In ail the petitions of the employees against their dismissal, retrenchment or termination of service or imposition of any fine due to an alleged damage caused by the petitioners of the concern to which the Essential Services (Maintenance) Act, 1952 has been made applicable by the Federal Government, the respondents have raised preliminary objections in their written replies to the petitions as to the jurisdiction of National Industrial Relations Commission to entertain the said petitions and to adjudicate upon the matter under dispute. It being a settled principle of law that when-- ever an objection is raised as to the jurisdiction of a Court, the question of jurisdiction must be decided first, before going into the merits of the case, hence all the cases were fixed for arguments regarding the preliminary objection as to the jurisdiction of N. Industrial Relations Commission to entertain such type of petitions. The learned counsel for the parties were heard at length and there was much hair splitting on the part of the learned counsel for the respondents who tried to convince me that I had no jurisdiction to entertain such type of petition.
The first objection raised in this connection was that section 6 of Essential Services (Maintenance)
Act, 1952 reads asunder ---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 the employment or class of employment to which this Act applies.--- and that Rule 3(i) of the Pakistan Essential Services (Maintenance) Rules, 1962 also reads as follows ---3(i) the Central Labour Commissioner is hereby empowered to regulate subject to other provisions of this rule the w a 0ges and other conditions of service of persons or class of persons engaged in any employment to which these rules apply.--- In view of the words used as persons engaged in any employment or class of employment used in section 6 of Pakistan Essential Services (Maintenance) Act. 1952 and in rule 3(i) of Pakistan Essential Services (Maintenance) Rules, 1962, it was argued that since the petitioners, in petitions of persons dismissed, praying for re-instatement were no longer workers as their services had already been terminated, they were not entitled to invoke the National Industrial Relations Commission and to lodge the present petitions. According to them only existing employees, persons actually engaged in any employment or class of employment to which Essential Services (Maintenance) Act, 1952 has been made applicable by the Federal Government, can have the right to invoke the National Industrial Relations Commission for redress of their grievances.
The least that can be said about this sort of argument is that it is absolutely fantastic and I have not used this very mild adjective ---absolutely fantastic--- from my ownself. The same soft of argument was advanced in a reported case 1973 PLC 3 and Mr. Jamil Asghar, the Appellate Tribunal has observed therein that ---The learned counsel for the appellant contended that since the respon--dents were not legally workers as their services had already been terminated, they are not workers with in the definitions given in afore--mentioned enactments. According to him a worker means the existing worker and not the worker whose services have been terminated, therefore, the worker who has either been reduced in rank or has been fined could only have his grievance redressed under section 25-A of Industrial Relations Ordinance, 1969 and not the worker who has been dismissed. In other words the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968 and Industrial Relations Ordinance, 1969 are not applicable to him. About this proposition least that can be said is shat it is ---abso--lutely fantastic---. Moreover, in 1974 PLC 274, Mr. Inamullah Khan, Sind Labour Appellate Tribunal has held that words 'actually engaged or employed' are in contrast to an outsider and not the persons dismissed or discharged or retrenched.--- In view of the above discussion, I repel the first objection raised by the respondents in these petitions and hold that all the persons who were employees of the concerns to which Essential Services (Maintenance) Act,1952 has been made applicable try the Federal Government could invoke the Central Labour Commissioner when dismissed praying for re-instatement and after Notification No. 7/25/74-A Poll-I (2) Government of Pakistan, Ministry of Interior, States and Frontier Region and Kashmir Affairs (interior Division) SRO-1/1974, the Chairman of National Industrial Relations Commission and a Member of that Commission authorised by the Chairman in this behalf, can invoke the National Relations Commission for redress of their grievances.
The second objection of the respondents in these petitions was that section 6 of Essential Services (Maintenance) Act, 1952 envisaged an authority to ---regulate--- 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 (Essential Services Maintenance Act, 1952) applies and that rule 3(i) also reads as "the Central Labour Commissioner is hereby empowered to regulate subject to the other provisions of this rule, the wages and other conditions of services of persons or class of persons engaged in any employ-- ment or class of employment to which these rules apply---. Hence it was argued that the word "regulate" has been used in the Act and the rules and hence the Commission cannot adjudicate upon petitions of dismissed or retrenched persons praying for re-instatement and cannot order their re-instatement. In this connection they quoted from certain `Big Named Dictionaries' (like Stroud's Judicial Dictionary) giving the meaning of the word "to regulate" which according to meanings given in different dictionaries did not include the power to prohibit and it was argued that the term regulate meant to control and to govern and that the power to regulate did not extend to interference in particular cases. In this connec--tion P L U 1956 Lah. 382 war also referred, wherein their Lordships of the West Pakistan High Court, Lahore Mr. Justice S. A. Rahman, Chief Justice and Mr. Justice Orcheson, were pleased to hold that the word ---regulating--- to under section 45-A Evacuee Property Ordinance is one of limitation and the section does not invest the Central Government with any plenary or unrestricted powers and that ---no general power of control can be spelt rut of section 45-A such as could authorise the Central Government to interfere in particular orders of allotment---.
Reference was also made to AIR 1942 FC 17 wherein it has been held that the power to regulate does not include the power to prohibit.
I had come across a recent ruling of Sind High Court, Karachi reported in (1974 PLC 201) wherein his Lordship Mr. Justice Agha Ali Harder has held that Essential Services (Maintenance) Act 1952, (XLIII of 1952) not only regulates procedure for settling but also affects rights of workers and employers. His Lordship has further held in this ruling that: ---It was argued by Mr. Ali Amjad learned counsel for the petitioners that section 25-A of the Industrial Relations Ordinance, which was inserted by an amendment dated 13-4-1972 provided special rights to the workmen and special forum for their remedy which was not in existence at the the the Act was passed while the rules framed under the said Act did not give any power to the Central Labour Commissioner to bear any grievance against the dismissal and there--fore, there was no machinery under the rules for the re-instatement of the workmen. Further, according to him, no condition had been specified, by which the termination of service may take place. The conditions under the Standing Orders Ordinance, 1968 will therefore, continue to govern the Section 6(1) of the Act (Essential Services Maintenance Act, 1952), however, gave powers to the Central Government "to make rules regulating or empowering a specified authority to regulate the wages sod other conditions of service of a person or any class of persons engaged in any employment, or class of employment declared under section 3 to be an employ--ment or class of employment to which the at applies". The conditions of service will embrace questions relating to the employment or ion-employment or terms of employment of any person and the jurisdiction to regulate the wages and the other conditions of service has been vested in the authority under the Act. The contention of Mr. Ali Amjad learned counsel for the petitioners that the rules gave no powers to the Central Labour Commissioner to hear any grievance against the dismissals and therefore, no machinery had been created under the rules for re-instatement of workmen, has no force. The scheme of the Act and the rules framed thereunder is that the grievances of the workmen and the industrial disputes between the employer and the workmen were to be attended to be the Central Labour Commissioner who had final say in the matter.It is true that it provided no right of appeal and whittled down other rights, but does constitute method for settling the industrial disputes though different from the one under the Ordinance referred to above. The to methods are mutually inconsistent and therefore, the one prescribed in the Act and the rules has to prevail. The said Act not only regulates the procedure for settling the disputes but also affects the rights of the employer and the workmen by virtue of the notification in question. This was the view taken in "Syed Manzoor Ali v. Messrs National Bank of Pakistan and others being Miscellaneous Appeal No. 18/1968 under the Industrial Disputes Ordinance, 1959, which was decided by a learned Single Judge on ORO 9-1- 1973 and reported in 1973 PLC 94. I am in respectful agreement with the same.--- The learned counsel for the petitioners also relied on the said ruling and in this connection, he drew my attention to a ruling reported in PLD 1974 Lah. 545 by their Lordships Mr. Justice Karam Elahee Chohan and Mr. Justice Shafi-ur-Rehman. This ruling pertains to a writ petition regard--ing the case under Service Tribunals Act 1XX-1973. In this ruling; their Lordships have held that ---dismissal of Civil Servants was a subject-matter pertaining to terms and conditions of service. Their Lordships have further held in the said ruling that right of dismissal was the condition of service with--in the meaning of section 243.--- The learned counsel for the petitioner further submitted that a comparative study of other laws will also help in solving the point in issue before me. In this connection he drew my attention to Civil Servants Act, 1973, wherein section 3 relates to the terms and conditions of service of a Civil Servant and it lays down that the terms and conditions shall be as provided in the Act and the rules. Sections 4 to 22 of the said Act pertain to the terms and conditions of service of Govern--ment servants and section 11 pertains to termination of service.
The learned counsel for the petitioners has argued that in respect of terms and conditions of service the word dismissal has not been used under section 3 of the said Act, because the terms and conditions of service includes dismissal. Relying on the ruling reported in 1974 PLC 201 (discussed above) the learned counsel for the petitioners has further argued that if termination, retrenchment, dismissal, imposition of fine for damage, etc. Does not come within the phrase --- terms and conditions of service--- then rule 3 sub-rule 2 clause (D) becomes, redundant.
According to the learned counsel for the petitioners if clause `C' ---D--- of rule 3 sub rule 2 of Essential Services (Maintenance) Rules, 1962 are read with section 6 of Essential Services (Maintenance) Act, 1952 it becomes manifesto that rule 3 sub-rule 2 clause `C' relates to regulation of wages and rule 3 sub-rule 2, clause ---D--- relates to conditions of service, which in view of the above discussion includes the cases of dismissal, retrenchment, imposition of fine, etc. Or any other grievance of the employee connected with or arising out his service of toe concern to which the Essential Services (Maintenance) Act, 1952 and the rules made thereunder have been made applicable by the Federal Government and the only authority provided for redre3s of the said grievances and disputes was originally the Central Labour Commissioner and has now been replaced by the Chairman, N.
1. R. C and a Member N. I. R. C. Authorised by the Chairman in this behalf (vide S RO-194 dated 22-7-1974 by which rule 2 clause (b) has been amended and the Chairman N.
1. R. C. And a Member, N.
1. It C. Authorisers in this behalf, have stepped into the shoes of the Central Labour Commissioner. It is true that no special procedure has been lay down for the authority under rule 3 except that contained in sub-clauses (a) to (d) of rule 3 of Pak Stan Essential Services (Maintenance) Rules, 1962, so much so that no provision for appeal has been provided for a party aggrieved with the order of the authority, and the scheme of the Essential Services Act, 1952, and the rules made thereunder, as these are, have given a right of final say in the matter to the Authority, who has been given wide discretion indeed. Needles to add that the discretion so vested in the Authority is to he exercised judicially in each case. In reply to the preliminary objection raised by the learned counsel of the respondents in these petitions that the term ---regulate--- used in section 6 of Pakistan Essential Services (Maintenance) Act, 1952 and rule 3 of the Pakistan Essential Services (Maintenance) Rules, 1962 does not authorise the Authority appointed under section 6 of Pakistan Essential Services (Main--tenance Act, 1952 and rule 2 of the Pakistan Essential Services (Maintenance) Rules, 1962 to adjudicate upon a matter the learned counsel for the petitioners has referred to a ruling reported in 1969 PLC 492, wherein the Industrial Appellate Tribunal West Pakistan, Reared Justice Mr. Inamullah Khan, Appellate Tribunal, has held regarding the Pakistan Essential Services (Maintenance) Act, 1952, section 6 & 7(a) thereof, that "the juris-- diction of Industrial Court is barred in respect of the employment covered by section 3 and has also held that the expression "to regulate" is not different from "to adjudicate" and has held in this respect on page 497 of the said ruling that `the contention of Mr. Majid comes to this that to adjudicate is something more than to regulate, if that is so it will be contrary to what is contained in section 6 of the Act of 1952. This is not permissible under the provisions of Section 7-A reproduced above. I would hold that section 7-A bars the jurisdiction of the Industrial Court to adjudicate in respect of the demands raised by any workman".
It is interesting to note that which I drew the attention of the learned tours I for the respondents to the latest decision of the Sind High Court, Karachi, reported in 1974 PLC 201, which clearly supported the contention, of the learned counsel for the petitioners that the authority under the Act, 1952 and the rules made thereunder now the Chairman, N. I. R. C. And the Member, N. I.R. C.
Authorised by the Chairman in this behalf had jurisdiction to entertain and adjudicate the petitions of persons dismissed, retrenched or reduced, etc. And petitions relating to increase in wages or for wages or against imposition of the, etc. And all other disputes connected with or arising out of service of persons in a concern to which Essential Services (Maintenance) Act, 1952 and the rules made thereunder have been made applicable by the Federal Government, the only answer I could get from them was, according to Article 201 of the Constitution of Pakistan the decisions of High Court are binding on Courts subordinate to the High Court and that only the decisions of the Supreme Court of Pakistan are binding on all the Courts, and that N. Industrial Relations Commission not being subordinate to the High Court was not bound to follow the said ruling. While advancing this argument the learned counsel little realised that this argument of their's could at as a double edged sword and in view of their own submission, I being not b.1und to follow the ruling of a High Court with dues respects to the views as expressed in the rulings of High Courts produced or referred to by the learned counsel of the respondents, I would follow the latest ruling on the point to issue, i.e. 1974 PLC 201, and agreeing with the submissions made by the learned counsel for the petitioners, I hold teat petitions of persons dismissed, retrenched, reduced or otherwise removed from service and petitions for increase in wages, petitions for wages, petitions against imposition of fine etc. For an alleged damage, and in short petitions in respect of ab 8 grievances, disputes and matters arising out of or connected with the service of a petitioner in the concern to which Essential Services (Main--tenance) Act, 1952 and the rules made thereunder have been made applicable lie to the Chairman and the Member, National Industrial Relation Commission duly authorised by the Chairman, and that they have got jurisdiction to entertain such like petitions. I may add here that the scheme of the Essential Services (Maintenance) Act, 1952 and the rules made thereunder, as these are, they make the authority appointed under section 6 of the Act of 19.12 and the rule 2(b) of the Pakistan Essential Services (Main--tenance) Rules, 1912 the only forum available to the employees of a concern to which Act of 1952 and the rules framed thereunder have been male applicable by the Central Government and section 6 of the Act of 1952 and rules 2 and 3 of the Pakistan Essential Services (Maintenance) Rules, 1962 not being penal in nature, and not to be construed strictly and are to be given widest possible meaning so as to enable the employees to get their grievances redressed and their disputes settled through tae only authority which can be invoked by them under the Pakistan Essential Services (Maintenance Act, 1952 and the rules made thereunder. This order disposes of the Preliminary Objection as to the jurisdiction of the National Industrial Relations Commission in the cases mentioned below. These cases will now be dealt with separately on merits.