Intra Court Appeal against Bank of Punjab

PLJ 2013 Islamabad 83 (DB)

Present: Iqbal Hameedur Rehman, C.J. and Muhammad Azim Khan Afridi, J.

MUHAMMAD AMIN QAMAR--Appellant

versus

BANK OF PUNJAB, etc.--Respondents

I.C.A. No. 44 of 2012, heard on 12.6.2012.

Punjab Industrial Relations Ordinance, 2010--

----S. 83--Industrial Relations Act, 2008, Scope of--Constitution of Pakistan, 1973, Art. 270-AA--Law Reforms Ordinance, 1972, S. 3--Intra Court Appeal--Domain of Provincial Assemblies--Redressal of grievance with regard to unfair labour practice--Applications for transfer of cases were filed on behalf of bank while taking stance that by repeal of Act, 2008 and passage of 18th amendment to Constitution--Concurrent list was abolished--Employment and trade union was domain of provincial assemblies--Validity--NIRC might proceed in matters which did not belong to a single province and were in nature of National Industry wise character subject to existence of law--Under Art. 270-AA existing laws were saved and Act of 2008 being existing law on the day 18th amendment was passed had also been saved--Applications were pending for registration as union of industry wise character at national level having membership in more than one provinces, therefore, NIRC had jurisdiction to deal with the matter.    [P. 86] A

Industrial Relations Ordinance, 2011--

----Preamble--Industrial Relations Act, 2012--Preamble--Interpretation of statues--Retrospective effect--Procedural law had retrospective effect unless contrary was provided expressly or impledily--IRO, 2011 had retrospective effect and all actions taken after 30.4.2011 and before promulgation of IRO, 2011 would be deemed to have been taken under IRO, 2011 as well as IRA 2012 as having retrospective effect.           [P. 88] B

Mr. Shahid Mehmood Khokhar, Advocate for Appellant.

Sardar Ahmad Jamal Sukhera, Advocate for Respondent No. 1.

Date of hearing: 12.6.2012.

Judgment

Iqbal Hameed-ur-Rehman, C.J.--Through this single judgment, the instant Intra Court Appeal as well as following connected I.C.As are being decided which have arisen out of a common question of law and facts:--

1.         I.C.A. No. 45/2012 titled Ch. Muhammad Farooq Vs. The Bank of Punjab etc.

2.         I.C.A. No. 46/2012 titled Muhammad Ashraf Khan Vs. The Bank of Punjab & another.

3.         I.C.A. No. 47/2012 titled Ch. Muhammad Farooq Vs. The Bank of Punjab & another.

4.         I.C.A. No. 48/2012 titled Ch. Muhammad Farooq Vs. The Bank of Punjab & another.

5.         I.C.A. No. 49/2012 titled Ch. Muhammad Farooq Vs. The Bank of Punjab etc.

6.         I.C.A. No. 50/2012 titled Ch. Muhammad Farooq Vs. The Bank of Punjab etc.

7.         I.C.A. No. 51/2012 titled Ch. Muhammad Farooq Vs. The Bank of Punjab & another.

8.         I.C.A. No. 52/2012 titled Ch. Muhammad Farooq Vs. The Bank of Punjab & another.

9.         I.C.A. No. 53/2012 titled Ch. Muhammad Farooq Vs. The Bank of Punjab etc.

10.       I.C.A. No. 54/2012 titled Ghulam Asghar Vs. The Bank of Punjab & another.

11.       I.C.A. No. 55/2012 titled Bashir Ahmad Khan Vs. The Bank of Punjab & another.

2.  The appellants have filed the above I.C.As., wherein they have called in question the impugned order dated 17.01.2012, passed by the learned Single Judge in Chamber; whereby constitutional petitions filed by the Bank of Punjab ("Bank") were disposed of and the orders dated 22.07.2010 impugned in the constitutional petitions were set aside and NIRC was directed to transfer the record of the case to the concerned provinces.

3.  The salient features of the instant ICAs are that the appellants approached the NIRC for redressal of their grievance with regard to unfair labour practice etc. The matters remained pending for a considerable period. On 22.7.2010, applications for transfer of cases were filed on behalf of respondent bank while taking a stance that by the repeal of the Industrial Relations Act, 2008 and the passage of the 18th amendment to the Constitution of the Islamic Republic of Pakistan, 1973 whereby concurrent list in the Constitution has been abolished; whereas legislation in respect of labour, employment and trade union etc. was the domain of Provincial Assemblies. It was further contended that in view of Section 83 of the Punjab Industrial Relations Ordinance, 2010 the cases pending in the National Industrial Relations Commission constituted under Industrial Relations Act, 2008 stood transferred to the Tribunal, Labour Court and Registrar having jurisdiction in the matter. Nevertheless these applications were dismissed by the Chairman, National Industrial Relations Commission, Islamabad through order dated 22.07.2010.

4.  Feeling displeased, the Bank of Punjab assailed the same in the constitutional petitions, which were disposed of in the terms mentioned supra by the learned Single Judge in Chamber vide the consolidated impugned order dated 17.1.2012, hence these Intra Court Appeals.

5.  It is contended by the learned counsel for the appellants that the impugned order is against the law and facts of the case; that learned Single Judge in Chamber has totally ignored the promulgation of the IRO-2011 by the Federal Legislature and its existence vide Resolution passed by the Parliament on 17.11.2011 and Notification dated 21.11.2011 issued by the National Assembly Secretariat in this regard; that the learned Court has not appreciated the law and facts of the case; that Section 87 of the IRO, 2011 was also ignored, therefore, the impugned order is not sustainable in the eye of law.

6.  Conversely, learned counsel for the respondent/Bank submitted that the National Industrial Relations Commission was existing under the Industrial Relations Act, 2008 in view of Section 87(3) of the Industrial Relations Act, 2008, it stood repealed on 30th April, 2010. He explains that under the Constitution of the Islamic Republic of Pakistan, 1973 the legislative fields of trade unions and industrial and Labour disputes, prior to the 18th amendment were a part of concurrent legislative list, therefore the Federation had enacted Industrial Relations Act, 2008 under which the NIRC was existing, but as a result of 18th amendment the concurrent legislative list stood abolished and in terms of Article 142 of the Constitution, the Parliament has no legislative competence to legislate in respect of trade unions andlabour disputes. It is added that by virtue of Section 83 of the Punjab, Industrial Relations Ordinance, 2010 all the cases were to be transferred to the Tribunal, LabourCourt and Registrar having jurisdiction in the matter. It is further stressed that Article 270-AA(6) does not apply in the instant matter, therefore, the impugned order was rightly passed.

7.  We have heard the arguments advanced from both the sides and perused the material made available.

8.  The applications for transfer of cases were filed before the NIRC while challenging the jurisdiction of the National Industrial Relations Commission, Islamabadmainly on the grounds that by repeal Industrial Relations Act, 2008 and due to 18th amendment to the Constitution, the legislation in respect of labour, employment and trade union etc. was the domain of Provincial Assemblies. In terms of Section 83 of the Punjab Industrial Relations Ordinance, 2010 the cases pending in the National Industrial Relations Commission were to be transferred to the Tribunal, Labour Court and Registrar having jurisdiction in the matter. The Chairman, NIRC dismissed the applications of the Bank relying upon circular dated 20.7.2010 issued by the Law, Justice and Parliamentary Affairs Division; whereby it was advised that NIRC may proceed in the matters which do not belong to a single Province and are in the nature of National Industry-wise character subject to existence of relevant law. It was also observed that under Article 270-AA existing laws were saved and the Act of 2008 being existing law on the day 18th Amendment was passed had also been saved. It was also opined that applications were pending for registration as a union of industry-wise character at national level having membership in more than oneprovinces, therefore, NIRC had the jurisdiction to deal with the matter.

9.  The constitutional petitions were disposed of on different grounds. Undisputedly, the Industrial Relations Act was promulgated in the year 2008 and as per Section 87(3) it was mentioned that it shall stand repealed on 30th April, 2010. It is better and appropriate to reproduce Section 87(3) ibid, which reads as under:--

87.  Repeal and savings. (1)........

(2) ................

(3)  This Act shall, unless repealed earlier, stand repealed on 30th April, 2010.

The above quoted provision of law clearly demonstrates that the said act stood automatically repealed on 30th April, 2010. There is no dispute in this regard. Further in the case of Air League of PIAC Employees through President Vs. Federation of Pakistan (2011 SCMR 1254) it was held by the Hon'ble Supreme Court of Pakistan that IRA, 2008 ceased to continue in force w.e.f 30th April, 2010. The learned Single Judge in Chamber was also impressed by this position of law but regrettably failed to take into consideration that the Industrial Relations Ordinance, 2011 had already been promulgated and very much in field at the time when the impugned order was passed. As regards the question that it became a provincial subject, sub-sections (2) & (3) of Section 1 of the Ordinance, 2011 clearly provides that:--

2.         Subject to sub-section (3), it extends to the whole of Pakistan.

3.         It shall apply to all persons employed in any establishment or industry, in the Islamabad Capital Territory or carrying on business in more than one province.

10.  The above quoted provisions of law clearly indicate that the Ordinance was promulgated for the whole of Pakistan and was applied to all persons employed in any establishment or industry in the Islamabad Capital Territory or carrying on business in more than one province. Thereafter, the Industrial Relations Act, 2012 has also been promulgated and the above two sub-sections were also included therein. The appellant had filed application for registration as union of industry-wise character at national level having membership in more than one provinces, therefore, the provisions of above Ordinance and Act were clearly applicable and NIRC had the jurisdiction to entertain the same.

11.  The learned Single Judge while passing the impugned order has also relied upon sub-sections (2) and (3) of Section 80 of the Punjab Industrial Relations Act, 2010, which state that:--

80.  Transfer of cases from National Industrial Relations Commission.--(1) All the cases pending before the National Industrial Relations Commission, constituted under the repealed Industrial Relations Act, 2008 (IV of 2008) shall stand transferred to the Tribunal, Labour Court and Registrar having jurisdiction in the matter.

(2)  The said National Industrial Relations Commission shall transfer the record of all the cases and trade unions to the Tribunal, Labour Court or Registrar.

(3)  The Tribunal, Labour Court or Registrar may continue the proceedings in a case transferred under this section from the stage at which it was pending before the National Industrial Relations Commission at the time of coming into force of this Act.

12.  As already stated above that the appellants union was of industry-wise character at national level, therefore, in view of the Industrial Relations Ordinance, 2011 and Industrial Relations Act, 2012, the provisions of the Punjab Industrial Relations Act, 2010 were not applicable. As regards the 18th amendment and that it has become provincial subject matter as agitated by the Bank in the applications is concerned, we are unable to see eye to eye with this contention for the simple reason that when a union is industry-wise character at national level, any dispute arose cannot be resolved at the Provincial level and this is why to cater the state of affairs, the Ordinance, 2011 and Act, 2012 were introduced and promulgated by the Federal Government. Additionally, it is observed that the Hon'ble Supreme Court of Pakistan in the case of AIR League of PIAC Employees mentioned supra has held that Labour Laws are procedural law and in the light of the well-settled principles of interpretation of Statutes, the procedural law has retrospective effect unless contrary is provided expressly or impliedly. Therefore, it can be safely held that IRO, 2011 had the retrospective effect and all the actions taken after 30.4.2010 and before promulgation of IRO, 2011 would be deemed to have been taken under IRO, 2011 as well as IRA, 2012 as having retrospective effect.

13.  For the reasons listed above, all the above mentioned ICAs are accepted and the impugned order dated 17.1.2012 passed by the learned Single Judge in Chamber is set aside.

(R.A.)  I.C.A. accepted