P L D 1971 Karachi 833 (PLP)

Issue No. 3.--In the affirmative. Issue No. 4.-The suit will be decreed as prayed with costs against defendant No. 2 only. I shall now separately deal with each one of the issues. 8: Issue No. l.-It will be well to consider first the second limb of this issue. On the Sth of June 1962 the Deputy Secretary to the Government of Pakistan, Ministry of Health, Labour and Social Welfare (Labour and Social Welfare Division) sent a letter to the plaintiff (Exh. 6/1) informing him that he had been selected for appointment as a Chairman of the Central Industrial Court, Karachi. The letter explained that since the plaintiff was retired Government Officer, he will be entitled to the same terms and conditions as were usually permissible to retired Government servants re-employed under the Central Government. The details of these terms and conditions, it was represented, were being looked into and the plaintiff would be informed of them in due course. What is significant in the aforesaid letter is that it did not purport to determine the terms and conditions of appointment of the plaintiff but made it known that these were to be settled later. After the receipt of the aforesaid letter it is admitted that the plaintiff assumed the office of the Chairman, Central Industrial Court at Karachi on the 21st of June 1962. Thereafter on the 22nd of September 1962 a letter was issued by the Government of Pakistan, Ministry of Health, Labour and Social Welfare to the Accountant General, Pakistan Revenues, notifying to him that the plaintiff had been re-employed as a Chairman, Central Industrial Court, Karachi and bad taken over charge on the forenoon of 21-6-1962. His pay was stated to have been fixed at Rs. 4,000 per month minus the pension which the plaintiff drew per month. In the copy of the letter which was forwarded for information to the plaintiff the endorsement over the signature of the Section Officer clearly stated that the tenure of the plaintiff's appointment was initially for a period of three years. It is true that when this appointment came to be notified by the Central Government the Gazette of Pakistan on the 22nd of September 1962 it did not mention that the plaintiff had been appointed for an initial period of three years. This notification is in the following terms: "Mr. Rahim Bux Pir Munshi, a retired Judge of the High Court of West Pakistan, Karachi Bench, has been appointed Chairman, Industrial Court, Karachi with effect from forenoon of 21st June 1962 until further orders." Mr. Shah Jamil Alam, the learned Deputy Attorney-General, argued that the period of appointment was neither mentioned in the offer dated 8-6-1962 (Exh. 6/1) nor in the Gazette Notification dated 22nd September 1962 (Exh. 7/2). From this omission the Court was asked to presume that the appointment was in fact not for any fixed term and was therefore terminable at any time. I must confess that this argument has failed to impress me. So far as Exh. 6/1 is concerned, that is, the so-called offer for appointment, the omission to mention therein the period of appointment can be of no particular significance. In fact this letter did not even claim to lay down the terms and conditions of the appointment. On the contrary the said letter clearly stated that the details of the terms and conditions were being looked into and that the plaintiff' will be informed of them in due course. In view of this unqualified recital in the letter of offer I cannot say how the omission to mention therein the period of appointment of the plaintiff could reasonably lead to the inference that the plaintiff was in fact appointed with no stipulation as to his tenure. Coming now to the Gazette Notification dated 22nd September 1962, the argument of the learned Deputy Attorney-General at the bar was that even this notification did not mention the tenure of the plaintiff and on the contrary it went on to recite that the plaintiff had been appointed until further orders. I have considered the effect of this Gazette Notification carefully and I do not see how its terms could detract from the true nature of the plaintiff's appointment. It is quite obvious that the appointment of the plaintiff to the post of a Chairman of the Industrial Court was the product of a contract and clearly not an appointment to the service. It is, therefore, necessarily to be viewed as a contract entered into as a result of a meeting of two minds. Any unilateral description of the nature of such appointment by the Government in the notification which it may issue can be of no consequence in determining its terms. Obviously the plaintiff had no control himself over the language of the Notification. As far as he was himself concerned the plaintiff had been informed by Exh. 6/2 in terms which admit of no vagueness that the tenure of his appointment was initially to be for a period of three years. The contention of the learned Deputy Attorney-General, however, was that Exh. 6/2 dated 22nd September 1962 was written much after the plaintiff had assumed the office of Chairman, Industrial Court on the 21st of June 1962 and, therefore, it could not be claimed that this letter was the basis upon which the plaintiff accepted office. This contention, to my mind, lacks substance. It is not the case of the defendants that the plaintiff had accepted the office on the basis of any document fully deter mining the conditions of service. In fact none existed at the time when the plaintiff took charge of his office on the 21st of June 1962. The case of the plaintiff is that he had been informed that he would hold the office for a period of 3 years at a monthly remuneration of Rs. 4,000 less the amount that he would be entitled to as pension. This assurance on the part of the Central Government is sought to be proved by reference to Exh. 6/2. There is then one more document which corroborates and further establishes the plaintiff's contention that he had been appointed for a minimum period of three years. This document is a letter dated 7th of November 1963 written by the Deputy Secretary to the Government of Pakistan to the Secretary to the Government of West Pakistan (Co-opera tion and Labour Department) consequent to handing-over of the Central Industrial Court to the Provincial Government. Para. 3 of this letter which is Exh. 7/4 on the record deals with the case of the plaintiff and states inter alia that he had been employed at a pay of Rs. 4,000 minus his pension per month and this tenure was initially to be for a period of three years. By this letter the Provincial Government was requested to ensure that the above terms and conditions of service were not changed. P It is thus obvious that the mention of the petitioner's tenure of service as being initially for three years in Exh. 6/2 was not an unauthorised clarification by the Section Officer concerned but an accepted condition of service of the plaintiff. While the arguments proceeded before me at the hearing of the suit I asked the learned counsel for the defendants more than once as to how they would explain the re-affirmation of the period of tenure of the plaintiff as contained in Exh. 7/4. The learned counsel for the defendants, I must say, had no explanation to offer, much less a plausible one. Every time this aspect of the plaintiff's case was put to them the learned counsel escaped into an argument addressed to the invalidity of the plaintiff's initial appointment. I have, therefore, no doubt in holding that the plaintiff was in fact appointed for a minimum G period of 3 years from the date he assumed his office as Chairman of the Central Industrial Court.

9. I will now come to the first limb of issue No. I which concerns the validity of the plaintiff's initial appointment.

10. The contention on behalf of the defendants is that during the year 1962 when the plaintiff was first appointed, the subject of industrial disputes was governed by the Industrial Disputes Ordinance LVI of 1959. This Ordinance was a Central Ordinance. The constitution of the Industrial Courts and the appointment of the Chairman and members thereof was governed by section 7 of the said Ordinance. It will be worthwhile reproducing this provision "(1) The appropriate Government may, for adjudicating and determining any industrial disputes or any matter appearing to be connected with or relevant to such disputes, by notification in the official Gazette, constitute one or more Industrial Courts for such area or areas as may be specified therein. (2) An Industrial Court shall consist of a Chairman and two members to advise the Chairman, one of the members to represent the employers and the other to represent the work men; all being appointed by the appropriate Government. (3) The Chairman shall be a person who is or has been a Judge of a High Court or a District Judge and shall be appointed upon such terms and conditions as the appropriate Government may determine. (4) The members shall be appointed for a period of three years in consultation with the employers and workmen in such manner as may be prescribed and shall, on the expiry of the said period, be eligible for re-appointment for a further period not exceeding three years." It would seem from a perusal of the above section that the constitution of an Industrial Court was to be made by the "appropriate Government". The term "appropriate Government" has been defined by section 2 in the following terms "In this Ordinance, unless there is anything repugnant in the subject or context,- (a) "appropriate Government" means. (i) in relation to any industrial dispute or other matter in the Federal Capital, or concerning a mine, oilfield, major port, gas and oil pipelines and operations carried on within any petroleum refinery premises, or any industry carried on by or under the authority of the Central Government, the Central Government; and (ii) in relation to any other industrial dispute or matter, the Provincial Government."

11. Prior to 1st of July 1961, Karachi was a centrally administered area. On the aforesaid date the West Pakistan Administrative (Merger of Federal Territory) Ordinance No. VII of 1961 was passed whereafter Karachi came in the administrative control of the Government of West Pakistan. One of the arguments of the learned Deputy Attorney-General was that the appointment of the plaintiff having been made after the merger of Karachi with West Pakistan the appropriate Govern ment for the purpose was the Provincial Government and not the Central Government. Hence the plaintiff's appointment having been made by the Central Government was void. This argument plainly does not take into consideration sub-clause (1) of clause (a) of section 2 of the Industrial Disputes Ordinance, 1959. A perusal of this sub-clause would show that the appropriate Government was to be determined not wholly in N relation to the territory but also in relation to certain industries. Thus although an industry may be situated within a particular territory but if it were one that was carried on in the area under the authority of the Central Government, the Central x3overnment would be the appropriate authority. In this connection of the aforesaid provision it is understandable that even after the merger of Karachi and before the 1962 ('constitution came into force, there were in existence at Karachi two industrial Courts side by side, the Central and the, Provincial. The Central Industrial Court exercised jurisdiction in relation to the Federal Territory as well as those industries which answered to the description contained in section 2(a) (1) of the Industrial Disputes Ordinance, 1959. The plaintiff was actually appointed Chairman of the Central Industrial Court and in so far as the argument of the learned Deputy Attorney-General addresses itself to this aspect of the case, no exception can be taken to the validity of his appointment.

12. The more important contention is that with the coming into effect on 8-6-1962, the Constitution of 1962, labour disputes ceased to be a Central subject since the same was omitted from the IIIrd Schedule to the Constitution which specified the exclusive subjects on which the Centre could legislate. The subject thus fell to the legislative competence of the Province and under Article 136 of the Constitution it came within the executive authority of the Province. The argument in brief was that on the 8th of June 1962 the Central Government was no longer possessed of any power to exercise executive authority in relation to a subject which fell within the legislative and executive authority of the Province. It was thus contended that the appointment of the plaintiff to the Industrial Court by the Central Government was void ab initio. The argument no doubt has an allure. Mr. S. M. Hassan, learned counsel for the plaintiff attempted to meet this contention by stating that Article 131(1) of the Constitution of 1962 no doubt contained the legislative powers of the Central Legislature to the matters enumerated in the IIIrd Schedule; but sub-Article 2 of the said Article visualised circumstances in which the Central Legislature shall have power to make laws with respect to any matter not enumerated in the IIIrd Schedule. The achievement of uniformity in respect of any matter in different parts of Pakistan is a circumstance specially mentioned under Article 131(2)(c) as attracting the power of the Central Legislature to make laws with respect to any subject not enumerated in the Third Schedule. In other words although the Central Legislature may got have power to legislate on a particular matter yet if uniformity in respect of any such subject in different parts of Pakistan was desired to be achieved the Central Legislature will, notwith standing the clog on its power, be entitled to legislate in respect of such subject. It was thus contended that the executive authority of the Center may extend to any subject in relation to which the Central Legislature may have a right to legislate even under sub-Article (2) of Article

131. This argument, I am afraid, is more specious than real. Article 135 of the Constitution of 1962 which provides for exercise of executive authority by the Central Government is in the following terms :- "The executive authority of the Republic extends- (a) to all matters with respect to which the Central Legislature has exclusive power to make laws under clause (1) of Article 131 ; (b) where a law made by the Central Legislature in pursuance of clause (2), clause (3) or clause (4) of Article 131 provides that the law shall be administered by the Central Government to the execution of laws ; and (c) in relation to a part of Pakistan not forming part of a Province-to all matters.

13. It is obvious from a perusal of the foregoing Article that the executive authority of the Centre extends to only those matters with respect to which the Central Legislature has exclusive power to make laws under clause 1 of Article

131. This executive authority does not per se extend to those laws which the Central Legislature may frame in exercise of the powers under Clause 2 of Article

131. The Central Government may however extend its executive authority to those subjects in respect whereof the Central Legislature may legislate under Article 131 (2) provided, however, that the law so framed recites that it shall be administered by the Central Government. This is so under Article 135(b) of the said Constitution. The position that emerges from the foregoing analysis is that the mere right of the Central Legislature to legislate in certain circumstances on any matter not specified in the IIIrd Schedule will not ipso facto extend the executive authority of the Centre to subjects not so specified. In order to exercise such authority it is firstly necessary that the law should be enacted in exercise of the powers under Article 131(2) and that such law should provide that it shall be administered by the Central Government. The Industrial Disputes Ordinance XLI of 1959 is not a law which answers to the foregoing requirements. In fact on the date the Constitution of 1962 came into force there were several subjects of legislation which ceased to remain within the legislative competence of the Central Legislature, and by virtue of Article 136 of the Constitution of 1962 the executive authority in relation to all such subjects passed on to the Province. The contention of the Deputy Attorney General on the foregoing aspect is, therefore, tenable. 13-A. The question that still remains to be resolved is whether the appointment of the plaintiff by the Central Government to the Industrial Court was valid or not. Before proceeding to answer this question I must at the outset observe that the contractual nature of the plaintiff's appointment is plainly obvious and the said appointment has necessarily to be viewed in the light of its being a contractual appointment and not as an appointment to the Services under the Rules. The power to make such appointments even to service posts has not been doubted by the Supreme Court of Pakistan in the case of Province of West Pakistan v. Nazlr Hmsain (PLD 1960 SC 130). What is doubtful however, is whether the Central Government can, fn relation to a subject which does not fall within the executive authority of the Centre exercise the right to make an appointment notwithstanding that such appointment may be by way of a con tract. My attention has not been drawn to any law which may tend to exclude the power to enter into contracts from the term "executive authority". To me it seems that even while entering into contracts the Government has to act necessarily within the framework of its executive authority. If the executive authority of the Government in relation to a particular subject is found to be wanting this void cannot be made good by the concerned Government purporting to act through a contract.

14. Mr. S. M. Hassan, the learned counsel for the plaintiff, then argued that labour disputes in relation to industries connected with the Defence were deemed to be included in the Third Schedule by reason of Item 1(c) read with item 49 thereof. Item 1(c) provides for industries connected with Defence and Item 49 concerns matters incidental or ancillary to any matter enumerated in the Third Schedule. This argument of the learned counsel is a little too far-fetched for the reason that the plaintiff was not specifically appointed to adjudicate on labour disputes arising in industries connected with Defence. Had this been so the documents concerning his appointment and starting from the 8th of June 1962, onwards should have clearly mentioned it so. But no such intention is found to be spelt out in the relevant documents.

15. That last point canvassed by Mr. Hassan on the validity of plaintiff's appointment was that the Industrial Disputes Ordinance LVI of 1959 was an existing law at the time the Constitution of 1962 came into force and by reason of Article 225 of the said Constitution the said Ordinance was continued in force with all the powers reserved therein. It was thus argued that the Central Government continued to enjoy its powers under the said Ordinance even after coming into force of the Constitution of 1962. This argument, I must say, does not take into account the saving condition mentioned in Article 225, as would appear from a perusal of sub-Article 1 of the said Article. This sub-Article is in the following terms "(1) Except as provided by this Article, all existing laws shall, subject to this Constitution, continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature." It would seem that the existing laws were continued by Article 225 but the said continuance was subject to the provisions of the Constitution and with necessary adaptations. The effect of making the said laws subject to the Constitution clearly is that if a particular subject fell in the new Constitution within the legislative competence of the Province then that subject would come within the executive authority of the Province. There seems to be no warrant for the proposition that even after the coming into force of the Constitution of 1962, the Central Government would continue to exercise its executive authority fn respect of all subjects which formerly fell within the legislative competence of the Centre and fn respect whereof the Central Legislature may have framed laws.

16. In view of the foregoing discussion I am of the view that from and after the 8th of June 1962, the Central Government was not possessed of any authority to make an appointment to an Industrial Court unless such appointment was pursuant to any specific law passed by the Central Legislature on the subject of Labour Disputes with the avowed object of achieving uniformity in relation to it in different parts of Pakistan, such law providing further that it shall be administered by the Central Government in terms of Article 135(b) of the Constitu tion of 1962. My answer to the first part of issue No. 1, is, therefore fin the above terms. I have already dealt with the second part of the first issue and held that the minimum of three years tenure was a substantive condition of the plaintiff's appointment.

17. Issue No. 2.

I have already observed and have held that the plaintiff had been appointed initially for a minimum period of 3 years. This period is clearly stipulated in Exh. 6/2 dated 22-9-1962. Eventually when the plaintiff's services were transferred to the Provincial Government on the 7th of November 1963, the letter on the subject (Exh. 7/4) from the Central Government to the Government of West Pakistan set out the terms add conditions on which the plaintiff had been appointed by the Central Government. The Provincial Government was requested to ensure that the said terms and conditions of service of the plaintiff were not changed. It was clearly mentioned that the plaintiff had been appointed initially for a period of 3 years. These terms and conditions were not taken exception to by the Government of West Pakistan and on the contrary for two months thereafter the plaintiff received his full emoluments from the Provincial Government under which the plaintiff continued to work. In other words there is nothing to indicate that the terms and conditions as notified by the Central Government in their letter (Exh. 7/4) were not acceptable to the Provincial Govern ment or that they were accepted subject to any reservations. It has not even been pleaded before me that the Provincial Government had not accepted the said terms and conditions. The only defence taken by the Provincial Government is, firstly, that the very initial appointment of the plaintiffs was invalid and secondly that the Provincial Government was fully within its rights in re-constituting the Industrial Court and were under no compulsion in doing so to re-employ the plaintiff. I am clearly of the view that, notwithstanding the fact that the initial employment of the plaintiff by the Central Government is of doubtful validity yet when the Government of West Pakistan accepted his services as a Chairman of Industrial Court, they did so on the terms and conditions notified to them by the Central Government by their letter dated 7th of November 1963 (Exh. 7/4). These terms and conditions, in my opinion, will be binding upon the Government s of West Pakistan, irrespective of the validity or otherwise the plaintiff's first appointment. To restate this argument, I feel called upon in the present suit only to decide the terms and conditions upon which the plaintiff was absorbed in the provincial complex of the Industrial Court. While placing the services of the plaintiff at the Provincial Governments disposal the latter was informed inter alia that his pay was, Rs. 4,000 per month minus the pension drawable by him, and that the tenure initially was for a period of 3 years. The Provincial Government was asked to ensure that these terms and conditions were not changed. The second defendants took the plaintiff into their service without demur. They would surely have been entitled at that stage to clarify that the terms and conditions as proposed by the Central Government were not acceptable to them. This was not even suggested, with the result that the plaintiff continued to serve the second defendants in the view that he would be doing so for the unexpired period of his three years' employment. Thus a new contract obviously came into existence with the plaintiff's being absorbed by the second defendants and one of the terms of this new contract was that the plaintiff would be entitled to remain in service of the Government of West Pakistan as the Chairman of the West Pakistan Industrial Court for the unexpired period of his tenure of the original contract. The validity or otherwise of the original contract, to my mind, has absolutely no bearing or relevance to the rights of the plaintiff upon the Government of West Pakistan. I would thus answer the second issue by saying that by reason of the second defendants accepting the plaintiff as the Chairman of the West Pakistan Industrial Court without reservations (none have been alleged or proved in this case) the defendants were bound to concede to the plaintiff the same terms and conditions as were applicable to him on his) first appointment.

18. Issue No. 3.

The Industrial Court was reconstituted on the 31-1-1964. It has been alleged that the entire process of re-constitution, notification in the official Gazette and notice of the re-constitution to the plaintiff was all done in the course of single way. Whatever be the implications of this extra-i ordinary hurry, the action of the second defendants in unilaterally excluding the plaintiff from the re-constituted Court was illegal since, as discussed in relation to issue No. 2 above, the second defendants were bound to keep the plaintiff in employment P until the expiry of his tenure of office, and they were bound to do so under a valid and subsisting contract between the plaintiff and the second defendants. Hence the termination of the plaintiff's contract of service before it ran through its full term is illegal.

19. As discussed by me above, plaintiff's contract of service was for a definite period and has been terminated before its completion. In these circumstances the plaintiff is entitled to a salary for the remaining part of the period at the stipulated rate. There is no plea or evidence of any nature on record in mitigation of damages. Agreeing, therefore, with the view expressed by a Division Bench of the Madras High Court in Muna Sona Sundaram Chettiar v. Sona Fheeanna Chokalingam Chettiar (A I R 1938 Marl 671) I hold that the plaintiff is entitled to be compensated for the period from 1-2-1964 to 20-6-1965 by an amount calculated at the rate of Rs. 4,000 per month less the pension drawn by the plaintiff for the same period.

20. The question, however, remains as to which of the two defendants is liable to pay the amount. The period for which the aforesaid compensation has been claimed represents the period during which the plaintiff should have been in the service of defendant No.

2. There is no basis for any claim against the first defendants, who, for the period during which the plaintiff was in their employment, had paid to him all his dues. The suit is accordingly decreed only against defendant No. 2 with costs. This decree shall be satisfied before the 1st of October 1970. S. A. H. Suit decreed.