EMPLOYEES UNION vs PAKISTAN MACHINE TOOL FACTORY, LANDHI AND 2

These two constitutional petitions, namely, Petitions Nos. 670 and 671 of 1973, arise out of a common order passed by the Sind Labour Court, Karachi. The former has been filed by the Pakistan Machine Tool Employees' Union as the Collective Bargaining Agent, while the petitioners in the latter are the 21 employees of the factory, who have been dismissed from their services on charges of misconduct. Both these petitions will be disposed of by a common judgment. , The circumstances giving rise to these petitions are as follows:

1. The Pakistan Machine Tool Factory remained closed from the 23rd of September 1972 till the 8th October 1972, because of an industrial dispute between the employer and the employees. On the 28th of September 1972, the provisions of the Pakistan Essential Services (Maintenance) Act. 1952, hereinafter called the Act, came to be applied to this Factory by Gazette Notification No. S. R. O. 972 (1)/72 dated the 28th September 1972. On the 9th of October 1972, when the Factory opened, a notice was found to be put, up on the Notice Board of the Factory, suspending a number of workmen on charges of misconduct. The charge-sheet was sent to the workmen at their local addresses.

2. It is alleged that most of them happened to be out of station as they had left for their own native places. As a result of an ex parte inquiry, the petitioners were dismissed from service without even a second show-cause notice.

3. The petitioners submitted a grievance petition under section 25-A of the Industrial Relations Ordinance against the dismissal of the petitioners, to the respondent No. 2, praying for their re- instatement. The application however came to be dismissed in limine on 23-2-1973, on the ground that the remedy, if any, was available from the Director, Provincial Labour Welfare, Karachi The petitioners then filed an appeal before the Sind Labour Court, Karachi, which again came to be dismissed for want of jurisdiction. These orders have been impugned in these petitions.

4. Section 7-A of the Act of 1952, which was inserted by the Pakistan Essential Services (Maintenance) Ordinance III of 1965, around which the controversy revolves, reads as under: "The provisions of this Act shall have effect, notwithstanding anything to the contrary contained in the Trade Unions Act, 1926 or the Indus--trial Disputes Ordinance, 1959, or any other law."

5. The contention of Mr. Ali Amjad, learned counsel for the petitioners was that this ouster clause will affect only the statutes expressly mentioned, or those on the statute book at the time when the amendment was introduced. According to him, it would leave the provisions of the Industrial Relations Ordinance, 1969 and the West Pakistan (Standing Orders) Ordinance, 1968, totally unaffected. I am afraid there is no substance therein.

6. The Trade Unions Act, 1926, and the Industrial Disputes Ordinance, 1959, had been expressly mentioned in section 7-A of the Act, because they occupied the same field and were in conflict with the provisions of the said Act of 1952. The use of the words "any other law" clearly shows that it was meant to include the provisions of the earlier laws, if any, on the subject, or those akin to them, which might be promulgated subsequently. It is free of any qualifications, and I cannot see how it could be restricted to refer only, to the earlier laws. This view finds further support from section 3(1) of the said Act, which reads as under: "3(I) This Act shall apply to every employment under the Central Government and subject to the provisions of subsection (2), to any employment or class of employment which the Central Government may, by notification in the official Gazette, declare to be an employment or class of employment to which this applies."

7. As pointed out by Shah Bashir Alam, learned counsel for the respon--dent No. 1, general provisions do not derogate from special provisions. This is based on the old maxim "Generalia specialibus non derogate". If the Legis--lature makes a special Act on a particular subject and later makes a general Act, which, t-, its terms, would include the same subject whose provisions are in conflict with the provisions of the special Act, the provisions of the special Act will override the provisions of the general Act, unless it is clearly born out that the provisions of the special Act were in the mind of the Legislature and intended to abrogate the same. Put in the converse way, the position I even simpler--- (See Corporation of Madras v. Madras Electric Tramway Ltd. (PLD 1973 SC 236).

8. The preamble of the Industrial Relations Ordinance, 1969, reads as under: "An Ordinance to amend and consolidate the law relating to the for--mation of Trade Unions, the regulation of relations between employer and workmen and the avoidance and settlement of any differences or disputes arising between them; Whereas it is expedient to amend and consolidate the law relating to the formation of Trade Unions, the regulation of relations between employers and workmen and the avoidance and settlement of any differences or disputes arising between them or matters connected therewith and ancillary thereto; And whereas the national interest of Pakistan in relation to the achievement of uniformity requires central legislation in the matter; . . . . . . . . ."

9. Similarly, the West Pakistan (Standing Orders) Ordinance, 1968, to which reference. Was made during the course of the arguments, had an avowed object, namely, consolidating "the laws relating to industrial employment.. . . . . . . . . " These covered the same spheres of activities, which were expressly excluded. Actually Mr. Ali Amjad stressed, though in a different context altogether, that these provided greater rights and benefits to the workmen, than the previous legislation on the subject. Full effect has therefore to be given to the provisions of section 7-A of the said Act.

10. It was argued by Mr. Ali Amjad, learned counsel for the petitioners, that section 25-A of the Industrial Relations Ordinance, which was inserted by an amendment dated 13-4-1972 provided special rights to the workmen and a special forum for their remedy, which was not in existence at the time the Act was passed, while the rules framed under the said Act did not give any power to the Central Labour Commissioner to hear any grievances against the dismissals and therefore there was no machinery under the rules for the re-instatement of the workmen. Further, according to him, no condition had been specified, by which the termination of service may take place. The conditions in the (Standing Orders) Ordinance, 1968, will therefore continue to govern the case of the petitioners.

11. Section 6(1) of the Act, however, gave powers to the Central Government "to make rules, regulating or empowering a specified authority to regulate the wages and other conditions of service of persons or any class of persons engaged in any employment or class of employment declared under section 3 to be an employment or class of employment to which the Act applies".

The "conditions of service" will embrace questions relating to the employment or non-employment or the terms of employment of any person, and the jurisdiction to regulate the wages and the other conditions of service, has been vested in the authority under the Act. The contention of Mr. Ali Amjad, learned counsel for the petitioners, that the rules gave no powers to the Central Labour Commissioner to hear any grievance against the dismissals, and therefore no machinery had been created under the rules for the re-instatement of workmen; hay no force.

12. The scheme of the Act and the rules framed thereunder, is that the grievances of the workmen and the industrial disputes between the employer and the workmen were to be attended to, by the central Labour Commissioner who had a final say in the matter. It is true that it provided no right of appeal and whittled down many other rights, bur: it does constitute a method for settling the industrial disputes, though different from the one under the Ordinances referred to above. The two methods are mutually inconsistent and therefore the one prescribed under the Act and the rules, has to prevail. The said Act not only regulates the procedure for settling the dispute but also affects the rights of the employer and the workmen by virtue of the Notification in question. This was the view taken in Syed Manzoor Ali v. Messrs National Bank of Pakistan and others being Misc. Appeal No. 18 of 1968, under the Industrial Disputes Ordinance, 1959, which was decided by a learned Single Judge on 9-1-1973 and reported in 1973 PLC 94. 1 am in respectful agreement with the same.

13. It is true, as in the case of the petitioner Amin Pasha, that the misconduct pertained to a period prior to the issuance of the Notification, but it is an admitted position that the orders of dismissal and the petitions filed by the petitioners before the Junior Labour Court, Karachi, were subsequent thereto. By that time, the Labour Courts had been divested of their jurisdic--tion. The Labour Court were therefore right in the conclusions reached by them.

14. The orders are not open to any exception. I will, therefore,' dismiss the petitions but with no orders as to costs.