' This judgment disposes of the following writ petitions :-
(1) W. P. No, 885/75 Heavy Mechanical Complex, Taxila v. Bashir Mali and another.
(2) W. P. No, 886/75 Heavy Mechanical Complex, Taxila v. Bashir Mala and another.
(3) W. P. No, 887/75 Heavy Mechanical Complex, Taxila v. Bashir Malik and another.
(4) W. P. No, 888/75 Heavy Mechanical Complex, Taxila v. Bashir .Malik and another.
(5) W. P. No, 890/75 Heavy Mechanical Complex, Taxila v. Member, N.
1. R. C. And another.
2. The petitioner, in all these petitions, is the employer and the contesting respondents are the employees who were dismissed or remove from service for various acts of misconduct. The employees so removed from service or dismissed first approached the Junior Labour Court and then the Labour Court in appeal but these Courts refused to entertain their claim on the ground of want of jurisdiction in view of the extension and application of the Pakistan Essential Services (Maintenance) Act, 1952 (hereinafter referred to as the Act) to this establishment. They then took their grievance to the Chairman, Industrial Relations Commission (hereinafter referred to as the Chairman) as the specified authority under section 6 of the Act and in spite of an objection having been raised with regard to jurisdiction of the Chairman of the Commission to deal with individual grievances so brought before him the jurisdiction was assumed and an order re-instating the individual workers was passed and the decision so given was ordered to be treated as a direction and published in the Gazette of Pakistan.
3. The legal question which arises for decision in these petitions is whether the authority specified under section 6 of the Act for the purposes of regulating the wages and other conditions of service could entertain individual grievance of the workmen employed in the petitioner's industry and adjudicate the same.
4. In order to have a clear view of the question raised in these petitions it will be necessary to examine in brief the statutory instruments in the field applicable to the case. The Act came to be enforced on 14-12-1952. Section 3 thereof by its own force makes the Act applicable to every employment under the Central Government. A power is also conferred on the Central Government to declare by notification any other employment, subject to satisfaction of certain specified conditions, to which the Act shall apply and such a declaration made in respect of any class of employment is to remain in force for a period of six months within which the Central Government by notification in the official Gazette can extend it for further periods not exceeding six months at a time. Section 4 confers a power on the Central Government or a designated authority to direct persons engaged in certain employments governed by the Act to remain in specified areas.
Certain offences are created by section 5 e.g. Disobedience of lawful order or abandonment of employment or departing from the area specified under section 4. Section 7 provides the procedure and penalties. Section 7-A which was introduced by Ordinance V of 1965 provides that "The provisions of this act shall have effect notwithstanding anything to the contrary contained in the Trade Unions Act, 1926 or the Industrial Disputes Ordinance, 1959 or any other law." It is section 6 of the Act which has to be particularly taken note of as its interpretation, scope and effect is to be determined in these proceedings. It reads as follows :- "6.-(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."
' For ten years after the enforcement of the Act no rules were framed as required by section 6 of the Act. It was in the year 1962 that the rules under section 6 of the Act came to be enforced. These are called the Pakistan Essential Services (Maintenance) Rules, 1962 (hereinafter referred to as the Rules) and are reproduced hereunder in extenso :- "The Pakistan Essential Services (Maintenance) Rules, 1962.
' No, S. R.
0. 42.-In exercise of the powers conferred by subsection (1) of section 6 of the Pakistan Essential Services (Maintenance) Act, 1952 (LIII of 1952), the Central Government is pleased to make the following rules, namely :- 1.-(1) These rules may be called the Pakistan Essential Services (Maintenance) Rules, 1962.
(2) They shall apply to every employment and every class of employment which the Central Government may, in pursuance of subsection (1) of section 3 of the Act declare to be an employment or class of employment to which the Act applies.
2. In these rules :-
(a) "Act" means the Pakistan Essential Services (Maintenance) Act, 1952 (LIII of 1952); and
(b) "Central Labour Commissioner" means the Central Labour Commissioner appointed by the Government of Pakistan in the Ministry of Health, Labour and Social Welfare (Labour and Social Welfare Division), or the officer performing for the time being the functions of the Central Labour Commissioner so appointed.
3.-(1) The Central Labour Commissioner is hereby empowered to regulate, subject to the other provisions of this rule, 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.
(2) In regulating the wages and other conditions of service under sub-rule (1), the Central Labour Commissioner shall not-
(a) prescribe any terms or conditions without taking into consideration the views of the employers, of the persons concerned, or the representatives of such employers and the views of the representatives of such persons, except where such views are not received within the time fixed by the Central Labour Commissioner for that purpose ;
(b) prescribe any such terms 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;
(c) increase, without the previous sanction in writing of the Central Government, the wages or allowances of any persons in respect of whom a dispute exists with the employers; or
(d) specify, without the previous sanction in writing of the Central Government, any condition on which the employment of any person may be terminated.
(3) All directions of the Central Labour Commissioner regulating wages and other conditions of service under sub-rule (1) shall be published in the official Gazette."
5. An amendment was made in the rules on 22-7-1974 and for clause (6) of rule 2, the following clause (b) was substituted:- " 'Chairman' means the Chairman of the National Industrial Relations Commission constituted under the Industrial Relations Ordinance, 1969 (XXIII of 1909) and includes a member of that Commission authorized by the Chairman in this behalf."
' Other amendments made were that for the words "Central Labour Commissioner" wherever occurring in the rules the word "Chairman" was substituted and for the Central Government expression "Federal Government."
6. The petitioner i,e, Heavy Mechanical Complex, Taxila is an industry to which the Act was applied since before the grievances of the employees arose, on the force of a notification issued under section 3, subsection (1) of the Act which has been repeated every six months and is still in the field.
In this background of fact and law the following objections have been taken to the assumption of jurisdiction by a member of the Commission and adjudication of the dispute by him :-
(i) The law under which jurisdiction was assumed and exercised has the following characteristics which make it necessary that it should receive a strict interpretation, least interfering with existing rights and established forums.
(a) The Act is penal and not remedial. It creates offences and prescribes penalties therefor without prescribing the procedure or the forum. It does not create rights nor provides for remedies.
(b) It is a temporary and an emergent law. It can be applied only when an exceptional situation comes into existence and even then for a short period of six months at a time.
(c) It is not a labour law, as commonly understood, but a law which embraces all types of employment vertically, in any establishment brought within the fold of this Act.
(ii) The power to regulate by Rules or by direction does not and cannot extend, or is in any way similar, to the power, to adjudicate industrial disputes. GM The Rules in so far as they authorise the Chairman of the Commission to empower any member of the Commission to perform the functions of the specified authority, provide for delegation of a delegated power and there being no statutory backing for it suffer from invalidity.
(iv) In any case disputes which had arisen earlier to the specification of the Chairman as the authority could not be dealt with by the Chairman.
(v) The expression wages and conditions of service as used in the Act has to be given a restricted meaning so as to exclude the terms and conditions guaranteed by law.
7. The three characteristics of the Act noted by the learned counsel for the petitioner for ascertaining the rule of interpretation appear to be substance flatly correct. Looking at the provisions of the Act we find that it is f more extensive than the so-called labour laws of the country which are expressly overridden to the extent of inconsistency by section 7-A of the Act. The purpose of enacting the Act has been expressed to be the "maintenance of certain essential services". In its scope and application it extends t "employment of any nature whether paid or unpaid and whether in or out of Fakistan." A declaration under section 3, subsection (2) can be made only respect of employment "which is essential for securing the defence or the security of Pakistan or any part thereof" or for the "maintenance of such supplies or services as relate to any of the matters with respect to which the Federal Legislature has power to make laws and are essential to the life of the community." Section 5 has directly the effect of overriding the terms and conditions of all categories of employees by making the following acts an offence (a) disobedience of lawful orders of the employer, or refusal to work ; 0) absence from or abandonment of employment ; (c) departure from the area specified by the authority under section (4). It is also made an offence if the employer without reasonable excuse-(a) discontinues the employment of such person, or (b) closes the establishment. Government has been empowered to regulate by rules or to specify the authority which shall by means of directions regulate the "wages and other conditions of service" of persons engaged in such employment. Any persons violating the rules of the Government or the directions of the specified authority commits an offence. Cognizance of offences under the laws are to be taken only at the instance of and upon a "complaint in writing made by a servant of any Government in Pakistan authorized in this behalf by the Federal Government". Section 7-A expressly provides that "the provisions of this Act shall have effect notwithstanding anything to the contrary contained in the Trade Unions Act, 1926 or the Industrial Disputes Ordinance, 1959 or any other law".
8. This resume of the main provisions of the Act bears it out that it is a temporary and emergent law applying to a restricted group employed in essential services. It is penal. AU this only indicates that it is to be strictly construed. The strict construction is not the exact converse of liberal cons.
Unction and it does not imply that the words should be given the narrowest meaning of which they are susceptible. It really means that such laws are not to be regarded as including anything which is not within their letter as well as their spirit, which is not clearly and intelligibly described in the very words of the statute, as well as manifestly intended by the Legislature. Sedgwick (Statutory Law, 2nd Edn., page 287) enunciated this principle of construction in the following words:- "The more correct version of the doctrine appears to be that statutes of this class are to be fairly construed and faithfully applied according to the intent of the Legislature, without unwarrantable severity on the one hand or unjustifiable lenity on the other, in cases of doubt the Court inclining to mercy."
9. A second look at the law applicable to the case would show that the Legislature empowered the Government to frame rules or to authorize a specified authority to regulate the wages and other conditions of service of employment declared under section 3 of the Act. Section 3 has two parts.
The first relates to Government employment to which the Act applies by its own force and the second are those brought under the Act by a declaration under section 3(2). It is this latter category alone and not the first one that is governed by section 6 of the Act.
10. The rules make it clear that the specified authority can take to guidance of disputes between the employer and the employee concerning the wages and allowances. He can with the previous sanction in writing of the Federal Government specify conditions on which the employment of any person can be terminated. He can prescribe the terms and conditions of employment after hearing the employer and the employee. The directions given by him are to be published in the Gazette and has been given the compulsive effect of a statute by making it an offence to disobey them.
11. An examination of the scheme of the Ordinance for which protection, is sought shows that it provides for (a) Formation of Trade Unions of employees and workmen and their registration. (b)
Penalties and procedure concerning unfair labour practices on the part of employers and workmen. (c) Determination of Collective Bargaining Agent and procedure for Collective Bargaining. (d) Establishment of forums for conciliation, adjudication and for regulating-- (i) rights of the workman and employer secured by law, 00 their other terms and conditions not so secured.
12. It is primarily the co-existence of the sphere controlled by item (d) just enumerated which has to be examined in these proceedings. The contention of the learned counsel for the petitioner is that these forums and powers continue to be available till by rules framed by the Government or directions in the nature of rules given by the specified authority they are displaces. The right and power to displace them under section 6 of the Act is not denied.
13. The rules framed by the Government under section 6 have already been reproduced and analysed. These have three characteristics. Firstly they specify the authority competent to give directions. Secondly, the matters on which such directions can be given have been enumerated.
Thirdly, the limitations placed on the exercise of power of giving directions on the enumerated subjects has been prescribed. The vires of these rules is not in question. The limitation placed on the powers of the specified authority make it clear that the terms or conditions of employment as enjoyed by a person 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 are protected, at the bands of the specified authority but overridden to the extent prescribed in section 7-A of the Act. It is also clear that all disputes, between whomsoever, governed by the subsection (2) of section 3 of the Act and pertaining to wages or conditions of employment has to be referred to the specified authority not so much for adjudication as ordinarily understood but for a direction as envisaged under section 6 of the Act. The direction so given is for the time being determinative of the conduct of the party to whom such direction is given. A failure to obey the directions amounts to an offence. The only qualification for such a direction has to be that it must concern the wages or conditions of service.
14. As regards the conflict in jurisdictions and ouster of one by the other two principles of interpretation have to be kept in view. The first is that where a right is created by a statute which also provides the manner in which the right may be enforced, the party complaining of any infringement of such right can only seek such remedy as is provided by that statute. The second is that an intention to repeal the law in the field may well be gathered from the D repugnancy of its provisions, with the general course of the subsequent legislation or from the incongruity of keeping both the enactments in force. For examining the extent of repugnancy between the provisions of the laws in the field and for determining the ascendency of one over the other, the features already noted while ascertaining the rule of interpretation, have to be kept in view.
15. It is true that the Act creates offences and only indirectly or consequently the rights. It prescribed no rigid and elaborate procedures. However, these deficiencies are made up by providing for the appointment of an authority under the Act whose power is so plenary, so compulsive and so specific, untrammelled by any technical rule of procedure that no scope is left for any other forum, any other procedure or decision from any other quarter on matters within the domain of the specified authority. It is matter of great public importance that there should be no conflict or clash of jurisdiction between two authorities apparently equally competent. If the ascendency of one over the other is manifest the supersession of the other follows by necessary implication.
16. It is not without interest to survey the departmental practice and the judicial pronouncements on the subject. The provisions of the Act came to be examined first in National Bank of Pakistan Staff Union v. National Bank of Pakistan, Lahore (1) and the exclusion of jurisdiction was inferred as follows:- "When an authority has been appointed by the Central Government to regulate wages and conditions of service of any class of employment which has been declared to be essential under the Act then in spite of the provisions of the Industrial Disputes Ordinance, 1959, that authority will have powers to regulate the wages and conditions of service of such employment and the jurisdiction of the Industrial Court be barred. It may be pointed out here that the main function of the Industrial Court is to regulate the relationship of the employees and the employer in respect of the conditions of service and when this jurisdiction has been conferred under a special law to another authority in spite of the provisions of the Industrial Disputes Ordinance, 1959, the jurisdiction of the Industrial Court would stand excluded."
17. In the case of National Bank of Pakistan Staff Union and Employees' Federation v. National Bank of Pakistan, Karachi (2) a distinction was drawn between conditions of work and conditions of service and thereafter the exclusion of jurisdiction was inferred on the following grounds: "By virtue of section 7-A of 1952 Act the provisions of section 6 of the Act have got overriding effect over the provisions of the Industrial Disputes Ordinance, 1959 or any other law, in so far as questions relating to wages and other conditions of service of workmen are concerned. In other words, if an industrial dispute between employers and workmen pertains to or is connected with such matter as the 'employment or non-employment or the terms of employment' of a person or, in other words, his "Conditions of Service", then under the compulsion of section 7-A of the Act of 1952, the jurisdiction of this Court will be barred. But, if the dispute relates to the 'Conditions of of Work' of such a person, then in that case, the Industrial Court will have jurisdiction to take cognizance of the matter. In the present case, the disputes relate to the matters connected with conditions of service of the petitioner, as stated in para. 2 above, and, therefore, it is only the "specified authority" who is empowered to take cognizance of the matter and the jurisdiction of this Court is barred."
18. In the case of Karachi Port Trust Labour Union v. Karachi Port Trust (3) the ouster of jurisdiction of Industrial Courts was upheld with the following observations: "Both the enactments deal with the same subject-matters, namely, the settlement of industrial disputes arising between employers and their workmen, though the procedure to be adopted for the settlement of the disputes is differently given in both the enactments. If any of the
(1) 1967 PLC 779 (2) 1968 PLC 51
(3) 1968 PLC 76 ' dispute arises between employers and workmen engaged in an industry to which the Essential Services Act of 1952 has been made applicable, then in that case, it will have to be taken to the 'specified authority' who shall regulate the wages or conditions of service of a workman concerned and submit his recommendations to the Government for approval and under the compulsion of the provisions of section 7(A) of the Act of 1952, the Industrial Court will have no jurisdiction to enterain the dispute provided it pertains to (i) regulations of wages, (ii) conditions of service of the workmen concerned."
' Similar was the finding in- "(i) State Bank of Pakistan Clerical Staff Association, Lahore v. Governor, State Bank of Pakistan 1968 PLC 589.
(ii) Muhammad Yakub v. Karachi Electric Supply Corporation 1969 PLC 731.
(iii) Shikarpur Electric Supply Co. v. Abdullah Bayo PLJ 1974 Tr. C. (Lab).
227.
(iv) Secretary, Labour Department v. National Refinery 1975 PLC 105.
(v) Abdul Quddus v. Tarbela Joint Venture 1976 PLC 283.
19. An exception was made in Habibullah Khan v. Chairman. WAP DA (1). It was a case of termination of service of employee for misconduct before the notification under section 3(2) of the Act issued. All the same the notification was in the field when the matter was brought before Industrial Court. The jurisdiction of the Industrial Court in the matter was upheld, on the following grounds "Neither the petitioner had claimed better terms and conditions of service than those prevailing prior to the application of Essential Services (Maintenance) Act, 1952 nor the respondent pretended that the terms and conditions of the petitioner required any change, but it was clearly stated that his service had been terminated according to the terms and conditions of service applicable to him. So there is no dispute about the terms and conditions of service but the dispute is whether the action of the respondent is bona fide based on the misconduct of the petitioner. This question can still be gone into by this Court. The Court, thereby will not proceed to regulate or lay down any new terms and conditions of service already applicable in this case as no change is under contemplation of either party."
20. In three cases this question was raised before the High Court of Sind & Baluchistan. The first was the case of Syed Manzoor All Rizvi v. National Bank of Pakistan (2). It concerned dismissal of an employee governed by the Act. Two cases were disposed of by a common judgment reported as Employees' Union v. Pakistan Machine Tool Factory (3). One of these two cases was concerned with dismissal of 21 employees for misconduct. It was held that the jurisdiction of Labour Courts was excluded. The reasoning is as follows :- "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, by the Central Labour Commissioner who had a final say in the matter. It is true that it provided no right of appeal and whittled down many other
(1) 1968 PLC 603 (2) 1973 PLC 94
(3) 1974 PLC 201 rights, but it does constitute a method for setting the industrial disputes, though different from the one under the Ordinance referred to above. The two methods are mutually inconsistent and therefore the one prescribed under the Act and the rules, has to prevail The said Act not only regulates the procedure for settling the dispute but also affects the rights of the employer and the workmen by virtue of the Notification in question."
21. It follows that barring one case of Habibullah Khan, the departmental practice and the judicial precedents had been consistently of ousting G jurisdiction of the Labour Courts on matters within the domain of the specified authority. This it appears is consistent with the rules of interprets Lion already dealt with.
22. The second ground taken up by the learned counsel for the petitioner is that the power to regulate by framing rules or by giving directions does not include the power to adjudicate individual cases or disputes between the employer and the workmen. In support of this argument reliance has been placed on the meaning given to the word "regulating" in section 45-A of the Evacuee Property Ordinance, 1949 in Said Omar v. Federation of Pakistan (1) It is as follows :- "The word 'regulating', therefore, must be given its true meaning while construing the section. It is in fact, the keyword of the section. We have reached the conclusion that the section empowers the Central Government to issue orders or directions of a policy nature generally, regarding the administration of any evacuee property because only then could the administration be said to have been regulated. It is true that the use of the expression 'any evacuee property' would seem to indicate that the order or direction can relate to a single unit of evacuee property also. It is not, however, difficult to conceive of cases in which such directions may be found necessary in the national interest. For instance, in respect of an evacuee steel factory the Central Government might deem it expedient to direct that for a certain period of time a particular type of steel will be produced to the exclusion of other varieties. Similarly, in respect of other properties specific directions may be considered necessary in respect of the management of that property. But we are firmly of the view that this power does not extend to interference with specific orders, passed by the Rehabilitation Authorities or the Custodian in respect of allotment of any particular evacuee property, after due judicial hearing."
23. It is true that the use of the word rule does suggest what the learned counsel has in mind for further limiting the meaning of the expression "regulating". The mode in which a power is to be exercised may as well determine its scope and effect. As held in Pakistan v. Abdul Hamid (2) "a statutory rule has certain visible characteristics which must be looked for and cannot be dispensed with, when the question arises of claiming upon the basis of such a rule, a right in law. A rule requires to he expressed with precision, and yet to possess generality so as to be capable of application to a large number of cases. If it leaves scope for discretion, that should be expressly provided for. Ordinarily it is necessary also that the making and promulgation of a rule should be attended by certain formalities e. g. Publication
(1) PLD 1956 Lab. 283 (2) PLD 1961 SC 105 ' in a Government Gazette." But in these cases before us we have to deal with the word direction and not rule for ascertaining the scope and content of the regulatory power. The directions can be on specific matters as well as on general policy matters. The directions can relate to an individual as well as to a class or to an establishment. Therefore, no such limitation can be inferred where the mode of exercise of this regulatory power is by issuing directions. What actually is an important and a distinctive feature of the Act is the subject-matter or the content of the regulatory power. It is in this case the wages and the conditions of service. These do include the minutest detail and every item assimilable to wages or the terms of employment. Therefore, not only the mode in which the regulatory power is required to be exercised but also the matters in respect of which it can be exercised lend support to the conclusion that it may relate to every item individual or collective, particular or general, the only limitation being that it should be wages or conditions of service. In determining the meaning of "regulating" the manner, and the matters in respect of which such power is required to be exercised must necessarily be kept in view.
24. The case cited by the learned counsel for the petitioner is distinguishable for more than on reason. In the first place what was sought to he regulated by executive fiat in that case was the judicial power already exercised under the Rehabilitation Ordinance at a stage when the orders passed thereunder had attained finality. The power of regulating the affairs was not claimed under the law under which the finality of the orders had been achieved but under a different supervening law which had left unimpaired the adjudicatory power. Another distinguishing feature of that case was that the Government had itself expressly provided for the finality of the orders of the Rehabilitation Commissioner (General) and prohibited agitation against it with the Government. It was therefore, held that the regulatory power was not available for impairing the finality of judicial orders though regulatory power was held to extend the matters which could be specific and particular.
25. Referring once more to the departmental practice in the matter, we find that this specific question was considered at least in four cases coming up before the Labour Courts. In the case of State Bank of Pakistan Clerical Staff Association v. Governor (I) it was dealt with in the following manner "The third contention that was raised is that there was distinction between regulation and adjudication. Elaborating further it was urged that under the Essential Services (Maintenance) Act, 1952, the authority was empowered to regulate the wages and other conditions of service but had no power to adjudicate upon the dispute. It is difficult to understand that Government having the power to lay down a particular procedure for the regulation of the wages and other conditions of service and in pursuance of those powers the authority to regulate the wages and other conditions of service has been appointed and still the same matters can be pursued in a different forum and before a different authority. If the contention of the learned representative for the petitioner is accepted it makes no sense as the powers of the authority would be reduced to that of a Conciliation Officer who was already acting under the Ordinance. It could never have been the intention of the Legislature to extend
(1) 1968 PLC 589 only the same powers to the authority under the Act, which were being already exercised by the Conciliation Officer."
26. In the case of Muhammad Yaqub v. Messrs Karachi Electric Supply Corporation (!) after referring to the decision in the case of Said Omar it was held "adjudication is a generic term and includes regulation. By adjudication, conditions of work and service are fixed."
27. In the cases of Representatives of the WAP DA Workers' Union and others v. Fazle Khaliq Khan (2) the Industrial Appellate Tribunal held that to adjudicate is not something more than to regulate.
28. In the case of Abdul Quadus v. Tarbela Joint Venture (3) the decision in the case just cited was followed.
29. The law i. e. Section 6 of the Act specifically delegates to the Government a power to specify the authority for regulating the wages and the other conditions of service. Such a specification is required by law to be done by means of rules to be published in the Gazette. The Government has under this provision and in the prescribed manner specified the Authority. The third ground taken up by the learned counsel for the petitioner is not directed so much against the specification of the Authority as against the definition of Chairman provided in the Rules. It is urged that by so defining the chairman, a further delegation of a delegated power has taken place without there being any statutory backing for it. In the context the question which requires determination is whether the definition of Chairman in the rules in any manner offends against the principles governing exercise of delegated power.
30. The definition of Chairman has been reproduced in extenso in para. 5 of this judgment. The definition apparently does empower the Chairman to authorise a member of the Commission in this behalf and to that extent it may be said that the power conferred by Government by section 6 has come to rest with Chairman. A closer look at the definition however dispels any such impression an analysis of the definition shows dial Chairman of the Commission is definitely the specified Authority. Furthermore every member of the Commission has been specified as the Authority subject to directions of the Chairman. It cannot be disputed that under section 6 of the Act more than one person can be specified as the Authority. If that were to happen the Government could call upon one of the specified authority to deal with and discharge the administrative duties concerning the distribution and allocation of business between them. The group within which he is to exercise such an administrative power is clearly indicated and circumscribed by the delegate. The power of the Chairman in such a situation is not one of specifying the authority or appointing one, for that has already been done by the Government, but nominating one out of the specified group for discharging the duties in respect of a particular case or matter. So it is not at all a case of sharing of the power to appoint but conferment of an incidental power which in any case had to follow if more than one Authority was specified under section 6. Such a definition of Chairman does not violate any principle of delegation.
31. The next ground taken up by the learned counsel is based on the assumption that the notification or the rule appointing the Chairman)
(1) 1969 PLC 731 (2) 1969 PLC 492
(3) 1976 PLC 283 as the specified authority in substitution of the Labour Commissioner is being given a retrospective effect by drawing to his jurisdiction even these matters which were initiated or had arisen when the Labour Commissioner was the specified Authority. It should be clear that all the matters dealt in this judgment had occurred after the petitioner was declared an essential service but before the Chairman was specified as the Authority. These disputes had to go to specified Authority. To that extent no retrospectivity is involved. The Labour Commissioner was as much the specified Authority as is the Chairman now. Both are creatures of the same Act. Both exercise the same powers. The substitution of one by the other is actually a case of succession of specified Authority and not a case of a new Authority or a new jurisdiction coming into existence. Therefore, these matters had to be dealt with by the specified Authority, whoever for the time being happened to be the specified Authority. There is, therefore, not the slightest element of retrospectively.
32. Finally, it has been argued by the learned counsel for the petitioner, of course by reference to the Labour laws, that in the domain of employer-workmen 'relationships there are terms and conditions secured by law in which resort in all cases and for all purposes must be had to the adjudicatory proceedings, of whatever sort may be prescribed by a particular law. There are then terms and conditions which are not so secured by law. These are negotiable. For ascertaining and determining these the regulatory proceedings of conciliation, settlement and award are resorted to. It is contended that the Act while prescribing that the wages and the conditions of service shall be regulated by the specified Authority intended that this latter category of conditions of service including wages should be attended to leaving the others to the normal laws and forums. As the respondent workmen are alleging infraction of a secured right they should resort to the Labour Courts.
33. This argument cannot prevail-not while interpreting and applying the provisions of the Act. The Rules framed by the Federal Government (rule 2 (b)) make it clear that all the terms or conditions, whether, secured by law or under the terms of an award, agreement or even contract are determinable by the specified authority and the restriction placed on the exercise of this power is that these should not be adversely affected. Looking also to the emergent and peremptory nature of the purposes of the Act it would appear that it was neither necessary nor desirable to so bifurcate the conditions of the service and diversify the controls. There is no apparent reason why the expression wages and conditions of service should not be given their plain ordinary meaning.
Besides this expression has been judicially noticed and interpreted in a number of cases the most important being Suraf Narain Anand v. N.-W. F. P. (1) where the Federal Court gave a restricted interpretation to it but the Privy Council (PLD 1949 P C 1) held their Lordships are unable in the absence of any such special significance to regard provisions which prescribe the circumstances under which the employer is to be entitled to terminate the service as otherwise than conditions of the service, whether these provisions are contractual or statutory, they are therefore of the opinion that the natural meaning of the expression would include such provisions".
34. Apart from the legal grounds touching the jurisdiction of the Chairman, all of which have just been considered, it has also been urged that on facts the employees had been given fullest opportunity to meet the
(1) AIR 1942 FC 3 charges, and that their dismissal had taken place for proved misconduct. Having held that there was no defect of jurisdiction the direction given by the specified Authority has to be complied with and a failure to do so would entail the consequences provided for in subsection (2) of section 6 of the Act. Nevertheless, I would very briefly review the factual part of the proceedings in each case with a view to fully appreciate this argument of the learned counsel.
35. In the case of Inam Ali (W. P. 885 of 1975) the charge was that her had not disclosed the fact of his dismissal in 1968 in earlier employment while joining service with petitioner in 1971. The charge was levelled in 1973 and it was held proved on the following reasoning - "The reply was received oe 2eth September 1973 at 16-20 hrs. In which, he denied the allegations levelled against him vide above-referred show-cause notice without any substantial proof."
The order of dismissal is dated 27th September 1973.
36. In the case of Muhammad .Baud (W. P. 886 of 1975) the charge-sheet was served in October 1973 containing an allegation that he joined petitioner in November 1969 while still an employee of P.
0. F. Cantt. Although he denied the charge and explained the circumstances, without any enquiry whatsoever his services were terminated en 27-11-73 on the grounds that there was, "indirect confession of the charge" and "the act of withholding vital information by the individual reflects his dishonest conscience and constitutes gross misconduct in terms of relevant law".
37. Ashiq Hussain (W. P. 887 of 1975) was charged for absence from duty from 8-4-74 to 11-7-74 without information. In reply he explained that he had been regularly submitting applications which remained unresponded and that he was sick and unable to report for duty. Without any enquiry dismissal order was passed on 12-8.74 holding that as there was no medical certificate whatsoever for the period 8-4-74 to 3-5-74 and the medical certificate for the remaining period was from a private doctor there was clear indications that "these have been obtained fraudulently".
38. Fazal Ahmad (W. P. 888 of 1975) was charged for certain shortages in the store, his responsibility for which was established by a Board of Enquiry. The Specified Authority on review of facts came to the conclusion that Fazal Ahmad was not the sole incharge of the store but was made to share it with others. On that finding his re-instatement was ordered.
39. In the case of Khalid Mahmood (W. P. 890 of 1975) the charges were that he had made a false application against his colleagues. He had denied having done so. Without enquiry he was found guilty and dismissed on 4-7-74.
40. In all these cases the main ground on which the re-Instatement of the workers was ordered by the specified Authority was that proper inquiry was not held and it should have been held before condemning them as guilty. No exception can be taken to such a finding on any score whatsoever.
41. It follows that none of the grounds raised by the petitioner merits approval. These petitions are, therefore, dismissed. In the circumstances of the case the parties are left to their own costs.