Justice that comes too late has no meaning to the person it is meant for. During a prolonged and unending proceeding, the priorities of a worker towards life change along with the circumstances. The person can also loose everything on account of the pending proceedings, not as court fees but payments made to advocates, professional labour leaders and even to labour court staff.
Therefore, speedy trial should be recognised as an urgent need of the present judicial system in order to decide the fate of thousands of litigants. It will help to enhance the faith of general public in the present judicial system. In order to have a strong socio-economic system, it is important that each and every stage of decision of a worker who is the head of a family and is the only bread earner, his responsibility is also towards the large family left behind him.
It is not only the worker but also his other members of the family who suffer because of delays in disposal of labour cases. Speedy disposal ensures that a society is free of such vices. Speedy disposal of his case would also help save a worker from psychological stress, such as worries anxiety, disturbances to peace at home, etc. Speedy decision is hence a mandatory requirement as far as protecting the interests of a worker is concerned.
DELAY IS MAINLY CAUSED DUE TO THE FOLLOWING REASONS AMONGST OTHERS: Late appointment of judges - administration/states fails to recruit requisite number of judges within a stipulated time. The writ jurisdiction of the High Court and the style of its exercise.
Face value of certain senior lawyer in whose hands most of the work falls contribute to delay and arrears by their non-availability and un-preparedness. At times litigants also do not realise their responsibilities. Sometimes, the sole object of their going to court is to obtain a stay order or an injunction to harass the adversary or delay labour cases so as to obtain "Back Benefits".
Lax judge who seem to be unable to reach decision after proceedings has been held, possibly because the issues and evidence are too complicated and not summary in nature. Experience has shown that proceedings before the Labour Court are not concluded before two to three years. There are cases as old as five or six years still pending before the Labour Courts.
Some of the reasons for this inordinate delay in the Labour Courts are:
a) Non-availability of Presiding Officer and vacancy due to transfer or retirement of Presiding Officers in the Labour Courts in some cases for months/years, and non-appointment of Presiding Officer by the Provincial Government.
b) Full fledged application of CPC in cases of individual grievances, like filing of written statement, framing of issues, filing and or oral recording of evidence, and lengthy cross-examination, oral/written arguments etc.
c) Delay on the part of the Presiding Officer once, case is reserved for orders, in writing decision and announcing the same within reasonable time.
d) Delay caused due to repeated adjournments sought by the counsel or the representatives either on personal grounds, engagements in other courts/Tribunals or even High Court etc or on unavoidable grounds like general strikes in the city or transport strike etc.
e) Indifferent attitude on the part of some counsel/representative to wilfully and deliberately prolong litigation with an eye on 'back benefits' granted to the workers on reinstatement.
f) Conduct aimed to prolong litigation so as to make workers virtually suffer and 'bleed' so that the matter is settled on terms dictated by the employer.
g) Lack of facilities to the Presiding Officers, who are District Judges by, not providing equivalent facilities as in the district leading to a feeling of discontentment amongst them, whilst posted as Labour Court Presiding Officer.
h) Lack of adequate facilities like library, books, steno etc, resulting in delays in disposal of cases.
i) Location of Labour Courts, specially in Karachi and Lahore, at different premises leading to logistical problems for the counsel/representatives, thus delay in attending courts in time, hence adjournments.
The Standing Committee of Indian Home Affairs, under the Chairmanship of Pranab Mukherjee, presently Foreign Minister of India presented its Report on Law's Delays: Arrears in Courts" to the Hon'ble Chairman, Rajya Sabha on December 31, 2001, which was laid on the table of Rajya Sabha on 7th March, 2002. The bewildering statistics revealed by the Standing Committee point out the magnitude of the problem. Long pendency of cases in Supreme Court, High Courts and Labour Courts and Tribunals has become a matter of serious concern. A statistical presentation, inter alia, of number of pending cases relating to Indian Supreme Court, High Courts and Subordinate Courts and analysis thereof is given below:
-- Over 20 million cases pending in the District/Subordinate Courts;
-- 3.5 million cases pending in High Courts;
-- Madhya Pradesh, Patna, Rajasthan, and Calcutta High Courts have cases pending since 1950, 1951, 1955 and 1956 respectively;
-- Percentage of under-trials in India is 73% of their total jail population;
-- Inhuman conditions of women under-trials; no separate jail rooms for women except in Tihar Jail in the entire country, to give only a few examples;
-- There are only 10.5 judges per million of India population, and that is one of the lowest in the world;
-- The number of vacancies in the Subordinate Courts is 1,900 against the total strength of 12,500 (about 15% of the total strength) and 170 in High Courts as against the total strength of 647 (about 26% of the total strength);
The budget allocation for judiciary is only 0.2 percent of the GNP, out of which 50% ie 0.1 per cent is realised from the court revenues. Unfortunately, no such statistical data is available in Pakistan nor any attempt has been made to collect such statistics.
The most important and guiding ruling of the Apex Court of India on speedy trial and disposal of cases is the case of A.R. Antulay v. Avdesh Kumar, wherein ten main guidelines on the subject were laid down. The concerns underlying the right to speedy trial from the point of view of the accused are: the period of remand and pre-conviction, detention should be as short as possible.
In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction. The worry, anxiety, expenses and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimised. Perhaps the underlying concerns mentioned above equally apply to Labour Court cases and their disposal in Pakistan.
Assurance of a fair trial is the first imperative of the dispensation of justice. It is prejudicial to a person to be deprived of his liberty, without trial, in accordance with the law or ordered to be reinstated based on surmises, conjectures and speculative considerations.
It is prejudicial to a person to be denied fair trial. The process of justice should be such that it should not harass the parties, both workers and the employers, and from that angle the court may weigh the circumstances. The time imperative can never be absolute or obsessive.
Even a delay of one year in the commencement of trial or disposal of labour cases is bad enough; how much worse would it be when the delay is as long as 3 or 5 or even 10 years. While each day's delay is important and must be considered, there is no magical formula, the slightest breach of which should lead to the release of the accused or even reinstatement of a worker and or dismissal of his case.
The right to a speedy trial is a derivation from the provision of Magna Carta. This principle has also been incorporated into the Virginia Declaration of Rights of 1776 and from there into the Sixth Amendment of the Constitution of United States of America which reads, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial..." Perhaps this principle can broadly apply to Labour Court cases in Pakistan.
The right to a speedy decision is not only an important safeguard to prevent undue oppressive incarceration, to minimise anxiety and concern accompanying the accusation and to limit the possibility of impairing the ability of an accused to defend himself and expeditious disposal of cases, but also there are social interest in providing a speedy decision.
The right to speedy decision begins with the actual restraint imposed by arrest and consequent incarceration, and or dismissal, or termination of worker and continues at all stages, namely the stage of investigation, inquiry, trial, appeal and revision, so that any possible prejudice that may result from impermissible and avoidable delay from the time of the commission of the offence till it consummates into a finality, can be averted.
This right is actuated in the recent past and the courts have laid down a series of decisions, opening up new vistas of fundamental rights on the ground of inordinate and undue delay stating that the invocation of this right even need not await formal indictment of charge.
The court has to adopt a balancing approach by taking note of the possible prejudices and disadvantages to be suffered by the worker and employer by avoidable delay and to determine whether the worker in a labour proceeding has been deprived of his right of having speedy trial with unreasonable delay which could be identified by the factors - (1) length of delay, (2) the justification for the delay, (3) the workers assertion of his right to speedy trial, and (4) prejudice caused to the worker by such delay. However, the fact of delay is dependent on the circumstances of each case because reasons or delay will vary, such as delay in investigation on account of the widespread ramification of crimes and its designed network, either nationally or internationally, the deliberate absence of witness or witnesses, crowded dockets on the file of the court etc.
The following suggestions/observations, some of which seems to have been actuated by sheer exasperation and desperation, were voiced on procedural inadequacies, flaws and deficiencies in the judicial system from various individuals, lawyers, retired judges, representing a wide spectrum of society:
(a) In a vast majority of cases, adjournments are taken on false pretexts, and the law does not have any appropriate method to tackle them. A strict view on the adjournments is required.
(b) Every transfer of a judge involves repetitive and wasteful procedures, which involve delays, deceleration in the process of disposal and unwanted adjournments.
(c) Once a Labour Court completes recording of evidence and arguments of advocates, it should be made mandatory for the judge to deliver the judgement within a maximum time limit of 15 days thereafter.
(d) Serving summons and warrant notices is another area, which takes a lot of time. For this, modern gadgets such as phones, wireless systems, fax machines, internet facilities connected with Labour Court headquarters should be accepted as valid and should be made accessible to both Civil and Criminal Courts, so that summons and notices can be sent faster.
(e) No oral evidence be insisted where matter rests solely on documentary evidence. Witnesses should not be harassed by adjournments. Affidavit in evidence be filed alongwith the grievance application and affidavit of employee be filed alongwith the reply statement.
(f) Evidence should be tape-recorded or reported by short-hand stenographers and a verbatim record can be kept which can be used while delivering decisions.
(g) At least for two years all the vacations, ie, summer vacation, winter vacation etc, should be terminated as a special case to dispose of the labour cases and also Presiding Officer should sit for the whole day so that the maximum number of cases can be disposed of.
(h) Avoid double numbering system of proceedings ie first time inward entry should be the final number of the proceeding; it will save time.
(i) Preparation and Service of Summons should be allowed mainly through advocates.
(j) Emphasis has to be on final disposal of matters than on disposing interim applications and, therefore, interlocutory orders should be an exception rather than the rule. Interim orders should not result in prolongation of the case.
(k) In criminal cases, verification of complainant can be similar as in civil courts.
(l) Where an advocate or labour representative is appointed, presence of parties should be insisted upon, only at the crucial stages of case, unless it is pleaded that the applicant is not available or has ceased interest in proceedings.
(m) In High Courts, all Benches should be Single Judge Benches.
(n) Legible photocopies of papers should be acceptable in all courts.
(o) Copies of Judgements should be given in open court to parties.
(p) Lengthy judgements should be avoided. Written arguments in Labour Courts and Appellate Court be encouraged.
(q) Supreme Court and High Court decisions ought to be published by those Courts just as the Acts and Rules are published by the government, since these decisions are constitutionally binding on lower courts.
(r) Arbitration procedure should be made applicable to all courts and complicated civil and criminal procedures should be abolished, which are the root cause of delays.
(s) Get rid of corrupt officials. Retire them compulsorily.
(t) Set up more specialised tribunals and reduce load on Courts.
(u) Introduce plea bargaining in Pakistan in Labour Cases also
(v) Revamp further legal education.
(w) Introduce Shift system in court as suggested by the Federal Law Minister.
(z) Set up a National Judicial Commission to ensure strict judicial discipline and an expeditious disposal of labour cases.
The United States of America is the only country, which has enacted a legislation to implement the constitutional guarantee of speedy trial to all accused persons. The Federal Act of 1974 is titled the 'Speedy Trial Act' and was passed in 1974. This Act prescribes a set of time limits for carrying out the major events in criminal proceedings, such as the giving of information and indictment in the prosecution of criminal cases.
The Speedy Trial Act of 1974 requires the trial of a defendant to commence within seventy days from the filing date of the indictment, or from the date on which the defendant appears before a judicial officer of the court, whichever date is later. The indictment must be filed within 30 days from the date of arrest or service of summons. If a violation of the provisions of the Speedy Trial Act occurs, the indictment against the defendant must be dismissed.
The district court, however, retains the discretion to dismiss the indictment either, with or without prejudice. In the case of United States v. Taylor, the question was a determining whether a dismissal of an indictment for non-compliance with the Speedy Trial Act should be with or without prejudice. The Court ruled that the district court at least must consider the seriousness of the offence, the facts and circumstances of the case, which led to the dismissal, and the impact of a re-prosecution on the administration of the Speedy Trial Act and on the administration of justice. Perhaps the salient feature of Speedy Trial Act 1974, to start with, can be applied in labour matters even on Appeal Courts in Pakistan.
The right to a speedy trial is not only an important safeguard to prevent undue and oppressive incarceration or unemployment, but it serves to minimise anxiety and concerns that accompany the termination of worker. This right helps to limit the possibility of impairing the ability of a worker to defend himself. This right is actuated in the recent past and the courts have laid down a series of decisions opening up new vistas of Fundamental Rights. In fact, more cases are coming before the courts or quashing of proceedings on the ground of inordinate and undue delay stating that the invocation of this right even need not await formal indictment of charge. The principle can equally be applied in cases before the Labour Court and Appellate Court cases on labour matters, which are inordinately delayed as is discussed with reference to statistics above.
Because the guarantee of a speedy trial is one of the most basic rights preserved by the Constitution of USA, it is one of those fundamental liberties embodied in the Bill of Rights, which the due process clause of the Fourteenth Amendment makes applicable to the States.
The protection afforded by this guarantee is activated only when a criminal prosecution has begun and extends only to those persons who have been 'accused' in the course of that prosecution. Invocation of the right need not await indictment, information, or other formal charges, but begins with the actual restraints imposed by arrest, if those restraints precede the formal preferring of charges. Possible prejudice that may result from delays between the time governments discovers sufficient evidence to proceed against a suspect and the time of instituting those proceedings is guarded against by statutes of limitation, which represent a legislative judgement with regard to permissible periods of delay.
In two cases, the court held that the speedy trial guarantee had been violated by states which preferred criminal charges against persons who were already incarcerated in prisons of other jurisdictions following convictions on other charges when those states ignored the defendants' requests to be given prompt trials and made no effort through requests to prison authorities to obtain custody of the prisoners for purposes of trial. This principle can be applied in labour matters, if possible, to start with through Public Interest Litigation. In determining whether to dismiss, with or without prejudice, a Labour Court shall consider, among others, each of the following factors:
The seriousness of the offence or the gravity of the charges;
The facts and circumstances of the case which led to the dismissal and or termination of service;
In so far as labour cases are concerned, almost 70 to 80% of the cases filed in the labour courts pertain to enforcement of rights guaranteed in law, settlement or award. Since these cases are/or pertain to enforcement of predetermined and pre-existing rights, long drawn out evidences are uncalled for. Along with an application for aforementioned predetermined and pre-existing rights, a short synopsis of Affidavit-in-Evidence be filed.
Notice both of the petition and the Affidavit-in-Evidence be given to the employer who must necessarily file Reply and Counter Affidavit within a period not exceeding 10 days. Thereafter, on one day, cross-examination be limited and they be conducted both on these evidences. To avoid delay, instead of oral arguments, written argument be filed and the Presiding Officer should decide the cases within seven days of its being reserved for orders.
Keeping in view the summary nature and disposal of cases, Labour Court case can be decided within sixty days, if not within the statutory period of seven days. Delay in disposal of the Labour Courts are mainly because of unfortunate attempts to prolong proceedings with a view to earn "back benefits". In law, it be mentioned that if any delay is caused beyond a period of sixty days, then invariably, without attributing anyone to be responsible for the delay, no back benefit be awarded. Only thus the workers and their representatives will ensure expeditious disposal of the cases in the Labour Courts within the stipulated period provided in law.
Since labour appeals are a continuation of a Labour Court proceedings, and evidence are already on record, these record and proceedings are invariably summoned by the appellate forum, and no further evidence is to be recorded. Along with the filing of the appeal, a brief synopsis of the Written Argument be filed, and within ten days of the receipt of the notice of the appeal and the synopsis of the argument, the other side should file his Written Argument. Only in exceptional cases, and if the appellate forum feels the necessity, oral arguments by way of clarification be addressed. Thus, in this speedy manner, Labour Appeals can be decided within a period of thirty days.
The above proposal may not be acceptable either to some labour leaders or the advocate for want of eye on "back benefits". But if the essence and the spirit of labour laws are be followed then it is in the interest of both the labour and the employer which has to be kept in view and not the interest of few litigant workers or their representatives.
(To be continued)
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