1983 PLP 1244 (PLC)

ABDUR REHMAN KHAN KAIF, J.‑Sui Northern Gas Pipe Line Limited through its Managing Director has filed the present constitutional petition challenging the decision of the Labour Court dated 6th December, 1979 (Annexure J) whereby it was held that Inamullah Sawal, respondent No. 2 who had been dismissed from service was workman; that the Labour Court had jurisdiction to deal with the case of his dismissal from service and that the dismissal order was not in accordance with law and gave a direction to the effect that he be re‑instated with full back benefits subject to a fresh independent inquiry.

2. The circumstances in which this petition has arisen are that respondent No. 2 was employed in the petitioner's establishment w. e. f. 17th October, 1964 as Store Clerk and was subsequently promoted ‑to the post of store supervisor who occupied that post till his services were terminated on 16th December. 1978 vide Annexure "F". The petitioner is a public limited company registered under the Companies Act, 1913 and carries on the business of transmission and distribution of gas. The petitioner's services have been declared as Essential Service under the Essential Services (Maintenance) Act, 1952 and the provisions of the said Act and the Rules made thereunder have been applied to the employees of the petitioner‑Company since 14th January, 1976 which continued as such, at the time of the institution of the present petition. The terms and conditions of the service of the employees of the petitioner were regulated by the National Industrial Relations Commission in exercise of the powers conferred under rule 3 of the Essential Service Rules, 1962 by making rules which were gazetted in the Gazette Extraordinary, Government of Pakistan dated 1st November, 1976. Similarly for the purpose of adjudication of the disputes the National Industrial Relations Commission have framed rules for.‑procedure of filing grievance petitions which were gazetted in the official Gazette on 27tb January, 1979. Inamullah Sawal who was employed in the petitioner establishment in the mentioned capacity was charge‑sheeted on 3rd October, 1978. (Annexure "G") wherein he was charged for being involved in a theft case. A reply to the charge‑sheet was submitted by the respondent but the same was not considered satisfactory and, as such, he was directed to appear before the Board of Enquiry on 15th October, 1978. He was subsequently served with a second show‑cause notice dated 27th October, 1978 Annexure I'H") alongwith the inquiry report. The respondent submitted his reply to the said show‑cause notice but the same being not satisfactory, he was dismissed from service on 16th December, 1978. The appeal filed by respondent No. 2 was also rejected.

3. Being aggrieved by the ‑ mentioned order of his dismissal, respon dent No. 2. filed a petition under section 25‑A of the Industrial Relations Ordinance, 1969 before the Labour Court. Peshawar. In the course of pro ceeding of the mentioned petition, the petitioner took preliminary objections to, the effect that the petition was barred by time and that the Labour Court bad no jurisdiction to entertain the petition for the reasons that the company's services have been declared as essential services but the Labour Court (respondent No. 1) recorded evidence and finally announced the order dated 6th December, 1979 whereby, the petition was accepted and directions were issued for the re‑instatement of res pondent No. 2. 'with full back wages and benefits subject to an inde pendent and fresh enquiry. The abovementioned order dated 6th December, 1979 of the Labour Court was challenged by the petitioner before the Chairman, Labour Appellate Tribunal, N.‑W. F. P, Peshawar in accordance with the relevant provisions of the Industrial Relations Ordinance, 1969. It was during the mentioned appeal before the learned Appellate Tribunal. N.‑W. F. P., Peshawar when the present constitutional petition was field in addition to the appeal wherein the impugned order of the Labour Court was challenged mainly for want of jurisdiction.

4. On 12th February, 1980 when the present petition came up for hearing in motion before a Division Bench of this Court, the learned counsel for the petitioner made a statement at the bar that the appeal pending before the Labour Appellate Tribunal shall be with6rawn by the petitioner as the Labour Court which passed the impugned order had no jurisdiction and the petitioner could come to this Court straightaway by invoking the remedy provided under Article 199 of the Constitution. It was stated that by virtue of Notification No. 566,!1‑71, dated 4th December, 1971, the services of the petitioner‑Company had been declared to be essential services under the Essential Services Act, 1952 (hereinafter called the Act) and submitted that the Notification dated 10th December, 1979 placed at page 11 of the petition had been issued in continuation of the original Notification of 4th December, 1971. The learned counsel contended that the Industrial Relations Ordinance, 1969, and the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance. 1968 were not applicable in the case of the petitioner, the services of which. had been declared as essential services in view of the notification referred to above.

5. Learned counsel representing the petitioner contended that the services of the petitioner establishment have been declared as essential services by the Government of Pakistan vide notification mentioned above dated 4th December, 1971 and right from that date, the period was being extended regularly and the last notification in continuance of the original notification was issued on 10th December, 1979. He accordingly submitted that the terms and conditions of the employees of this estab lishment having been regulated in exercise of the powers conferred under rule 3 of the said Rules, the Labour Court had no jurisdiction to enter tain the petition in question. He further submitted that in view of the provisions of section 7‑A of the Act, the rules framed by National Industrial Relations Commission and the decision given by superior Courts, the Labour Court has no jurisdiction to adjudicate upon the matter under section 25‑A of the Industrial Relations Ordinance, 1969 in case an establishment to which the provision of Act have been applied. In this connection the learned counsel referred the judgments reported as 1973 P L C 94, 1976 P L C 857 and P L D 1974 S C 228.

6. Dealing with the merits of the cases on factual side, the learned counsel submitted that the proceedings even otherwise were conducted against the respondent strictly in accordance with the relevant provisions and it was proved on record that he was guilty and, as such, go illegality has been committed by the management by passing the dis missal order. He submitted that a proper opportunity of being heard was afforded to the respondent, he was served with a show‑cause notice was allowed to submit a reply to the charge‑sheet and was also served with a second show‑cause notice. It was further submitted that against the order of his dismissal dated 16th December. 1978 he filed an appeal before the specified authority and after due consideration the same was dismissed on merits. Reliance was mainly placed by the learned counsel and a number of authorities on the subject. Learned counsel representing respondent No. 2 on the other hand, submitted that since the petitioner has withdrawn the appeal which was dismissed, the petitioner is not entitled to‑ a constitutional relief particularly so when the question of jurisdiction could easily be agitated before the learned Appellate Tribunal in connection with the appeal in question. He further contended that the petitioner had availed a proper legal opportunity under the Industrial Relations Ordinance, 1969 for appeal from the decision of the learned Presiding Officer of the Labour Court and having availed that opportunity in which he could agitate the same question of jurisdiction, the petition is not maintainable because an efficacious and alternate remedy was available to the petitioner for raising the same question of law and facts. As regards the objection taken with regard to the jurisdiction of the Labour Court, it was stated that the impugned action having been taken under the West Pakistan Industrial and Commercial Employment ‑(Standing Orders) Ordinance, 1968, the Labour Court established under the I. R. O. had jurisdiction to scrutinise the order of the dismissal passed and was, therefore, competent to entertain the petition. He further contended that the peti tioner is invoking the constitutional jurisdiction of this Court in aid of an illegal order of dismissal of the respondent from service which on being challenged was found illegal after proper hearing by a Court of law. He also assailed the various notifications concerning extension of period issued under section 3 subsection (1) of the Act and contended that initially the Act was made applicable to all employees in the natural gas but in the year 1978 it was made applicable to Oil and Gas Organi sations and natural gas was excluded. He accordingly submitted that subsequent notification was not applicable and there being no proper notification at the relevant time in the field, the Labour Court was compe tent to entertain the petition. Relying on cases reported as P L D 1977 Lah. 998, P L D 1982 Kar. 33, P L D 1980 Pesh. 216 and P L D 1976 Kar. 64, he contended that as held in the above cited cases the specified authority can have the jurisdiction only when it makes regulations according to the authority vested in it under 1962 Rules. ‑

7. A complete list of notifications .was produced during the hearing of this petition and we have satisfied ourselves that right from the year 1971, notifications have been issued regularly extending the period and it becomes abundantly clear that the services of the petitioner have been declared as essential under the Act in 1971 and the employees o this Organisation were governed by the said provisions at the relevant time In order to give a clear view about the question raised it will be necessary to make reference to the relevant provisions of the Act and the rules made thereunder. This Act came into force on 14th December, 1.952. Section 3 thereof by its own force makes the Act applicable to every employee under the Central Government. It provides power to the Central, Government to declare by notification any other employment subject to satisfaction of certain specified conditions to which the Act shall apply and such a declaration made in respect of any class of employment is to remain in force for a period of six months within which the Central Government by notification in the official Gazette can extend it for further period not exceeding six months at a time. Section 4 confers a power on the Central Government or a designated authority to direct persons engaged in certain employments‑ governed by the Act to remain in specified areas. Certain offences have been mentioned in section 5 and section 7 provides the procedure and penalties. By virtue of Ordi nance V of 1965 section 7‑A was also introduced which overrides the provisions of Industrial Relations Ordinance, 1969 or any other law. It reads :‑ "The provisions of this Act shall have effect, notwithstanding any thing to the contrary contained in the Industrial Relations Ordi nance, 1969 or any other law." In section 6 of the Act, a provision has been made for making rules by the Central Government 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 declared under section 3 to be the employment or class of employment to which the Act applies.

8. It is evident that initially no rule had been framed under the law as contemplated under, section 6 of the Act. It was in the year 1962 that the Rules under the mentioned provisions of the Act came into force. These rules are called the Pakistan Essential Services (Main tenance) Rules, 1962 (hereinafter referred to as the Rules). The petitioner i.e. Sui Northern Gas Pipeline is an Orginisation to which this Act, as already stated, was applied since before the grievances of respondent No: 2.

9. The question for determination in this petition is whether the provisions of the Act, 1952 oust the jurisdiction of a Labour Court to adjudicate as regards class of employment declared to be an essential service in the said Act. The question whether an employer whose services are governed by the mentioned provisions of law could have resort to any forum or was entitled to relief other than that provided under the said Act has been thoroughly examined in a number of cases which were cited during the course of arguments including Genera! Manager, Heavy Mechanical Complex Taxila v. Mr. Mamoon A. Qazi, Senior Member, N. I. R. C. Islamabad. (P L D 1977 Lah. 998) and Messrs Indus River Contractors, Tarbela v. Mr. Aziz Ahmad, Member N.

1. R. C. and another (P L D 1980 Pesh. 216). The same issue came under discussion in the Karachi Electric Supply Corporation Ltd. v. National Industrial Relations Commission and another (P L D 1982 S C 113) wherein the reasoning in the mentioned D. B. cases of Peshawar and Lahore High Courts were not approved of by their Lordship and in the context it was observed that .the Act being an emergency legis lation exclude the application of other laws which provides a forum for resolving the disputes between the employer and the employee, arising from the violation of the terms and conditions of service. The relevant para of the above judgment reads :‑ "In General Manager, Heavy Mechanical Complex, Taxila v. Mr. Mamoon A. Qazi the judgment turns on the absence of a regulation in regard to the resolving of a dispute by a particular forum but the effect of section 6 (2) has not been considered which, read with section 7 of Act, provides a forum for the violation of a Rule or direction. Accordingly, no extended mean ing could be given to the word "regulate" vis‑a‑vis the provision of a forum in the context of a statutory forum already provided by the Act. In Messrs Indus River Contractors, Tarbela v. Mr. Aziz Ahmed, Member, N. I. R. C. and another the High Court held that by implication the specified authority has the subsidiary power of doing all necessary acts to enforce what is laid down in the Rules and Regulations. But this conclusion fails to take into consideration that where a statute provides a forum for dealing with the violation no other authority can be a substitute for it, the moreso when the Act is an emergency legislation and has taken care to exclude the application of other laws which provide a forum for resolving the dispute between the employer and the employee, arising from the violation of the terms and conditions of service". It may be advantageous to mention the conclusion arrived at in the Lahore and Peshawar judgments referred to above in order to appreciate the scope of the Supreme Court judgment mentioned above and relied upon by the learned counsel for the petitioner.

10. In the case cited as P L D 1977 Lah. 998, the D. B. of Lahore High Court held that in the absence of the framing of regulations under rule 3 (2) of the Rules of 1962 providing a forum other than the Labour Court, the National Industrial Relations Com mission, had no jurisdiction to entertain an individual grievance. Simi larly in the mentioned Peshawar case while agreeing with the view expressed in the Lahore case; it was held by a D. B. of this Court that the specified authority can have the jurisdiction only‑ when it makes regulations according to the authority vested in it under the rule. As already stated above, the reasoning and conclusions in the mentioned judgments were not approved by the Supreme Court. The Supreme Court has in the same judgment made a further clarification in the follow ing words : "Section 5 deals with the cessation of employment either at the behest of the employer or the employee. It would thus include termina tion of service according to the terms and conditions, discharge, dismissal, absence or abandonment and retrenchment. The direc tion issued in terms of rule 3 (2) (d) concerning the termination of employment will also be covered in view of the wide and all embracing language of this section. Any discontinuation of employ ment has necesserily to be judged from the test laid down in the section namely, that it was "without reasonable excuse". There fore, if the respondents felt aggrieved either by their termination of service or dismissal they should have taken steps to institute the proceedings as provided by section 7 and in that event it would have been open to the Court to determine as to whether the termi nation, according to the terms and conditions of service, or by way of dismissal or discharge, was without lawful excuse or not as the expression "without reasonable excuse" signifies an excuse which is not lawful". A reference was also made by the learned counsel for the respondents to an unpublished judgment of this Court dated 20th February, 1983 (Sui Nothern Gas Pipeline v. Ibrahim Khan). It was stated that in the mentioned order the Supreme Court Judgment was considered but for reasons stated a different view was taken in view of the peculiar facts of the case. We have gone through the mentioned judgment, In this judgment the relevant observations are as under: "It may, however, be mentioned that the question involved in the cited case was regarding the termination of services and dismissal of certain employees and their re‑instatement in service whereas in the present case the prayer of respondent No. 1 for reinstatement in service has already been disallowed by the Labour Court and the question was not pressed any further". It is evident from the said judgment that the relief claimed in that case was concerning arrears of travelling allowances etc.

11. From the view expressed in the abovementioned case of the Supreme Court, it becomes abundantly clear that a person whose employ ment is regulated by the provision of the Act can have resort only to the forum prescribed and in accordance with the procedure provided in the said Act and to no other authority or forum and in no other manner. It, B therefore, follows that in the instant case, respondent No. 2 could have recourse only to section 7 of the Act as he had no right to challenge the order of his dismissal from service in any other manner and before any other forum whatever may be the reasons or circumstances of his case.

12. It was contended by the learned counsel for the respondent that the Courts drawing the powers under section 7 of the Act have been give no power to order reinstatement but can award punishment. He accord ingly submitted that no clear remedy is available in the relevant law as the Act is penal and not remedial creating offences but providing no remedy. There may be some force in the submission made by the learned counsel for the respondent but in view of the provisions contained in the relevant law and the clear expressed observations made in the case cited above by the Supreme Court after due consideration of the Lahore an Peshawar authorities referred to above to the effect that no other foru can entertain such disputes than the forum prescribed by the Act, it will not be possible for us to take a different view on the subject. In the circumstances, we are inclined to hold that in view of the expressed observations made by the Supreme Court in the case cited above, it is not open to hold otherwise.

13. The effect of section 7‑A of the Act is that as soon as the Act is extended to any employment the result was to exclude totally the appli cability of the Industrial Relations Ordinance, 1969 and the Labour Court was divested of its jurisdiction to entertain disputes on the issuance of the notification by the Central Government. The petition filed by respondent No. 2 under section 25‑A of the Industrial Relations Ordinance, 1969 after the issuance of the notification under section 3 of the Act was thus not entertainable by respondent No. 1 (Labour Court). Learned counsel for the petitioner while replying to the objection with regard to the withdrawal of the appeal during the pendency of the writ petition contended that such a conduct of the petitioner does not disentitle him to the relief under the writ jurisdiction. It was stated that since the Court at the time of the admission of the petition was of the view that during the pendency of an appeal before the Labour Appellate Tribunal, the petition could not possibly be entertained, the appeal was withdrawn. He further submitted that since the appeal was against an order which was wholly without jurisdiction and was, therefore, void the fact that the mentioned right has not been availed of by the petitioner will not stand in his ‑way. In this connection reliance was placed on Haroon v. Collector of Customs, Karachi (P L D 1959 S C (Pak.) 177), Nawabzada Amir Ali Khan v. Controller of State Duty (P L D 1961 S C 119) and P L D 1975 S C 450.

14. Reverting to the objection raised by the learned counsel for the respondents regarding the maintainability of the present petition by not availing of the right of appeal by the petitioner before the proper forum according to the normal law when a right of appeal was avail able to him, it is to be seen in the light of the legal position whether the mentioned objection would prevail in the circumstances. It was held' in Muhammad Ishfaq v. State (P L D 1973 S C 368) :‑ "It is an equally well‑settled principle that if a Court not having jurisdiction wrongly exercised such a jurisdiction an appeal lies from that decision in the same manner as the appeal lies from the decision of an appeal by the petitioner as such was not a conduct disentitling him from seeking constitutional remedy". In the instant case the allegations are that the Labour Court or for that matter Labour Appellate Tribunal was completely lacking jurisdiction to entertain the said petition. A similar view was expressed in Haroon v. Collector of Customs, Karachi which reads :‑ "It was recognised as exception that in cases of absence or excess of jurisdiction or where the impugned order suffered from illegality on the face of the record a certiorari may be granted even though the right of statutory appeal had not been availed of ". Again in Nawabzada Amir Ali Khan v. Controller of State Duty it was held‑ "that simply because the other remedy was pending the petition was not necessarily incompetent and the bar against the writ petition on the plea of other remedies was not a rule of law but a rule by which the Court regulated the exercise of its discretion." It was further held‑ "that complete lack of jurisdiction of authority passing the impugned order the petition for writ appeared to be a more appropriate remedy." From the above discussion, it can be concluded that as soon as the situa tion arose where the adequacy of the remedy becomes doubtful to the petitioner, he would invoke the constitutional jurisdiction of this Court. Learned counsel for the petitioner has also rightly pointed out that the Labour Appellate Tribunal did not possess within the framework of the law constituting it the power to stay or interrupt an order directing the reinstatement of a workman for a period exceeding 20 days. In the circumstances it can be said that there was no adequate remedy before the Appellate Tribunal when the same was approached and. as such, there was no bar to avail the remedy provided by the Constitution. In this view of the matter, it is to be concluded that for the mere reason of filing of an appeal under the Industrial Relations Ordinance, which was later on withdrawn after filing the present petition the constitutional remedy sought for cannot be refused.

15. For the reasons stated in the foregoing paragraphs, we are, of the view that the Labour Court or for that matter the Labour Appellate Tribunal had no jurisdiction to entertain the petition filed under section 25‑A of the Industrial Relations Ordinance, 1969 by respondent No. 2. relating to employment to which the act was made applicable and that in spite of dismissal of the appeal by the Appellate, Tribunal having, been withdrawn, the present Constitutional petition is 41 competent. We accordingly allow the petition and declare the order of respondent No. 1, dated 6th December, 1979 to have been passed without jurisdiction and lawful authority and is, therefore, of no legal effect but in the circumstances of‑ the case there will be no order as to costs. M. Y. H. Petition accepted.