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Petitioner: Muhammad Shabbir and another VS Respondent: Quaid-E-Azam University through Vice-Chancellor, Islamabad and others
Court Name: Supreme Court of Pakistan Judge(s):Ijaz-ul-Ahsan, Gulzar Ahmed, Qazi Muhammad Amin Ahmed, Umar Ata
Bandial, Jamal Khan Mandokhail Title:Muhammad Shabbir and another vs Quaid-E-Azam University through Vice-Chancellor, Islamabad and others Case No.: Civil Appeals Nos. 803 and 804 of 2016 Date of Judgment:2022-01-20 Reported As: 2022 PLC 82 Result: Appeal dismissed Judgment ORDER GULZAR AHMED, C.J.---A 2-Member Bench of this. Court has passed an order dated. 30.04.2019, whereby it has formulated two questions of law, to be addressed and referred the matter to the then Hon'ble Chief Justice of Pakistan for constitution of a larger Bench for answering the same. Pursuant thereto, the matter has been taken up by this larger Bench. Following are the two questions:- I. Whether the judgments in the Air League case (supra), State Bank of Pakistan case (supra) and Sui Southern Gas Co. Ltd. case (supra) can co-exist with reference to the scope and extent of the retrospective effect doctrine. II. Whether all the decisions rendered by the Labour Court, during the interregnum period, are null and void in the eyes of law. If so, whether, and to what extent, such decisions can be extended protection by applying the de facto doctrine. 2. The facts of the matter are that the appellant in Civil Appeal No.803 of 2016, namely, Muhammad Shabbir was employed with Respondent No.1-Quaid-e-Azam University as Bearer, while the appellant in Civil Appeal No.804 of 2016, namely, Muhammad Shahid was employed with Respondent No.1-Quaid-e-University as Cook. They were issued charge-sheets and statement of allegations dated 05.03.2004. The enquiry committee was constituted to conduct regular enquiry. The appellants gave reply to the charge-sheets and statement of allegations. The enquiry committee concluded the enquiry and gave its report finding the appellants guilty of the charge. On receipt of the enquiry report, the
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respondents issued show cause notices, which were replied by the appellants. The competent authority through order dated 21.07.2004 imposed the major penalty of compulsory retirement from service on both the appellants. The appellants filed departmental appeals and then filed service appeals in the Federal Service Tribunal, Islamabad. On announcement, of judgment of this Court in the case of Muhammad Mubeen-Us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others (PLD 2006 SC 602), whereby section 2-A of the Service Tribunals Act, 1973 was declared ultra vices the Constitution, the service appeals of the appellants were abated. The appellants then filed grievance petitions under section 46 of the Industrial Relations Ordinance, 2002 (the Ordinance of 2002) in the Labour Court, Islamabad. The grievance petitions were contested by the respondents. The Labour Court through its judgments dated 24.11.2010 partly allowed the grievance petitions of the appellants by setting aside the penalty of compulsory retirement from service and converting it into withholding of two increments. The appellants were directed to be reinstated in service with back benefits. The respondents challenged the judgments of the Labour Court by filing of writ petitions in the Islamabad High Court, Islamabad. The High Court by the impugned order dated 21.12.2015, disposed of the petitions observing as follows:- "The next objection upon the impugned judgment is that same was issued during interregnum period after lapse of IRA, 2008 pursuant to sunset clause. This objection finds merit because impugned judgment was passed by learned Trial Court on 24.11.2010 while on that time there was no legislation in promulgation after lapse of IPA, 2003 on 30.04.2010, while during the period between 30.04.2010 to 18.07.2011 no labour law was in prevalence, therefore, learned Labour Court could not have assumed jurisdiction. This point was decided by the Hon'ble Supreme Court in case titled as "Air League PIAC Employees through President v. Federation of Pakistan and others" (2011 SCMR 1254) wherein it was held that during the interregnum period w.e.f. 30.04.2010, when no industrial relations law was holding the field, the workers had remedy under the Ordinary Laws prevailing at that time, because in absence of a special law the ordinary/general laws come forward to fill in the vacuum." Similarly in case "State Bank v. Presiding Officer Labour Court, Islamabad" (Civil Appeal No. 1150/2012) the Hon'ble apex Court held that grievance petitions decided between the period 30.04.2010 to 08.07.2011 stand revived before the learned NIRC." In the light of ratio set in by the Hon'ble Apex Court, the impugned judgment is declared to have been passed without lawful authority and jurisdiction. It is thus set aside with observation that respondent No.2 may file a grievance petition before learned NIRC under the IRA, 2012 in vogue." Relying upon Air League of PIAC Employees through President v. Federation of Pakistan Ministry of Labour and Manpower Division Islamabad and others (2011 SCMR 1254) and State Bank of Pakistan through its Governor/Director Human Resources and another v. Presiding Officer, Labour Court (District and Sessions Judge) Islamabad and others (Civil Appeal No.1150/2012), the High Court found that the judgments announced by the Labour Court were without lawful authority and jurisdiction and thus, set aside the same with observation that the appellants may file the grievance petitions before the NIRC under the Industrial Relations Act, 2012. The appellants filed civil petitions before this Court against the impugned orders of the High Court in which leave was granted vide order dated 31.03.2016, "to examine whether on account of successive legislation, the matter which had been competently initiated by the appellants (their grievance petitions) on 19.06.2006, under the valid law in force at that time was obliterated and not saved on account of IRA, 2003 and they were left remedy-less as the Labour Court according to the learned High Court stood abolished during this period, thus having no jurisdiction to decide the matter vide judgments Elated 24.11.2010".
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3. The appeals came up for hearing before a 2-Member Bench of this Court when the order dated 30.04.2019 was passed formulating the two aforementioned questions. 4. It is apparent from the record that the appellants have filed grievance, petitions before the Labour Court under section 46 of the Ordinance of 2002. During the pendency of the grievance petitions the Industrial Relations Act, 2008 (the Art of 2008) was promulgated and by section 87 of this Act, the Ordinance of 2002 was repealed. Section 87(2)(b) of the Act of 2008 contained saving clause which, provided that the proceedings commenced under the repealed Ordinance were saved and were deemed to have been commenced under the corresponding provisions of the Act of 2008. The grievance petitions filed by the appellants continued before the Labour Court after promulgation of the Act of 2008 and without any objection from the side of the respondents. The Act of 2008 in its section 87(3) provided as follows:- "87.............................................................................. (3) This Act shall, unless repealed earlier, stand repealed on 30th April, 2010". The apparent reading of the above quoted provision shows that the Act of 2008 was a temporary legislation and it provided the date on which it would stand repealed. The Act of 2008, thus, stood repealed by its very own mandate on 30.04.2010. It seems that the grievance petitions which the appellants had filed, despite repeal of the Act of 2008, continued to remain pending before the Labour Court and the Labour Court also continued to function and hear the grievance petitions filed by the appellants although there was no labour legislation in the field after the repeal of the Act of 2008. Ultimately, the Labour Court vide its two separate judgments, both dated 24.11.2010, allowed both the grievance petitions in terms as noted above. The judgments of the Labour Court were challenged by the respondents in the writ petitions, which were decided by the Islamabad High Court, Islamabad (the High Court) vide impugned orders dated 21.12.2015 in terms as noted above. During the pendency of the writ petitions in the High Court, the Industrial Relations Act, 2012 (the Act of 2012) was promulgated on 14.03.2012. The Act of 2012 did not make provision for establishment of a Labour Court, rather by section 53 thereof, the Federal Government was empowered to constitute a National Industrial Relations Commission (NIRC). Section 33 of the Act of 2012, the individual grievance petitions (grievance petitions) were made to be filed and decided by the NIRC. Taking note of this change in law and also relying upon various other provisions of the Ordinance of 2002, the Act of 2008 and the Act of 2012, so also the law laid down by this Court in Air League's case (supra) and State Bank of Pakistan's case (supra), while setting aside the judgments of the Labour Court, 'the High Court observed that the appellants may file the grievance petitions before the NIRC under the Act of 2012. 5. Learned counsel for the appellants contended that on repeal of the Act of 2008 on 30.04.2010, the Act of 2012 was promulgated. Section 88 of the Act of 2012 has not only saved the grievance petitions filed by the appellants before the Labour Court but also the judgments of the Labour Court given on the grievance petitions. Learned counsel further contended that Clause (6) of Article 270AA of the Constitution, 1973 has given continuity to the Act of 2008 and it continued to remain in force and the Labour Court has competently, passed the judgments. On the other hand, learned counsel for respondents Nos.1 and 2 (the respondents) while relying upon Air League's case (supra) contended that on the date when the judgments dated 24.11.2010 were passed by the Labour Court, there was no labour laws in the field as the Act of 2008 had repealed itself on 30.04.2010. The Act of 2012 was promulgated on 14.03.2012 and it specifically gave jurisdiction to the NIRC for determination of grievance petitions. He further contended that the Act of 2012 being a remedial and procedure legislation, it applied retrospectively from the date the Act of 2008 was repealed. 7. In Air League's case (supra) petition under Article 184(3) of the Constitution was directly filed before this Court with a prayer as follows:-
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"It is, therefore, respectfully prayed that this honourable Court may kindly be pleased to hold that IRA, 2008 stands protected up till 30th June, 2011 by virtue of Article 270-AA of 18th Amendment of Constitution of Islamic Republic of Pakistan and respondents Nos.3 and 4 be directed to continue with the proceedings for holding of secret ballot for the determination of CBA in accordance with law." 8. The facts of the case were that the petitioner-Air League of PIAC Employees was industry-wise Trade Union registered under the Industrial Relations Laws with NIRC. It has applied to NIRC for holding of a secret ballot for the determination of CBA. The NIRC was not proceeding with the matter for the reason that the Act of 2008 stood repealed. ft was argued before the Court that Article 270AA of the Constitution has protected the Act of 2008 and the NIRC was competent to hold secret ballot for determination of CBA. The-Court noted as a fact that the Provincial Assemblies of all the four Provinces have made their respective Industrial Relations Laws and also repealed the Act of 2008. The Court also noted as a fact that after 30.04.2010, the Labour Courts, Labour Appellate Tribunals as well as NIRC stopped functioning for the reason that there was no legislation promulgated at Federal level. In paras 13-15 of the judgment this Court has observed as follows:- "13. It is to be noted that initially the matters relating to welfare of labour and Trade Unions were mentioned in the Concurrent Legislative List at Items Nos.26 and 27, as such the Federal Government as well as the Provincial Governments both were competent to make legislation in that behalf. The Federal Government promulgated the IRO, 1969, which was repealed by the IRO, 2002 and same was also repealed by IRA, 2008. Section 87(3) of the IRA, 2008 provided that the said Act shall unless repealed earlier, stands repealed on 30-4-2010, hence, it was a temporary legislation, which was to die on 30-4-2010 automatically if it was not extended by legislative measure. Before the repeal of IRA, 2008, on 20-4-2010 Eighteenth Constitutional Amendment was passed, whereby the Concurrent Legislative List was abolished and the matters relating to labour and Trade Unions were transferred to legislative competence of the Provincial Governments. However, clause (6) of Article 270-AA of the Constitution provided that notwithstanding omission of Concurrent List by the Eighteenth Constitutional Amendment, all laws with respect to any of the matters enumerated in the said Lists in force, immediately before the commencement of the said amendment would continue to remain in force, until altered, repealed or amended by the competent authority. In terms of said clause the IRA, 2008 continued to be in force notwithstanding the abolition of the Concurrent Legislative List till 30-4-2010 when in terms of section 87(3) it stood repealed. 14. Now the question for consideration is what would be implication of section 87(3) of the IRA, 2008, especially after the Eighteenth Constitutional Amendment; would it continue to be in force even after 30-4-2010 in view of clause (6) of Article 270AA. It is to be mentioned here that the temporary law is also called "sunset law". The sunset law has been defined in "World Book Dictionary" as a law requiring a government regulatory agency to undergo periodic review for its continued usefulness; a law providing that State agencies created by a Governor or a legislature be terminated after a specified period." In "Advanced Law Lexicon: 3rd Edition" the term sunset law has been defined as a statute under which a governmental agency or program automatically terminates at the end of a fixed period unless it is formally reviewed". The High Court of Sindh, in Industrial Relations Advisors' Association's case has thoroughly dealt with the implication of sunset law and the repeal of a temporary legislation. Relevant paras from the said judgment are reproduced hereinbelow:- "19. The first question is whether the Act of 2008 is a temporary law or whether it is a permanent law. Mr. Khalid Anwar called it a "sunset" legislation. We have already quoted above section 87(3) of the Act of 2008. In Black's Law Dictionary "Sunset law" is defined in the following words:--
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"Sunset law.---A statute or provision in a law that requires periodic review of the rationale for the continued existence of the particular law or the specific administrative agency or other governmental function. The legislature must take positive steps to allow the law, agency, or functions to continue in existence by a certain date or such will cease to exist." (Underlining added) 20. Craies on Statute Law 7th Edition, on the subject of temporary and perpetual statutes, says as under:- "Acts are also classified, by reference to their duration, as temporary or perpetual. (a) Temporary.---Temporary statutes are those on the duration of which some limit is put by Parliament. The Standing Orders of the House of Commons require a time clause to be inserted in such Acts. The Expiring Laws Continuance Acts always contain a specific date for the expiry of the continued Acts. (b) Perpetual.---Perpetual Acts are those upon whose continuance no limitation of time is expressly named or necessarily to be understood. They are not perpetual in the sense of being irrevocable." 21. Crawford's Interpretation of Laws at page 103 states as under:- "71. Permanent, or Perpetual, and Temporary Acts.---A permanent, or perpetual Act, is one whose operation is not limited to a particular term of time but which continues in force until it is duly altered or repealed. A temporary Act, on the other hand, is one whose life or duration is fixed for a specified period of time at the moment of its enactment and continues in force, unless sooner repealed, until the expiration of the time fixed for its duration. 22. Mr. S. M. Zafar, in his Book Understanding Statutes primarily quoted from Crawford in respect of temporary Acts. A law may be temporary because of nature of Legislative power. For example power to legislate through Ordinances is quasi legislative powers: power is legislative but exercise is executive. The Constitution itself fixes life of such enactment. Then there may be Acts of Parliament which may also be temporary because either the Act itself or any other law provides for a terminal moment for the enactment. Since section 87(3) clearly stipulated a death knell moment for the Act of 2008, notwithstanding it having been enacted as an Act of Parliament it has to be treated as a temporary law and has to be given effect accordingly." 15. We are in full agreement with the conclusion given by the learned, High Court on the question of repeal of IRA, 2008 w.e.f. 30-4-2010. It is pertinent to mention here that clause (6) of Article 270-AA provides that notwithstanding the omission of Concurrent Legislative Lists all laws with respect to any of the matters enumerated in the said lists shall continue to remain in force until altered, repealed or amended by the competent authority. It is clear from the language that as the Concurrent Legislative List was abolished, therefore, protection was provided to all the permanent laws enacted by the Parliament on the subjects mentioned in the said list. Although the protection was provided to IRA, 2008 by the said clause but it did not have any effect on section 87(3), which remained operative in its full force. Therefore, it killed the said Act on 30-4-2010." On the question as to what is the effect of repeal of the Act of 2008, the Court in paras 17 and 18 observed as follows:- 17. Next question, which has cropped up is that what would be effect of repeal of IRA, 2008. Learned counsel for the petitioner has vehemently argued that in terms of section 6 of General Clauses Act and Article 264 of the Constitution, the IRO, 1969, which was permanent legislation, would be revived. It is to be noted that section 6 of the General Clauses Act applies to the cases where any enactment is repealed by the General Clauses Act or any other Central Act, therefore, the same is not applicable in the instant case because of reason that IRA; 2008 was not repealed by any other legislation rather it stood repealed on the expiry of period mentioned in section 87(3) of the Act. Similarly, Article 264 of the Constitution provided, that where a law is repealed or is deemed to
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have been repealed, by, under, or by virtue of Constitution, the repeal shall not affect the previous operation of law or anything duly done or suffered under the law; affect any right, privilege, obligation or liability acquired, accrued or incurred under the law; affect any penalty forfeiture of punishment incurred in respect of any offence committed against the law; or affect any investigation legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty forfeiture or punishment. However, it shall not revive anything not in force or existing at the time at which the repeal takes effect. Article 264 of the Constitution shall not be applicable in the instant case firstly; for the reason that the IRA, 2008 was not repealed by, under, or by virtue of the Constitution, rather it died on expiry of the statutory period. Secondly; the purpose of Article 264 of the Constitution is to provide protection to the operation of law, rights, liabilities accrued, and penalties incurred in respect of any repealed law and does not state that it would provide protection to the laws previously in force. Article 264 of the Constitution is in a language that deals with the effect of repeal of laws and, unless the Constitution provides otherwise, nothing will be revived which was not in force or existing at the time when the repeal takes effect. The IRA, 2008, was repealed by its own force in terms of section 87(3). Had it been an Ordinance issued under Article 89 of the Constitution, on the expiry of its statutory period the repealed law would have been revived but the provisions of this Article would not be applicable here because IRA, 2008 is not an Ordinance and has been enacted by the Act of Parliament, therefore, no sooner did it lapse on 30- 4-2010, no other law earlier repealed including IRO, 1969 could occupy the field. In addition to it, the mandate of section 6 of General Clauses Act and Article 264 of the Constitution had not provided that on account of repeal, the law previously in field would stand revived as these provisions in broader sense had attached finality to the actions which were already done. The finding given by the High Court of Sindh that after the repeal of IRA, 2008, the IRO, 1969 came back in operation, is not tenable. Thus it is held that the IRO, 1969 would not be revived after the repeal of IRA, 2008. 18. As already stated above, the IRO, 1969 was repealed by the IRO, 2002, which then was repealed by IRA, 2008. However, the IRA, 2008 stood repealed after the completion of its statutory period provided in section 87(3) and not by any other legislation, federal or provincial, therefore, neither the IRO, 2002 nor the IRO, 1969 could revive on the strength of section 6 of the General Clauses Act or Article 264 of the Constitution. 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(1) of the Constitution, which provide that if one or more Provincial Assemblies pass resolutions to the effect that Majlis-e-Shoora (Parliament) may by law regulate any matter not enumerated in the Federal Legislative List in the Fourth Schedule, it shall be lawful for Majlis-e-Shoora (Parliament) to pass an Act for regulating that matter accordingly, but any Act so passed may, in respect to the Province to which it applies, be amended or repealed by 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." In paras 19-22 of the judgment, this Court dealt with the question as to which provision of law will take effect after the expiry of the Act of 2008 on 30.04.2010 and observed as follows:- "19. In view of the declaration so made hereinabove, the next question arises that after expiry of IRA, 2008 on 30-4-2010, which provision of law would take effect for the interregnum period? It is to be noted that as stated earlier after the Eighteenth Constitutional Amendment, the Provincial Assemblies enacted the respective laws on the subject of labour and Trade Unions after about two months of expiry of IRA, 2008 and there is a vacuum for the said period. This Court had dealt with the issue of applicability of laws during the interregnum period when any law was repealed or
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declared ultra vires. In the case of Government of N.-W.F.P. v. Said Kamal Shah (PLD 1936 SC 360) certain provisions of the N.-W.F.P., Pre-emption Act, 1950, along with some other laws were declared repugnant to Injunction of Islam and recommendations were made to bring the said laws in conformity with the Injunction of Islam, till 31st July, 1986. In pursuance of the decision of the Court, the N.- W.F.P. Pre-emption Act, 1987 was promulgated on 28th April, 1987. In terms of its section 35 the Pre-emption Act, 1950 was repealed however, the judgments and decrees passed by the Court under the Repealed Act of 1950 were saved. When the legality of a decree passed by the Civil Judge on 15th April, 1987 was questioned on the ground that the same was passed after the cut off date i.e. 31st July, 1986 and before the promulgation of N.-W.F.P. Pre-emption Act, 1987 this Court in the case of Sarfraz v. Muhammad Aslam Khan (2001 SCMR 1062) held that on 28th April, 1987 in pursuance of the directions of this Court the Act was promulgated and till then the N.- W.F.P. Pre-emption Act, 1950 was holding the field as it was repealed from the commencement of the Act, therefore, any proceedings conducted and decree passed during this period would not be rendered…
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