There is a common question arising in all these petitions which is as to the applicability of Industrial Relations Ordinance, 1969, competency of proceedings there under and assumption of jurisdiction by the National Industrial Relations Commission, Punjab Labour Appellate Tribunal or the Labour Court qua the grievance of the employees of Pakistan Railways. Accordingly, the under-mentioned petitions are being disposed of through this common judgment: "Writ Petitions Nos.23328 of 1997, 17968 of 1997, 4186 of 1996, 19051 of 1997, 4569 of 1996, 23776 of 1`996, 21201 of 1996, 22058 of 1996, 22059 of 1996, 2121 of 1997, 2122 of 1997, 2123 of 1997, 2124 of 1997, 2128 of 1997, 2129 of 1957, 2130 of 1997, 2131 of 1997, 2132 of 1997, 2133 of 1997, 2134 of 1997, 15150 of 1996, 19295 of 1996, 458 of 1997, 2125 of 1997, 5897 of 1996, 17989 of 1996, 15245 of 1995, 945 of 1996, 19291 of 1996, 22794 of 1996, 19289 of 1996, 22800 of 1996, 23281 of 1996, 2126 of 1997, 23279 of 1996, 22850 of 1996, 1941 of 1996, 16210 of 1997, 19294 of 1996, 22849 of 1996, 2119 of 1997, 476 of 1997, 469 of 1997, 364 of 1997, 15257 of 1995, 19296 of 1996, 21639 of 1996, 15149 of 1996, 7910 of 1996, 5891 of 1996, 23278 of 1996, 18165 of 1997, 19288 of 1996, 18493 of 1997, 22057 of 1996, 8621 of 1996, 19293 of 1996, 8617 of 1996, 8620 of 1996, 7911 of 1996, 15147 of 1996, 8619 of 1996, 8618 of 1996, 19298 of 1996, 363 of 1996, 23280 of 1996, 19297 of 1996, 23282 of 1996, 8495 of 1996, 19310 of 1996, 366 of 1996, 15148 of 1996, 19292 of 1996, 23777 of 1996, 2120 of 1997, 367 of 1997, 25511 of 1997 and 23477 of 1996. "
2. The respondents are employed with the Pakistan Railways in different capacities who aggrieved of certain actions/orders of the Railways Administration approached the forum envisaged by the Industrial Relations Ordinance, 1969 who passed orders in the matter which have been assailed by the Pakistan Railways in these petitions on ~ the ground that Industrial Relations Ordinance was not applicable to the employees of Pakistan Railways, therefore, the assumption of jurisdiction by the National Industrial Relations Commission or the Labour Court on their initiative was totally' without jurisdiction and without Lawful authority. In order to demonstrate that Industrial Relations Ordinance, 1969 was not applicable to the respondent employees, two notifications have been invoked by the Railway Administration, one is of 9th June, 1992 and the other is 18th of October, 1993.
On the strength of the above notification, it is contended by the learned counsel that Industrial Relations Ordinance, 1969 was not applicable to the respondent-employees, therefore, . they could not agitate the matter before any of the functionaries envisaged by the said Ordinance, as such, the assumption of jurisdiction in the matter by the commission or the Labour Court was wholly without lawful authority, therefore, the orders impugned, in the petitions are liable to be declared as such. Reference has been made to. some reported and unreported judgments of the Court.
Such as Railway Workers' Union Regd. through Sardar Shaukat Ali, General Secretary v. Government of Pakistan, Ministry Railways, through Chairman, Railway Board, Lahore and 2 others (PLD 1995 Lahore 333), Akbar Ali and others v. Senior Administrative Officer, Pakistan Railways and another (1992 SCMR 1341), Mehboob Khan and 307 others v. Government of Pakistan through Secretary, Ministry of Railways, Islamabad and 7 others (1993 SCMR 2385), Divisional Superintendent, Pakistan Railways, Rawalpindi Division, Rawalpindi v. National Industrial Relations Commission through Chairman and 2 others (1997 PLC 307), Director Accounts, WAPDA, Lahore and others v. Member-I.
NIRC, Lahore and others 1997 PLC (C.S.) 189, judgment, dated 30-10-1997 in Writ Petition No.7997-S of 1995 by Ch. Ijaz Ahmad, and judgment, dated 11-3-1998 in Writ Petition No.371 of 1997 by Amir Alam Khan, J. whereby number of petitions on the subject were disposed of by the learned Benches.
3. Ch. Ghulam Qadir, the learned counsel for the contesting respondents in Writ Petition No.17738 of 1995 contends that notification, dated 18-10-1993 does not affect the operation of the provisions. of Industrial Relations Ordinance, 1969 as no amendment was made by the Legislature in the Ordinance which continues to apply irrespective of the issuance of the said notification. It is further contended that with the introduction of section 2-A of the Service Tribunals Act, 1973 these petitions before this. Court have abated and should be dismissed accordingly. Reliance has been placed by him on Federation of Pakistan v. Muhammad Siddiq (PLD 1981 SC 249) in this respect.
4. Since there is no controversy as to the factual aspect of the matter, I have not considered it necessary to advert to the factual background of individual cases as the matter rests mainly on the question as to the legal efficacy of notifications referred to above and the jurisdiction of the Commission/Labour Court in the matter. For proper understanding of the matter, the two notifications are reproduced in extenso for persual:-- Government of Pakistan Ministry of Railways (Railway Board)
Islamabad, the 9th June, 1992 NOTIFICATION S. R. O. No._________ In supersession, of Ministry of Railway Notification No.E-1/83-NI/l, dated the 15th November, 1983 and the 16th January, 1985 and in pursuance of the special provision below sub-clause (d) of clause (viii) of section 2 of the Industrial Relations Ordinance, 1969 (XXIII of 1969), the Federal Government is pleased to direct that the Railway servant specified in Part-A of the Schedule below, who belong to the supervisory staff of workers and workmen and those specified in Part-B of that Schedule who belong to the Supervisory staff of civil servant, shall also be deemed to be Supervisors:-- SCHEDULE S. No.Categories of Railway:Basic Scales of Pay: Servants: PART-A 1.Assistant Inspector/11 to 16 Sub-Inspectors.
2.Inspectors.11 to 16 3.Assistant Yard Masters 4.Chief Yard Masters 5.Yard masters. (II)8. When employed in accordance with the exception as contained
16. in clause (i) of Schedule II of (the Workmen's Compensa-- tion Act, 1923 (VIII of.
1923).
6Train Examiners.11 to 16 7Head Train Examiner16 8Mates.5
9. Senior Supervisors)11 to 16 10Chief Surveyors} 11Misteries}9 (Excluding working Mistries)
12Driver Instructors.12 13Head Number Takers 14Divisional Inspector14 15.Group Inspector Special12 Examiners.
16.Assistant Foreman12When employed in 17.Foreman14 to 16accordance with 11the exception as 18.Sub-Engineers11contained in clause 19.Assistant Chargemen.11(i) of Schedule II 20.Junior Chargemen.of the Workmen's Act, 1923.
21Chargemen.12 22Senior Inspectors.11 to 16 PART-B 1.All Officers.17 and above 2All Accountants including16 Works Accountants.
3Supervisors including11 to 15 Commercial Supervisors.
4.Senior Supervisors11 to 15
5. Head Clerks (When there is11 no Office Superintendent).
6Office Superintendents.14 7SeniorOffice16 Superintendents 8Asstt. Station Masters,9 to 14 9.Station Masters.12 to 16 10Station Superintendents16 11Dy. Station Superintendents.16 12.Section Controllers.14 13.Deputy Chief Controllers.15 14.Chief Controllers16 15.Train Superintendents.14 16.Signallers Incharge.12 17.Sub-Stores Keepers.11 to 13 18.Junior Depot Stores Keepers,13 19.Depot Store Keepers.16 20.Wards Keepers.10 21.Labour Wardons14 22.Sister Incharge.16 23Assistant Chemist,11 24.Chemists.14 25Head Chemists16 26,Chief Fire Masters.16 27.Head Ticket Inspectors,10 28.Shed Clerks Incharge.11 29.Senior Inspectors.11 to 16When not employed with the exception in 30.Assistant Foreman.12 accordance as con-- 31Foreman.14 to 16 tained in clause (i)
Schedule II of 32Sub-Engineers.11Workmen's Compen-- 33.Assistant Charagemen.11sation Act, 1923 (VIII of 1923).
34Junior Chargemen.11 35.Chargemen.12 (No, E.I/91-IP/9)
(Sd.)
(NASIR AMIN), SECRETARY, RAILWAY BOARD The Manager, Printing Corporation, of Pakistan Press, University Road, Karachi.
No.E.1.91/IP/9 of date Copy is forwarded to:--
(1) The General Manager, Pakistan Railways, Lahore, with the request that the notification may also be published in the Railway Gazettes.
(2) The EA and CAO, Pakistan Railway, Lahore.
(3) The Federal Government Inspector of Railways, Lahore.
(4) The Divisional Superintendents, Pakistan Railways, Peshawar, Rawalpindi, Lahore, Mughalpura, Multan, Sukkur, Quetta and Karachi.
(5) All Offices of the Railway Boards, Ministry of Railways, Government of Pakistan, Islamabad.
(Sd.)
(SALEEM UR REHMAN AKHOOND), FOR SECRETARY, RAILWAY BOARD.
No. E.I/91-LP/9 of date: Copy is forwarded to:--
(1) Law and Justice Division (Mr. Amjad Ali, Draftsman Additional Secretary), Government of Pakistan, Islamabad with reference to that Division U.O. No. 164 of 1992 Dtg., dated 22-2-1992.
(2) Labour Division (Syed Rizwan Hussain, Central Labour Advisor)-, Government of Pakistan, Islamabad with reference to that Division's O. M. NO. E.IR-8(6) of 1992, dated 22-3-1992.
(Sd.)
(SALEEM UR REHMAN AKHOOND), JOINT DIRECTOTR/ESTABLISAHMENT.
The Second Notification is as follows-- GOVERNMENT OF PAKISTAN MINISTRY OF RAILWAYS (RAILWAY BOARD).
Islamabad, the 18th October, 1993.
NOTIFICATION Subject: EXAMINATION OF RAILWAY EMPLOYEES WORKING ON MOD (MINISTRY OF DEFENCE) LINES FROM THE PURVIEW OF INDUSTRIAL RELATIONS ORDINANCE, It is hereby notified for information of all concerned that the following Railway Lines, being essential to the Defence Service of Pakistan, during peace and war were classified as MOD lines. These Railway lines were also notified as such by the Ministry from time to time on the advice of the Ministry of Defence:
(1) Karachi Cantt. - Peshawar (main line) via Multan lolp.
(2) Kotri-Rohri via Dadu.
(3) Hydeabad-Mirpur Khas-Choor-Khokhrapar.
(4) Mirpur Khas-Pithoro via Jhudo Loop except between Digri Naukot.
(6) Samasata-Mandi Sadiq Ganj-Amruka.
(7) Sher Shah Kundian Attock City.
(8) Khanewal-Shorkot Cantt-Chak Jhumra.
(9) Shorkot Cantt.-Chak Jhumra.
(10) Shak Jhumra-Shahinabad-Sargodha-Kundian.
(11) Shahdara Bagh-Narowal-Chak Amru.
(12) Lalamusa-Sargodha.
(13) Wazirabad-Sialko2-Narowal.
(14) Lodhran-Pakpattan-Kasur.
(15) Badin-Hyderabad.
(16). Jacobabad-Kot Adu.
(17) Shorkot-Shahdara Bagh
(18) Kasur-Raiwind.
(19) Chak Jhumra-Wazirabad.
(20) Shahdara Bagli-Sangla Hill.
2. Being classified as MOD (Ministry of Defence) Lines, it has been considered by the Federal Government of Pakistan imperative to notify for information of all concerned that by virtue of the provisions of clause (a) of subsection (3) of section 1 of the Industrial Relations Ordinance, 1969 (XXIII of 1969) the said Ordinance is not applicable inter alia to any Railway employees employed in connection with the MOD lines or any installation connected therewith or incidental thereto including installations such as sheds, washing lines, sick lines etc.
3. These Railway employees are accordingly advised in their own interest not to take part in any - trade union activities. These Railway employees are further warned that if they take part in any trade union activities, they shall become liable to all legal and disciplinary actions as provided under the law and the Statutory Rules. .
(Sd.)
(Nasir Ameen), Secretary, Railway Board.
No. E-1/91 /ACT/2 The Manager Printing Corporation of Pakistan Press, University Road, Karachi.
No.E-I/92/ACT/2 Islamabad, the 18th October, 1993.
Copy is forwarded to the General Manager, Pakistan Railways Headquarters Office, Lahore.
(Sd.)
(SALEEM UR REHMAN AKHUND) for Secretary, Railway Board.
NQ.E-1/92/ACT/2 of date Copy to:--
(1) Law and Justice Division in reference to their U.D.No.1962-32-- Law, dated 26-1-1993.
(2) Labour Division, Central Labour Advisor, Government of Pakistan, Islamabad.
(Sd.)
(SALEEM UR REHMAN AKHUND) for Secretary, Railway Board.
Copy to the General Manager (P), Lahore in reference to his Letter No.E/444/65-II-(E-II/Spl), dated 19-10-1993."
5. By notification, dated 9-6-1992 as is evident from its reading certain categories of employees were declared belonging to the supervisory staff, whereas by operation of the other notification, dated 18-10-1993 Railways lines mentioned therein (almost whole of the railway network) were classified and declared as MOD (Ministry of Defence) Lines and it was declared and notified that by virtue of the provisions of clause A of subsection (3) of section 1 of Industrial Relations Ordinance, 1969 (XXIII of 1969), the said Ordinance was not applicable inter alia to any "Railways Employees employed in connection with the MOD Lines or any installations connected with or incidental thereto including installations such as shed washing lines, sick lines etc." It appears that if any of the Railways employee did not belong to the supervisory staff and was still a worker or workmen or could approach the forum provided for in the Industrial Relations Ordinance, 1969, by operation of the later notification of 18-10-1993, the provisions of Industrial Relations Ordinance, 1969 ceased to apply as a result whereof the employee concerned could not invoke the jurisdiction of the forum envisaged by the Industrial Relations Ordinance, 1969.
6. The vires of notification, dated 18-10-1993 was assailed by the Railway Workers' Union Registered before this Court and their petition was dismissed. It is reported in (PLD 1995 Lahore 333) which holds the field till date. It appears that despite the above decision as to the legality of efficacy of the said notification, the National Industrial Relations Commission continued entertaining the petitions and passing orders thereon. A number of writ petitions were filed before this Court there against which were disposed of by accepting the writ petitions in Divisional Superintendent, Pakistan Railways, Pakistan Division, Rawalpindi v. National Industrial Relations Commission through Chairman and 2 others (1997 PLC 307). The same view was taken by the other learned Benches of this Court in matters of identical nature, therefore, there is no room left to argue that notification, dated 18-10-1993 does not affect the applicability of Industrial Relations Ordinance, 1969 or the jurisdiction of NIRC/Labour Court in these matters still exits.
7. The contention of the learned counsel for the respondents that with the introduction of section 2- A (Act of XVII of 1997) in the Service Tribunals Act, 1973 these petitions stand abated and should be dismissed is not tenable in the facts and circumstances of the case. The reliance of the ,learned counsel for the respondents on Federation of Pakistan v. Muhammad Siddiq (PLD 1981 SC 249) is misplaced inasmuch as in that case when the orders were passed by the Civil Courts etc. WAPDA employees were not civil servants and it was- only with a later amendment in the WAPDA Act that they were declared as civil servants and the effect of the same was considered by their Lordships.
In the present case, by virtue of notification, dated 18-10-1993 the provisions of Industrial Relations Ordinance, 1969 had ceased to be applicable to the Railway employees i.e. the respondents but despite that jurisdiction was assumed and orders passed which are impugned in these petitions. In view of the fact that this notification was upheld by this Court and it was held in a number of cases mentioned above that NIRC or the Labour Court had no jurisdiction whatsoever qua the railway employees, the orders were totally without jurisdiction. These petitions have been filed merely for a declaration to that effect.
8. As to the effect of an order that is without jurisdiction and is null and void, reference to few passages from "Jurisdiction and Judicial Review" by Justice Fazal Karim, be usefully made (page 26): "An act or order without jurisdiction is thus the result of exercising a jurisdiction by a Court or authority not vested in it by law, that is to say, it is a usurpation of power unwarranted by law; it is an act done which the person doing it had no jurisdiction at all to do or which was clearly outside the sphere of his activities; and a judgment or order is without jurisdiction when it was delivered by a Court not competent to deliver it. "
9. At page 27 the learned authors has commented as follows:-- "It is to use the language of Article 199 of the 1973 Constitution, an act or proceeding done or taken without lawful authority and is of no legal effect."
10. There is further discussion on the same subject at the same page that:-- "An order without jurisdiction is void it binds nobody; such order neither creates nor recognises any right or liability and no legal incidents attach to it. It is as if it never was made."
11. At page 100 effect of ouster, clauses over the power of judicial review was considered by the learned author and the following comments are reproduced hereunder:-- "Cases in which Courts can exercise their power of judicial review are divisible into four classes and the effect of ouster clauses varies between these classes. While considering this question, it is, however, necessary to bear in mind the important distinction between Constitutional jurisdiction and statutory jurisdiction. One of the categories is a case of total want of jurisdiction like the one where there is inherent incompetency in the Court, Tribunal or Authority to deal with the matter.
What the petitioners have sought in the present case is that the assumption and exercise of jurisdiction in the matter by NIRC was without lawful authority due to want of jurisdiction in the matter."
12. Much before the introduction of section 2-A (which became applicable w.e.f. 10-6-1997), the provision of Industrial Relations Ordinance, 1969 had ceased to be applicable to the Railway employees by force of the above notifications, therefore, any proceedings filed under the said Ordinance were incompetent in law and orders passed by the NIRC wer6 wholly without jurisdiction.
Thus reference to the Federation of Pakistan v. Muhammad Siddique (PLD 1981 SC 249), is not apt to the present case.
13. In Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another (PLD 1975 SC 450) assumption of jurisdiction by the Labour Court at the instance of a person who was not a workman within the ambit of Ordinance XXIII of 1969 was declared by their Lordships as without lawful authority and the proceedings pending before the Labour Court were quashed.
In this view of the matter, the invocation of jurisdiction by the contesting respondents and assumption of the same by the NIRC/Labour Court was illegal and not warranted by law at all.
Resultantly orders dated 7-11-1995 and 4-1-1996 passed by respondent No.2 are declared as without lawful authority and of no legal effect. The petition is accordingly accepted. No order as to costs.