1976 PLP 857 (PLC)

"1.-(1) These rules may be called the Pakistan Essential Services (Maintenance) Rules, 1962. (2) They shall apply to every employment and every class of employment which the Central Government may, in pursuance of subsection (1) of section 3 of the Act, declare to be an employment or class of employment to which the Act applies. 2 . . . . . . . . . . . (a) . . . . . . . . . . . (b) . . . . . . . . . . . 3.-(1) The Central Labour Commissioner is hereby empowered to regulate, subject to the other provisions of this rule, the wages and other conditions of service of persons or class of persons engaged in any employment or class of employment to which these rules apply. (2) . . . . . . . . . . . (3) All directions of the Central Labour Commissioner regulating wages and other conditions of service under sub-rule (1) shall be published in the official Gazette."

6. An amendment was made in the Rules on 22-7-1974 and for clause (b) of rule 2, the following clause (b) was substituted:- "Chairman" means the Chairman of the National Industrial Relations Commission constituted under the Industrial Relations Ordinance, 1969 (XXIII of 1969) and includes a member of that Commission authorized by the Chairman in this behalf." The other amendments made were that for the words "Central Labour Commissioner" wherever occurring in the rules the word "Chairman" was substituted and the expression "Central Government" was replaced by the expression, "Federal Government."

7. In the precedent case (W. P. 885 of 1975) after examining the provisions of the Industrial Relations Ordinance, 1969, and those of the Essential Services Act, 1952, it was held that although the two provisions were not entirely inconsistent and repugnant to one another in so far as the Essential Services Act mainly created offence and only indirectly or consequently was concerned with rights, whereas the Industrial Relations Ordinance, 1969, mainly dealt with rights nevertheless these deficiencies were made up "by providing for the appointment of an authority under the Act whose power is so plenary, so compulsive and so specific, untrammelled by any technical rule of procedure that no scope is left for any other forum, any other proce dure or decision from any other quarter on matters within the domain of the specified authority." It was further observed that "it is a matter of great public importance that there should be no conflict or clash of jurisdiction between two authorities apparently equally competent. If the ascendancy of one over the other is manifest the supersession of the other follows by necessary implication. A large number of judicial decisions rendered by the Labour Courts were then noticed wherein it was held that it was only the specified authority under the Rules which was empowered to take cognizance of matters concerned the conditions for service of workman and the jurisdiction of the Labour Court was barred in respect thereof. The conclusion was expressed in the following words:

..barring one case of Habibullah Khan, the departmental practice and the judicial precedent had been consistently ousting jurisdiction of the Labour Courts on matters within the domain of the specified authority. This it appears is consistent with the rules of interpretation already dealt with."

8. The learned counsel for the petitioners, however, referred to the judg ment of Mr. Justice Muhammad Akram, passed in W. P. 643 of 1974 in the case of WAPDA v. Punjab Labour Court No. 3 and another, wherein, while dismissing the petition of the WAPDA on various grounds, it was observed that despite the extension and application of the Essential Services (Maintenance) Act to an employee in the Machinery Pool Organization under the WAPDA, it did not necessarily follow that thereby the jurisdiction of the Labour Court was barred from entertaining the application made by the employee under section 34 of the Industrial Relations Ordinance, 1969 (now substituted by section 25-A) against the wrongful termination of his services. In that case his Lordship simply considered the effect of the provisions of section 7-A of the Essential Services (Maintenance) Act and did not advert to the provisions of section 6 and Rules framed thereunder. Moreover, there were other grounds noticed by his Lordship, on which the ultimate decision was rested. Hence the said judgment is not of much assistance to the learned counsel for the petitioners.

9. In view of the foregoing, the contention that there being no repugnancy between the provisions of the Essential Services (Maintenance) A Act and those of the industrial Relations Ordinance, the Labour Court had the jurisdiction to entertain the matter, cannot be accepted.

10. The learned counsel for the petitioners also argued that the Rules framed under section 6 of the Essential Services (Maintenance) Act, 1952, did not fall within the ambit of the expression "any other law" mentioned in section 7-A of the Essential Services (Maintenance) Act. The argument was that section 7-A provides that the provisions of the Essential Services (Maintenance) Act shall have effect, not withstanding anything to the contrary contained in the Trade Unions Act, 1926, or the Industrial Disputes Ordinance, 1959, or "any other law", which implies any other "statutory law" and not simply any rules.

11. This argument is misconceived. It is established law that statutory rules have the status of law and are enforceable as such. Moreover, the provision for issuance of directions for regulating wages or the conditions of service, on the specified authority is made in the Essential Services Act itself.

12. Another argument raised by the learned counsel for the petitioners was that the Rules of 1962 have only authorised the Central Labour Commissioner to issue directions regulating the wages and other conditions of service of persons to whom the Essential Services (Maintenance) Act applies, but matters such as termination of service and mere particularly re-instatement into service are not covered by the expression regulation occurring in section 6 (2) of the said Act. In this connection the case of Said Omar v. Federation of Pakistan (P L D 1956 Lah.382) was referred to.

13. The above question was also raised in the precedent case, viz. The General Manager, Heavy Mechanical Complex v. Bashir Ahmad Malik and another already referred to, and the learned Judge deciding it, overruled it. While doing so, he, inter alia, referred to the decision of the Privy Council in the case of Suraj Narain Anand v. N. W. F. P. (A I R 1949 P C 112), wherein it was held that termination of service was covered by the expression "conditions of service". I respectfully agree with the above decision and am of the opinion that the questions of termination of service and re-instatement into service can be made the subject-matter of "directions regulating wages or conditions of service" by the authority empowered to do so, under the Rules. The provisions of section 6 (2) of the Essential Services Act reproduced in para. 4 above, are wide enough to cover such situations. As held in the prece dent case "directions can be on specific matters as well as on general policy matters" and the power of giving directions includes the power to adjudicate upon individual cases or disputes between the employer and the workman.

14. For the foregoing reasons, the judgment of the Punjab Labour Court No. 2, impugned herein, that the Labour Courts did not have the jurisdiction to adjudicate upon the matter, is in accordance with law and does not call for any interference. The petitioners, if so aggrieved, can even now approach the Chairman, National Industrial Relations Commission for the redress of their grievances. The jurisdiction of the Labour Courts, however, to consider their grievances stands ousted by the provisions of the Essential Services (Maintenance) Act and the Rules framed thereunder.

15. The result is that this writ petition is dismissed, but in view of the intricate question of law involved therein, the parties are left to bear their own costs.