Tarbela Joint Venture (the respondent) hereinafter referred to as "the Company" has been providing transport facilities to its workers since many years. On 10th April, 1970, the Company enforced Rules known as "Tarbela Joint Venture Service Rules" and rule 19 thereof reads as under:- "19. Transportation.-Employees residing in the Labour Camps shall be transported to their work site if the distance is in excess of to (2) miler from the Labour Camps. Transport will not be provided for those employees who continua voluntarily to reside outside the Labour Camps after sufficient accommodation is available."
On 15th May, 1971, the Company issued a Circular No. 493, and according to paragraph No. 4 thereof, T.3.V. Bus Terminals were established at the following places for bringing the workers to and from the project area :- Left Bank.
(a) Thapla Bridge (Bridge on road to Darband).
(b) Darra Mashwani.
(c) Kundi Amar Khan.
(d) Nullah between Khalo and Ghazi.
Right Bank.
(e) Kotha.
(f) Gandaf.
(g) Maini.
(h) Baisak.
(i) Malikabad.
(j) Bata and Gala Hamlets.
The employees residing beyond the said bus terminals were requested either to move into the Labour Camps, or make their own transport arrangements upto the above-said bus terminals with effect from 1st June, 1971. This facility was provided to the workers in spite of the fact that the Labour Camps had been built by the Company but giving due consideration to the de-ire of the workers to reside with their families, the Company provided the above-mentioned transport facilities to the workers. Subsequently, this circular was followed by to settlements arrived at respectively on 23rd February, 1972 and 13th May, 1972. According to clause (5) of the first mentioned Settlement, it was agreed that the worker who were living in farthest villages would be given fourteen days' notice asking them to move into the Labour Camps and after expiry of that period, the -L; transport would be discontinued for those workers who refused to move into the Labour Camps. In the Second Settlement no agreement was reached qua the transportation of workers to or from the project area. It is pertinent to note that in spite of rule 19 of the TAKBELA JOINT VENTURE SERVICE RULES and the settlement dated 23rd February, 1972, the workers continued to enjoy the transport facilities in accordance with Circular No. 439. On 30th June, 1975, the Company issued another Circular (No. 823), wherein it was stated that with effect from 14th July, 1975, the Company's vehicles for transporting workers to and from work on the right bank will only travel to TOPI Check Post and Gandaf Expatriate Mess. It was further stated that all employees living in villages beyond those points would make their own way to and from the above places. In other words, the transport facilities heretofore provided to the workers were to be discontinued. The Company however offered travelling allowance to the workers to cover their transportation expenses.
2. The workers have now challenged the last mentioned Circular No. 823 dated 30th June, 1.975 with a prayer to declare the said Circular null and void and regulate under section 6 of the Essential Services (Maintenance) Act, 1952, hereinafter referred to as "the Act", the terms and conditions of service of the workers. It will be needless to mention that the Company has been declared essential service since 29th June, 1974, and the Chairman National Industrial Relations Commission or any member authorised by him in that behalf can regulate the wages or conditions of service of the Company's employees.
3. Notice was sent to the Company who filed their objections on 21st July, 1925. The main objection raised by the Company was that Circular No. 823 was purely an administrative order which did not affect any conditions of service of the persons employed by the Company. After riling of the objections by the Company, the matter was argued at length by the learned counsel appearing on behalf of the respective parties. Mr. S. M. War, the learned counsel appearing en behalf of the Company, reiterating the same objection, has argued that the circular in question was only an administrative order which did not affect the conditions of service of the Company's employees which are being governed by the TARBELA JOINT VENTURE SERVICE RULES, rule 19 whereof clearly provides that transport will not be allowed to those workers who voluntarily continue to reside outside the Labour Camps after sufficient accommodation for them has been made available by the Company. Referring to Circular No. 493, dated 15th May, 1971, the learned counsel has contended that it was only a concession provided to the workers which could not be claimed by them as of right.
4. It is correct that the rules framed by the Company in 1970 did provide that after building of the Labour Camps, no transport facility would be provided to the workers who were voluntarily residing outside the said Camps but one cannot be oblivious of the fact that even after building of the Labour Camps, the Company did not enforce the above-said rule No. 19 but instead continued to provide transport facilities even to those workers who refused to come into the Labour Camps and this is evident from Circular No. 493 itself. Again in the Settlement dated 23rd February, 1972, reached between the workers and the Company it was once again agreed that after giving fourteen days' notice to the workers, the Company could discontinue the transport facilities, but once again such an action was not taken by the Company and the workers were allowed to enjoy the transport facilities thereafter till 30th June, 1975, when Circular No. 823 was issued by the Company. It therefore shows that although the said facility has been enjoyed by the workers in the form of concession, yet it is something more than a mere concession, discontinuance of which can now result into serious hardship for the workers.
5. The next point which requires consideration is, whether the Authority under section 6 of the Act can and should now regulate the conditions of service of the Company's employees qua the subject-matter under discussion as there is also a prayer to that effect. Mr. S. M. Zaffar, the learned counsel for the Company has pointed out that the conditions of service should be regulated in totality or otherwise it can destroy the entire structure within an establishment. Although I agree with this contention, but as there is no bar either express or implied in the Act or the Rules made thereunder against the Authority's Power to issue regulations, piecemeal, it cannot be made a rule and each case must be decided according to its own merits.
6. The next objection raised by Mr. S. M. Zaffar is in respect of THE PAKISTAN ESSENTIAL SERVICE (MAINTENANCE) RULES, 1962, which provide in rule 3, Sub-rule (2), clause (b) that in regulating the wages and other conditions of service under Sub-rule (1) the " Chairman" shall not "prescribe any such term or conditions as may affect adversely the rights to which a person is entitled, immediately before the publication of these rules, by virtue of any law, or under the terms of any Award, Agreement or Contract duly made and operative". The learned counsel has argued that the word "person" used in the above said rule refers both to an employee as well as an employer and as rule 19 of the above-said Service Rules of the Company confers a right upon the employer to stop transport facilities of the workmen under certain conditions stated therein, the Authority cannot regulate the conditions of service in regard to transport facilities of the workers in a manner so as to effect adversely the right to which the Company is entitled under rule 19 referred to above.
I am afraid, the word "person" appearing in the above-said rules clearly has reference only to employees because nowhere either in section 6, subsection (1) of the Act or the rules framed thereunder an employer has been referred to as "person". On the other hand, reference to employees has always been made as "person". See section 6, subsection (1) of the Act and rule 3 of THE PAKISTAN ESSENTIAL SERVICES (MAINTENANCE) RULES, 1962. Moreover, the Act as well as the Rules speak of "employment" on one hand and "person" or "class of person" engaged in an employment or class of employment, on the other, I am therefore unable to agree with this contention of the learned counsel that the word "person" a in the Rules, refers both to employer as well as employee.
In that case, what the Authority has only to see under rule 3, is that no such condition of service is to be prescribed which may adversely affect the right to which an employee, and not an employer, may be entitled by virtue of any law. Award, agreement or Contract duly made and operative".
7. Now considering the fact that providing of transport facilities to its workers has been a long established practice in the Company, discon--tinuance of which can disturb the equilibrium within the respondent establishment, and the Company is engaged in a work of great national important.
I think this is a fit case where the Authority must issue Regulations as prayed in the petition.
Moreover, the Service Rules of the Company have also lost their force as only the Authority under section 6 of the Act and Rules made thereunder is empowered to regulate the conditions of service of the Company's employees. It, therefore, makes it further necessary to issue Regulations in respect of an important issue like the present one. Consequently, I issue the following Regu--lation: ---- "Regulation.----The Company shall continue to provide transport facilities to its employees for bringing them to and from work in accordance with Circular No. 493 dated 15th May, 1971 issued by the Company."