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Petitioner: AIR LEAGUE OF PIAC EMPLOYEES through President VS Respondent: FEDERATION OF PAKISTAN, M/O. LABOUR AND MANPOWER DIVISION ISLAMABAD and others
Court Name: Supreme Court of Pakistan Judge(s): Iftikhar Muhammad Chaudhry, Ghulam Rabbani, Muhammad Sair Ali Title:AIR LEAGUE OF PIAC EMPLOYEES through President vs FEDERATION OF
PAKISTAN, M/O. LABOUR AND MANPOWER DIVISION ISLAMABAD and others Case No.: Constitutional Petition No, 24 of 2011 Date of Judgment:2011-06-02 Reported As: 2011 PLC 89 Result: Ordered accordingly Judgment ' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.--- Instant petition has been filed under Article 184(3) of the Constitution of Islamic Republic of Pakistan, in which following prayer has been made:-- ' 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. 2. Briefly stating facts of the case are that the petitioner, Air League of Pakistan International Airline Corporation Employees is an Industry-wise trade union registered under the Industrial Relations Laws with respondent No,3, National Industrial Relations Commission (NIRC). In the year 1969, to amend and consolidate the laws relating to the formation of trade unions, the regulation of relations between employers and workmen and to avoid and settle any differences or disputes arising between them or matters connected therewith or ancillary thereto and in the national interest of country, to achieve the uniformity through Federal legislation, the Industrial Relations Ordinance, 1969 [hereinafter referred to as "IRO, 1969"] was issued whereby the East Pakistan Trade Unions Act, 1965, the East Pakistan Labour Disputes Act, 1965, the West Pakistan Industrial Disputes Ordinance, 1968 and the West Pakistan Trade Unions Ordinance, 1968 were repealed in terms of section 67 of the said Ordinance. However, the trade unions existing at the time of commencement of IRO, 1969, registered under the said repealed laws were deemed to be registered under IRO, 1969 and continued to be in force until altered or rescinded. Later on by means of Labour Laws (Amendment) Ordinance, 1972, section 22A of IRO, 1969 was inserted whereby National Industrial
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Relations Commission (NIRC) was constituted for settlement of disputes between the employers and the workers. In order to provide the mechanism for the functioning of NIRC, in terms of section 22-F of IRO, 1969, the National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 were framed. The IRO, 1969 was repealed by means of section 80 of the Industrial Relations Ordinance, 2002 [hereinafter referred to as 'IRO, 2002']. However, it was provided that without prejudice to the provisions of sections 6 and 24 of the General Clauses Act, 1897 every trade union registered under the repealed Ordinance would be deemed to be registered under IRO, 2002 and would continue until altered or rescinded. Subsequent thereto, the Industrial Relations Act, 2008 [hereinafter referred to as "IRA, 2008"] was promulgated whereby the IRO, 2002 was repealed. In terms of section 87 of the said Act; the trade unions registered under the repealed Ordinance were deemed to be registered under the said Act and continued in force until altered and rescinded. Clause (3) of the said section provided that the Act would, unless repealed earlier, stand repealed on 30th April, 2010. 3. It is interesting to note that until 30th April, 2010 no legislation was made either to supersede the IRA, 2008 or to extend the period, for which the Act would remain operative. In the meantime, the parliament passed the Eighteenth Constitutional Amendment on 20-4-2010 whereby concurrent legislative list was omitted and all the matters mentioned therein came within the jurisdiction of the provinces for the purpose of making legislation and dealing with the said laws. Clause (6) of newly inserted Article 270-AA, provided that the laws with respect to the matters enumerated in the said list (including Ordinances, Orders, rules, bye-laws, regulations and notifications and other legal instruments having the force of law) in force in Pakistan immediately before the commencement of the said amendment would continue to remain in force until altered, repealed or amended by the competent authority. Later on the Provincial Assemblies of all the four provinces made legislation' in respect of the Industrial Relations, repealing the IRA, 2008. Province- wise detail of the same is as under:-- (a) On 13th June, 2010 the Punjab Industrial Relations Ordinance, 2010 [PIRO, 2010] was issued. The Ordinance was to expire on 10th September, 2010, however, the life of the. Ordinance was extended for a further period of ninety days through a Resolution passed by the Assembly on 23rd July, 2010. Same was repealed by the Punjab Industrial Relations Act, 2010 [PIRA, 2010] on 9th December, 2010. (b) On 5th July, 2010, Industrial Relations (Revival and Amendment) Act, 2010 was promulgated by the Province of Sindh, whereby the IRO, 2008 was revived w,e,f, 1st May, 2010 as if it had never been repealed. (c) On 14th, July, 2010 the Khyber Pakhtunkhwa Industrial Relations Ordinance, 2010 [KIRO, 2010] was promulgated. (d) On 22nd July, 2010, Balochistan Industrial Relations Ordinance, 2010] BIRO, 2010] was issued, however, said Ordinance was repealed by the Balochistan Industrial Relations Act, 2010 on 15th October, 2010. 4. After 30th April, 2010 the Labour Courts, Labour Appellate Tribunal as well as National Industrial Relations Commission (NIRC) stopped its functions for the reason that no legislation was promulgated at Federal Level. This question came up before NIRC, Islamabad, which held that in terms of 18th Constitutional Amendment, the IRA, 2008 is intact and fully operative till altered or amended or repealed by the competent authority. 5. As the Labour Courts as well as the Labour Appellate Tribunal stopped functioning, therefore, the Chief Justice, Lahore High Court initiated suo motu action and Writ Petition No,10746 of 2010 was disposed of on the basis of report submitted by the Chief Secretary, Government of Punjab wherein it was stated that IRA, 2008 stood protected upto 30-6-2011 in accordance with the protection provided under Article 270-AA of the Constitution.
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6. The same controversy came before the High Court of Sindh by means of Constitutional Petition No,D-1432 of 2010, wherein it was held that IRA, 2008 stood repealed on 30th April, 2010 by force of its section 87(3), whereas the IRO, 1969 came back into operation from the said date. 7. The Lahore High Court, Rawalpindi Bench while deciding I.C.A, 200/2008 held that IRA, 2008 has been protected till 30th June, 2011 in view of Article 270-AA. 8. It is important to note that learned Islamabad High Court in Writ Petition No,4917 of 2010 titled as Tufail Ahmad v. Zaka Ullah Khalil, has held that in view of section 87(3) of IRA, 2008, it stood repealed on 30-4-2010. As such the instant petition has been filed. 9. Learned counsel for, the petitioner submitted that in view of protection provided under Article 270-AA of the Constitution as substituted by the Eighteenth Constitutional Amendment and in presence of section 6 of the General Clauses Act, the IRA, 2008 would remain operative and section 87(3) of IRA, 2008 would become redundant, inoperative and would be deemed to have never existed. Learned counsel further argued that section 87(3) was in conflict with Articles 17 and 264 of the Constitution, therefore, provisions of Constitution would prevail. He stated that the law did not recognize vacuum in legislation and the NIRC, which was one of the important functionaries of the State could not be stopped from functioning rendering thousands cases of workers/labourers .To be directly affected. He next contended that in Industrial Relational Advisors' Association's case the High Court of Sindh, though declared the IRA, 2008 to be repealed w,e,f, 30-4-2010 but relying upon section 6 of the General Clauses Act, restored the IRO, 1969. The Islamabad High Court in Tufail Ahmad's case while relying upon Industrial Relational Advisors' Association's case held that the IRA, 2008 had been repealed in terms of section 87(3) but the latter part of the judgment whereby the IRO, 1969 was restored was ignored. In order to substantiate his arguments he submitted that before declaring a Federal Statute to be non-existent and in order to arrive at just and proper decision, it was necessary for the Court to issue notice to the Federal Government, particularly under the circumstances, where the Ministry of Law and Parliamentary Affairs had opined that the IRA, 2008 stood extended till 30-6-2011 in terms of protection provided under clause (6) of Article 270-AA of the Constitution. 10. Learned Attorney General has submitted that after the 18th Constitutional Amendment matter relating to welfare etc. Is the subject of the Provinces and the legislation has to be- made by the Provinces and in view of the fact that the IRA, 2008 has lost its operation on account of in built provision of section 87(3), therefore, the NIRC cannot function any further. 11. Mr. Mahmood Abdul Ghani, learned Advocate Supreme Court appearing as Amicus Curiae contended that the IRA, 2008 was repealed by means of section 87(3) and after its repeal the IRO, 2002 or IRO, 1969 could not be revived as earlier the matters relating to welfare of labour and trade unions were mentioned in the Concurrent Legislative List, which have become provincial subject after the Eighteenth Constitutional Amendment and the authority to legislate had been transferred to the provinces. He further contended that after such repeal the NIRC as envisaged under IRA, 2008 (earlier under IRO, 2002 and IRO, 1969) would be deemed to have ceased to exist. 12. We have heard the learned counsel and have gone through the relevant provisions of the Statute as well as the case-laws cited at the bar. 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
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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) IB 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 270-AA. 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:-- "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
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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. 16. The High Court of Sindh, while forming an opinion regarding the effect of repeal of a temporary legislation and revival of the previous law has relied upon various judgments. To arrive at a just and proper conclusion it would be appropriate to have a glance on the said case-laws to make comparison of the facts of those judgments with that of instant case. (i) ' Commissioner of Income Tax v. Ebrahim D. Ahmad (1992 PTD 1353) ' In the year 1959 section 15BB of the Income Tax Act was enacted whereby certain exemptions were provided from 1-4-1959 to 13-6-1965. Later on by means of Finance Ordinance, 1972, subsection (4AA) was added to section 15BB and was given effect from 1st April, 1959 the date of insertion of 15BB. The said Ordinance was laid before the Assembly but subsection (4AA) was not approved and hence it lapsed. The President under Article 297(1) of the Interim Constitution, 1972 promulgated the Post-Constitution President's Order 5 of 1972, whereby the Ordinances issued by the President before 31st December, 1972 were provided permanence. The matter came before this Court when this Court held "In the effort to revive and revitalize the Finance Ordinance XXI of 1972 in fact subsection (4AA) of section 15BB was made effective from 1-4-1959, a date far more in retrospect than was the limiting date prescribed in the Constitution. All these defects made the post Constitution President's Order No,5 of 1972 of no avail so far as revival of subsection (4AA) is concerned." (ii) Pir Sabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66) ' At the instance of Parliamentary Party, References under section 8-B of the Political Parties Act, 1962 were filed against the members of the Provincial Assembly of N.-W.F.P. (Khyber Pakhtunkhwa). The Election Commission of Pakistan by majority of 2 to 1 dismissed the said References. The matter came up before this Court when the effect of repeal of Ordinance XXX of 1993 whereby some amendments were made in section 8-B, were considefed. This Court held that in view of the above discussed legal position there is no doubt in my mind that on the repeal of Ordinance XXX of 1993, which was never placed before the Assembly for approval and which stood repealed on the expiry of 4 months period from the date of its promulgation in accordance with the provisions of Article 89 ibid, the amendment introduced in section 8-B by Ordinance, XXX of 1993 stood removed from the statute book with the consequence the original provisions of section 8-B of the Act stood revived on such repeal. (iii) Federation of Pakistan v. M. Nawaz Khokhac (PLD 2000 SC 26): ' On 18th November, 1996 Ehtesab Ordinance (CXI), 1996 was promulgated which was further amended by Ordinance (CXXIII), 1996, Ordinance VII of 1997 and Ordinance XI of 1997. Ordinance CXI amended as aforesaid was repealed and replaced by Ordinance XX of 1997, which was repealed by Ehtesab Act, IX of 1997. The said Act was amended through Ordinance II of 1998, which stood repealed on 3rd June, 1998 as it was not passed by the Parliament. Writ petitions were filed
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before the Lahore High Court challenging the vires of these Ordinances/Acts. The writ petitions were disposed of and the matter came up before this Court when it was held that "the contention appears to be correct. Ordinance II of 1998 was promulgated on 4-2-1998. It is not disputed that Ordinance II of 1998 was not passed by Majlis-eShoora. Under Article 89 of the Constitution, this Ordinance stood repealed on 3-6-1998. We have already held that an Ordinance promulgated under Article 89 of the Constitution is a temporary legislation, therefore, the amendments made in the Act by Ordinance II of 1998 stood obliterated and original provisions in the Act stood revised on repeal of Ordinance II of 1998." (iv) State v. Muhammad Sharif (PLD 1960 Lah. 236) ' The Essential Commodities (Control of Distribution) Order, 1953 was promulgated under the Essential Supplies (Temporary Powers) Act of 1946. The said Act was to remain in force for a particular period but was subsequently extended by a. Number of statutes. By means of Ordinance X of 1955, the Essential Supplies (Temporary Powers) Act was repealed, however, under section 17 of the said Ordinance, Orders made under the Essential Supplies (Temporary Powers) Act were protected. Later, the Ordinance X of 1955 was repealed by Essential Supplies Ordinance IV of 1956, which was repealed and substituted by Ordinance V of 1956. This Ordinance was repealed and substituted by Ordinance XXI of 1956. Subsequently, the Ordinance XXI of 1956 was replaced by the Essential Supplies Act, containing the same provisions as the Ordinance. The respondent was charged for an offence under section 6 of the Control of Essential Commodities Ordinance (V) of 1956 read with section 4 of the Essential Commodities (Control of Distribution) Order, 1953. The Magistrate, acquitted him on the ground that the Ordinance V of 1956, under section 6 of which he was being prosecuted, had expired six weeks after the meeting of the National Assembly in September 1956, i,e,, on the 18th of November 1956, and as the Ordinance was only a temporary statute, there could not be any prosecution under an expired Ordinance. An appeal before this Court was filed by the State against the acquittal of respondent. The Court observed that in view of Full Bench Judgment in Crown v. Haveli (PLD 1949 Lah. 550) a prosecution under Essential Commodities Ordinance V of 1956 could not be continued after the date of expiry, i,e, the 18th of November 1956. The Court ultimately held that "if the Ordinance was to expire on the 18th of November 1956 and the effect of its expiry was to make it non-existent, except for transactions past and closed, the mere repeal of it a day before its expiry could not have given it greater effect than it could originally have. There does not seem to be any objection to the proposition that by a repeal a statute will not have effect for a longer term than it would otherwise have had. All that section 6 of the General Clauses Act means is that in spite of the repeal a statute is deemed to be in force in respect of the particular matters enumerated in that section, i,e,, its original life would continue in spite of the repeal, but section 6 certainly does not mean that by the repeal it would be in force even after the period for which it was legally to be in force as enacted. We are not inclined, therefore, to accept the argument that on account of the repeal, this prosecution could have continued." (v) The Sargodha Bhera Bus Service Limited v. The Province of West Pakistan (PLD 1959 SC 127) ' Facts of the case were that up to 17th December 1956 taxes were realised under the Punjab Motor Vehicles Taxation Act (IV of 1924). Later, the Governor of West Pakistan promulgated Ordinance No,XXXV of 1956 under Article 102 of the Constitution 1956. The .West Pakistan Provincial Assembly met on the 28th of January 1957 and the Ordinance was actually laid before it on the 8th of March 1957, but the Assembly was itself suspended by the President under Article 193 of the late Constitution. The Ordinance, therefore, was only valid for six weeks beyond the 28th January 1957 under Article 102 of the Constitution, and ceased to operate on the 11th March 1957. The Act in which the Ordinance was embodied in the form of a statute (Act XXXII of 1958) was passed by the Legislative Assembly and the assent thereto of the Governor was first published in the official
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Gazette on the 24th April, 1958. Appeals before this Court were filed against orders of High Court of West Pakistan, Lahore, for an order restraining the collection of payment of taxes under the Motor Vehicles Taxation Act, 1924. This court held that "the powers of legislation of the Governor, therefore, were of a transitory, temporary and contingent nature. They are, no doubt, co-extensive with those of the Provincial Assembly, as argued by Mr. Brohi, but this can be said only with regard to the field of legislation as regards the Provincial list and the concurrent list of subjects as given in the Fifth Schedule to the plate. Constitution. But it is evident that the powers of the Assembly are more extensive inasmuch as it was empowered to enact permanent Acts at all times not subject to any limitations as the Governor's powers are meant to be by Article 102, which are to be exercised in emergency and with temporary effect only, and carry with them the implication that when a permanent Act is repealed by an Ordinance, the Act will revive on the expiry of the Ordinance." (vi) Gooderham and Worts v. C.B. Corporation…
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