Last Updated on Tuesday, 30 November 1999 05:00 Wednesday, 03 August 2011 10:31
On July 18, 2011, the Ministry of Law and Parliamentary Affairs promulgated the Industrial Relations Ordinance, 2011. This Law in terms of Section 1 (2) extends to the whole of Pakistan and in terms of Section 1 (3) it shall apply to all persons employed in any establishment or industry in the Islamabad Capital Territory or carrying business in more than one Province.
The preamble to the said Ordinance mentioned that the Ordinance has been promulgated to consolidate and rationalise the Law relating to the formation of trade unions and improvement of relations between employers and workmen in the Islamabad Capital Territory and in Trans-Provincial Establishment and Industry.
Under the Constitution of Islamic Republic of Pakistan 1973, prior to 1 8th Amendment there was a Concurrent Legislative List. Item No 26 and 27 of the said Concurrent List read as under:
---- 26: Welfare of labour, conditions of labour, provident funds, employers liability and workmen s compensation, health, insurance including invalidity pensions, old age pensions.
---- 27: Trade Unions, industrial and labour disputes. In other words, prior to the 18th Amendment in the Constitution, passed by the Parliament on 20-04-2010, the Labour Laws pertaining to Trade Union Industrial and Labour Disputes, welfare of labour, workmen s compensation, old-age pension, invalidity pensions could be promulgated both by the Federal Government as also the provincial governments. However, the Parliament passed the 18th Amendment on 20-04-2010, whereby the Concurrent Legislative List was omitted and all the matters mentioned therein came within the jurisdiction of the province for the purpose of making the legislation dealing with the said law.
This aspect of the matter has been dealt with extensively by the Supreme Court of Pakistan in Constitution Petition No 24 of 2011 titled Air League of PIAC Employees vs Federation of Pakistan, Ministry of Labour and Manpower, Islamabad decided by the Full Bench of the Supreme Court of Pakistan presided over by Chief Justice of Pakistan Iftikhar Muhammad Chaudhry and announced on 2nd June, 2011. In terms of Para 18 on Page 17 of this judgement, the Supreme Court of Pakistan has been pleased to observe as under:-
Furthermore by means of Eighteenth Constitutional Amendment the Concurrent Legislative List was abolished and the Federal Government had lost the power to legislate regarding Labour Welfare and Trade Unions, which subject devolved upon the provinces, it is to be noted that presently, no Federal Legislation can be made on the Labour matters except recourse to the provisions of Article 144(l) of the Constitution, which provide that if one or more Provincial Assemblies pass resolutions to the effect that Majlis-e-Shoora (Parliament) may be law regulate any matter not enumerated in the Federal Legislative List in the Fourth Schedule, it shall be lawful for the Majlis-e-Shoora (Parliament) to pass an Act for regulation that matter accordingly, but any Act so passed may, in respect to the Province to which it applies, be amended or repealed by the act of the Assembly of that province.
The Trade Unions, which are operating within one province, can be dealt with under the Labour Laws enacted in that Province and the workman can also avail the appropriate remedy provided under the said legislation.
Again in Para 27 on page 25 of the said Judgement the Supreme Court of Pakistan were pleased to observe as under:
Now turning towards the submission of the learned Amicus Curiae on the vires of the Provincial Labour Laws on the ground that there are many Institutions/Corporations which have their branches all over the country and there were countrywide Trade Unions but now Trade Union can only be registered under the legislation of a specific province. It is to be noted that instant proceedings have been initiated under Article 184 (3) of the Constitution, with a limited purpose of having a declaration that IRA, 2008 on the basis of 18th Constitutional Amendment stood protected and continued till 30th June 2011, therefore, the vires of the same cannot be considered in such proceedings.
However, as stated earlier Article 144 (1) of the Constitution has provided a mechanism for making central legislation in respect of matters not covered in the Federal Legislative List. Reading the aforesaid Judgement of the Supreme Court of Pakistan in terms of Article 189 of the Constitution is the decision of the Supreme Court of Pakistan which is binding on other courts. This provision of Article 189 of the Constitution of Pakistan 1973 reads as follows:
Any decision of the Supreme Court shall, to the extent that it decides questions of Law or is based upon or enunciated principle of law is binding on all other courts in Pakistan.
Furthermore Article 190 of the Constitution of Pakistan 1973 provides as follows: All Executives and Judicial Authorities throughout Pakistan shall act in aid of the Supreme Court.
Reading the judgement of the Supreme Court of Pakistan and the aforementioned Articles of the Constitution of Pakistan, including the 18th Amendment, it is very clear and obvious that no Federal Legislation can be made on labour matters except recourse to the provision of Article 144 (1) of the Constitution which provides that if one or more provincial assemblies passed resolution to the effect that the Majlis-e-Shoora (Parliament) may by Law regulate any matter not enumerated in the Federal Legislative List in the 4th Schedule, it shall be lawful that the Majlis-e-Shoora (Parliament) pass an Act for regulating that matter accordingly. Even before Supreme Court of Pakistan it was pleaded that there are Institution and Corporations having branches all over the country and Trade Unions country wide, yet keeping in view the 18th Amendment, the Supreme Court of Pakistan have reiterated its earlier observations and laid down guidelines as under:-
However, as stated earlier Article 144 (1) of the Constitution has provided mechanism for making central legislation in respect of matters not covered under Federal Legislative List.
It is, therefore, very clear and obvious that IRO, 2011 promulgated by the Federal Government on 18th July, 2011 is not only ultra vires the Constitution of Pakistan 1973 read with Constitution (18th Amendment) Act 2010 but is also in clear breach and violation and in contempt of the judgement delivered by the Apex Court in the case of Air League of PIAC Employees in C. P. No 24/2011. The correct course of action should have been for each of the four Provincial Assemblies to have passed resolutions to the effect that Majlis-e-Shoora (Parliament) may by law regulate any matters not enumerated in the Federal Legislative List in the Fourth Schedule to pass an Act for regulating that matter accordingly in relation to Unions whose membership extends to more than one province.
Needless to mention it is not open for Majlis-e-Shoora either to circumvent or bypass the Constitution of Islamic Republic of Pakistan 1973 and or even the decision of the Apex Court as in the instant case. Invariably Supreme Court of Pakistan in its judgement does not lay down and provide any guidelines for Majlis-e-Shoora (Parliament) as to how they should ensure central legislation is promulgated even in respect of matters not covered in the Federal Legislative List. However, it goes to the credit of an independent judiciary of this country presided over by the Chief Justice of Pakistan Justice lftikhar Muhammad Chaudhry who has specifically laid down guidelines which should be followed and to be adopted by the Provincial Legislature Under Article 144 (1) of the Constitution, these would enable the Majlis-e-Shoora to make central legislation even in respect of matters not covered in the Federal Legislative List.
The preamble to the said IRO 2011 provides for consolidation and rationalisation of law relating to formation of trade union and management relations between employers and workmen in the Islamabad Capital Territory and in Trans-Provincial Establishment and Industry. This phrase Trans-Provincial Establishment and Industry does not appear in the Constitution of Pakistan Federal Legislative List, Item No 13 of Part II of Federal Legislative List referred to Inter Provincial Matters and Co-ordination . This is altogether different from Trans-Provincial Establishment and Industry . Already Supreme Court of Pakistan has provided guidelines in the judgement in C. P. No 24/2011 to cater to those unions who are what is otherwise known as Industry wise Trade Unions meaning Trade Unions whose membership is in more than one Province, then admittedly Provincial Government cannot frame legislation in relation to such Trade Union. It is for this purpose the apex court gave in larger national interest observations aimed at guiding the Majlis-e-Shoora (Parliament) as also provincial assemblies to the effect that if they so desire the Federal Government to promulgate the law which is now no more on the Federal Legislative List, then the provision of Article 144 (1) of the Constitution of Islamic Republic of Pakistan 1973 may be invoked by those Provinces passing resolutions and authorising Federal Government to promulgate Ordinance to be approved by the Majlis-eShoora. The phrase inter Provincial Matters and Co-ordination as used in Item No 13 of the Part II of the Federal Legislative List is not be equated with those establishments or industry whose branches or unit extends in more than one province.
The entire IRO 2011 is therefore ultra vires the Constitution of Islamic Republic of Pakistan 1973 and has been promulgated by the Ministry of Law, Justice and Parliamentary Affairs in violation not only to the Constitution but also the guidelines provided for and the interpretation given in Constitution Petition No 24/2011 in the case of Air League of PIAC by the Apex Court and is liable to be struck down. It is not out of context to point out that IRA 2008 expired on 30-04-2010. In between on 20-04-2010 18th Constitutional Amendment was passed by the Parliament. In terms of Article 270AAA (8) on the omission of Concurrent Legislative List process of devolution of matters mentioned in the said List to the Province shall be completed by 30th June, 2011. The process of devolution having been completed on 30th June, 2011, promulgation of IRO 2011 on 8~h July, 201 1 is even ultra vires Article 270AAA (8) of the Constitution of Pakistan and even on this ground is liable to be set aside. Needless to mention on 30th April, 2010 IRA 2008 expired by virtue of the Sunset Clause namely 87 (3). All the four Provincial Assembles have since then made their own Legislation in respect of Industrial Relations in keeping with the essence and spirit of 18th Constitutional Amendment. Punjab Industrial Relations Ordinance was promulgated on 30thJune, 2010 and its life extended up to 30th September, 2010 and thereafter on 9th December, 2010, Punjab Industrial Relations Act 2010 has been passed by the Punjab Provincial Assembly. Khyber Pakhtunkhwa IRO 2010 was promulgated on 14th July, 2010 and since then converted into Act. Balochistan Industrial Relations Ordinance 2010 was promulgated on 22nd July, 2010 and was replaced by BIRA 2010 Act on 15th October, 2010. In Sindh Industrial Relations (Revival and Amendment) Act 2010 was promulgated by the Province of Sindh whereby IRA 2008 was revived w. e. f. 1st May, 2010. The vires of Sindh Industrial Relations (Revival and Amendment) Act 2010 has already been challenged before Division Bench of the Sindh High Court, where Full Bench of the Sindh High Court has been constituted by the Chief Justice.
Needless to mention even when the 18th Amendment was not passed by the Majlis-e-Shoora (Parliament) the Islamabad Capital Territory was not a province, yet there was a separate Labour Court for Islamabad and the one of the sitting judge of the Islamabad High Court was notified as the Labour Appellate Tribunal in relation to Islamabad Capital Territory. There was under the circumstances no need for promulgation of IRO 2011 in relation to Islamabad Capital Territory as such law did exist even prior to the 18th Amendment in the Constitution and Labour Court and Labour Appellate Tribunals were functioning and continued to do so even this day in respect of Islamabad Capital Territory. It is very clear and obvious that the entire IRO 2011 has been promulgated with mala fide intention at the behest of an Institution in order to justify continuation of its existence aimed at registration of Trade Unions whose membership extends to more than one Province. This Institution had been adversely commented upon by the High Courts both of Punjab and Sindh.
One of the judges elevated from the Labour Bar, Justice Shahid Anwar Bajwa an icon of Labour Laws in our country, in his judgement reported in PLD 2010 Kar 1 has very admirably summed up the purpose of Labour Courts and National Industrial Relations Commission by reproducing extracts of the judgements in relation to these two organs of Labour Judiciary earlier given by the Sindh High Court and Lahore High Court. Justice Shahid Anwar Bajwa has observed as under:-
What kind of ill can executive control lead to is so commonly understandable and so widely comprehended that one need not say anything in this regard? As far as the Labour Judiciary is concerned, just three instances may suffice here. There is an interesting case law in this regard and the case law is reported as A and B Beverages Shama Labour Union vs. Sindh Labour Court (2000 PLC 389). The facts were that a person in judicial service as Additional District and. Session Judge was dismissed from service in 1992 after due enquiry of corruption charges. However, thereafter the Chief Minister of Sindh set aside the dismissal order. The High Court did not recognise him as a Judicial Officer and he was not allowed to resume duty. The Government of Sindh posted him as Presiding Officer of Sindh Labour Court. The judge went on to say:
There is absolutely no doubt that he is still reputed to be corrupt and it is very unfortunate that such a person has been assigned the vital task of deciding the matter under the Labour Law. However, the judge ordered that office should send a copy of the order to the Labour Appellate Tribunal for information and to the Chief Secretary and the Secretary Law to consider whether such a person who is still reputed to be corrupt deserves to be retained in service.
Justice Ihsanul Huq Chaudhry in Nishat Group of Industry s case (1997 PLC 622) noted the pathetic state of affairs in the National Industrial Relations Commission and passed the following observations:
It is a matter of great regret that the Government makes appointments to such sensitive posts recklessly. The Government, if serious to these institutions for the industrial peace in the country then these Tribunals has to be manned by persons of integrity and quality otherwise it would amount to sheer wastage of public funds. Let a copy of this judgement be sent to Mohammad Zaman Qureshi, newly appointed Chairman, National Industrial Relations Commission to take up the matter in the concerned quarters.
The matter did not end there, or shall I say, the rot did not stop there. Justice Tanveer Ahmed Khan in Pakistan Telecommunication s case (1999 PLC 320) made, probably the most scathing remark ever made against a Judicial Forum, against N. I. R. C. when his Lordship said:
Before parting with these cases after going through the judgement dated 15-07-1998 of the Chairman N. I. R. C. and the judgement, dated 31-08-1998 of the Full Bench both subject matter of these Constitutional petitions one comes to an irresistible conclusion that there is a judicial anarchy in the working of the N. I. R. C. The Full bench as quoted the observation of my learned brother Ihsanul Haq Chaudhry, J, qua the working of N. I. R. C. reported in Nishat Group of Industries and another vs. Chairman N. I. R. C. and others (1997 PLC 622) which is in the following terms:
It is a matter of great regret that the Government makes appointments to such sensitive posts recklessly. The government, if it is serious to these institutions for the industrial peace in the country then these Tribunals have to be manned by persons of integrity and quality, otherwise it would amount to sheer wastage of public funds.
The Learned Counsel appearing for both the sides have also made reference to such an atmosphere prevailing in the Commission. I myself fully subscribe to the view of my learned brother quoted above that the working of the Commission is on decay and if some steps at the earliest are not taken to arrest this deteriorating situation it would be then too late in the day to mend the same.
It Shahid Islam s case (PLD 1996 Lahore 699) it was noticed that an advocate who had not yet completed the requisite ten years of enrolment as advocate High Court was appointed as a Member of N. I. R. C. in violation of rules prescribing such qualification.
It is very clear and obvious that once again certain individuals contrary to larger national interest and the unanimous approved Constitution (18th Amendment) Act 2010 have tried to not only circumvent the Constitution of Islamic Republic of Pakistan 1973 but even the decision of the Apex Court by assisting in the framing of the IRO 2011. Obviously this Institution was angry as a result of the decision of the Apex Court which was entirely based on the interpretation of the Constitution (18th Amendment) Act 2010. Benjamin Franklin one of the founding father of USA has aptly observed as under: Whatever is begun in anger ends in shame.
Aforementioned observations of Benjamin Franklin reflects shame whilst promulgating IRO 2011 ignoring altogether the fact that Constitution (18th Amendment) Act 2010 was unanimously passed by the Majlis-e-Shoora (Parliament). This institution has disturbed hornets nest which should expect to be swamped by the stinging wasps and would end up with swollen face once Ghazab Corruption Ki Ajab Kahani is revealed to this nation. French Author Julis Renard has remarked:
I fully know what distinguishes men from the other beast: financial worries. It is not known if Julis Renard had in mind the Institution who in order to save their Bread and Butter and continue with corrupt practices already referred to hear in above as enunciated by the Lahore High Court and Karachi High Court have misguided the Federal Government to ignore not only the decision of Apex Court but even the Constitution (18th Amendment) Act 2010.
Rational human being would have followed guidelines laid down by the Apex Court in the case of Air League of PIAC and had asked Provincial Assemblies to pass resolutions in terms of Article 144 (1) of the Constitution of Islamic Republic of Pakistan 1973 authorising Federal Government to promulgate the Law.
Unfortunately this has not been done and people of this country continue to suffer not only wilful and deliberate violation of the Constitution of Pakistan but even the decision of the Apex Court who have in good faith not only correctly interpreted the Constitution of the Islamic Republic of Pakistan 1973, including the Constitution (18th Amendment) Act 2010 but have even given guidelines to the provincial assemblies which have all been set aside and IRO 2011 have been promulgated to add to the woes and misery and suffering of people of this country in general and the working class of Pakistan including those, in Industrial and Commercial Sectors in particular. It is not that Government of Sindh is conscious to the abolition of Concurrent Legislative List and the completion of devolution process by 30th June, 2011.
In a letter published in English Daily Dawn Karachi dated 20th July, 2011, Mukhtar Hussain Soomro, Secretary Labour Department Sindh has challenged and claimed that Provincial Governments are not prepared to handle Labour Laws. He has rebutted the impression sought to be created with the following letters whose extracts are being reproduced verbatim:
Apropos of the letter Labour Laws need to be simplified (July 8), the writer conveyed his impression that provinces are not prepared to implement and handle Labour Laws, particularly those of EOBI and WWF. This perception is not based on facts as the Labour Department, Government of Sindh, took measures which came under print for public consumption on May 19, by Dawn s Mukhtar Alam, under the heading Labour department devolution likely to meet June 30 deadline .
He has mentioned in his letter that the federal government should continue to oversee the functioning of Labour affairs. In this regard, it is clarified that this would be in contravention of Clauses 8 and 9 of Article 270AA of the amended Constitution, which clearly stipulates that on omission of the Concurrent Legislative List, the process of devolution shall be completed by June 30,2011, through an Implementation Commission.
From the above provision of the Constitution, it will be seen that matters which were mentioned in the Concurrent Legislative List stand devolved to the provinces latest by June 30, 2011, and after the said date the subject Labour, including its components, WWF and EOBI, its infrastructure, assets and liabilities, including funds, are to be maintained and regulated by the provinces and any action or decision taken by the federal government will be in conflict with the provisions of the Constitution.
The 18th Amendment is a major breakthrough in the constitutional history of Pakistan and will go a long way to consolidating the federation of Pakistan. Since the provincial autonomy was long cherished and awaited demand of the provinces, the government of Sindh, therefore, through its Labour Department initiated all necessary draft legislations for placing before the Provincial Assembly so that no hurdles came while discharging public duties.
Sindh province, taking the lead, also assisted its sister provinces in preparing a draft legislation of federal Acts and Rules, which needed to be provincialised in view of the passage of the 18th Amendment. However, extra efforts are required to be put in by the provinces to make it a success whereas the federal government is constitutionally bound to facilitate the implementation of the ~ Amendment in totality.
The word Trans is not a legal dictionary term. Its definition does not appear in Blacks Law Dictionary Revised Fourth Edition, nor in Ballentines Law Dictionary, Third Edition. No such word is legally defined in Legal Thesaurus by William C. Burton. This phrase Trans Provincial does not even appear in the Constitution of Pakistan 1973 nor in the Federal Legislative List either in Part I or Part II. In Item No 13 of Part II of Federal Legislative List the item refers to is:
Inter-provincial matter and co-ordination This above phrase is not similar or akin to Trans Provincial . Even in IRO 2011, the expression used in Section 57(5) explanation is industry wise trade unions and Federation of such trade unions. In flagrant violation of Constitution (Eighteenth Amendment) Act 2010, the phrase Trans Provincial has been coined and an artificial meaning assigned as the same as industry wise trade unions in more than one Province which is in violation to Constitution (Eighteenth Amendment) Act 2010.
In brief IRO 2011 is ultra vires the Constitution of Pakistan, ultra vires the Constitution (Eighteenth Amendment) Act 2010, in wilful disobedience and contempt of the decision of the Apex Court in the case of Air League and in violation to Article 144 (1) of the Constitution of Islamic Republic of Pakistan 1973.
Courtesy: Business Recorder
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