With the establishment of the National Industrial Relations Commission in the context of Labour Court, two separate independent labour judiciary were established. In matters pertaining to the local nature or trade unions registered with the Provincial Registrar of Trade Unions, Labour Courts were established in terms of section 38 with appeal before the Labour Appellate Tribunal or High Court, as at present in the respective provinces.
As against this, in relation to those unions registered as Industry wise Trade Unions or whose membership extends to more than one province, and or individual grievances in relation to members of such industry wise trade unions, the National Industrial Relations Commission was to perform and have the same powers and functions in terms of section 22-A(8), IRO 1969 with a right to appeal in terms of section 22-D, IRO 1969 before the Full Bench, NIRC.
Furthermore, in terms of section 22-B(3) (a) of IRO 1969 in relation to cases based on allegation of unfair labour practice before the Commission for trial of such cases or for enforcement of or for the redressal of individual grievances in respect of any right guaranteed and secured to any employee or workman by or under the law, the NIRC was to exercise the same powers as that of the Labour Court.
In other words, it was never the intention of the legislature to establish two separate parallel labour judiciary each vying to transgress the powers of other judiciary. The Industrial Relations Ordinance, 1969, IRO 2002 or the present Bill of Industrial Relations Act 2008 should be read harmoniously being a social legislation to ensure that various provisions of the Industrial Relations Ordinance 1969 or the subsequent laws do not conflict with each other.
It was with this end in view that in Constitution Petition No 2550/2001 in the case of Pearl Continental Hotel V/s Pearl Continental Hotel Workers Union. DB 1 consisting of Hon'ble Chief Justice Saiyed Saeed Ashhad and Mr Justice Mushir Alam made an in depth analysis of various provisions of section 22-A(8), IRO 1969.
This detailed discussion appears at page-7 onwards. After examining various provisions of law, the DB-1 referred to section 22-A(8) (f), IRO 1969 which deals with trying of offences punishable under the Industrial Relations Ordinance, 1969.
The learned DB-1 examined the explanation to section 22-A(13) which defines Industry-wise Trade Unions and reading various provisions of law in harmony with each other. The DB-I came to the conclusion that in clause (g) of section 22-A(8), IRO 1969, the National Industrial Relations Commission has jurisdiction to entertain applications pertaining to unfair labour practice filed by the Industry-wise Trade Unions, Federations of such trade unions or federation at the national level, whereas trade unions, having been registered with provincial registrars and having representation only in one province, cannot invoke the jurisdiction of NIRC in respect of cases of unfair labour practices.
And for redressal of such grievances, resort be made to section 22-A(12), IRO 1969 before the Labour Court which is equally competent to entertain cases of unfair labour practice, whether committed individually or collectively.
In so coming to this conclusion, the learned DB-1 has referred to an unreported decision of Mr Justice Zia Mehmood Mirza Chairman, NIRC who was a retired judge of the Supreme Court of Pakistan, in case No 4A(307)/1999 whose judgement has been upheld by the Full Bench, NIRC in appeal No 12(28)/2000, with the conclusion that the jurisdiction of section 22-A(8), IRO 1969 extends only to cases of industry-wise trade unions, federations of such trade unions and federations at national level.
This decision of the Division Bench of the High Court in Constitution Petition No 2550/2001 was binding on the Division Benches of the same High Court, on the basis of the principle laid down by the Supreme Court of Pakistan in 1999 SCMR 1719, 1995 SCMR 362, PLD 1995 SC 423, PLD 1963 SC 293. However, with due respect, Division Bench II in Constitution Petition No 951 and 952 of 2001 had examined this judgement in C.P. No 2550/2001 and considered the text of section 22-A(8)(g), IRO 1969, which text does not include section 22-A(8)(c) phrase 'and which is not confined to matter of purely local nature.'
The implication of this phrase was thus not considered apparently because the text of Labour Laws with DB-II did not contain this amendment. The learned DB-II thereafter referred to section 22-A(8)(f) which deals with powers of the National Industrial Relations Commission to try offences and also referred to SRO 623(1)/73 at page 11 dated 27th April, 1973 and reproduced the same at page-11 of its judgement. The learned DB-II came to the conclusion that apparently this notification was not brought to the attention of the learned members of DB-I and therefore, it came to the conclusion that this calls for constitution of Full Bench of the High Court. With due respect to the learned DB-II, the limited issue for consideration before DB-I as also before this Full Bench is exercise of powers of NIRC in terms of section 22-A(8)(g), IRO 1969 read with section 25-A(10), IRO 1969.
These proceedings are basically of civil nature. It goes without saying that there are two types of proceedings before the NIRC. One is of civil nature and the other of criminal nature in terms of section 22-A(8)(f), IRO 1969. In addition thereto by virtue of section 22-A(i), Federal Government has been vested with powers to grant such further powers and functions to the NIRC as the Federal Government may so assign from time to time.
SRO 623(1)/73 is in the context of powers of criminal nature of NIRC in terms of section 22-A(8)(f), IRO 1969 for trial of offences of unfair labour practice and not in relation to section 22-A(8)(g), IRO 1969 which is of civil power of NIRC and was issued in exercise of the powers under section 22-A(8)(f), IRO 1969. This distinction between the civil power and criminal powers of NIRC has been dealt with by the DB-I who at page 14 has been pleased to observe as under:-
"In the first place, the issue before the Court in this Constitution Petition is the exercise of jurisdiction by NIRC in section 22-A (8) (g), IRO 1969 to deal with the cases of unfair labour practice specified in section 15 and 16 of IRO 1969 and whether such jurisdiction can be invoked by a trade union registered at provincial level by the Provincial Registrar of Trade Unions."
That furthermore, DB-1 at page 15 made distinction between section 22-A(8)(g) and 22-A(9), IRO 1969 dealing with civil and criminal powers of the National Industrial Relations Commission and observed, as under:-
"The scope and sphere of section 22-A(9), IRO 1969 which is altogether different from the scope and sphere under section 22-A(8)(g) which confers power on the NIRC to deal with cases of unfair labour practice and take measures calculated to prevent employer from committing acts of unfair labour practice whereas section 22-A(9), confers upon the NIRC power to initiate prosecution, trial or proceedings or take action with regard to any matter relating to its functions. Respondent No 2 had moved application before NIRC invoking its jurisdiction under section 22-A(8)(g), IRO 1969." Later on in last three lines of the aforesaid page of the judgement of DB-1, it is observed as under:-
"Provisions of section 22-A(9) would not be attracted to an application under section 22-A(8)(g), thus completely negating or ruling out the possibility of such application being filed by a party other than an industry wise trade unions, a federation of such trade union and a federation at national level."
It is thus very clear and obvious that the DB-II has not only erred in not making distinction between the civil power of the NIRC and the criminal power of NIRC for dealing with matters pertaining to unfair labour practice and also referred to the notification which has no relevancy to the present proceedings being civil and not criminal in nature.
Section 49 of IRO 2002 and its equivalent provision in the new Bill deals with National Industrial Relations Commission ("NIRC"). Para-38 of Labour Policy 2002 announced by the then Federal Minister for Labour reads as under:-
" National Industrial Relations Commission shall be revamped and its functions and performance will be reviewed"
However, under IRO 2002 nor the IRA 2008 neither NIRC has been revamped nor its functions and performance apparently reviewed. Unions are registered in an establishment or industry within a province by the Provincial Registrar of Trade Unions and all matters, without exception, are justiceable before the Labour Courts constituted by the Provincial Government now to be established in consultation with the Chief Justice of the respective High Courts.
Prior to 1969, if there were unions whose memberships extended beyond one province, the registration of such unions were effected by the Central Registrar, Federal Government (Ministry of Labour). However, there was no mechanism whereby a union whose membership extends beyond one province could have their disputes/grievances resolved by an institution or a judicial forum at the national level. Hence the necessity to establish National Industrial Relations Commission by the Federal Government, through insertion of section 22-A by the Labour Laws (Amendment) Ordinance, 1972.
The status of NIRC vis-a-vis unions at national levels was the same as that of a Labour Court at the provincial level. The overall performance of this institution whose functions are executive, advisory and judicial (PLD 1990 Kar 362), have been subject of observations, by the superior judiciary. Some of these observations are reproduced below:-
In the case of Nishat Group of Industries and another V/s Chairman, NIRC and others (1997 PLC 622) Mr Justice Ihsanul Haq Choudhry of Lahore High Court observed:-
"It is a matter of great regret that the Government makes appointment to such sensitive posts recklessly. The Government, is serious to keep those institutions for the industrial peace in the country, then these Tribunals have to be manned by persons of integrity and quality otherwise it would amount to sheer wastage of public funds".
In the case of Pakistan Telecom. Co. Lions Staff Union V/s NIRC1999 PLC 320 at 347 Mr Justice Tanvir Ahmed Khan of Lahore High Court has remarked:-
"Before parting with these cases after going through the judgement dated 15.7.1998 of the Chairman, NIRC and the judgement dated 31.8.1998 of the Full Bench both subject matter of these Constitutional Petitions one comes to an irresistible conclusion that there is a judicial anarchy in the working of the NIRC".
In the aforesaid judgement after reproducing the observations of 1997 PLC 622 the learned Judge has concluded at page 347 with these remarks:-
"Learned Counsel appearing for both the sides have also made reference to such an atmosphere prevailing in the Commission. I myself fully subscribe to the view of my brother quoted above that the working of the Commission is on the decay and if some steps, at the earliest, are not taken to arrest this deteriorating situation it would be then too late in the day to mend the same".
Sir William Scott (1745 - 1836), The Gratitudine (1801), 3 C Rob 240 at 277 as reproduced in A Dictionary of Legal Quotations by Simon James and Chantal Stebbings, page 14 has aptly remarked:-
"The word Commission sounds sweet in a merchant's ear". Unlike Section 44(1) IRO 2002 where the Provincial Government, in consultation with the Chief Justice of the respective High Courts may establish as many Labour Courts as it considers necessary, under section 49(2) IRO 2002 the Chairman and the member of NIRC shall be appointed by the Federal Government.
No consultation, either with the Chief Justice of Pakistan or the High Courts, is envisaged. In the Industrial Relations Act 2008 Bill no consultation either for Chairman or Member NIRC or the Labour Court is provided altogether. Such appointments are liable to attract the principle pertaining to appointments of judges as laid down in Al-Jehad Trust (PLD 1996 SC 324) and in the case of Sh. Liaquat Hussain and others (PLD 1999 SC 504), and will be held by Courts as illegal.
Under section 44(3) IRO 2002 qualification for appointment as Presiding Officer of Labour Court has been statutorily provided. Same is the case with the present Bill. As against this in terms of section 49(3) of IRO 2002 and the present Bill the qualification and terms and conditions of service for appointment as Chairman and member of the Commission are to be determined by the Federal Government. There is thus apparent inconsistency.
Furthermore, in terms of section 49(4) (a) of IRO 2002 and the equivalent provision of the Bill and the equivalent provision of the Bill, the functions of the Commission are to adjudicate and determine industrial dispute raised, either by the industry-wise trade union or federation of such trade unions, and any other industrial dispute which in the opinion of the Federal Government, is of national importance and is referred to it by the Government. It should be clarified, in law, that the industrial dispute to be adjudicated can be raised either by the employer or the Collective Bargaining Agent. Section 49(4)(a) and its present provision in the Bill need be suitably rephrased.
This is essentially a judicial function. Over the past thirty years, since the establishment of NIRC less than ten cases have been referred to as disputes of national importance, notable Pak Saudi Fertiliser Limited, Karachi Port Trust, Engro Chemicals Limited, Ghazi Barotha Project, Sui Northern Gas Pipelines Limited of which only KPT case was decided on merits, the other cases were amicably settled between the parties outside the court.
No statistical data has been made available as regards the total Industrial Disputes raised and or decided by NIRC at the initiative of industry wise trade unions or employer over the past thirty years. However, reference to PLC; PLJ; NLR which are basically law reports, show that hardly any industrial dispute raised by the industry-wise trade unions or employer has been decided on merits, barring unreported cases, if any. Disposal of the case should be on merit and not merely cases withdrawn as settled or dismissed for non-prosecution. Decision on merit, is the correct yardstick for the disposal of cases. It was expected that in the recent illegal strike in PTCL the NIRC could have taken suo moto action.
Registration in terms of section 49(4)(b) of IRO 2002 or its equivalent provision in the Bill of industry wise trade unions, federation of such trade union and federation at the national level is an executive or at best a quasi-judicial function. Even if Registrar of Industry wise Trade Unions ("RITU") is a judicial functionary, this function is in contrast to the function of RTU (Registrar of Trade Unions) in a province. The registration of a trade union is the function, not of a Labour Court, but that of the Directorate of Labour in the province, and there is no earthly reason why the NIRC be unnecessarily burdened with this work of registration of industry wise trade union which can be assigned by the Federal Government through notification in each province, to respective the RTU in the province.
If the Federal Government can notify, in terms of section 26(2), IRO 2002, the conciliator in each province, they, being officers with the Provincial Directorate of Labour, can also notify the Registrar of Trade Unions in the provinces for such functions. For the infrastructure in the province already exists, both for the registration and subsequent certification of the CBA. This will result in savings of the national exchequer and reduce the volume of work of the NIRC. After all, large numbers of unions are registered by the Provincial Registrar of Trade Unions. The principal office of the union could well be the basis of applying for registration of the union before the Provincial Registrar of Trade Unions in the province.
In section 49(4)(b) IRO 2002, one of the functions of the Commission is to "carry out the ratings of the trade unions and federations in terms of their standing and representative character". This novice innovation, brainchild of an immature mind, has lead to suspicion amongst workers. Both employers and workers have their reservations as to the Institution in its present format. Even the Labour Policy 2002 calls for a 'revamp'. Unbridled, uncanalized arbitrary and almost despotic powers have been conferred without laying down guidelines as to how the pseudo 'rating' will be carried out by the Commission. No consequence as to low ratings has been mentioned in law.
As regards, 'representative character', the same stands determined through secret ballot for determination of Collective Bargaining Agent. This is an overlapping of functions, aimed at justifying the existence of an institution even at the cost of misgiving and misunderstanding by workers. The sooner the same is dispensed with, the better for the cause of industrial peace and harmony.
Edmond Burke (1729-97) Report from the Committee of the House of Commons, appointed to inspect the Lords Journal, 30 April 1974 has aptly stated that:-
"Courts are made for the suitors, and not the suitors for the Court".
In terms of section 49(4)(c),IRO 2002 or its equivalent provision in the Bill relating to determination of CBA amongst industry wise trade unions and federation at the national level is again a non-judicial function. In each of the provinces, the Provincial RTU (Registrar of Trade Unions) have been performing this function without any iota of allegation. In close co-ordination, each of the four provincial Registrar of Trade Unions could easily perform the function of determination of CBA reducing once again the pressure on NIRC and thus 'revamping' the NIRC as envisaged in the Labour Policy, still in force in Pakistan.
Trying offences punishable under section 65 of IRO 2002 and its equivalent provision in the Bill and any other provision, in so far as they relate to employer or workers in relation to an industry wise trade union or federation at the national level is yet another judicial function of the NIRC in terms of section 49(4)(d) of IRO 2002. Statistical data of the past thirty years show that less than 300 cases were instituted all told, or 10 cases per year all over the country on an average. The figure of decisions on merit of criminal proceedings decided by the NIRC are again not readily available. However, reported cases are almost next to nothing.
During the early tenure of the Chairman, NIRC late Justice Abdul Hamid Malik no doubt criminal prosecution were effected, but with the development of labour jurisprudence, less emphasis is on criminal prosecution as these criminal prosecution tend to retard cordial labour management relations. Criminal prosecution now, is more of a deterrent, than an effective instrument for resolution of labour-management relations. The exclusion of penalty by way of imprisonment in IRO 2002 is a pointer to this direction. The same is with the proposed Bill, and reflects a healthy tendency to foster cordial labour management relations.
Dealing with cases of unfair labour practice, is by far the major area of judicial proceedings in NIRC. Unfair Labour Practice is not a concept of recent origin. In pre-partition India, provisions dealing with unfair labour practice and mode of redressal of grievance thereof was envisaged in Trade Unions Act, 1926. This law was adopted in Pakistan in 1947 until replaced by West Pakistan Trade Unions Ordinance, 1968 where, once again, provisions pertaining to unfair labour practice were incorporated and remedy for its redressal envisaged. This law was repealed by IRO 1969.
It is, as such not correct to imagine that unfair labour practice either did not exist prior to establishment of NIRC, or that no remedy was available. Statistical data, if obtained by the Federal Government from the various Labour Courts or the earlier Industrial Courts established in each of the four Provinces since their establishment, will reveal that cases pertaining to unfair labour practice were nominal and few.
However, with the establishment of NIRC, the number of cases, volume increased to alarming portions. Labour situation between 1972 till to date do not speak of any rational comparison between incidents of unfair labour practice and filing of cases before the NIRC. If the number of cases of unfair labour practice has now increased to alarming proportions then the NIRC, whose main and primary function is to ensure unfair labour practice are not resorted to either by employers or by workman, have with due respect not come up to the expectations of the nation. Hence, the necessity to revamp the NIRC and review of its functions as laid down in Labour Policy 2002, in the context of unfair labour practices.
(To be continued)
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