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Constitutional Petition No. D‑215 of 1978, decided on 23rd February, 1982.

Pakistan Essential Services (Maintenance) Act (LIII of 1952)

‑‑ S, 5 and Industrial Relations Ordinance (XXIII of 1969), S. 25‑A and Constitution of Pakistan (1973), Art. 199 Workman‑Individual grievance ‑Labour Court has jurisdic tion to adjudicate upon an individual greivances in absence of any other forum provided in Act LIII of 1952‑High Court in constitutional jurisdiction not competent to restrain respondent from holding an inquiry or to give a direction that petitioner's resig nation be accepted in persence of S. 5 of Act‑Order of Labour Court and Labour Appellate Tribunal dismissing application of petitioner on ground that after application of Act to employment of respondent Company; Labour Court has no jurisdiction set aside and case remanded to Labour Court for disposal.

Karachi Electric Supply Corporation Ltd. v. N. 1. R., C. and another P 1, D 1982 S C 113 ref.

Pakistan Electrical & Mechanical Construction Limited v. Chairman, N. 1. R. C. and another N L R 1981 Labour 200; Pakistan Burmah Shell v. Central Labour Commissioner P L D 1982 Kar. 33 and P. 1. A. C. and 4 others v. Allah Ditta Bugti P L D 1979 Kar. 542 ref.

M. L. Shahani for Petitioner.

S. A. Sarwana for Respondents.

Date of hearing: 23rd February, 1982.

.‑The brief facts leading to the filing of the above petition are that the petitioner was employed with the respondent as a Book Binder for more than t0 years. It has been averred that the peti tioner on 28th August, 1976, tendered a notice of resignation of one month in term of Standing Order 12 clause (1). It has been further averred that as the petitioner did not receive any reply up to 28th September, 1976, be presumed that his resignation was accepted and, therefore, abstained from duties with effect from 29th September, 1976. 1t has also been averred‑ that on 2nd October, 1976 the petitioner received a letter dated 30th September, 1976 signed by the Senior Per sonnel Officer stating therein, that the petitioner's resignation was under consideration. It has been further averred that on 7th October, 1976, the petitioner received a show‑cause notice for remaining absent without leave, to which the petitioner submitted a reply dated 7th October, 1976. However, on 30th October, 1976, the petitioner was served with a charge sheet. Upon receipt of the above charge‑sheet, the petitioner sent a grievance notice dated 12th November, 1976, under section 25‑A of the 1. R. O. and. thereafter filed an application in the Court of 4th Labour Court at Karachi under the above section of the 1. R. O. It seems that respondent upon the service of the notice of the above application, raised an objection as to the jurisdiction of the Labour Court on the ground that the Pakistan Essential Services (Main tenance) Act, 1952 (hereinafter referred to as the Act) has been made applicable to the employment of the respondent company. The above objection prevailed with the learned Labour Court resulting in passing of order dated 3rd January, 1977, dismissed the petitioner's above application. The petitioner being aggrieved by the above order filed an appeal, which was also dismissed by the learned Sind Labour Appel late Tribunal by its order dated 31st July, 1977., on the same ground. The petitions being aggrieved by the above two orders has filed the present petition. .

2. Mr. M. L. Shahani, learned counsel for the petitioner in support of the above petition has urged that in view of the Supreme Court case, namely K.E.S.C. Ltd. v. N. 1. R. C. and another (P L D 1982 S C 113) inter alia it has been finally settled that the specified authority under the Act namely, the Chair man of the N. 1. R. C. has no power to adjudicate upon individual griev- and, therefore, from it, it must follow that the Labour Court retains the ances jurisdiction apart from the penal action provided for in section 7 of the Act. Reliance has been placed on the case of Pakistan Electrical and Mechanical Construction Limited v. Chairman, N. 1. R. C. and another (N L R 1981 Labour 200) which is a judgment given by a D. B. of this Court, to which one of us (Ajmal Mian) was a party and which judgment has been expressly approved by the Supreme Court in the aforesaid case, which according to the learned counsel for the petitioner proceeded on the assumption that Labour Court's jurisdiction remained intact in case of a workman within the ambit of the 1. R. O. and the West Pakistan Standing Orders Ordinance. He has also referred to the majority view in the case of Pakistan Burmah Shell v. Central Labour Commissioner (P L D.1982 Kar. 33) particularly para 20 wherein the following observations have been made

20. We are conscious that the Act is a special kind of legislation aimed at keeping the wheels moving and preventing any retrada tion of industrial output. It may even be termed .as emergency 'legislation and indeed the original Essential Services Ordinance, 1941, was promulgated during the Second World War and was designed to augment War efforts. In such legislation of the emergency type very often provisions are made for avoidance of lengthy litigation or prevention of actions of sophistication. This may be so but still there is nothing in the Act or the rules to point to the fact or depriving the individual workman of his remedies under the Ordinance or other laws. We are clearly of the view that since the Act and rules do not make any provisions for redress of individual grievances the Commissioner could not adjudicate in any matter of this nature."

3. On the other hand Mr. S. A. Sarwana, learned counsel for their respondent has candidly conceded that in view Of the above Supreme Court judgment and of this Court's judgments referred to hereinabove, r Court retains the jurisdiction to adjudicate upon an individual the Labour grievance in the absence of any other forum provided for in addition to the penal action provided in section 7 of the Pakistan Essential Services (Maintenance) Act, 1952. However, his contention was that the petitio ner's prayer to the effect that this Court should direct the respondent to accept petitioner's resignation and not to hold inquiry cannot be granted. His further submission is that even a Labour Court is not competent to restrain the respondent from holding an inquiry or to direct the respon dent to accept the petitioner's resignation. In support of the above contention he has referred to the case of P. 1. A. C. and 4 others v. Allah Ditto Bugti (P L D 1979 Kar. 542).

4. We are inclined to hold that in Constitutional jurisdiction this court is not competent to restrain the respondent from holding an inquiry or to give a direction that the ‑ petitioner's resignation should be accepted in the presence of section 5 of the Act. However the petitioner's prayer to the extent of quashment of the two orders referred to herein above can be granted. Furthermore, we would not like to advert to the contention of Mr. Sarwana that even a Labour Court is not competent to restraining the respondent from holding an inquiry or to give a direction‑for the acceptance of petitioner's resignation as we would not like to pre‑empt the decision of the Labour Court on the above point:" However, the respondent will be at liberty to raise this plea before the Labour Court which will be decided in accordance with law.

5. For the aforsaid reasons the petition is allowed to the extent, that the impugned orders dated 3rd January, 1977 and 31st July, 1977, Passed by the learned 4th Labour Court and learned Sind Labour Appellate Tribunal respectively are declared as being of without lawful C authority and of no legal effect. The case is remanded to the learned Labour Court with the direction to dispose of the same with in four months from the receipt of intimation of this order. There will be no order as to costs.

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