JUDGMFNT ' GUL MUHAMMAD KHAN, J.-This order shall dispose of I. C. A. Nos. 46, 47, 48 and 49 of 1976 also, as common questions of law and fact are involved.
2. These appeals are directed against an order dated 28th April,. 1976, passed by a learned Single Judge of this Court. The private contesting respondents in all these cases were employees of the appellant and were dismissed from service for misconduct on various dates. According to a finding given by the learned Single Judge, no inquiry, except in case-of Fazal Ahmad, who is respondent in I. C. A. No, 49 of 1976, had been held.
3. The respondent-employees filed petitions before respondent No, 1,, challenging the orders of their dismissal. The appellant in all the cases, raised preliminary objections, saying that respondent No, 1, bad no authority under the law to entertain such petitions, but the same were rejected. Later, on merits also, respondent No, 1 set aside the orders of dismissal on the ground that no inquiry had been held in any of those cases.
4. Feeling dissatisfied the appellant filed Writ Petitions Nos. 885, 886, 887, 888 and 890 of 1975, challenging all the orders passed in favour of the respondent-employees. The learned Single Judge, vide his order under. Appeals, came to the conclusion that as proper inquiry was not held before, condemning the employees as guilty of misconduct, the petitions were to fail. The learned Single Judge further held that the Chairman and the Member of the N. I. R. C. Authorised by him, were the specified authority and therefore, they had the power to decide the petitions.
5. It is contended before us that respondent No, 1 had only been authorised under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952 (hereinafter referred to as the Act) read with Rules made thereunder, to regulate the wages and other terms and conditions of the service of the respondents by prescribing terms and conditions, but he, could in no case take up their individual cases of dismissal, termination etc. To give a decision thereon as an appellate or revisional authority.
6. In order to appreciate the proposition it is necessary to refer to the relevant provisions of law.
Section 6 of the Act empowered the Central Government-
(1) to make rules regulating the wages and other terms and conditions of service of persons or any class of persons... ; or
(ii) to make rules empowering a specified authority to regulate the wages and other terms and conditions of service of persons or of any class of persons . . .
' The Central Government did make and publish rules under the above provision on 2nd July, 1962 and the same have been reproduced in the judgment of the learned Single Judge. A perusal of the rules would go to show that the Central Government, in pursuance to the power conferred on it under section 6 of the Act, made rules not regulating but empowering the Central Labour Commissioner to regulate the terms and conditions of the employees. The rules which will be referred to later, placed not only certain restrictions and limitations on the power of the delegate but laid down certain conditions precedent to the exercise of power by him. Subsequently by a notification dated 26th July, 1974, rules 2(b) and 3(2) were amended to substitute for the words `Central Labour Commissioner' the words 'Chairman and any Member of the N. I. It C. Authorised by the Chairman' to be the specified authority under section 6.
' It is admitted on both the sides that the delegate has not prescribed any terms and conditions and has not laid down any procedure for their enforcement or for a remedy in case of any dispute.
7. As said above the Central Government could either itself make rules regulating the wages and other conditions of service of persons or any class of persons engaged in any employment or class of employment covered by section 3 of the Act or it could empower a specified authority to regulate those. The Central Government did not exercise the first option but elected to empower respondent No, 1 to regulate the wages and other conditions of the service of the employees of the appellant. The short question that arises for determination, therefore, is as to what is meant by the word 'regulate'. This word has not been defined in the Act. According to Webster's New International Dictionary, Second Edition 4 (unabridged) it means
(1) To govern or direct according to rule ; as, laws which regulate the succession of seasons; more narrowly, to bring under the control of law or constituted authority; to make regulations for or concerning; as, to regulate the industries of country or the production of wheat.
(2) To reduce to order, method, or uniformity; to regularize; as to regulate one's habits of the operations of the bowels; also, Obs., to discipline.
(3) To fix the time, amount, decree, or rate of by adjusting, rectifying, etc.; as, to regulate temperature, pressure, or speed; also, to adjust so as to work accurately or regularly; as, to regulate a clock, a carburetor, or meter.
' Black's Law Dictionary (3rd Edition) describes it to mean: ' To fix, establish, or control; to adjust by rule, method, or established mode; to direct by rule or restriction; to subject to governing principles or laws.
' Power to regulate is power to establish reasonable limitations but does not generally include power to prohibit.
' The power to regulate commerce, vested in Congress, is the power to foster, protect and control commerce, to prescribe the rules by which it shall be governed, that is, the conditions upon which it shall be conducted. To determine when it sall be free, and when subject to duties or other exactions. The power also embraces within its control all the instrumentalities by which that commerce may be carried on, and the means by which it may be aided and encouraged.
8. In St. Louis v. Western U. Teleg. Co. (1), Mr. Justice Brewer, in delivering the opinion of the Court in regard to the power of regulation of the streets of a city, said : "It is given power to open and establish streets, to improve them as-it seems fit, and to regulate their use, paying for all this out of its own funds. The word 'regulate' is one of broad import. It is the word used in the Federal Constitution to define the power of Congress over foreign and interstate commerce, and he who reads the many opinions of this Court will perceive how broad and comprehensive it has been held to be. If the city gives a right to the use of the streets or public grounds, as it did by Ordinance No, 11, 604, it simply regulates the use when it prescribes the terms and conditions upon which they shall be used."
' To the same effect, see Gloucester Ferry Co. v. Pennsylvania (2). "The power to regulate commerce" said Mr. Justice Field, "is the power to prescribe the rules by which it shall be governed, that is, the conditions upon which it shall be conducted".
In Prem's Judicial Dictionary, Volume 4, 1964 Edition, the term to 'regulate commerce' is described as under:-- "The fundamental principle is that the power to regulate commerce is the power to enact 'all appropriate legislation' for 'its protection and advancement'. The Daniel Ball 10 Wall. 557, 564; to adopt measures `to promote its growth and insure its safety' Mobile County v. Kimball 102 U S 691, 696; 'to foster, protect, control and restrain.' Second Employees' Liability Cases, p.
47. See Texas & N. D. R. v. Railway Clerks That power is plenary and may be exerted to protect inter- State commerce 'no matter what the source of the dangers which threaten it".
' The term 'regulating' was also discussed in Said Omar v. Federation of Pakistan (3) as follows:- "The word 'regulating', therefore, must be given its due 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,
(1) 149 U S 465 (37: 810 (2) 114 U S 196-203 (29 : 158-162)= 1 Inters. Corn. Rep. 382
(3) PLD 1956 Lah. 382 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 evacuees 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 or the view that this power does not extend to interference with specific orders, passed by the Rehabilitation Authorities or the Custodian in respect cf allotment of any particular evacuee property, after due judicial hearing."
10. The learned Single Judge came to the conclusion that the power to regulate included a power to give a direction in any particular dispute. He also relied on the departmental practice on the basis of a number of judgments given by Tribunals in coming to his conclusion that the jurisdiction of the Labour Court was ousted in view of the provisions of section 7-A and that the specified authority had the exclusive jurisdiction. He, however, did not follow Said Omar's case, a Division Bench judgment of this Court for the reason that the power to 'regulate' in that case arose under one law which could not upset the finality of the orders passed after judicial hearing under another law.
11. A perusal of the case law and the meaning of word 'regulate,' given above, would show that the power to regulate relates to issuance of regulations, rules, bye-laws, precepts, instructions or directions which are general in nature and not only prescribe with precision the subject-matter with the necessary details but may also lay down a procedure for settling any dispute that may arise in pursuance thereof. Those regulations would fix the rights and liabilities of the concerned parties and it would be their violation or a dispute thereunder that would have to be settled in their light. The existence of the terms and conditions is thus necessary before there could be any dispute or its settlement. In the present case the regulations could be on the pattern as laid down in the rules or standing orders for the labour or other employees, informing the employees and the employers of their rights and obligations. They could also lay down a procedure for the redress of B any grievance that might arise in enforcing the rights and obligations. Under rule 3(2)(b) the previous terms and conditions nave been guaranteed as the specified authority cannot alter those terms to the disadvantage of an employee. The provisions of West Pakistan Standing Orders Ordinance, which contain those terms were applicable to the respondents and they provide a forum for redress of any grievance that may arise thereunder. The specified authority, if it wanted to change the forum or terms and conditions of the respondents, should have framed regulations in the light of rule 3(2), but admittedly nothing thereunder has been done. Respondent No, 1 acted as a forum in place of Labour Court. The observations made by the learned Single Judge that the provisions under discussion dealt with 'directions' and not 'rules', the promulgation of which required certain formalities e. g. Publication in a Government Gazette, is very sound as the rules could be made only by the Central Government. The specified author; could issue regulations and the same could relate to an individual as well a 4o a class or to an establishment but this could be done as a matter of general policy and not by way of settling a particular controversy.
The rules, regulations, bye-laws etc. Come first and their enforcement or the resolution o disputes thereunder comes later. We are, therefore, of the view that respondent No, 1 acted without lawful authority in passing the impugned order without framing a regulation to that effect.
12. The view that we have taken above is further supported by the language of rule 3(2) which is as follows:- "3.-(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."
' It shows that there are conditions imposed on the power given to respondent No,
1. If the negative form of sub-rules (2) (a) and (2)(6) of rule 3 Is changed to positive it would leave no doubt that the specified authority has to prescribe the terms and conditions after complying with certain pre- requisites. Rule 3(2)(d) makes it abundantly clear that while specifying any condition on which the employment of any person can be terminated, the authority must obtain previous sanction of the Central Government. The terms and conditions must be known to the employer who is to take action and the employee who will be ultimately affected. The specified authority will thus do so as a matte of policy and not after the services of a person are terminated. The terms prescribe' and 'specify' in this rule are also significant. According to Webster's New International Dictionary, Second Edition (unabridged) the word 'prescribe' means : "Transitive.-1(a) To describe in advance, to foretell or make a prophecy of in writing, (b) to inscribe before or in front.
2. To lay down authoritatively as a guide, direction, or rule of action; to impose as a peremptory order; to dictate; direct; ordain; as, to prescribe regular hours, of study.
3. To keep within limits or bounds; to restrain to confine. Intransitive: To give directions ; to dictate."
' In Blacks' Law Dictionary, Third Edition, this word has been defined to mean: "To lay down authoritatively as a guide, direction, or rule; to impose as a peremptory order; to dictate. To direct; define; mark out. In modern statutes relating to matters of an administrative nature, such as procedure, registration, etc. It is usual to indicate in general terms the nature of the proceedings to be adopted, and to leave the details to be prescribed or regulated by rues or orders to be made for that purpose in pursuance of an authority contained in the act."
' The word 'specify' in this Dictionary means : "To mention specifically; to state in full and explicit terms, to point out; to particularize, or to distinguish by words one thing from another."
' While according to the Webster's New International Dictionary, Second Edition, it means: "Transitive,-. To mention or name in a specific or explicit manner; to tell or state precisely or in detail; as, to specify the uses of a plant; to specify articles.
2. Specif, , To include as an item in a specification: as, to specify Portland cement.
3. To render specific. Intransitive: To speak precisely or in detail; to give full particulars."
' The use of these terms also leaves no manner of doubt that respondent No, 1 had been delegated the legislative power to regulate the wages and terms and conditions of service.
13. The learned counsel for the private contesting respondents/employees submitted that his clients had their rights guaranteed under rule 3 of the Rules made under the Act and till such time no fresh terms and conditions were provided, they had a right to enjoy the rights previously conferred on them by any law, rule, agreement or an award. The argument is quite sound. The right of the employees to ask for an inquiry and to further take up the matter before the Labour Court stood intact until and unless some other forum was created for the purpose. This plea of the learned counsel might help him so far as institution of inquiry was concerned, but it will be of no avail to him in the facts and circumstances of this case. Impliedly, his argument will go against him for if the jurisdiction vested in the Labour Court against the order of dismissal of the respondents then respondent No, 1 had no jurisdiction to pass the impugned order.
14. The learned counsel for the employees then submitted that as section 7-A of the Act excluded the application of Trade Unions Act, 1926, Industrial Disputes Ordinance, 1959, or any other law on the subject, the respondents had the right to get their dispute with the employer settled by respondent No,
1. Section 7-A reads as under:- "7-A. The provisions of this Act shall have effect, notwithstanding anything to the contrary contained in the Trade Unions Act, 1926 (XVI of 1926) or the Industrial Disputes Ordinance, 1959 (LVI of 1959), or any other law."
Undoubtedly, the provisions of Trade Unions Act and the Industrial Disputes Ordinance, have to give way to the provisions of the Act if they are in conflict with it. The Act specifies employments to which it applies and confers power on the Central Government or an officer authorised in this behalf by it under section 4 to direct by a general or special order any person engaged in any such employment not to depart out of such area as may be specified in the order. Section 5 declares that disobedience of the order passed under the Act shall be offences which are punishable under section 6. No violation of any of the above sections has taken place and, therefore, no further consideration on that score is necessary.
15. It is not denied that the respondent-employees had a right of inquiry against any allegation on which they could be dismissed or their services terminated. This right of theirs has not been taken away under the Act or the rules framed under section 6. The finding in this case is that except in the ease of Fazal Ahmad no inquiry was held. The rules do not specify forum different from the one given in the West Pakistan Standing Orders Ordinance, 1958, for the determination of disputes or for enforcing the terms and conditions of service. There is nothing to show that the 'specified authority' has been substituted for the 'Labour Court' or that it has been given the appellate or revisional powers. The provisions of the Act are thus not in conflict with the Industrial Disputes Ordinance or the West Pakistan Standing Orders Ordinance. The remedy of the respondents lay with the Labour Court till such time a different forum was provided. The order of dismissal against the others.
Therefore, was bad in law.
16. We have come to the conclusion that respondent No, 1 had no authority to pass the impugned order setting aside the dismissal of the respondent-employees. There is a positive finding by respondent No, 1, as well as the learned Single Judge, and nothing to the contrary has been brought to our notice if excepting the case of Fazal Ahmad, any other inquiry was held. The orders passed by the appellants were, therefore, against law and the principles of natural justice and could be held to he void in view of Alta Muhammad Qureshi's case (1). However, we shall be acting in aid of illegality and injustice if we declare them to be of no legal effect for it will perpetuate the original bad orders. The employees had a right to have an inquiry instituted into their alleged misconduct and would have been entitled to defend themselves but that right has been denied to them.
17. We, therefore, in view of the observations of their Lordships of the Supreme Court in Ghulam Mohy-ud-din's case (2), Tufail Muhammad's case (3) and Wall Muhammad's case (4) refuse to interfere in all the appeals except No, 49 of 1976 which shall be accepted as an inquiry was held in that case. The result is that I. C. A. Nos. 45, 46, 47 and 48 of 1976 shall be dismissed but I. C. A. No, 49 of 1976 shall be accepted. The order of the learned Single Judge in Writ Petition No, 888 of 1975 is, therefore, set aside and the order of the respondent No, 1 impugned therein is declared to be without lawful authority and of no legal effect. This order, however, shall not debar the appellant to proceed with the other cases in accordance with law. The parties shall be left to bear their own costs.
(1) PLD 1971 SC 61 (2) PLD 1964 SC 928
(3) PLD 1965 SC 269 (4) PLD 1974 SC 106