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Labour Appeal No. 14 of 1979, decided on 27th May, 1979.

-- S. 25-A read with Limitation Act (IX of 1908), S. 5--Petition to Labour 'Court-Dependent upon valid grievance notice to employer-Objection of maintainability-To be decided before entering into merits-Notice served not within prescribed limitation of tow months but after inordinate delay of one year-Not a valid notice--Objection raised--Service of notice precedes invocation of ,jurisdiction of Labour Court -Benefit of S. 5 of Limitation Act, 1908, held, could not be availed to cure initial defect-Labour Court, in circumstances, held, should have dilated upon with specific findings on preliminary objection of maintainability before entering into merits of petition.

--- S. 1 (4)-Applicability---Ordinance a combination of pro cedural as well as substantive law--Amendment as to applicability- Not affecting vested right-Procedural--Can be made retros pectively-Amending Ordinance ousting Pakistan Television Corporation from ambit of Ordinance issued on 8th April, 1978 and made effective from 16th February, 1978--Not exception able.

---S. 25-A read with Pakistan Essential Services (Maintenance) Act (LIII of 1952), S. 3-Services of Establishment declared as essential service-Regulations governing terms and conditions of service framed by specified authority--Remedy against termination of service-Available not before Labour Court but before specified authority under Pakistan Essential Services (Maintenance) Act, 1952--Contention that in matter pertaining to dismissal from service jurisdiction of Labour Court still intact rejected.

Tasneemur Rehman v. Resident Engineer, WAPDA, Lahore 1978 P L C 101 distinguished.

General Manager, Heavy Mechanical Complex Taxila v. Mr. Mamoon A. Kazi, Senior Member, NIRC, Islamabad P L D 1977 Lab. 998 ref.

General Manager, Heavy Mechanical Complex Taxila v. Mr. Bashir Ahmed Malik, Member, NIRC P L D 1977 Lah. 982 rel.

Mohammad Aslam Chishti for Appellants.

Abdul Rashid Khan for Respondent.

Date of hearing: 27^thMay, 1977.

The respondent was employed with the appellant organization as Film Librarian and persuant to his conviction under C. M. L. A's Martial Law Order No. 18 and 23 on 23^rdFebruary, 1978 to a term of one year R. I. and ten lashes, his services were terminated on the following day i.e. 24th February, 1978 by the Managing Director, Pakistan Television Corporation Islamabad, the first appellant herein. Consequent upon a Constitutional Petition filed by the respondent in this Court the punishment of lashes was suspended. Later on the petition was withdrawn and not only that the punishment of lashes was remitted but the remaining sentence was also remitted by the relevant authority. As a result of it, the respondent was released from custody sometime in the last week of April, 1978. Thereafter he served a grievance notice upon the appellants on 5th March, 1979, say about a year after his release from custody. Subsequently on 25th March, 1979 he filed an application before the Labour Court under section 25-A of Industrial Relations Ordinance, 1969 (hereinafter referred to as the 'I.R.O') for his reinstatement in service. On behalf of the respondents two objections were raised before the Labour Court to challenge the maintainability of the application namely ; that the notice as envisaged by section 25-A of 1. R. O. having not been served within the prescribed period of two months from the date of termination of service the application was not sustainable under 1. R. O. and that Pakistan Television Corporation having been exclude) from the operation of I. R. O. by means of amendment in section 1 of 1. R. O. which deals with its applicability on 8^thApril, 1978, and effective from 16th February, 1978, hence on this score too the Labour Court had no jurisdiction in the matter. Both these objections were turned down by means of order dated 3rd May, 1979 impugned in this appeal.

2. Mr. Mohammad Aslam Chishti, the learned counsel for the appellant while challenging the Labour Court findings given on the above referred grounds has added yet another ground to establish non-maintain ability of the application before the Labour Court namely that the appellant's organization having been declared an Essential Service under section 3 of Pakistan Essential Services (Maintenance] Act, 1952 (Act LIII of 1952), and persuant to Rule 3 of Pakistan Essential Services (Maintenance) Rules, 1962 made under said Act (LII1 of 1952) the powers to regulate the terms as to wages and other conditions of services were delegated upon the specified authority who was to be the Chairman or a Member of the National Industrial Relations Commission. Further, by virtue of such authorization necessary regulations had also been framed by a Member of National Industrial Relations Commission, which inter alia provided for a remedy in cases of termination of service. Such Regulations were published in the relevant Gazette dated 25^thJanuary, 1978. Accordingly he submitted that now the remedy for the respondent's grievance lay under these regulations and not under section 25-A of 1. R. O.

3. Dealing with the first ground Mr. Chishti, submitted that this objection was not considered by the Labour Court at all which was illegal as the maintainability of an application under section 25-A of I. R. O. is dependent upon valid notice. Since in this case notice was served after more than a year from the date on which cause of action accrued to the respondent the application was ex facie unsustainable in law. The provisions of section 5 of Limitation Act which applied to I. R. O. could also rot come to his rescue as se.-Vice of notice, is an act which preceded the invocation of Labour Court's jurisdiction under I. R. O. There is much substance in this argument. The benefit of section 5 of Limitation Act can be available of after the proceedings are initiated but it has no relevance to an act, which is required by law to b performed at an earlier stage. According notice in question having admittedly been served with inordinate delay, lice application was no, maintainable before the Labour Court. The Labour Court should have dilated upon this point in suitable detail as the law required that a specific finding on such preliminary objections which go deep down the root of the case should be given before entering upon the merits of the case.

4. As to the applicability of 1. R. O. appellant organization suffice it to say that by virtue of amendment, in section 1 t of 1. R. O., referred to above this organization was excluded from the governance of 1. R. O. The only objection raised in this contest by Mr. Abdul Rashid, appearing for the respondent was with reference to retrospective application of this amendment. Admittedly this amendment was introduced by means of President's amending Ordinance issued on 8th April, 1978 but was made effective from 16th February, 1978. It is true that the respondent's services had been terminated on 25th February. 1978 and he filed application under reference on 25^thMarch, 1979. as such, amendment was not in the field either on the date when cause of action accrued to the respondent or when he submitted application to assail his dismissal from service but the amendment is purely procedural in nature and does not affect any vested right of the respondent, hence is not open to challenge. It is settled proposition of law that there exists no vested right with regard to procedure or a particular forum in any party and retros pective effect to statutes made in such field does not offend the principles of any law. I am therefore unable to contribute to the view convassed by Mr. Rashid, that I. R. O. being admittedly a combination of pro cedural as well as substantive law could not be amended retrospectively.

On the other wand I am clearly of the opinion that such a restriction can at best be placed on such provisions of I. R. O. which are in the nature of substantive law, but not to its procedural aspect.

5. In respect of the last contention that the appellant's organization was an Essential Service since Mr. Chishti invited my attention to the Regulations dated 25th January, 1977 known as Pakistan Television Corporation Limited Employees Service Rules made by the specified authority under powers enjoyed by him by virtue of the rules of 1962 made under Act LIII of 1952, referred to above, which inter alia catered for the cases involving termination of service. Mr. Abdul Rashid Khan contented that the powers of the Labour Courts remained intact despite a declaration that an organization was to be treated as Essential Service, in matter of termination of service as this did not come within the ambit of terms and conditions of service, which a specified authority Was supposed under law to regulate. He tried to fortify this argument by placing reliance on Tasneemur Rehman v. Resident Engineer, WAPDA, Lahore (1978 P L C 101). This case is absolutely inapt in the circumstances of the present case. In this case Regulations had not at all been framed under Rule 3 of the Rules made under Act LIII of 1952, therefore, the Court was of the view that in such circumstances Labour Court was not divested of its jurisdiction to act under section 25-A of I.R.O. It has nothing to do with the proposition whether termination of service was a matter covered by the scope of acti vity provided by Act LIII of 1952 or the rules made thereunder or not. However what is most pertinent to note in this case is that the dispute before the Court was with regard to dismissal from service and it was not held that even if the regulations were available in the field the specified authority could not deal with it as it was outside the scope of its jurisdic tion. In this case reliance has been placed on the General Manager, Heavy Mechanical Complex Taxila v. Mr. Mamoon A. Kazi, Senior Member, NIRC, Islamabad (P L D 1977 Lab. 998), wherein the principle that Labour Court occupied the field until such time that the necessary regulations were made by speci fied authority was enunciated. In General Manager, Heavy Mechanical Complex Taxila v. Mr. Bashir Ahmed Malik, Member NIRC (P L D 1977 Lab, 982), the ques tion with regard to the scope of the Regulations also came under consi deration and after detailed review of the relevant law on the point it was held that in case of the employees of such organization which had been declared Essential Service the Labour Court will not be competent in matters pertaining to Regulation of (i) Wages, and (ii) conditions of service of a workman. Reference may also be made to Civil Servants Act, 1973 and Baluchistan Civil Servants Act, 1974 which include termina tion of service, among the-terms and conditions of service. Accordingly I find myself unable to agree with this contention that in respect of cases pertaining to dismissal from service the jurisdiction of the Labour Courts is still intact.

For the reasons given above the appeal is allowed and the impugned order dated 3rd May, 1979 is set aside. As a corollary of this order the application of the respondent pending before the Labour Court stands dismissed. It will however, be open to the respondent to approach the proper forum available to him under law, There shall be no order as to costs.

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