1989 PLP 466 (PLC)

Date of hearing: 21st December, 1988. The petitioner, retired Army personnel, is presently employed in the respondent-company as Driver Supervisor, posted at Section 3, Headquarter, Wah. It appears that 'the respondent-company called for the army record for verifying the date of birth of the petitioner. According to the Army record, date of birth of the petitioner was entered as 28-9-1930. The petitioner for rectification of his date of birth, moved the quarter concerned through application dated 31-12-1987 accompanied by his birth certificate, school leaving certificate and Identity Card but his request was turned down on 22-3-1988 and his date of birth remained intact as 28-9-1930 instead of 28-9-1933.

2. Feeling dissatisfied, the petitioner filed the present petition under section 22-A(8)(g) read with section 15 of the Industrial Relations Ordinance, 1969 with prayer that the respondent-company be directed not to discriminate and commit acts of unfair Labour practice against the petitioner, to cancel and hold as null and void the letter of the respondent-company (Annex. F) with further direction to the respondent-company to enter the date of birth of the petitioner as 28-9-1933 in the record of the company. According to the petitioner he was discriminated and acted unfairly by the respondent-company on account of his trade union activities.

3. The respondent-company, in its written comments, denied the petitioner's allegations and challenged the jurisdiction of this Commission to entertain the petition. During the pendency of the petition, an application was filed on 12-6-1988 by the respondent-company for dismissal of the petition for want of jurisdiction. The application was strongly contested on the ground that the Commission has the jurisdiction to hear the petition and has powers to prevent an employer from removing an employee from service if such removal is an act amounting to an unfair Labour practice.

4. Mr. S. Rais Ahmad Jafri, represented the petitioner whereas Mr. Khalid Mahmood Pasha, Advocate appeared on behalf of the respondent-company. I have heard at length the submissions made before me in the light of the law on the point and the case-law produced at the Bar.

5. The respondent-company is covered under the Pakistan Essential Services (Maintenance) Act, 1952 and the terms of service of its employees arc only regulated by the specified Authority. The grievance of the petitioner relates to the terms of his employment. The specified authority frames rules regarding terms and conditions of service. These rules have been framed and are prevalent in the respondent-company. These rules are applicable to the petitioner. He is and has been deriving advantages/benefits out of these rules. This Commission as such, is not possessed of the jurisdiction to adjudicate the terms and conditions of employment of the petitioner in view of the specific ouster of the Industrial Relations Ordinance, 1969 by virtue of section 7-A of the Pakistan Essential Services (Maintenance) Act, 1952 which is reproduced below for reference sake: "7-A. The provisions of this Act shall have effect, not withstanding anything to the contrary contained in the Industrial Relations Ordinance, 1969 (XXIII of 1969).

6. Learned representative for the petitioner has vehemently contended that section 22-A(8)(g) of the Industrial Relations Ordinance, 1969 is not in conflict with section 7-A of the Pakistan Essential Services (Maintenance) Act, 1952 and does not completely oust the jurisdiction of N.I.R.C. He relied on 1978 P L C 132 (Kar.) A. Javed, President, Pakistan International Airlines Corporation Employees Union Karachi v. National Industrial Relations Commission Government of Pakistan, Islamabad through its Chairman and another, 1980 P L C 149, Employees Union etc. v. Burmah Shell Ltd. etc. and 1985 P L C 488, Muhammad Ashiq v. Executive Engineer, WAPDA, Kasur. The submissions of the learned representative are without substance. The jurisdiction of the Commission to adjudicate upon the matter is clearly barred in the instant case. I The view I have taken is not without authority. If an authority is needed on the point reference can be made to P L D 1982 S C 131; Karachi Electric Supply Corporation Ltd. v. National Industrial Relations Commission and another 1986 P L C 782 Karachi High Court, State Bank of Pakistan v. Director of Labour and others, 1986 P L C 788 (Karachi High Court) Muhammad Ahmed v. Pakistan and another 1974 P L C 201 (Kar.) Employees Union v. Pakistan Machine Tool Factory Landhi and 2 others 1977 P L C 418; IVth Labour Appellate Tribunal, Punjab Muhammad Sarwar v. Ijlal Haider Zaidi 1977 P L C 421; Canteen Stores Department, Karachi v. Sind Labour Court No. V and two others 1977 P L C 686 (National Industrial Relations Commission) P.IA. Corporation Employees Union v. Registrar Trade Unions of NIRC 1973 P L C 94 (Kar.); Syed Manzoor Ali Rizvi v. M/s. National Bank of Pakistan, Karachi and 3 others 1980 P L C 615 Labour Appellate Tribunal, Sind) Zahid Hussain Oureshi v. Sui Gas Transmission Company Ltd. and another and 1982 P L C 541 (Karachi High Court) Karachi Electric Supply Corporation Ltd. v. National Industrial Relations Commission and another Para. 5 of the judgment reported in 1977 P L C 418; Muhammad Sarwar v. Ijlal Haider Zaidi is reproduced below with advantage: "The entire scheme of the Act shows, that it is a special enactment its object being primarily the maintenance of certain essential services, and it provides altogether a different mode for regulating relations between the employer and the employee. For instance section 6 of the Act empowers the Central Government to regulate, by itself, or through an Authority specified thereby in that behalf, conditions of service of employees; and such conditions of service may be different from those applicable under the 1.R.0. or any other law,- applicable in that behalf. Likewise the Act also provides for offences, their trials and punishments, which are different from those under the I.R.O. Since the two enactments overlap each other or in any respect, there is bound to be a conflict between their provisions; and section 7-A of the Act, when put in plain language, lays down that in spite of the contrary contained in the Trade Unions Act, 1926 or the Industrial Disputes Ordinance, 1959, or any other law, the provisions of the Act shall have effect. Needless to say that the two enactments expressly referred to in section 7-A have since been repealed and ultimately succeeded by I.R.O. The matters to which the Trade Unions Act, 1926 referred, related to the formation and registration of Trade Unions by the workers and all other matters incidental thereto; and those to which the Industrial Disputes Ordinance, 1959, referred related to industrial disputes between the workmen and the employer, their settlement, adjudication and determination and other similar objects. The matters which are now being dealt with by the I.R.O. broadly speaking relate to the conditions of service of employees, and as such come within the mischief of section 7-A of the Act. To be able to form a trade union, take part in its activities, raise industrial dispute, declare strikes, etc. are matters, primarily relating to the conditions of service of the workmen and it appears to be for this reason that express reference has been made to the Trade Unions Act or the Industrial Disputes Ordinance, in section 7-A. The offence of unfair Labour practice, described in sections 15 and 16 of the I.R.O., which can be committed, either by the employer or workmen, also basically relates to similar matters. To my mind, therefore, section 7-A of the Act completely ousts the provisions of I.R.O. from application to employments to which the act applies. The employer in relation to such employment, consequently, cannot be made liable for any offence committed under the I.R.O." In view of what has gone above it follows that jurisdiction of the Commission is completely ousted to adjudicate in the matter. The case-law produced on behalf of the petitioner has no relevancy to the controversy in issue and has no bearing on the facts of the present case. Having held that jurisdiction of the Commission is barred in the present matter, the application is allowed and the petition is returned for presentation to the appropriate forum, if advised. No order as to costs. A.E./142/NIRC??????????????????????????????????????????????? ?????????? Application allowed.