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Writ Petition No.719 of 1982, decided on 10th April, 1985.
---Ss. 22(b)(3)(a) & 36-D--Extent and scope of provisions of- Jurisdiction of Labour Court via-a-via National Industrial Relations Commission--In case of award of Wage Commission it was National Industrial Relations Commission which had to act as Labour Court and not Labour Court established under Industrial Relations Ordinance, 1969--Jurisdiction of Labour Courts was ousted in such a case.
Allied Bank of Pakistan Ltd. and 2 others v. Labour Appellate Tribunal, Lahore and 2 others 1982 P 'I. C 1. ref.
---Ss. 2(ii) & 25-A--"Award", definition of--Term 'award' speaks only of three awards, award given by Labour Court, an arbitrator or. Appellate Tribunal--Term "any award" in S. 25-A, held, had to be viewed only, in light of term 'award' defined in S.2( of Industrial Relations Ordinance, 1969.
---Ss.2(ii) & 25-A--Prinninlp of beneficial construction Interpretation of--Principle of beneficial construction, held, could be invoked only where language of legislation was ambiguous and required interpreta tion--Wage Commission award could not be enforced as award under S.25-A of Industrial Relations Ordinance, 1969.
---S. 1(4), proviso---Object and scope of--Proviso to S.1(4), held, excluded application of such Ordinance from Industrial and Commercial establishments carried on by or under authority of Federal or Provincial Government--Such establishments were being governed by statutory rules of service, conduct or discipline.
---Ss.4 & 5--Banks--Ownership, management and control of Federal Government being recipient of ownership, management and control of banks held, had exclusive right to establish bank--Term 'Authority' had to be viewed in terms of authorisation visualized by S.4 of Banks (Nationalization) Act, 1974.
National Shipping Corporation v. Sind Labour Appellate Tribunal and 2 others 1975 P L C 1 distinguished.
---S. 38-A--Conditions of service--Rates of wages--Determination and fixation of--Liability of fixing rates of wages and determination of service conditions, held, was liability of Wage Commission--Such authorization flowed directly from statute--Rules framed by Wage Commission, held, further, were statutory in nature.
---S. 38-A--Service Rules, framing of--Nature of such rules--Plea that by asking Wage Commission, to frame rules legislature had abdicated from its function, repelled--Legislature, held, left matters of detailed regulations more and more to executive authority--Delegation of such authority to subordinate statutory authority to frame service rules was not ultra vires of Constitution.
--S. 38-A--West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 1(4)--Award of Wage Commission--Effect of--Award of Wage Commission given under S.38-A of Industrial Relations Ordinance, held, would have effect notwithstanding provisions of Ordinance VI of 1968--West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, had been superseded by Wage Commission Award.
--S.2(xxviii)--Dismissed employees--Remedy of--Worker having been dismissed in consequence of industrial dispute, held, covered by definition of worker under S.2 of Industrial Relations Ordnance, 1969- All other categories of workers were outside scope of such definition- Workers outside such definition could seek remedy through Collective
Bargaining Agent or through Civil Court.
--S.38 A--National Industrial Relations Commission, function of- --National Industrial Relations Commission, held, had to perform both penal and remedial functions to the exclusive of Labour Courts Wage Commission and their awards were exclusive preserves of such Commission--Labour Court had no jurisdiction in case of Bank employees covered by Wage Commission Award.
Ataur Rehman Sheikh, Ch. Altaf Hussain; Javed Altaf, Khurshid Ahmad, Kh. Muhammad Farooq, Mian Saeedur Rahman Farrukh and M.S. Bokhari for Petitioners.
Muhammad Zaman Qureshi, Muhammad Asghar Malik, M.A. Khadim, Ghulam Qadir Cheema, Muhammad Ikram, Munawar Javed, H.R. Haider and Nazir Hussain for Respondents.
Dates of hearing: 11th, 12th, 16th, 17th, 18th, 23rd, 24th, February; 2nd, 3rd, 4th, 5th, 9th, 10th, 11th, 12th March, 1985.
--This judgment will dispose of the following writ petitions as common questions of law and facts are involved:-
Writ Petitions Nos: 4851 and 4140 of 1979; 5503, 6020, 6021, 225 of 1981; 719, 1242, 2127, 3264, 3453, 4959, 2691, 2734, 2692, 2693, 3700, 3639, 2713, 4442, 978, 1505, 1345, and 1810 of 1982; 2087, 5324, 3610, 3025, 2111, 2086, 1879, 1253, 1105, 1509, 1508, 1208, 720, 2821, 2083, 1772, 3907, 2482, 4660, 3639, 2347, 2346, 4904, 1882, 4159, 4152, 4565 and 5129 of 1983; Writ Petitions Nos. 2924, 2162, 2864, 3471, 3832, 3831, 1285, 1687, 1688, 1689, 4758, 4759, 5018, 5570, 2922, 2923, 2161, 1710, 1807, 1542, 708, 4606, 4605, 4095, 2219, 2221, 2076, 3786, 2419, 483, 484, 4863, 5096, 5097, 5386, 5346, 5347, 5348, 5349, 5490, 5385, 2524, 2346, 1800, 2467, 1645, 2338 4238, 5998, 4100, 5098 and 4902 of 1984. Writ Petitions Nos. 567, 132, 421 of 1985.
Almost all the writ petitions have been brought by different banks except for the following:-
Writ Petitions Nos. 4851, 4140 of 1979; Writ Petition No.5503 of 1981; Writ Petition No.1810 of 1982; Writ Petition No. 5129 of 1983 and Writ Petition No.5098 and 4902 of 1984.
In these writ petitions the Labour Courts have decided the cases against the employees and the orders have been challenged by them in constitutional petitions. The banks, however, support the orders of the Labour Courts, inter alia, also on the ground that the Labour Court had no jurisdiction. Since the question of jurisdiction is of primary consideration in these writ petitions as well as the petitions brought by the banks these petitions are being taken up together with the other connected petitions.
2. The banks were nationalised by the Banks (Nationalisation) Act, 1974. The same year by Ordinance XIX of 1974 sections 38-A to 38(1) were added to the Industrial Relations Ordinance, 1969. These provisions permitted the Federal Govt. to constitute a Wage Commission for fixing rates of wages and determining all other terms and conditions of service in respect of the workers of the banks. A Wage Commission was constituted the same year. It gave its award and after regular intervals successive Wage Commissions have given their awards. The provisions of Standing Orders Ordinance were applicable to the banks before their nationalisation, but a question arose whether the employees of the banks could still go to the Labour Courts for redress of their grievances or were they required to seek their remedy from the National Industrial Relations Commission, in view of the amendment in the law. This question was answered by the Lahore High Court in the case of Allied Bank of Pakistan Ltd. and 2 others v. Labour Appellate Tribunal, Lahore and 2 others 1982 P L C 1. It was held that the workers could seek their redress from the N.I.R.C. under clause (a) of subsection (3) of section 22(B) of the Industrial Relations Ordinance and that the Labour Court had no jurisdiction to enforce any right given to them by the Wage Commission Award. The scope of the term 'award' defined in section 2(li) of the I.R.O. was also considered and it was held that it did not encompass the Wage Commission's award. The Labour Courts, however, continued to exercise jurisdiction in spite of this judgment as the Punjab Labour Appellate Tribunal simply differed with the High Court. This has led 'the employer banks to bring a large number of writ petitions to the High. Court again challenging the jurisdiction of the Labour Court. Some of the writ petitions are being disposed of by this judgment.
3. During the preliminary discussion of Writ Petition No. 719 of 1982 the learned counsel for the parties agreed that the following questions required determination in all the connected writ petitions:-
(I) Whether or not the Wage Commission's Award is to be treated as an award of the N . I . R . C . and can be enforced by the latter;
(ii) Whether or not the Wage Commission's Award is covered by the definition of the term "award" as given in section 2(li) and as used in section 25-A of the Industrial Relations Ordinance; and
(iii) Whether the Wage. Commission's Award supersedes the provisions of Standing Orders Ordinance, 1968.
The question whether a dismissed employee is also a worker in the light of the provisions of section 2(xxviii) of I.R.O. is connected with the last question and has been debated, specifically.
4. As regards the basic question of the jurisdiction of the labour Court via-a-via that of the National Industrial Relations Commission, the two provisions of the I.R.O. are of paramount importance. These are section 22(B) (3)(a) and section 38(D) of the Industrial Relations Ordinance. They read as follows:
Section 22(B) ..............
(3)-- The Benches shall,--
(a) in relation to cases based on allegations of unfair labour practices brought before the Commission for trial of offences, or enforcement of, or for redress of individual grievances in respect of any right guaranteed or secured to any employer or worker by or under any law or any award or settlement, perform such functions and exercise such powers as are performed and exercised by a Labour Court, and .....
Section 38(D)--Decision of Wage Commission to be deemed to be an Award of the Commission:
A decision of the Wage Commission published under section 38(C) shall be deemed to be an award of the Full Bench of the Commission and the provisions of this Ordinance applicable to such award, including the provisions of sections 51 and 55, so far as may be and with the necessary modifications shall apply to the decision of the Wage Commission. " ,
5. The case of the employees is that the provisions of section 22(B) 3(a) relate only to criminal matters and the opening words of the provisions (in relation to cases based on allegations of unfair labour practices) govern the rest of the provisions of this clause. A closer scrutiny will, however, show that this clause consists of two parts. The first part relates to the trial of offences in relation to cases based on allegations of unfair labour practices brought before the Commission. and, the second part relates to enforcement of, or for redress of the individual grievance in respect of any right guaranteed or secured to any employer or worker by or under any law or any award or settlement. It is difficult to assume that the matter of redress of individual grievance in respect of any right guaranteed or secured is the same thing as trial , of offences for unfair labour practices. The contention of the employees that this clause relates only to criminal matters and not to civil remedies is, therefore, not based on sound reasons. Section 38(D) of the Ordinance gives the status, of an award of the Full Bench ox the N.I.R.C., to the decision of the Wage Commission. But what is more significant is that the provisions of the Industrial Relations Ordinance have been made applicable to such award with necessary modifications. These modifications have to be read in the light of the provisions of section 22(B) 3(a) under which the Benches of the National Industrial Relations Commission are to perform the functions of a Labour Court. The only logical conclusion regarding the jurisdiction of the Labour Court via-a-via N . I . R . C . , therefore, is that in , case of the award of the Wage Commission it is the National Industrial Relations Commission which has to act as Labour. Court and not Labour Court established under the Industrial Relations Ordinance. This proposition is, further elucidated by section 22(D) which provides for appeals not only against order of sentence but also against an award or a decision given by a single Bench of the ,Commission. The appeal lies to the Full Bench in the same manner as an appeal to the Appellate Tribunal against the decision of the Labour Court. The N.I.R.C. is, therefore. to perform the same function as the Labour Court does, in the case of the award of , the Wage Commission and in doing so its jurisdiction is not confined to dealing with cases of unfair labour practices only. The jurisdiction of the labour Courts on the other hand is ousted in view of the provisions of section 22-A(11) of the I.R.O.
6. The second question relates to the scope of the term "award" defined in section 2(ii) of the I.R.O. Section 2(ii) reads as follows:-
"'Award' means the determination by a Labour Court, Arbitrator or Appellate Tribunal of any industrial dispute or any matter relating thereto and includes an interim order."
Section 25(A) talks of the grievance of a worker under any award. The term 'award' as defined in section 2(ii) speaks only of three awards, the awards, given by Labour Court, an Arbitrator or Appellate Tribunal. It cannot be stretched to include a fourth award such as the award given by the Wage Commission, as the term "any award" in section 25(A) has to be viewed only in the light of the term 'award' defined in section 2(ii). It has been argued at considerable length that the Industrial Relations Ordinance being a beneficial legislation it is necessary to give a wider meaning to the term 'award' so as to include the Wage Commission Award in it, but the principle of beneficial construction can be invoked only where the language of the legislation is ambiguous and requires interpretation. In the present case the word 'any award' means only one of the three awards mentioned in section 2(i) and therefore, cannot be expanded to include the award given by the Wage Commission. If it was intended by the Legislature to include the award of the Wage Commission in term 'award', it could easily have amended the law when sections 38(A) to 38 (I) of the I.R.O. were brought on the Statute book in 1974, or even in 1972 when section 25(A) was introduced by Ordinance IX of 1972 when N.I.R.C. was established under section 22(A) also by the same Ordinance. It is quite clear, therefore, that the Wage Commission award cannot be enforced as an award under section 25(A).
7. The third question relates to the Standing Orders Ordinance and whether it has been replaced by the Wage Commission award. This is important because under the Standing Order 12(3) the termination of service of a workman can be challenged under section 25(A) of the I.R.O. and in case the Standing Orders Ordinance is no longer applicable, the workers will have to fall back upon the definition of a worker or workman given in section 2(xxviii) of the I.R.O. As regards the supersession of the Standing Orders Ordinance the Punjab Labour Appellate Tribunal has itself consistently held that the Wage Commission award has replaced the Standing Orders Ordinance and this view has not been separately challenged by any of the employees. The Punjab Labour Appellate Tribunal, however, relies on the proviso to section 1(4) of the Standing Orders Ordinance in order to hold that the Standing Orders Ordinance is not applicable. There are good grounds to support this conclusion. The proviso to section 1(4) of the Standing Orders Ordinance, 1968 excludes the application of the Standing Orders Ordinance from Industrial and Commercial establishments carried on by or under the authority of the Federal or Provincial Government Where statutory rules of service, conduct or discipline are applicable to a worker employed therein
8. Under section - 5 of the Banks (Nationalisation) Act, 1974 the ownership, management and control of all banks stand transferred to the Federal Government. -Under section 4 of the Act, "the Federal Government or a Corporation wholly owned or controlled by the Federal Govt. shall have the exclusive right to establish a bank". It is clear, therefore, that henceforth the Federal Govt. alone can establish a bank and the ownership, a management and control of the existing banks stands transferred to it. It has been argued on behalf of the employees that the nationalised banks are being run by a Banking Council and not by or under the authority of the Federal Government. There is, however, no force in this argument because the term authority shall have to be viewed in terms of the authorisation visualised by section 4 of Act of 1974 under which the Federal Government alone can establish a bank. It cannot, therefore, be held that the nationalised banks are not being run by or under the authority of the Federal Government. The case of the National Shipping Corporation v. Sind Labour Appellate Tribunal and 2 others 1975 P L C 1 is, therefore, quite distinguishable from the facto of the present case.
9. As regards the nature of the rules applicable to the employees of the banks, section 38-A bf I.R.O. itself enjoins upon the Wage Commission, the responsibility of fixing rates of wages and determining all other terms and conditions of service of workers of the banks. They . authorisation thus having flown directly from the statute, the rules framed by the Wage Commission cannot but be statutory in nature. It is the source of power and not the form of its exercise which is important.
10. It was argued that by asking the Wage Commission to frame the service rules, the legislature has abdicated from its function. The rules are thus ultra vires of the constitution. There is, however, no force in this argument. The legislatures now leave matters of detailed f, regulations more and more to the executive. The legislature in the present case, therefore, has not made any excessive delegation of its authority, by asking a subordinate statutory authority to frame service rules.
11. The Punjab Labour Appellate Tribunal was justified in holding that the Standing Orders Ordinance stands excluded on account of the proviso to section 1(4) of the Ordinance, but it should also have considered the effect of section 38(I) of the I.R.O. which also excludes the application of Standing Orders Ordinance. Under this provision the provisions of sections 38(A) to 38(H) shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the coming into force of the Industrial Relations (Amendment) Ordinance, 1974. Therefore the award of the Wage Commission given under section 38(A) will have effect notwithstanding the provisions of the Standing Orders Ordinance. In view of these' considerations it is clear that the West Pakistan (Standing Orders) Ordinance has been superseded 'by the Wage Commission Award.
12. This brings us to the question of the dismissed employees and whether they are workers under ,section 2(xxviii) of the I.R.O. Under this provision only such dismissed employees are covered by the definition of a worker whose dismissal is connected with or is a consequence of an industrial dispute or has led to a dispute. The argument advanced on behalf of, the workers is that the- term "is employed" used in the opening words of the definition, even though, used in the present tense, has to be read as "has been employed" and thus includes all dismissed employees. There is, however, no scope for straining the definition to this extent. The law has specifically included only one category of the 'has been'. All the other categories of 'has been' will, therefore, be outside the scope of the definition of workers. An interesting argument was advanced on behalf of the workers to show that all dismissed employees fall in the category of workers. It was argued that section 25(A)(4) treats all applications as industrial disputes and since industrial dispute is defined as a dispute concerning employment or non-employment of a person, therefore, the dismissal of all employees is necessarily connected with a dispute. This argument is, however, no more than a clever calculation. In the presence of the clear language of section 2(xxviii) there is no room for finding al contradictory interpretation. If the Legislature intended to include all the dismissed employees in the category of workers there was nothing preventing it from saying so specifically, rather than leave it to the guess work and calculation of the lawyers. The Indian Legislature made their intention known by adding section 2-A, a deeming clause, to treat dismissal etc. of an individual workman to be an industrial dispute. This does not however, mean that a dismissed employee has no remedy. He can still seek his remedy, but he can do it only through, the Collective Bargaining Agent or through a civil suit.
13. The above discussion shows, that by amendments in the I. R O. a specific role has been assigned to the N.I R.C. 14 bra to. perform both penal and remedial functions to the exclusion of the Labour Courts. Wage Commission and their awards are the exclusive preserves of the N.I.R.C. The latter function of the N.I.R.C. is preventive inn nature as the Wage Commission can be asked to act well in advance of the arising of an actual dispute and without going through the motions and stresses of raising of a dispute. These changes in law are, therefore, progressive, in keeping with the history of labour legislation.
14. In view of the above discussion it is clear that the Labour Court has no jurisdiction in the case of bank employees covered by the Wage Commission Award.. The orders of the Labour Courts and the Punjab Labour Appellate Tribunal are, therefore, of no legal effect. The writ petitions brought by the banks are, therefore, allowed. Writ petitions Nos. 4851 and 4140 of 1979; 5503 of 1981; 5098, 4902 of 1984: 5129 of 1983 and 1810 of 1982 are, however, dismissed although for reasons different from these given by the Labour Court. There shall be no order as to costs.
A . A .
Petition allowed.
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