ISLAMABAD: The Chairman of National Industrial Relations Commission (NIRC) has set aside the notification of reduction/deduction in salaries of Pakistan International Airlines Corporation (PIAC) staff including pilots during Covid-19 pandemic, deeming it an exercise that is in excess of jurisdiction and unsustainable in law.
This is first of its kind of order issued by the chairman NIRC against the national flag carrier.
The case on the behalf of petitioners (the PIA employees) was pleaded by Advocate Supreme Court, Syed Ahmad Hassan Shah, while Justice (Retd) Shahid Bajwa appeared for the respondent airline.
The national airline reduced salaries of its staff including pilots on account of COVID, which was challenged by some employees on the ground that Essential Services Act, 1952 and the rules framed there under in 162 read with the provisions of the Pakistan International Airlines Corporation (Conversion) Act, 2016 does not permit such action.
The chairman NIRC after thoroughly considering the law laid down by the Supreme Court has ruled that when essential services law is invoked, the respondent corporation could not have taken upon itself the powers vested in the Chairman NIRC.
Thus, salaries of petitioners could not have been reduced without proper procedure.
It is settled that this action is within the power of Chairman NIRC to “regulate” matters relating to entities to which the Federal Government extends application of the Essential Services Act.
Chairman NIRC, therefore, set aside the notification to reduce salary being illegal. According to an order of the Chairman NIRC issued on Tuesday, the Federal Government under Section 3(1) of Pakistan Essential Services (Maintenance) Act, 1952 declared all the classes of employment in PIAC where the Essential Service (Maintenance) Act shall be applied, which empowers the Chairman NIRC to regulate the wages and other conditions of service and none other, during applicability of such law.
In view of the judicial precedents of superior courts l, which were discussed in the order, it is very much clear that during applicability of Essential Service (Maintenance) Act the employer having no authority to determine/deduct the wages and other conditions of service without intervention of Chairman NIRC, even the power of Chairman also restricted under sub-section (b) of Rule 3(2), of Pakistan Essential Service (Maintenance) Rule 1962 to not prescribe any terms and conditions which adversely affect the rights of employees.
The respondent airline and its management had issued impugned circular without taking into consideration the fact that the Essential Service Act is applicable and also in violation of Section 3(6) (iii) of the Pakistan International Airlines Corporation (Conversion) Act, 2016, which provides that the salaries, emoluments and all other terms of service of employees, whether permanent or contractual, shall not be changed to their disadvantage.
The chairman NIRC concluded that the upshot of the matter was that the increase or decrease in salary definitely comes within the scope of the power to regulate, which powers have only been bestowed upon the Chairman NIRC under the Pakistan Essential Services Maintenance Act, 1952 and Essential Service Rules, 1962.
In this case, the notification has been issued without regard to the fact that applicability of the said Act and Rules extends to all classes of employment in the PIA.
Counsel to the petitioners, Syed Ahmad Hassan Shah, ASC termed this decision as a “landmark” decision, which upholds the law in letter and spirit. The landmark order notes that instead of adopting a proper procedure under the law to invoke the said jurisdiction vested in the chairman NIRC for regulating the wages, the respondent has taken upon itself the powers and jurisdiction to proceed with the matter which is totally against the law and the powers have been exercised which the respondent does not have at all and in violation of law such process cannot be allowed unchecked.
It is not open to the respondent for doing an illegal act taking the vested rights provided under the Statute to others and later on when the same is challenged by taking stance that it is adjudication taking shelter under this pretext that it does not come within the meaning ‘regulate’ and acceptance of these arguments would amounts to allow the illegal act and usurping the power of Chairman NIRC conferred on him under the law.
It is not adjudication in the strict sense as it is not an attempt to resolve the controversy between two or more parties but pin pointing the illegal assumption of power by the respondent to decrease the monthly salary which is function of the Chairman NIRC, the authority specified under Pakistan Essential Services (Maintenance) Rules 1962.
It would also amount to give a premium of such illegal steps taken by the respondent.
Therefore, the impugned Circular titled “PIA employees pays during Covid-19 pandemic” issued in excess of jurisdiction is not sustainable and is set aside, however, it is for the respondent if they are so advised to agitate the matter to regulate the wages by the Authority specified under the Pakistan Essential Service Maintenance Act, 1952 and Essential Service Rules, 1962 subject to all legal and valid objections and these findings would not be an obstacle to approach under the aforesaid provision to justify their claim.