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Petitioner: ATLAS AUTOS LIMITED VS Respondent: NATIONAL INDUSTRIAL RELATIONS COMMISSION, ISLAMABAD
1990 P L C (C
1990 P L C (C.S.) 369
[Karachi High Court]
Before Ajmal Mian, C.J. and Abdul Rahim-Kazi, J
ATLAS AUTOS LIMITED and others
versus
NATIONAL INDUSTRIAL RELATIONS COMMISSION,
ISLAMABAD and others
Constitutional Petitions Nos, D-852 of 1983, D-634, D-636, D-637 and D-519 of 1985, decided on 4th May, 1989.
(a) Industrial Relations Ordinance (XXIII of 1969)--
---S. 22-A---Interpretation and analysis of S. 22-A.
(b) Industrial Relations Ordinance (WII of 1969)---
---S. 22-A---National Industrial Relations Commission---Function of National Industrial Relations Commission is not exclusively judicial in nature but its functions comprise of advisory executive and judicial functions.
(c) Interpretation of statutes---
--- While interpreting a provision of a Statute Court will not read into it something which has not been provided for and the words are to be construed in ordinary meaning unless the words and phrases are of technical legislation which are to be construed in their technical meanings, if they have acquired one, otherwise they are also to be construed in their ordinary meaning.
(d) Industrial Relations Ordinance (XXIII of 1969)--
---S.22-A---National Industrial Relations Commission---Word "member" in S.22-A---Connotation---Appointment of a part time member does not infringe S.22-A but is in consonance with the spirit and object of the Ordinance.
The word "member" is susceptible to a wider connotation as to include full time and part time member, as it is not prefixed by the words "full time" or "part time". Keeping in view the nature of the functions of the Commission, which comprise of `advisory', executive', and `judicial', the appointment of a part time member does not infringe section 22-A of the Ordinance but is in consonance with the spirit and the object of the Ordinance.
(e) Jurisdiction--
---If a mandatory condition for the exercise of jurisdiction by a Court. tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction.
(f) De facto Judge---
---Concept---Appointment of a Judge or a member of Tribunal cannot be challenged in a proceeding between the two litigant parties in which an order passed by the Judge or the Member of a Tribunal is impugned as the question of any alleged defect in the appointment of such a Judge or a member of tribunal is foreign to the dispute between the litigant parties, which is the subject matter of such proceedings.
A Judge or a member of a tribunal, who holds office under colour of lawful authority and not as a mere intruder or usurper, though his appointment may be defective, is a de facto Judge or a member of a tribunal, his judgments/orders/actions, have the same effect as of a judge or a member of tribunal de jure--and the same are saved by the de facto doctrine as a matter of necessity and of public policy in order to avert chaos and confusion. The appointment of a Judge or a member of tribunal cannot be challenged in a proceeding between the two litigant parties in which an order passed by the Judge or the member of a tribunal is impugned as the question of any alleged defect in the appointment of such a judge or a member of tribunal is foreign to the dispute between the litigant parties, which is the subject-matter of such proceedings. The above principle is rational and logical as if the judgment/order/action in such a proceeding is saved by the de facto doctrine and cannot be set aside, it must follow that in such a proceeding no declaration can be given to the effect that the appointment of the Judge concerned or the member of Tribunal concerned was invalid.
Ijaz v. Board of Revenue and others P L D 1976 Lah. 563; Khawajdin v. Rationing Controller Food, Faisalabad and 2 others P L D 1980 Lah. 15; Chittaranjan Cotton Mills Ltd. v. Staff Union P L D 1971 S C 197; Mansab Ali v. Amir and 3 others P L D 1971 S C 124 and Gokaraju Rangaraju v. State of Andhra Pradesh A I R 1981 S C 1473 distinguished.
Gokaraju Rangaraju v. State of Andhra Pradesh A I R 1981 S C 1473; Abdul Salam Qureshi and another v. Judge, Special Court of Banking for Sindh and another P L D 1984 Kar. 462; Colley's Constitutional Limitations 8th Edn. Vol. II p. 1357; Lt.-Col. Farzand Ali and others v. Province of West Pakistan through Secretary, Department of Agriculture, Government of West Pakistan, Lahore P L D 1970 S C 98; Milward v. Thatcher, (1787) 2 T.R. 81 p. 87; Scadding v. Lorant, (1851) 3 H.L.C. 418; State v. Gardner (Cases on Constitutional Law by Mc. Gonvey and Haward, p. 102; Norton v. Sheib County (886) 118 U.S. 425 ref.
(g) Industrial Relations Ordinance (XXIII of 1969)--
---S.22-A---National Industrial Relations Commission---Fact that office of the Chairman of the Commission was vacant during the proceedings would not vitiate various actions or the orders passed by the members of the Commission in accordance with the provisions of Industrial Relations Ordinance, 1969.
Zulfikar Ali Bhutto v. The State P L D 1978 S C 40 and Karachi Electric Supply Corporation Progressive Workers' Union v. Registrar of Industry wise Trade Union and others C.P. No. D-256 of 1989 ref.
(h) Interpretation of statutes---
--- Failure or omission of the designated authority to frame the necessary rules and regulations, cannot be construed as having the effect of rendering the Statute f nugatory and unworkable.
M.U.A. Khan v. Rana M. Sultan and another P L D 1974 S C 228 fol.
Noor Muhammad and Nizam Ahmad for Petitioners.
Akram Zubairi, Shahenshah Hussain, Ali Amjad and Hussain Adil Khatri for Respondents.
Dates of hearing: 20th, 24th and 25th April, 1989.
JUDGMENT
AJMAL MIAN, CJ.--By this common judgment, we intend to dispose of the above five petitions. In four of the above petitions Mr. Noor Muhammad has appeared for the petitioners, and whereas in C.P. No. D-634 of 1985, the petitioners are represented by Mr. Nizam Ahmed, Advocate. Mr. Akram Zubairi, advocate, has appeared for the National Industrial Relations Commission and so also Mr. Hussain Adil Khatri, Advocate. Whereas the private respondent No. 3 as been represented by Mr. Shahenshah Hussain, Advocate, in C.P. No. 852 of 983, whereas Mr. Ali Amjad, Advocate, has represented private respondent fo.12, in C_P. No. D-634 of 1985.
2. All the above cases involve common questions of facts and of law. In all the above petitions proceedings either civil or criminal for the unfair labour practice on the part of the petitioners have been initiated by the private respondents/employees under section 22-A(8)(g) read with section 15 of the industrial Relations Ordinance, 1969, (hereinafter referred to as the Ordinance), before the National Industrial Relations Commission (hereinafter referred to as he Commission). The above proceedings have been impugned by these petitions on the ground that the Commission at the relevant time was not properly constituted.
3. Messrs Noor Muhammad and Nizam Ahmed in support of the above petitions have urged as follows:
(1) That since the function of the commission is judicial, there cannot be any part time member of the Commission because of the nature of the work and in view of the language employed in section 22-A of the Ordinance and that if we were to exclude part time members, the Commission then had less than the mandatory seven members at the relevant time and, therefore, it was not properly constituted and the proceedings before it were coram non judice.
(2) And even otherwise two part time members, namely, the representatives of the employers and employees were not appointed in terms of subsection (5) of section 22-A of the Ordinance.
(3) That Mr. Nizam Ahmed, additionally submitted that one of the members of the Bench who passed order dated 19-8-1985; namely, Mr. Aziz Ahmed was not qualified to be a member of the Commission.
4. Messrs Akrarn Zuberi, Shahenshah Hussain and Ali Amjad who appeared for the Commission and for the private respondents, have urged as under:--
(1) That m the four petitions in which the petitioners are represented by Mr. Noor Muhammad, the impugned orders of taking cognizance of the proceedings were passed by the Chairman of the Commission whereas in C.P. No. D-634 of 1985, the impugned order was passed by the Chairman and two full time members of the Commission and therefore, the petitioners have no cause to urge.
(2) That even otherwise there is no prohibition provided in section 22-A of the Ordinance and/or in any rules that a part time member cannot be appointed as member of the Commission.
(3) That the two representatives of the employer and the employees have been appointed in consonance with law,
(4) That Mr. Aziz Ahmed was qualified and was properly appointed as the member of the Commission.
5. Mr. Hussain Adil Khatri, learned Standing Counsel who has also appeared for the Commission supported the above submissions of the learned counsel for the respondents and pointed out that the concept of a part time member is not foreign to the judicial system prevailing in our country.
6. In order. to appreciate the above contentions of the learned counsel for the parties, it may be advantageous to reproduce herein below section 22-A of the Ordinance which reads as follows:--
"22-A. National Industrial Relations Commission.--(1) The Federal Government shall constitute a National Industrial Relations Commission.
(2) The Commission shall consist of not less than seven members including the Chairman.
(3) The qualifications for appointment as a member or as the Chairman of the Commission shall be such as may be determined by the Federal Government.
(4) The Chairman and other members of the Commission shall be appointed by the Federal Government.
(5) Two of the members shall be appointed in the prescribed manner to advise the Chairman, one to represent the employers and the other to represent industry-wise trade unions, federations of such trade unions and federations at the national level.
(6) The Chairman of the Commission may, in addition to the representative of workers appointed to the Commission, co-opt in cases where he deems it necessary, from amongst workers belonging to federations at the national level such representatives of workers as he may deem fit.
(7) The workers representatives co-opted under subsection (6) shall be entitled to such honorariam as the Federal Government may, on the advice of the Chairman of the Commission, determine.
(8) The following shall be the functions of the Commission, namely:--
(a) to promote the formation of trade unions of workers within the same industry whether in establishments within a Province or in more than one Province and federations of such trade unions;
(b) to promote the formation of federations at the national level;
(c) to adjudicate and determine an industrial dispute to which an industry wise trade union or a federation of such trade unions is a party and any other industrial dispute which is in the opinion of the Federal Government, of national importance and is referred to it by that Government;
(d) to register industry-wise trade unions, federations of such trade unions and federations at the national level;
(e) to determine the Collective Bargaining Agents amongst industry-wise trade unions, federations of such trade unions and federations at the national level;
(f) to try offences punishable under--
(i) section 53, other than subsections (1) and (5) thereof; and
(ii) any other sections, in so far as they relate to employers or workers in relation to an industry-wise trade union, a federation of such trade unions, a federation at the national level or officers of such union or federation;
(g) to deal with cases of unfair labour practices specified in sections 15 and 16 on the part of employers, workmen, trade unions of either of them or persons acting on behalf of any of them, whether committed individually or collectively, in the manner laid down under section 25-A or section 34 or in such other way as may be prescribed and to take in such manner as may be prescribed by regulations under section 22-F, measures calculated to prevent an employer or workman from committing an unfair labour practice;
(h) to advise Government, industry-wise trade unions and federations in respect to the education of workers in the essentials of trade unionism, including education in respect of their rights and obligations, and to secure the provision of facilities required therefore, and to apportion the cost thereof, between the Provincial and Federal Governments, industry wise trade unions, federations of such trade unions and federations at the national level, and the employers, in such manner as may be considered equitable by the Commission; and
(i) such other powers and functions as the Federal Government may by notification in the official Gazette, assign to it from time to time.
(9) The Commission may, on the application of a party, or of its own motion.-
(a) initiate prosecution, trial or proceedings or take action, with regard to any matter relating to its functions; and
(b) withdraw from a Labour Court any application, proceedings, or appeal relating to unfair labour practice.
(10) For the purpose of dealing with a case of unfair labour practice of which the Commission is seized, the Commission may--
(a) proceed directly with the case, or
(b) ask the Registrar within whose jurisdiction the case has occurred or is likely to occur to enquire into it and submit a report, or
(c) refer the case to Labour Court within whose jurisdiction the case has occurred or is likely to occur, either for report or for disposal.
(10-a) The Labour Court to whom the case is so referred shall enquire into it and, if the case was referred to it for report, forward its report thereon to the Commission or, if the case was referred to it for disposal, continue the proceedings and dispose of the case as if the proceedings had originally commenced before it and grant such relief as the Commission has the power to grant.
(11) Save as provided in subsections (10-a) and 12 no Registrar, Labour Court or Tribunal shall take any action, or entertain any application or proceedings, in respect of any matter which falls within the jurisdiction of the Commission.
(12) Nothing in this section shall be deemed to exclude the jurisdiction of Labour Court to entertain cases of unfair labour practices on the part of employers or workmen, whether individually or collectively;
Provided that no Court, including a Labour Court, shall take any action or entertain any application or proceedings in respect of a case of unfair labour practice which is being dealt with by the Commission.
Explanation.--In this section and in the succeeding provisions. of this Ordinance, the expressions "industry-wise trade union", "federation of such trade unions", and "federation at the national level" refer to a trade union the membership of which extends to establishments in more than one Province and a federation of trade unions whose membership extends to registered trade unions in more than one Province:'
7. A perusal of the above quoted section shows that under subsection (1) the Federal Government has been empowered to constitute a commission, whereas subsection (2) provides that the Commission shall consist of not less than seven members including the Chairman. It may further be noted that subsection (3) empowers the Federal Government to determine the qualifications for appointment as a member or as the Chairman of the Commission. Whereas subsection (4) provides that the Chairman and other members of the Commission shall be appointed by the Federal Government. It may also be noted that subsection (5) lays down that two of the members shall be appointed in the, prescribed manner to advise the Chairman, one to represent the employers and the other to represent the industry-wise trade unions, federations of such trade unions and federations at the national level. It may further be noted that Under subsection (6) the Chairman has been empowered to co-opt in cases where he deems it necessary, from amongst workers belonging to federations at the national level such representations of workers as he may deem fit, in addition to the representative of workers appointed to the Commission, whereas subsection (7) lays down that the workers representatives co-opted under subsection (f) shall be entitled to such honorarium as the Federal Government may, on the advice of the Chairman of the Commission, determine. It may also be pointed out that subsection (8) defines the functions of the Commission, which inter alia includes the powers to deal with the cases of unfair labour practices specified in sections 15 and 16 on the part of the employers, workmen, trade unions of either of them or persons acting on behalf of any of them, whether committed individually or collectively, in the manner laid down under section 25-A or section 34 or in such other way as may be prescribed, and, to take, in such manner as may be prescribed by regulations under section 22-F, measures calculated to prevent an employer or workman from committing an unfair labour practice. It may also be noted that subsection (9) empowers the Commission upon an application of a party or of its own motion, to initiate prosecution, trial or proceedings or take action, with regard to any matter relating to its functions, and to withdraw from a Labour Court any application, proceedings, or appeal relating to unfair labour practice, whereas subsection (10) further empowers the Commission that for the purpose of dealing with a case of unfair labour practice of which the Commission is seized, the Commission may--(a) proceed directly with the case, or (b) ask the Registrar within whose jurisdiction the case has occurred or is likely to occur to enquire into it and submit a report or (c) to refer the case to Labour Court within whose jurisdiction the case has occurred or is likely to occur, either for report or for disposal. It may also be noted that subsection (10-a) provides that the Labour Court to whom the case is so referred shall enquire into it and, if the case was referred to it for report, forward its report thereon to the Commission or, if the case was referred to it for disposal, continue the proceedings and dispose of the case as if the proceedings had originally commenced before it and grant such relief as the Commission has the power to grant. It may also be noted that subsection (11) provides that save as provided in subsections (10-a) and (12) no Registrar, Labour Court or Tribunal shall take any action, or entertain any application or proceedings, in respect of any matter which falls within the jurisdiction of the Commission. It may also be pointed out that subsection (12) lays down that nothing in this section shall be deemed to exclude the jurisdiction of Labour Court to entertain cases of unfair labour practices on the part of the employers or workmen, whether individually or collectively. It may also be pointed out that the proviso to above subsection (12) provides that no Court including a Labour Court, shall take any action or entertain any application or proceedings in respect of a case of unfair labour practice which is being dealt with by the Commission. The explanation to the above subsection (12) lays down that in this section and in the succeeding provisions of this Ordinance, the expressions "industry-wise trade unions", "federation of such trade unions", and "federation at the national level", refer to a trade union, the membership of which extends to establishments in more than one Province and a federation of trade unions whose membership extends to registered trade unions in more than one Province.
8. Mr. Noor Muhammad in furtherance of his above first submission `that since the function of the Commission is judicial, there cannot be any part time member of the Commission because of the nature of the work and in view of the language employed in section 22-A of the Ordinance and that if we were to exclude part time members the Commission then had less than the mandatory seven members at the relevant time, and therefore, it was not properly constituted and the proceedings before it were coram non judice; has referred to sections 35(5), 36, 38, clauses (e) and (f) of subsection (8) of section 22-A, section 22-B, and has urged that the Ordinance has provided judicial forums for adjudicating upon labour disputes and that the main function of the Commission is judicial which comprises of civil and criminal jurisdiction, and therefore, there cannot be any part time member of the Commission particularly the personnel attached to the executive cannot be made part time members of the Commission. He has invited our attention to the case of Huzoor Alam and 2 ethers v. National Industrial Relations Commission, Karachi and another 1974 P L C Kar. 161, in which a Division Bench of the erstwhile High Court of Sindh and Balochistan while dealing with the provisions of the Ordinance in relation to Commission observed that "if by the expression "apex" is meant merely the highest position in a system of Tribunals then perhaps the description of the Commission as standing at the apex of these Tribunals is justified".
9. On the other hand Mr. Ali Amjad has submitted as observed herein above that the function of the Commission is three-fold, namely, advisory, executive and judicial. In furtherance of his above submission he has invited our attention to clauses (a), (b) and (h) of subsection (8) of section 22-A, to show that the function to promote the formation of trade unions of the workers or to promote the formation of federations at the national level, envisaged by the above clauses (a) and (b) and to advise Government, industry-wise trade unions and federations in respect to the education of workers etc. under clause (h) are of advisory in nature. Whereas under clauses (d) and (e) of subsection (8) the powers to register industry-wise trade unions, federations of such trade unions and federations at the national level and to determine the collective bargaining agents amongst industry-wise trade unions, federations of such trade unions and federations at the national level are in fact powers of executive nature and whereas the other clauses, namely, clauses (f) and (g) of subsection (8) empower the Commission to t y offences under section 53 other than those mentioned in subsections (1) and (5) thereof, and under any other sections, and to deal with cases of unfair labour practice under the above clauses, are of judicial nature. We are inclined to hold that the function of the Commission is not exclusively of judicial in nature but the Commission's functions comprise of advisory, executive and judicial.
10. Messrs Noor Muhammad and Nizam Ahmed, Advocates have invited our attention to paragraph 16 of the counter-affidavit dated 8-2-1984, sworn by one Shaikh Riazul Haque, Deputy Registrar for the Commission, containing the details of the composition of the Commission. It may be advantageous to reproduce the same, which reads as follows:--
"16.- That I am advised to submit and I state that at no stage, the strength of the learned Commission (N.I.R.C.) was less than 7 members and presently the "Commission" consists of 12 members as per details submitted below:--
(1) Dr. Justice (Retd.) Ibrahim Mahmud, Chairman.
SRO 733(1)/80, dated 7-7-1980.
(2) S. Rais Ahmed Jafri, Senior Member
SRO 391(1)/80, dated 24-4-1976. SRO 4(4)/72-Ad-1, dated 4-8-1979.
(3) Mr. Mahmood Akhtar, Member
Com.2(3)/83, dated 27-9-1980.
(4) Mr. Aziz Ahmed, Member
No. 4(36)/74-Admn-I, dated 5-12-1983.
(5) Raja Iftikharullah Khan, Member
Com. 2(1)/83, dated 4-4-1983.
(6) Mr. Ashraf Ali, Joint Secretary, Labour Member
Com. 2(3)/82, dated 21-7-1982.
(7) Four Secretaries Labour of each Provincial Governments
SRO. 1139(1)/72, dated 6-11-1972.
(8) Ch. Rahmatullah to represent the workers
SRO. 1114 (1)/81, dated 12-10-1981.
(9) Mr. Hashim A. Dada to represent the Employers
LR. 9(5)/72, dated 19=12-1972."
11. On the basis of the above paragraph 16, it has been contended that factually there were altogether five members including the Chairman as the full time members of the Commission. According to Mr. Noor Muhammad, Mr. Aziz Ahmed, who was appointed on 5-12-1983, should be excluded as the impugned order in the first petition was passed in August, 1983, whereas according to Mr. Nizam Ahmed after issuance of notification dated 13-7-1982, providing Grade-20 for a member of the Commission, Mr. Aziz Ahmed was not qualified to continue as a member as he was having Grade-19 being the Registrar at the time of his appointment as the member of the Commission under notification dated 21-9-1982. They have further submitted that the members mentioned at Sr. Nos. 6 to 9 in the above quoted para. 16 of the counter affidavit were liable to be…
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