968) are applicable to P.I.A. As the P.I.A. Has not framed any statutory Rules of service, conduct or discipline applicable to the workmen employed there--under.
The crucial point in the case is the second objection raised by the learned counsel. Proviso to- section 1(4) of the West Pakistan Industrial and Com--mercial Employment (Standing Orders)
Ordinance, 1968, (hereinafter to be referred to as Standing Orders), is as under: "1(4) It applies to- Provided that nothing in this Ordinance shall apply to industrial and commercial establishments carried on by or under the authority of the Central or any Provincial Government, where the statutory rules of service, conduct or discipline are applicable to the workmen employed therein "
It cannot be denied that P.
1. A is a commercial establishment, Commercial establishment has been defined in section 2(b) and Industrial establishment has been defined by section 2(f) of the Standing Orders, which read as under: "2(b) Commercial establishment' means an establishment in which the business of advertising, commission or forwarding conducted, or which is a commercial agency, and includes a clerical department of a factory or of any industrial or commercial undertaking, the office establishment of a person who for the purpose of fulfilling a contract with the owner of any commercial establishment or industrial estab--lishment, employs workmen, a unit of a joint stock company, an insurance company, a banking company or a bank, a broker's office or stock-exchange, a club, a hotel, a restaurant or an eating house, a cinema or theatre, and such other establishments or class thereof, as Government may, by notification in the official Gazette, declare to be a commercial establishment for the purposes ,of this Ordinance.
2(f) industrial establishment' means-
(i) an industrial establishment as defined in clause (ii) of section 2 of the Payment of Wages Act, 1936 (IV of 1936); or
(ii) a factory as defined in clause (j ) of section 2 of the Factories Act, 1934 (XXV of 1934); or (i.e) a railway as defined in clause (4) of section 3 of the Railway Act, 1890 (1X of 1890); or
(iv) the establishment of a contractor who, directly or indirectly, employs workmen in connection with the execution of a contract to which he is a party, and including the premises in which, or the site at which, any process connected with such execution is carried on; (or)
(v) the establishment of a person who, directly ox indirectly, employs workmen in connection with any construction industry.
Explanation. Contractor' includes a sub-contractor, headman or agent." Section 2(xx) of the I. R. O.
Defines "Public Utility Service" as meaning any of the services specified in the schedule. Airways are mentioned at No. 6 of the Schedule. Thus P.
1. A is a Public Utility Service. Section 33 of the I. R. O lays as under: "(33) Strike or lock-out in Public Utility Services. (1) In the case of any of the public utility services, the Federal Government in the case of strike or lock-out relating to a dispute which the commission is com--petent to adjudicate and determine, and the Provincial Government in any other case, may, by order in writing, prohibit a strike or lock--out at any time before or after the commencement of the strike or lock-out.
(2) The provisions of subsections (3), (4) and (5) of section 32 shall also apply to an order made under subsection (1) above as they apply to an order made under subsection (2) of that section."
The learned counsel for the respondent contends, in support of his second objection, that the "Service Code" framed by the P. I. A. Are not statutory rules of service, conduct or discipline and, therefore, the provisions of the Standing Orders would be applicable to the case of Akhtar Ali respondent. He relies on A. George v. Pakistan International Airlines Corporation (1) wherein it has been held: "The terms and conditions of service of its employees are in general prescribed by the International Airlines Corporation in the form of a 'Service Code'. This Code does not refer to any authority under the law under which it was framed. The provisions forming this Code do not have the force of the statutory rules made by the Central Government under section 29 of the Act. Nor even the force of Regulation made .By the Board of Directors of the Corporation with the previous sanction of the Government under section 30. This Code was never published in the Government Gazette and placed before the National Assembly in accordance with section 31 of the Act. But, section 10 of the Act lays down that the Corporation may appoint such officers and employees as it considers necessary for the efficient performance of its functions, 'on such terms and conditions as it may see fit'. This section confers plenary powers and absolute discretion in the Corporation to lay down any terms and conditions of service for its employees. The power in this connection is exercised by the Board of Directors on behalf of the Corporation Rule 22(2)(a) of the Pakistan International Airlines Rules, 1956, lays down that the Board may make 'Service Rules and Regulations' concerning the appoint--ment of its officers and servants. Apparently, it was in exercise of these powers that the Board has introduced the service Code laying down in general the terms and conditions for its employees. There is no sanctity attached to the service Code its provisions are not immutable and according to para. 4, Chapter I of the Code the Corpo--ration has the right to modify, cancel or modify all or any of those provisions as maybe considered necessary. In other words they could be altered at the pleasure of the Corporation. Therefore, strictly speaking it is a misnomer to regard them as rules and regulations having a statutory force of the law. On the contrary, the provisions in this Code are altogether subordinate in character. These are in the nature of mere instructions issued by the Board for the guidance of its officers for their internal use and are altogether directory."
He also relied on Pakistan International Airlines Corporation, Lahore v. Sajid Ali and 9 others (1973 PLC 3), wherein it has been held that the P. I. A. Service Code are not statutory rules and the provisions of Standing Orders, 1968 are applicable to the employees of the P.
1. A.
PLD 1972 Kar. 477). The following observations at page 480 need recapitulation: "Service Code is not regulations as stated by him under section 30 of Act. Section 10 of the Act has clearly provided for a power vesting in the respondent to fix the terms and conditions of service of its employees. The Government admittedly has framed rules under section 29 of the Act which have not been challenged. These rules, as stated above in rules 22(e) and 22(1), provide for a power to be given to the respondent to frame rules regarding the terms and condi--tions of its employees. The respondent has consequently framed rules and they are authorised rules under rule 22(1) of the rules framed under section 29 of the Act. They are by no means regulations under section 30 of the Act. We are therefore clear in our mind in so far as the Service Code is concerned that it contains rules which prescribe the terms and conditions of service of the employees of the respondents."
Following the Full Bench decision, I am of the view that Service Code of P. I. A. Contains rules, which prescribe the terms and conditions of service of the employees of the respondent. Reading the definition of "Commercial Establishment and Industrial Establishment as given in the Standing Orders, I am further of the view that P.I.A., although a Commercial Establish--ment, is not covered by the definition of Commercial Establishment or Indus--trial Establishment provided in the Standing Orders: In view of section 33 of the I. R. O. a Labour Court can only be moved to prohibit a strike or lock-out. Thus Mr. Akbar Ali petitioner respondent bad no right to move the Labour Court, Peshawar in case of his dismissal from service. The impugned order passed by the learned Labour Court is thus without jurisdiction and hence a nullity in law. An order without jurisdiction is appeal able before G the Tribunal for the purpose of questioning the jurisdiction of the Labour Court. I therefore, accept this appeal and set aside the impugned order. Parties to bear their own costs.