Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Messrs RANYAL TEXTILES through Proprietor/Employer VS Respondent: SINDH LABOUR COURT NO.3, KARACHI and 3 others
Court Name: Sindh High Court Judge(s): Shahid Anwar Bajwa Title:Messrs RANYAL TEXTILES through Proprietor/Employer vs SINDH LABOUR
COURT NO.3, KARACHI and 3 others Case No.:Constitutional Petitions Nos.517, 523, 558, 622, 669 to 674, 694 and C.M.A. No,2520 of 2009 Date of Judgment:2009-10-20 Reported As: 2010 PLC 80 Result: Order accordingly Judgment ORDER ' SHAHID ANWAR BAJWA, J.--- A very peculiar but unfortunate situation, or shall I say, affliction, is common to all these petitions. All these petitions have arisen out of orders passed by Labour Courts. In some cases grievance petitions have been dismissed by the Labour Courts while in other cases grievance petitions have been allowed by the Labour Court and employees have been ordered to be reinstated in service with back benefits. 2. Under the Industrial Relations Ordinance, 1969, it was provided that Labour Appellate Tribunal shall be set-up by Provincial Government. Consequently Labour Appellate Tribunals were set-up and as far as Province of Sindh is concerned one Labour Appellate Tribunal was set-up at Karachi for entire Province of Sindh. All along from 1969 till 2002 Labour Appellate Tribunal was manned by retired Judges of this Court. In fact two of the retired Chief Justices Mr. Justice Inamullah Khan and Mr. Justice Agha Ali Haider also adorned the Sindh Labour Appellate Tribunal. On October, 26th 2002 Industrial Relations Ordinance, 1969 was repealed and replaced by the Industrial Relations Ordinance, 2002. In the Ordinance of 2006 Labour Appellate Tribunals were abolished and it was provided that appellate forum shall be the High Court. It was also provided in the Industrial Relations Ordinance, 2002 that all appeals pending before Labour Appellate Tribunal shall stand transferred to High Court. Consequently not only appeals pending in the Labour Appellate Tribunal were transferred to the High Court, but in fact from commencement of the Ordinance, 2002 all fresh appeals etc. Become directly entertainable by the High Court.
---
## Page 2
3. The Industrial Relations Ordinance, 2002 was repealed by the Industrial Relations Act, 2008. After having been passed by both houses of Parliament, the Act received assent of President of Pakistan on 6-12-2008 and was published in the Gazette of Pakistan, on 15-12-2008. Section 86 of the Act, 2008 provides as under:--- "86. Transfer of pending proceedings.--All appeals and applications of any kind pending in any High Court immediacy before the commencement of this Act shall stand transferred to the Labour Appellate Tribunals from the date of commencement of this Act and it shall not be necessary for the Labour Appellate Tribunals to recall any witness or record any evidence that may have been recorded." 4. Act of 2008 in section 55 also provides that the Provincial Government may, by notification in the official gazette constitute as many tribunals as it may consider necessary. It was also provided under section 54 of Act 2008 and other its provisions that appeals against certain decision of the Labour Court shall lie to the Labour Appellate Tribunal. Legal position that emerged was that not only appeals and other proceedings pending before the High Court stood transferred to the Labour Appellate Tribunal with commencement of the Act of 2008 but all fresh matters arising out of orders passed by Labour Court and for which appeal is provided in the Act 2008 could only by challenged before the Labour Appellate Tribunal. 5. Although the Act of 2008, as stated above, received assent of the President of Pakistan on 6-12- 2008 till today no Labour Appellate Tribunal has been constituted in the Province of Sindh. The learned counsel who made submissions in these matters pointed out that Labour Appellate Tribunals comprising of a Judge of High Court have been constituted in the North West Frontier Province and Balochistan and in the Punjab. Labour Appellate Tribunal chaired by a retired Judge of High Court has been working for last many months. However in Sindh no Labour Appellate Tribunal has, so far, been constituted. Vide order dated 15-10-2009 may learned brother directed Secretary Law .To be present before Court. It was also ordered that Secretary Labour shall also be present in Court today. Since no Labour Appellate Tribunal has been constituted in the Province of Sindh all these writ petitions have been filed against orders passed by the Labour Courts and it is stated in all petitions that although an appeal is provided under section 54 of the Industrial Relations Act, 2008 and certain other sections however since no Labour Appellate Tribunal has been constituted in Province of Sindh, no remedy is available to the petitioners against impugned orders and therefore they have invoked constitutional jurisdiction of this Court. 6. After promulgation of the Industrial Relations Act, 2008, when matter came up before single Bench of this Court, the following order was passed on 19-1-2009 in Labour Appeal No,1 of 2009. "Learned counsel for the Appellant has fairly conceded that on account of promulgation of the Industrial Relations Ordinance, 2008 (Act No,IV of 2008) all the Labour Appeals pending in the High Court shall be transferred to the learned Labour Appellate Tribunal from the date of commencement of the Act. As conceded by the learned counsel for the Appellant, Labour Appeal by virtue of section 86 of the above enactment stands transferred. ' Office is directed to as the matter to the learned Labour Appellate Tribunal as and when the same is established. Orders accordingly." 7.. Office placed the matter before the Honourable Chief Justice for appropriate orders and the following administrative order was passed by the Honourable Chief Justice on 27-1-2009:- "(a) All Labour Appeals, Revisions, Miscellaneous Applications and Transfer Applications may be transferred to Labour Appellate Tribunal as and when the same is established. (c) Fresh Labour Appeals, Revisions, Miscellaneous Application and Transfer Applications may not be instituted before this Honourable Court and the same may be instituted before the Labour Appellate Tribunal as and when the same is established."
---
## Page 3
8. The matter was again submitted to the Honourable Chief Justice and on 27-1-2009 it was ordered by the Honourable Chief Justice that Labour matters pending before the High Court may not be fixed in the Court. Result has been that there are more than 1500 Labour matters and almost more than 150 of them being those who were transferred from the Labour Appellate Tribunal to the High Court in 2002. It has been pointed out that in some of these cases appeals have been pending since 1997. This state of affairs in any case is not commendable, to say the least. 9. Syed Ghulam Nabi Shah, Secretary Law and Mr. Allam Din Baloch, Secretary Labour stated that the Labour Appellate Tribunal has not yet been constituted. However they stated that urgent steps are being taken by the Province of Sindh to constitute Labour Appellate Tribunal. They have, however, stated that under the Industrial Relations Act, 2008 it is absolute discretion of the Provincial Government to decide as to who is to be the Chairman of the Labour Appellate Tribunal. 10. Mr. S.M. Yakoob, learned counsel in some of the matters stated that the matters have been pending for the last many years and if only one Labour Appellate Tribunal is constituted it would be throwing all these appeals on the Labour Appellate Tribunal. It would take some years, if not a decade for Labour Appellate Tribunal to dig itself out of the pile of accumulated pendency. He, therefore, suggested that at least two Tribunals be constituted: One Tribunal to hear the cases which are decided by Labour Court between 1st and 15th of each month and other Tribunal for the cases which are decided between 16th and last day of each month. 11. Mr. Khalid Javed, learned counsel supported Mr. S.M. Yakoob, to the extent that creation of only one Labour Appellate Tribunal would be a totally inadequate steps. He, however, suggested that two Tribunals be constituted and one of them being made as Administrative Tribunal also, so that, like a Banking Court, it allocates work between itself and the other Tribunal. In the alternate separate territorial jurisdiction may be conferred on each of the Tribunals. 12. Mr. Mehmood Abdul Ghani, learned counsel also supported case of at least two tribunals. He however, submitted that he would not like the two tribunals to become the permanent fixture. His suggestion was that one tribunal may be constituted in respect of matters decided by the Labour Courts after December, 6th 2008 i.e, the date on which President of Pakistan gave assent to the Industrial Relations Act, 2008 and second tribunal in respect of all the matters in which appeal or other proceeding had been initiated against the orders of the Labour Court before 6-12-2008. He, further submitted that in this way with the passage of time accumulated pendency would be cleared and hopefully in due time a day will dawn when only one tribunal would be needed and thereafter things will proceed in a reasonable state of happiness as they were proceedings before 2002. 13. Mr. M.A.K. Azmati, learned counsel was of the opinion that instead of getting into discussion of two tribunals or one tribunal, the need is that one tribunal should be constituted, because if we get into discussion on one or two tribunal, the matter is going to be further delayed. 14. All the learned counsel were unanimous at the point that Chairman of the Labour Appellate Tribunal could not be appointed without consultation with the Chief Justice of this Court. However Secretary -Law stated that there is no such requirement laid down in the Industrial Relations Act, 2008 either in respect of Labour Appellate Tribunal or in respect of a Labour Court. Mr. Mehmood Abdul Ghani, learned counsel also referred to National Judicial Policy and particularly to its para.2 of part relating to Independence of Judiciary. It is reproduced as under:--- " (2) No retired Judge of the superior Court shall accept an appointment which is lower to his status or dignity including appointment as presiding officer of Banking Court, Customs Court, Administrative Tribunal, etc." 15. I will first attempt to deal with question regarding as to whether there is any role for the judiciary in general and Chief Justice of the High Court in particular in the appointment of Chairman of Labour Appellate Tribunal and also in the matters relating appointments etc. Of Presiding Officers
---
## Page 4
of Labour Courts. In order to appreciate the point we must first look at difference between a Court and a Tribunal. It is universally accepted that only Courts exercise judicial power: Court is a place where justice is judicially administered. Article 175 of the Constitution Provides as under:--- "175. (2) No Court shall have any' jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. (3) The Judiciary shall be separated progressively from the Executive within fourteen years from the commencing day." 16. This particular aspect came up for consideration before Lahore High Court in Iftikhar Ahmed v. The Muslim Commercial Bank Ltd. And another PLD 1984 Lah. 69 and it was observed as under:-- "(7) There appears to be a very special feature in our 1973 Constitution. It includes a specific provision in Article 212 for the constitution of tribunals for purpose expressly given therein and provides for an appeal before the Supreme Court. Article 175 only speaks of Courts. The Supreme Court of Pakistan and a High Court for each Province have been created under that Article while power has been conferred on the Legislature to create other Courts and also to confer jurisdiction on them. This position may be contrasted with the Indian Constitution. Article 136(1) of the Constitution lays down that the Supreme Court may grant special leave to appeal from any judgment etc., in any cause of matter, passed or made by Court or Tribunal in the territory of India. Article 227 states that every High Court shall have superintendence over all Courts and tribunals throughout the territories in relation to which it exercised jurisdiction. Thus, while the Indian Constitution recognizes existence of tribunal sharing judicial power with Courts, it is conspicuously absent in the 1973 Constitution. This appears to be a very important departure from the previous Constitutional position as even Article 98(5) of the 1962 Constitution recognizes tribunals along with Courts. Strangely enough, however, the power of superintendence of High Courts was conferred only with regard to the Courts subordinate to them and not for tribunals as in the Indian Constitution. It is thus quite clear that the 1973 Constitution of Pakistan recognizes only such specific tribunals to share judicial power with Courts, as are particularly mentioned in Article 212 or elsewhere but none else. It may also be useful to note here that neither a Court nor any other judicial tribunal is relieved of the duty of deciding a matter before it justly, fairly equitably and objectively. The only difference is that a tribunal is not as much bound by the rules of procedure and the evidence as the Court of law are. I may also refer here to some observations of the Indian Supreme Court in support of tribunals sharing judicial power with Courts, as made by Gajendragadkar Civil Judge in A.C. Companies v. P.N. Sharma (1), while comparing Indian Constitution with that of Australia. The learned Judge remarked:- "Under our Constitution, there is no rigid separation of powers as under the Australian Constitution: and so, it would not be constitutionally inappropriate or improper to say that judicial power of the State can be conferred on the hierarchy of Courts established under the Constitution as well as on Tribunals which are not Courts strictly so-called. Indeed, the fact that Article 136(1) refers to Court and tribunals and makes the determination, sentence or order passed by them subject to appeal to this Court by special leave, shows that our Constitution assumes that judicial power of the State can be---in and exercised by both Courts and tribunals alike." ' A similar remarks by Bachawat Judge in that case is as follows:--- "(1608)" Unlike Australia, in our country the judicial power of the State may be vested not only in Court but also in other authorities. The Courts alone have no monopoly of this judicial power. An authority other than a Court vested with the judicial power of the State in this sense is regarded as a tribunal within Article 136." ' In Durga Shankar Mehta's case (2) B.K. Mukherjea, Judge speaking for the Court observed:--- "It is now well-settled by the majority decision of this Court in the case of Bharat Bank Ltd. AIR 1950 SC 188 that the expression 'Tribunal' as used in Article 136 does not mean the same thing as 'Court'
---
## Page 5
but includes, within its ambit, all adjudicating bodies, provided they are constituted by the State and are invested with judicial as distinguished from purely administrative or executive functions." (8) The Constitution of Pakistan as regards judicial power is thus quite different from that of India and resembles the Australian Constitution inasmuch as that no executive authority can be empowered to exercise judicial power under Article 175 and any power so conferred by a Legislature shall be ultra vires." 17. Having noted this particular feature it was further observed in this judgment as under:--- "However, as discussed in para.7 above, the judicial power as is contained in Article 175 can be conferred only on judicial tribunals called Courts and not other authority. Thus, the discussion about Courts and quasi-judicial tribunals is of no importance at all. So, as far as Pakistan is concerned, the distinction is to be found not between judicial and quasi-judicial tribunals but judicial and administrative tribunals and any Court or other authority, by whatever name called, shall be deemed to be a Court, constituted in pursuance of Article 175(2) of the Constitution and subject to the superintendence and control of the High Court of the Province, in which it is situate, if it exercise judicial power of the State, "under an Act of a Legislature, and its existence is not specifically provided for by any other provision of the Constitution. (18) Despite the collection of elaborate views above, it has been generally observed that the definitions so far attempted are not exhaustive of the term 'Court'. However, inspired by all that has been said so far, and without claiming that it will be exhaustive, in my humble view, 'judicial power' is the legal right, ability and authority to hear and decide, objectively and after allowing opportunity to produce evidence, a judiciable issue, dispute, or controversy, concerning the existing legal rights, duties or interests of persons or property, arising out of relations and dealings, between two or more parties, who bring the same for an authoritative decision, binding on them and may include the authority to execute or get executed its decision and protect rights, prevent and redress wrongs and punish offences through legal process. Further, the judicial power must be conferred by the State under Constitution or law and not the mere consent of parties, on persons who are paid by the State and removable by it only. The authority or body in which this power is vested is generally called a 'Court' and in performing its functions it declares, construes and applies law or custom or usage, having the force of law. The 'judicial power' is thus the instrument to be used by the Court." 18. Finally on question of subordination of Courts to the High Court, following observations were made:- "(32) The above position further establishes the view that the judicial power of Pakistan, save as is excepted in Articles 199(5) and 212, is to be vested in the Courts created under this Article and no forum, other than that specifically mentioned in the Constitution, can be created for the performance of judicial functions and exercise of judicial power. This conclusion is strengthened by the fact that the Constitution does exclude certain other subjects also from the purview of the Courts jurisdiction as given in its Articles 69, 225 and 247(7). Article 209, with regard to the Constitution of the Supreme Judicial council may also be cited for the same purpose. All these Articles thus support the above view, for if the framers of the Constitution wanted, that the judicial power be conferred on any authority, other than a Court or, the same be curtailed, in any respect, it would have either so stated in Article 175 or that intention would have been made clear elsewhere. Further, the intention of the Constitution to separate the judiciary from the executive progressively as contained in Article 175(3) and the Preamble also upholds the above position. (33) Again, the concept that there will be a High Court for each Province has to have its plain meaning, in the absence of a definition. Its clear concept will be that it is the highest Court in the Province and all other Courts --- must be inferior to and be subject to its supervision. Further, as Article 175 of the Constitution embodies the judicial power and also gives the hierarchy of the
---
## Page 6
Courts i,e, a Supreme Court for Pakistan, a High Court for a Province and some other Courts as may be created by the Legislature, "the such other Courts" must necessarily be inferior to the High Courts. (34) It will be seen that there is no mention in the Constitution that the Supreme Court will have any Court subordinate to it, though, according to Article 190, all executive and judicial authorities have to act in its aid land all Courts in the country shall be bound to follow its decision in view of Article 189. As for the High Courts, the Article 202 states that subject to the Constitution and law, a High Court may make rules regulating the practice and procedure Of the Court or of any Court subordinate to it. Article 203 provides that each High Court shall supervise and control all Courts subordinate to it. Article 201 lays down that any decision of a High Court shall be to the extent if decides a question of law, or is based upon or enunciates a principle of law, be binding on all Courts subordinate to it. The Constitution, however, does not specifically say as to which Court are subordinate to it. The scheme of the Constitution, however, appears to be that while all the Courts in Pakistan have to follow and also act in aid of the Supreme Court merely because of its opposition, the Courts in a Province have to follow the High Court and be bound by its decision as they are subordinate to it. So, the mere fact that there is no express indication in Article 175 of the Constitution that all "other Courts" to be created by or under law will be the Courts subordinate to the High Court is not at all important." 19. The same thing came up before the Supreme Court in Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445. A landmark judgment was delivered which was authored by Mr. Justice Ajmal Mian. Regarding Courts, Tribunals it was observed as under:--- "(35) The appointments of the Judges of the Special Courts are required by subsection (2) of section 14 of the Act, to be made by the Government after consultation with the Chief Justice of the High Court. The Executive does not have a free hand in the making of such appointments. As to the meaning of consultation we can do no better than to rely oti the recent judgments of the Supreme Court in the cases of Al-Jehad Trust through Raeesul Mujahideen Habib Al-Wahabul Khairi and others v. Federation of Pakistan PLD 1996 SC 324 and Al-Jehad Trust through Raees-ul-Mujahidin Habib Al-Wahabul Khairi, Advocate Supreme Court and another PLD 1997 SC 84. The Federal Government is bound to accept the recommendations of the Honourable Chief Justice of the High Court except for valid reasons justifying a departure. We were informed by the learned Attorney General for Pakistan and the learned Advocate-General, Punjab, that no Presiding Officer of the Special Court shall be removable except with the consent/concurrence or recommendation by the Honourable Chief Justice of the High Court. Even otherwise, the power of removal is basically an adjunct to the power of appointment. We, however, notice that the security of tenure for a certain period is also required to be provided by making necessary provisions in the statute itself as held by a Full Bench of this Court in the case of Imran v. Presiding Officer, Punjab Special Court No, VI, Multan and 2 others PLD 1996 Lah. 542. In the precedent case, provisions of Suppression of Terrorist Activities (Special Courts) Act, 1975 and the Offences in Respect of Banks (Special Courts) Ordinance, 1980, were examined threadbare. We allow two months' time of making necessary amendments in the law." 20. The above makes it clear that under the judicial system as established by the Constitution of the Islamic Republic of Pakistan, there are Courts and there are Tribunals. However, the Tribunals are only limited to the Tribunals specified in the Constitution such as Election Tribunal (Article 225), Administrative Tribunal (Article 212) and Tribunal relating to military affairs (Article 199(5)). Besides these Tribunals whenever judicial power is vested in a forum, whatever be its designation, be it called a Court, be it called a Tribunal or be it called a Commission, for all legal intends and purposes it is a Court and therefore has to be manned, controlled and regulated in accordance with the established judicial principles and the law relating to manning, regulation and control of
---
## Page 7
Courts in Pakistan. Therefore, the Labour Appellate Tribunal, legally speaking, through denominated as a Tribunal, D is a Court: nothing more, nothing less. 21. This takes us to question of supervision of the Court and mandate of the Constitution. In this regard a reference to case law may be relevant here. In Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others v. Sharaf Faridi and others, PLD 1994 SC 105, it was held that High Court shall supervise and control over the subordinate judiciary and such supervision and control can be achieved only when the judiciary is administratively and financially separate from the executive. The relevant observation occurs at page 118 is in the following words:- -- "Article 175 envisages separation and independence of Judiciary which includes the lower Judiciary as well. The lower Judiciary is a part of the Judicial hierarchy in Pakistan. Its separation and independence is to be equally secured and preserved as that of the superior Judiciary. The lower Judiciary is more…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.