P L D 1976 Karachi 1118 (PLP)

This constitutional petition has arisen in the following circumstances:

2. The respondents Nos. 3 to 6 were employees of the petitioners a public limited Company engaged in the business of distribution of petroleum and petroleum products throughout Pakistan. It is alleged that the petitioners maintain a provident fund scheme, and all the employees of the petitioners, while applying for the membership of the provident fund scheme, make declarations signed by them, which include the dates of their birth as well. The said respondents had shown their dates of birth in the said declarations as 1918. The petitioners also maintain a service book, as required by the Employment (Record of Services) Act, 1952, and the rules framed thereunder. There also, their dates of birth were mentioned as 1918. However, it is an admitted position that, though the service book was opened in the year 1962, yet the signatures of the petitioners on these books were made at a later date. On the basis of the declarations made by the respondents Nos. 3 to 6, the petitioners, by their letter dated 2-3-1973, notified to the said respondents that, as they would be reaching the age of superannuation by the 31st of December 1973, they would be retired with effect from the said date. The respondent No. 3, in a tardy reply, objected to the retirement on the ground that his date of birth was 1922, and therefore he had not reached the age of superannuation, The respondent No. 4 also maintained the same stand in a peply. The respondents No. 5 and No. 6 maintained their respective dates of birth as 1925 and 1923. As the replies militated with the entries of their dates of birth on the record of the petitioners, their contentions were repudiated, and they were retired on the due dates as notified earlier. The said respondents took up the matter with the Joint Director, Labour Welfare, Government of Sind, Karachi, and, in the course of the oral enquiries m the city, the respondents substantiated their claim with the entries in their service cards which, however, were neither official cards issued by the petitioners nor were identity cards. The petitioners, however, were not supplied either with then alleged representations nor was any evidence recorded in their presence. The petitioners also objected to the jurisdiction of the respondent No. 1 to 14 determine the age of the employees and to re-instate the said respondents. However, the objections in the pleas of the petitioners were ignored, and they were apprised from a Gazette publication dated the 16th of April 1974 that the respondent No. 1 had ordered their re-instatement in service. It is this order which has been impugned here.

3. It is common ground that the provisions of the Pakistan Essential Services (Maintenance) Act, 1952 (hereinafter called the Act) are applicable to the petitioners. Section 6 (1) reads as under : "(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 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 b' an authority empowered by such rules to give them, any person failing to comply therewith is guilty of an offence under this Act." Section 7-A of the said Act was inserted by the Pakistan Essential Services (Maintenance) Ordinance III of 1965, which reads as under: "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." 'The scope of these sections came to be construed in the case of Syed Manzoor Ali Rizvi v. National Bank of Pakistan, Karachi and 3 others (1973 P L C 9). On the basis of the notification issued by the Central Government on 2-7-1962 under section 6-A, whereby the respondent No. I was empowered to regulate the wages and other conditions of service of persons referred to earlier, it was found that the said Act together with tire rules that have been framed or may be framed under section 6, constituted a method for settling industrial disputes which was very different from the method prescribed under the Industrial Relations Ordinance. Dorab Patel, J. (as then he was) observed that the said Act regulates not only the procedure for settling industrial disputes, but it also affects the rights of the employer and of the workman. It was, therefore, found that the impugned order of the Labour Court and the Appellate Tribunal, to the effect that the application under section 25-A of the industrial Relations Ordinance was barred in view of section 7-A of the Act, was not opera to any exception. The same view was taken by me in the case of Employees' Union v. Pakistan Machine Tool Factory, Landhi and 2 others (1974 P L C 201). I had the occasion to say therein that the conditions of service will embrace questions relating to the employment, or, non-employment, or, the terms of employment of any person, and the jurisdiction to regulate the wages and other conditions of service bad been vested in the authority under the Act. 1t was also said that the two methods, the one under the Act and the other under the Ordinance, %ere mutually inconsistent, and therefore, the one prescribed under the Act and the rules had to prevail. Both these cases dealt with the question of the dismissal of the employees.

4. Regulate, according to the Concise Oxford Dictionary, means "control by rule, subject to restrictions, moderate, adapt to requirements, B adjust (machine, clock), so that it may work accurately". According to Black's Law Dictionary, regulate means ` to fix, establish, or control; to adjust by rule, method or established mode; to direct by rule or restriction; to subject to governing principles of law". As to be found in Roget's Thesaurus of English Words and Phrases, regulate means "adjust, arrange, direct", and arrange includes "dispose, place, form, straighten up, tidy up, dispose of, settle, fix, apportion, disentangle". I am clearly of the opinion that the respondent No. I was competent to proceed with the matter, as it related to the conditions of the service of the said respondents. The fact, that there is no forum for appeal under the Act, need not be examined, because this had come up for consideration in the two cases referred to earlier.

5. It was alleged, however by Mr. Saleem Akhtar, learned counsel for the petitioners, that even if the respondent No. 1 had the jurisdiction, the impugned order will be vitiated, because it was passed behind the back of the petitioners, thereby attracting the maxim audi alteram partem. However, the respondent No. 1 has expressly mentioned in his order that the parties were duly beard on a number of days, and their records had been perused, In the face of these observations and also the counter-affidavit which has been filed, there is no circumstance made out that the respondent No. 1 was not speaking the truth. It cannot, therefore, be said that the impugned order will be violative of the principles of natural justice on that score.

6. As regards the basis in regard to the determination of the ages of the respondent, the respondent No. 1 has mentioned that the service books produced by the petitioners contained doubtful entries. According to him, though the service book had been opened on 1-11-1962, yet the same had been signed by an officer who was not in the service of the Company at that time. Otherwise too, it was not complete, and in the case of the respondent, Muhammad Sadiq, the photographs had been stamped as "Pakistan Burmah Shell", whereas no Company by that name existed at that time. He had examined the service cards produced by Baboo and Muhammad Sadiq. These cards were prepared by the Burmah Shell and mentioned the dates of birth. It was also said that these were not the only persons with the identity cards, as the Union's representative subsequently had produced dozens of them, which showed that they were duly issued by the management. As regards Din Muhammad, there was a discharge certificate issued by the Ordinance Factory, Jabbalpur. His age of recruitment was mentioned as 26-12-1923. '?'his was a document produced in original and was treated as authentic, In regard to Ghulam Mir, it was represented that his house had been destroyed as a result of bombardment in the Indo Pakistan War of 1971, and his identity card had been lost along with other household effects. He had, however, produced a certificate from the Civil Surgeon. In these circumstances, it cannot be said that the findings arrived at by the respondent No. 1 were arbitrary, or, without due care and caution. On this view of the matter, the impugned order, to my mind cannot be said to be in the exercise of unlawful authority, and thus open to any exception.

7. In the result, I would dismiss the petition with costs. S. Q. Petition dismissed.