Find a Lawyer

‑‑‑S. 25‑A‑‑Pakistan‑ Essential Services (Maintenance) .Act (LIII of 1952;, Ss. 5 & 7‑‑Grievance petition‑‑Dismissal from service‑‑Service of petitioner worker coming under purview of Act LIII of 1952‑‑Remedy for dismissal of petitioner, allegedly without reasonable cause, held, could be had by resort to Ss. 5 & 7 of Act LIII of 1952 and Labour Court had no jurisdiction in the matter.

1980 P L C 752; 1979 P L C 25; 1982 P L C 1023, P L D 1982 Kar. 33; 1983 P L C 16; P L D 1982 S C 113; P L D 1983 Lah. 161; 1983 P L C 1244 and P L D 1982 Kar. 465 rel.

1982 P L C 1023; P L D 1982 Kar. 33 and 1983 P L C 16 ref.

Muhammad Junaid Farooqui for Petitioner.

Fateh Ali W. Vellani for Respondents.

M.L. Shahani: Amicus curiae.

Dates of hearing: 12th, 13th and 19th March, 1986.

MUHAMMAD ZAHOORUL HAQ, J

.‑‑This petition is directed against the orders passed by Labour Court dated 3‑4‑1983 and of Appellate Labour Tribunal dated 30‑10‑1983, whereby the request of the petitioner for re‑instatement to his post of Assistant was declined on the ground that Pakistan Essential Services (Maintenance) Act LIII of 1952 had been made applicable to respondent.

2. The relevant facts are that the petitioner was employed with respondent No.l. His services were terminated on 12‑10‑1982. He served notice without any success and thereafter filed application under section 25(A) of the I.R.O. of 1969. The respondent No.1 resisted the same on the ground that provisions of Pakistan Essential Services (Maintenance) Act of 1952 had been made applicable to them and hence Labour Court had no jurisdiction in the matter. The Labour Court upheld that objection and dismissed the application. The appeal filed by the petitioner met the same fate and hence this petition.

3. Mr. Junaid Farooqui, learned counsel for the petitioner submitted that the respondent No. 2, had failed to exercise their jurisdiction in the matter and that since the petitioner had sought re‑instatement to his post and there was no other forum except that of the Labour Court which could provide that relief to him under section 25(A) of I.R.O. of 1969 read with the provisions contained in the Standing Orders Ordinance, 1968, therefore, the Labour Court alone had jurisdiction in the matter as Pakistan Essential Services (Maintenance) Act, LIII of 1952 did not contain any provision of adjudication of disputes of such nature. He however, had conceded that Act LIII of 1952 was applicable.

4. Mr. Fateh Vellani, learned counsel for respondent No.l took up the position that the Act LIII of 1952 was a special legislation which had special provision in respect of maintenance of essential services and it had clearly stipulated a situation in section 5 that termination or abandonment of service in an essential undertaking was an offence if the' same was done without a lawful excuse and section 7 of the same Act had specifically provided a forum of a Magistrate for the trial of offence under the Act and hence other forums were clearly excluded in that respect. Therefore, Labour Court could not adjudicate where the question of termination of services of an employee in essential service was involved.

5. Mr. A. Hafiz for the respondent No.4 took up the position that it had no privity of contract with the petitioner and it had not acquired the liabilities of respondent No. 1, therefore, respondent No.4 had been wrongly impleaded as a party in this petition. He also submitted that respondent No.5 had instructed him to state that they had nothing to do with this matter and hence they were wrongly joined.

6. It appeared to us that there was a conflict between the decisions of some Benches of this Count in the matters where the question of Pakistan. Essential Services (Maintenance) Act LIII of 1952 was involved and since Mr. M.L. Shahani had appeared in some of those cases, therefore, we requested him to assist the Court in arriving at a decision.

7. We have heard the learned counsel at some length and are grateful to them for the assistance rendered.

8. Section 5 of the Act LIII of 1952 provides that in respect of the Services to which this Act has been made applicable it would be an offence if the employee abandons service without lawful excuse or the employer terminated the services of an employee without lawful excuse.

9. Section 6 of the same authorises the Specified Authority to regulate the terms and conditions of an employee and where such regulation has been made the breach thereof would be regarded as an offence.

10. Section 7 provides for filing of a complaint for an offence under the said Act, by an officer authorised by the Central Government, before the relevant Magistrate and prescribes a penalty of one year's imprisonment for one who commits an offence under the said Act.

Section 7(A) of the same Act provides that provisions of Act LIII of 1952 will have effect notwithstanding anything to the contrary provided in the Industrial Relations Ordinance, 1969.

11. The respondents Nos. 2 and 3 have held that since section 5 creates a right against termination of service without lawful excuse and has provided a remedy by making such termination as an offence and has further provided the forum of a criminal Court for resolving such a dispute, therefore, the other remedies are excluded and, therefore, the Labour Court has no jurisdiction to adjudicate upon the question whether the termination was without lawful excuse or not.

12. Mr. Fateh Vellani had submitted that in 1980 P L C 752 one of us had held that even in respect of termination of service the employee can only resort to the provisions of Act LIII of 1952 where the service has been declared to be an essential service. In 1979 PLC 25; Z. A. Channa, J, of this High Court had also held that in respect of an essential service a workman can only resort to the provisions of Act LIII of 1952 and not to any other law. However, in 1982 P L C 1023 a Division Bench of this Court had held that the Labour Court retains jurisdiction to decide cases of individual grievances of workmen under Industrial Relations Ordinance.

13. Mr. M.L. Shahani and Mr. Junaid Farooqui had relied upon a Full Bench case of this Court in P L D 1982 Kar. 33 where it had been held that the Labour Court retains jurisdiction in respect of cases covered by Act LIII of 1952. Mr. Fateh Vellani had pointed out that in 1983 P L C 16 a Division Bench of this Court had deserted from the view taken in P L D 1982 Kar. 33 and 1982 P L C 1023 and it had been clearly held that the Labour Court had no jurisdiction in case of terms and conditions of employment in cases where the employment is governed by the Essential Services Act.

This Division Bench had followed the decision in P L. D 1982 SC 113. In P L D 1982 S C 113 the case of K E S C v. N.I.R.C. it was held as under:

"Where a statute provides a forum for dealing with the violation no other authority can be a substitute for it the more so 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 the service."

In the above‑cited Supreme Court case the services of the employee had been terminated by K E S C which was covered by Act LIII of 1952 and he had invoked the jurisdiction of the National Industrial Relations Commission. The Supreme Court had held that the N.I.R.C. had no jurisdiction to entertain the application for re‑instatement as the N. I. R. C. is its capacity as specified authority can only regulate the terms and conditions of the service but could not act as a forum for the adjudication of the disputes regarding contravention of the provisions of sections 5 and 6 (2) of Act LIII of 1952. But the Supreme Court had also made the following observations in the said case: ‑

Any discontinuance of employment has necessarily to be judged from the test laid down in the section, namely, that it was without reasonable excuse. Therefore, if the respondents felt aggrieved either by their termination of services or dismissal they should have taken steps to institute the proceedings as provided by section 7 (Act LIII of 1952) and in that event it would have been open to the Court to determine as to whether the termination, according to the terms and conditions of the 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.

14. The argument of Mr. Vellani was that Act LIII of 1952 being a special law and the termination of an employee without lawful excuse having been treated as an offence the said Act had clearly provided a forum of a Magistrate for determining the lawfulness or otherwise of the termination of service. And since this was a special and an emergency legislation, therefore, the cases governed by this Act could be only referred to the forum provided in the Act itself and, therefore, the forum of Labour Court was necessarily excluded. He relied upon very heavily upon the case of P L D 1982 S C 113 and particularly the observations made at page 119 and the last para of the said judgment.

15. Mr. M. L. Shahani, on the other hand, had contended that the Supreme Court itself had observed in a latter case that P L D 1982 SC 113 was decided on its own facts and, therefore, the said judgment should be restricted to the facts involved therein and since the present case is not in respect of N.I.R.C., therefore, P L D 1982 S C 113 should not be applied to the present case.

16. Mr. Vellani's argument was that since Act LIII of 1952 is designed to be a harsh interference with the ordinary law of master and servant, therefore, the observation of the Supreme Court in P L D 1982 SC 113 are fully applicable to the present case.

17. We are of the view that the Supreme Court case should be followed in this case in view of the observations appearing at page 1191A where a special forum is to be resorted to in case of the violation of the provisions of that statute.

18. We do not ourselves want to extend the application of that Supreme Court case to more that what had has decided. It had been decided in that case that N.I.R.C. could only regulate the terms and conditions of service as a specified authority and that it could not act as a forum for adjudication of disputes. That is, of course, the main decision of the Supreme Court in that case of K.E.S.C. but we cannot loose sight of the other observations of the Supreme Court particularly the last observations of the Supreme Court on page 120 is very relevant for the present purpose which has been reproduced above and since the B respondent in this case had alleged that he was dismissed without reasonable cause and, therefore, he should be re‑instated, therefore, it was a clear case which; was covered by the provisions of sections 5 and 7 of Act LIII of 1952 ‑and, therefore, the respondent had to resort to the remedy available under section 7.

19. In our view, it would be a very anamolous situation if two employees who are dismissed by the same order on the same facts by an employer covered under Act LIII of 1952 and one employee went before the Labour Court for re‑instatement and he was ultimately re‑instated to the job while the other applied under section 7 for pushing the employer who terminated his service without lawful excuse and the Magistrate enquiring into that case came to the conclusion that his services had been lawfully terminated and, therefore, no offence had been committed under section 5. This would create a very anamolous situation. The Legislature could not have conceived such situation to arise and, therefore, it is obvious that if the basis of attack is illegal termination of service for which a forum under section 5 of the Act LIII of 1952 has been provided then the said grievance should be allowed to be agitated only under section 7 by the Magistrate and not under section 25‑A, I.R.O. by the Labour Court. After all what is the use of having provided for the breach of offence under section 5 if the other particular under section 25‑A of I.R.O. was also to be made available to the aggrieved person.

20. It is correct that section 25‑A, I. R.O., is wider in its scope then the provisions of section 7 of Act LIII of 1952 and section 25‑A can allow the re‑instatement while section 7 of Act LIII of 1952 does not provide the relief of the re‑instatement even in case where the Court under section 7 comes to the conclusion that the termination of service was without lawful excuse. But a single answer to that can be that section 7 of Act LIII of 1952 was a much harsher section for the employer who commits the offence of having terminated the service of an employee illegally as it provides a sentence of one year and, therefore, every employer could be much more reluctant to avoid terminating the service of an employee without lawful excuse as he would not like to go to jail and, therefore, indirectly section 7 of Act LIII of 1952 should be regarded as a much more effective way of avoiding illegal termination of service of an employee.

21. We may point out here that P L D 1982 S C 113 has been followed in P L D 1983 Lah. 161 where it was held that in case of termination of service a person can resort only to section 7 of Act LIII of 1952. Similarly in 1983 P L C 1244 where a dismissed employee of Sui Northern Gas Company which was governed by Act LIII of 1952 and where the Labour Court had re‑instated the employee it was held that the Labour Court had acted without jurisdiction. Finally in 1983 P L C 16 a Division Bench of this Court had followed the Supreme Court view and held that an employee of Pakistan Steel Mill which was governed by Act LIII of 1952 could only resort to the provisions of section 7 of Act LIII of 1952. We may also point out that in P L D 1982 Kar. 465 one of the Judges of this Court had explained that his judgment in 1982 P L C 1023 was based really upon a concession made by a counsel.

22. Consequently, we are of the view that this petition deserves to be dismissed.

M. Y. H. /5014/ K Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.