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Petitioner: Syed IMRAN ALI SHAH VS Respondent: GOVERNMENT OF PAKISTAN through Secretary JUDGMENT
Court Name: Lahore High Court Judge(s): Muhammad Khalid Mehmood Khan Title:Syed IMRAN ALI SHAH vs GOVERNMENT OF PAKISTAN through Secretary
JUDGMENT
Reported As: 2013 PLC 143 Result: Petitions allowed Judgment JUDGMENT ' MUHAMMAD KHALID MEHMOOD KHAN, J.--- Through this single judgment, I propose to decide two writ petitions (W.P.No,1579 of 2012 and W.P.No,5081 of 2012), involving same questions of law. 2. The facts as per the petition are that the petitioner is working as a Senior Assistant with the Employees Old Age Benefits Institution (hereinafter referred to as "EOBI" or INSTITUTION). The affairs of EOBI are run and managed by a Board of trustee constituted under section 7 of the Employees Old Age Benefits Act, 1976 (hereinafter referred to as "Act of 1976"). The purpose of the Act of 1976 is inter alia to provide old age benefits to the persons employed in Industrial, Commercial and other organizations. The EOBI has liquid cash of more than Rs,199.00 billion in addition to other assets. After the 18th amendment in Constitution of Islamic Republic of Pakistan, the EOBI become a Provincial subject. The Ministry of Inter Provincial Coordination on 1-7-2011 issued a direction to the Board of Trustee not to utilize the institution's funds except for making payments for old age pensions, salaries, utility bills and routine office expenses such as POL etc. 3. As per policy and practice, the institution always used to purchase real estate on depreciated value. In the 86th meeting of Board of trustees dated 20-10-2009, the Board decided not to purchase any real estate from private persons or through private treaty. The same directions were also issued by the Public Accounts Committee of the Parliament. 4. The petitioner asserts that the Cabinet Division vides Notification dated 29-7-2011 has illegally assigned the administration and control of the Institution to the Human Resources Development Division only to facilitate plundering of the assets of the Institution. The respondent No,4 under the umbrella of the illegal Notification started purchasing real estate on highly inflated prices in
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violation of Investment Rules of the Board from private persons only with the mala fide intention to gain illegal benefits for himself and for his patron-in-in chief who appointed him. 5. The respondent No,1 has illegally reconstituted the Board of trustees vide Notification dated 3-1- 2012 in violation of the Act of 1976 and rules framed thereunder only to provide protection to the illegal acts of respondent No,4. The details of the properties agreed to be purchased are given in the petition. The petitioner asserts that respondents are misappropriating the funds of destitute, poor and low paid retired employees. The respondent No,4 has appointed 200 political workers illegally against the settled principal of law and the rules. The petitioner further asserts that after the 18th amendment in Constitution of Islamic Republic of Pakistan, the respondent No,1 has no authority to deal with the affairs of the Institution and as such every act of the Federal Government and the respondent No,4 in this regard is illegal, mala fide, and without lawful authority. The petitioner prays as under:- "In view of the above, it is respectfully prayed that by allowing this Writ petition, the respondent No,1 /Federal Government and respondent No,2/Chairman of the Institution may kindly be restrained from setting up new Board of Directors and to exclude the petitioner from current Board of Directors. ' It is further prayed that Notification of Federal Government (Annexure-H) may very kindly be directed to have been passed against the provisions of the Constitution and be declared to have no legal effect. ' It is further prayed that any independent impartial agency of the Government may very kindly be directed to take cognizance of the illegalities in plundering the billions of rupees belonging to the retired old-age labourers to bring the culprits before the courts of law to face the music." 6. The petition was admitted for regular hearing and on 2-3-2012 through an interim order respondent No,4 was directed as under:- "C.M:No,2/2012. 4. Subject to notice, respondents Nos.2 to 4 are restrained to take any action towards utilization of funds of EOBI and to pass any adverse order against petitioner, till the next date of hearing." 7. The respondents Nos.2 to 4 filed replies and objected the very maintainability of petition on the ground that impugned Notification No,(S.R.O.121(I)/2010) dated 3-1-2012 has been issued under a valid Federal Law protected under, clause (6) of Article 270-AA of Constitution of Islamic Republic of Pakistan. 8. The so-called dispute if any is between Provincial and Federal Government and only the Hon'ble Supreme Court of Pakistan has the jurisdiction under Article 184(1) of the Constitution to resolve the said dispute if any. The petitioner has not approached the Court with clean hands and as such is not entitled to grant of any equitable relief. 9. On facts all allegations of the petitioner are denied, claiming that the Federal Government enjoys the powers to run and manage the affairs of Institution even after the 18th amendment to Constitution of Islamic Republic of Pakistan. The respondent No,1 adopted the reply of respondents Nos.2 to 4. 10. From the pleadings of parties the only issue that requires determination is what is the effect of 18th amendment to the Constitution of Islamic Republic of Pakistan qua the EOBI Act of 1976. 11. The Employees' Old Age Benefits Act, 1976 (Act No,XIV of 1976) was promulgated by the Parliament and was published in Gazette of Pakistan on 15th April 1976, the preamble of the Act shows the necessity of Act as under:--- "WHEREAS it is expedient to repeal and re-enact the law relating to old-age benefits for the persons employed in industrial, commercial and other organisations and matters connected therewith; "
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12. The Federal Government has framed rules vide SRO-802(I)/76 dated 9-8-1976 Employees' Old Age Benefits (Constitutional) Rules, 1976. 13. It is an admitted fact that Act of 1976 was enacted by the Parliament when the subject of labour was a part of concurrent legislative list. Through the 18th amendment, the concurrent legislative list was omitted and Article 270AA was inserted as under:- "270AA. Declaration and continuance of laws etc.--- (1) The Proclamation of Emergency of the fourteenth day of October, 1999, the Provincial Constitution Order No,1 of 1999, the Oath of Office (Judges) Order, 2000 (No,1 of 2000), Chief Executive's Order No,12 of 2002, Chief Executive's Order No,19 of 2002, the amendments made in the Constitution through the Legal Framework Order, 2002 (Chief Executive's Order No,24 of 2002), the Legal Framework (Amendment) Order, 2002 (Chief 'Executive's Order No,29 of 2002) and the Legal Framework (Second Amendment) Order, 2002 (Chief Executive's Order No,32 of 2002), notwithstanding any judgment of any Court including the Supreme Court or a High Court, are hereby declared as having been made without lawful authority and of no legal effect. (2) Except as provided in clause (1) and subject to the provisions of the Constitution (Eighteenth Amendment) Act, 2010, all other laws including President's Order, Acts, Ordinance, Chief Executive's Orders, regulations enactments, notifications, rules, orders or bye-laws made between the twelfth day of October, one thousand nine hundred and ninety-nine and the thirty-first day of October, two thousand and three (both days inclusive) and still in force shall, continue to be in force until altered, repealed or amended by the competent authority. Explanation. ........................................................................ (a) (b) . (3) (a) (b (4) (5) (6) Notwithstanding omission of the concurrent Legislative List by the Constitution (Eighteenth Amendment) Act, 2010, all laws with respect to any or the matters enumerated in the said List (including Ordinance, Orders, rules, bye-laws, regulations and notifications and other legal instruments having the force of law) in force in Pakistan or any part thereof or having extraterritorial operation, immediately before the commencement of the Constitution (Eighteenth Amendment) Act, 2010, shall continue to remain in force until altered, repealed or amended by the competent authority. (7) Notwithstanding anything contained in the Constitution, all taxes and fees levied under any law in force immediately before the commencement of the Constitution (Eighteenth Amendment) Act, 2010, shall continue to be levied until they -are varied or abolished by an Act of the appropriate legislature. (8) On the omission of the concurrent Legislative List, the process of devolution of the matters mentioned in the said List to the Provinces shall be completed by the thirtieth day of June, two thousand and eleven. (9) For purposes of the devolution process under clause 8 the Federal Government shall constitute an Implementation Commission as it may deem fit within fifteen days of the commencement of the Constitution (Eighteenth Amendment) Act, 2010." 14. Article 270AA protects the legislation under the then concurrent legislative list, until the existing laws are amended altered and repealed. The plain reading of Article will show that word used are
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"altered" "repealed" or "amended", meaning thereby that the Provinces may alter, amend or repeal the existing law. However, no language has been used to the, effect that till amendment, alteration or repeal is undertaken by the provincial government, the management and control of EOBI will continue to remain with the Federation or the Act of 1976 will remain a Federal law. 15. The argument of learned counsel for petitioner is that after the 18th amendment, the Federation has lost control over the Act of 1976 and any Notification, instruction issued by the Federation after the Amendment for regulating the affairs of EOBI is without lawful authority and the only authority left with the Federation is to constitute a commission for regulating and supervising the devolution process, and the maximum time provided for completing the devolution is only one year. 16.The learned counsel for the petitioner submits that under Article 97 of the Constitution, the Executive Authority of the Federation is restricted to those matters for which the Parliament has the power to make laws. The proviso to Article 97 of the Constitution further clarifies the authority of Federation. 17. The learned counsel submits that when the Parliament has no power to legislate on a subject how can it be claimed that the executive authority under the Act of 1976 could be exercised by the Federation. His precise argument is that after the 18th amendment, all Provinces of the Federation enjoy the right to exercise executive authority on all matters which were a part of the concurrent legislative list. The Federation has wrongly withheld the process of devolution. He submits that the Federal Government under Article 270AA(9) of the Constitution was bound to constitute an implementation Commission within 15-days, the life of said Commission is only one year. The Commission does not enjoy any authority to exercise executive authority upon devolved subjects beyond its given mandate which is limited in scope and extent. The 18th amendment became a part of the Constitution on 19-4-2010. On the said date the Act of 1976 became a Provincial subject. To support his argument, the learned Counsel has relied on Air League of PIAC Employees through President v. Federation of Pakistan M/O Labour and Manpower Division Islamabad and others (2011 SCM R 1254). 18.The argument of learned counsel for respondents is that despite the fact that concurrent legislative list stands omitted, the Act of 1976 remains Federal Legislation and the Federation enjoys the power to administer and run the affairs of EOBI until altered, amended or repealed, by the competent authority. The dispute (if any) is between the Provinces and the Federation which can be redressed under Article 153 of the Constitution in the Council of Common Interests. It is further argued that a new, item No,13 has been added in the Legislative list Part II and the Federation has the power to enact laws for Inter Provincial matters and Co-Ordination. The learned Counsel has relied on Messrs Elahi Cotton Mills Ltd. And others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others (1997 PTD 1555), Shamas Textile Mills Ltd. And others v. The Province of Punjab and 2 others (1999 SCM R 1477), Federation of Pakistan v. Aitzaz Ahsan and another (PLD 1989 SC 61) and Messrs E.F. U. General InsuranceCo. Limited v. The Federation of Pakistan and others (PLD 1997 SC 700). 19. The question thus is what will be the status of the Act of 1976 after the 18th amendment? What do the Provinces have to do under Article 270AA (6) of the Constitution? Whether the Federation can exercise its executive authority for regulating and controlling the affairs of EOBI? For example if the Inter Provincial Commission fails to complete the process within tirrie provided by the Constitution what will be the effect of commission's failure? Whether time for devolution can be extended by the Federation through an executive order? Whether the Federation can form new ministries and attach different divisions with these ministries to deal with matters which are now the provincial subjects under the Constitution? Whether under item 13 of the Federal Legislative List Part II the Federation has the power to legislate the subject of labour which is no longer a part of the Federal Legislative List after the 18th amendment? What is the true meaning of devolution?
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20. The Parliament adopted the 18th amendment for revival of Constitution of 1973 in its original form. After 1973, successive dictatorial regimes infected the Constitution by amending it according to their choice, no doubt with the consent of the parliament. One of the dictators even got his name inserted in the Constitution. It is also an admitted fact that the dictatorial amendments were approved by the parliament but certainly that was under peculiar circumstance. In the year 2007 the Lawyers, Civil Society and Media through an unprecedented movement successfully managed to restore democracy. The present Parliament gained confidence and decided to disinfect the Constitution and to bring it in its original form. It decided to amend the Constitution. The Parliament unanimously adopted the 18th amendment, in addition to others. One of the purposes of the said amendment was to provide maximum autonomy to Provinces and to close the doors to unconstitutional invasions against democracy and the Constitution. ' The preamble of the 18th Amendment reads as sunder:--- "AND WHEREAS the people of Pakistan have relentlessly struggled for democracy and for attaining the ideas of a federal, Islamic, democratic, parliamentary, and modern progressive welfare State, wherein the rights of the citizens are secured and the Provinces have equitable share in the Federation." 21. The Parliament while unanimously adopting the 18th amendment refused to accord indemnity to the unconstitutional and extra Constitutional acts of 3rd November 2008 of the dictatorial regime for the first time since the Country gained independence. 22. The learned counsel for respondents have relied mostly on those judgments in which either the constitutional amendments made by dictatorial were challenged, regimed or certain statue was assailed on the touch stone of ultra vires to the Constitution. In the present petition the amendment is not under challenge. The challenge is to the status of the executive authority with reference to Act of 1976. As such the judgments relied upon by the respondents are not helpful for dilating upon the present issue. 23. A plain reading of Article 270AA shows that it is a declaration of repeal of certain enactments and continuance of a number of others. The enactments referred to in Article 270AA(1) have been declared without lawful authority. 24. The explanation to Article 270AA(1) declares the enactments referred to in sub-Article (1) to be without lawful authority, meaning thereby the laws referred to in sub-Article (1), notwithstanding the (earlier) declarations of the Hon'ble Supreme Court of Pakistan and the High Courts will be deemed not to be enacted. 25. Sub-Clause (2) of Article 270AA however saves legislation which was enacted between 12th October, 1999 to 13th December 2003 and which is still in force. It has been stated that such legislation shall continue to be in force until altered, amended or repealed by the competent authority. In the present petition none of the laws mentioned in Sub-Article (2) of Article 270AA is under attack hence there is no need to dilate upon this aspect at this stage. 26. In the present petition, the enactment under discussion is the EMPLOYEES OLD AGE BENEFITS ACT, 1976 (ACT NO.XIV OF 1976). The said Act was gazetted on 5-4-1976. 27. As the preamble of said Act shows it pertains to the subject of labour. Admittedly subject of labour found mentioned in Item Nos.26, 27 and 28 of the concurrent legislative list. Thus the Parliament enacted the said law. 28. After the 18th amendment, the concurrent legislative list was omitted from the Constitution, meaning thereby that the Federation's power to enact laws on the said subject ceased to exist. The power of the Federation to legislate is now limited to items referred in Federal Legislative List including Part II under Article 70(4) of the Constitution. 29. Part-V Chapter-I of the Constitution provide the distribution of legislative powers between the Federation and the Provinces.
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30 Article 142 provides as under; ---142. Subject to the Constitution--- (a) [Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to any matter in the Federal Legislative List; [(b) Majlis-e-Shoora (Parliament) and a Provincial Assembly shall have power to make laws with respect to criminal law, criminal procedure and evidence,] [(c) Subject to paragraph (b), a Provincial Assembly shall, and Majlis-e-Shoora (Parliament) shall not, have power to make laws with respect to any matter not enumerated in the Federal Legislative List;] [(d) Majlis-e-Shoora (Parliament)] shall have exclusive power to make laws with respect to all matters pertaining to such areas in the Federation as are not included in any Province]. 31. Article 143 deals with the inconsistency between Federal and Provincial Laws. 32. Under Article 142(a) Parliament (Majlis-e-Shoora) has the exclusive powers to enact laws regarding any matter which is referred to in the Federal Legislative List. Likewise under Article 142(C) subject to Sub-Article (b) of Article 142, the Provincial Assembly has the exclusive power to make laws regarding matters which are not mentioned in the Federal Legislative List. Further, only three items are available as per Article 142(b), for concurrent legislation by Parliament and Provincial Assemblies. Labour is not one of the said three items. Consequently it can safely be said that labour falls within the exclusive legislative domain C of the Provincial Assemblies. 33. The above provisions of the Constitution will show that there is only one Federal legislative list read with Article 142(b) within the legislative domain of Parliament and all remaining items came under the legislative domain of Provinces. 34. After the 18th Amendment a number of enactments become provincial subjects including the Act of 1976. The Parliament while amending the Constitution has saved those enactments which came under the domain of Provinces as a result of the amendment. Article 270AA provides that these laws will continue to remain in force until altered, Amended or repealed by the competent authority. The competent authority has also been provided in Article 270AA. 35. A plain reading of said article will show that, enactments of concurrent legislative list ipso facto became Provincial laws and these enactments will continue remain in force in their present form. However, the competent authority shall have the powers to alter, amend and repeal these laws. The wisdom for providing life to these laws seems to be that these laws including Act of 1976 are permanent laws and not sunset or temporary laws. Further in case of EOBI Act, the Institution has the assets and liabilities which have to be distributed among the provinces according to their agreed share. In addition the provision is designed to provide continuity without the necessity for undertaking fresh legislation while saving the right of the provinces to alter, amend or repeal the law. 36. The word devolution used in Article 270AA (8) is intentional as the assets and liabilities of the institution 'under the Act of 1976 will have to be distributed and transferred to the Provinces. This is the reason why the time frame of one year has been provided for completing the devolution process. 37. the dictionary meaning of word devolution is: "the act or fact of devolving: passage award from stage: the passing on to the successors of an unexercised right." 38. Oxford English dictionary "the transferring of power by central government to local or regional government, devolve transfer power to a lower level responsibility pass on." The legal meaning: the passing of property from one to other, as by hereditary succession, degeneration." . 39. The Blacks Law dictionary defines devolution as: transfer mode of disposing of or parting with an asset or an interest in an asset, legal succession, meaning the succession established by law."
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40. In Article 270AA(6) the word devolution process means the process transfer of assets as the Parliament has assigned powers to the Federal Government to constitute an Implementation Commission within 15 days for supervising and regulating the transfer of assets and liabilities within one year. 41. The argument of Learned counsel for respondents is that Act of 1976 will remain Federal Law until altered, amended or repealed, does not find support from the wording of Article 270AA(6). The parliament left the option for the Provinces that they may continue with the already enacted law, or alter, or amend the same. And if they think that existing law will not cater to their requirements, they may repeal the law and enact a new law, If the intention of parliament was that unless altered, amended and repealed the Act of 1976 will remain federal law, the Parliament could have made it clear that till its alteration, amendment or repeal the enactment will remain the Federal law, or the executive authority qua the Act of 1976 will remain with the Federation. The words used are that the law will remain in force. This means that the system and framework under the Act .1976 will remain intact as millions of beneficiaries of the Act are receiving their old age pension and millions of contributors are depositing their contributions. The purpose of establishing the Implementation commission further clarifies the intention of the legislators. The commission will be the supervisor of the devolution process, meaning thereby the commission will oversee the affairs of the Institution to a limited extent only till the process of devolution is completed within the given period. The Commission is empowered only to manage the necessary and urgent affairs of the Institution as the Executive Authority of Federal Government ceased on the day that the 18th amendment became a part of Constitution. The seriousness of the Parliament is evident from the fact that only 15 days time was allowed to the Federal Government for constituting the Implementation Commission. There is no doubt in my mind that the said period of one year and 15 days could not be extended through any executive order. Hence the fixation of time of one year and 15 days is intentional and the matter of its extension (if required) remains within the exclusive power of the Parliament. 42. The Federal Government has constituted the commission which rightly took over charge of Institution and issued directions on 1-7-2011, restricting the functions of Institution. 43. The Federal Government under Article 97 of the Constitution can exercise its executive authority only with respect to those matters which fall within the domain of Parliament. The rules of business of 1973 are meant to facilitate running the affairs of Federal Government. If the Federal Government has no powers in relation to Provincial laws, how can the Prime Minister Exercise powers relating provincial matters in purported exercise of his executive authority. 44. The argument of Learned Counsel for respondent is that like labour, the subject of education has also devolved upon the Provinces under…
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