The pronouncement of the Supreme Court (carried in part-II of this article) clearly says that all the laws related to “equitable adjustment of rights between employers and employees” and welfare of workers and providing social security to citizens exclusively fall in the domain of the Parliament and not provincial assemblies even after the passage of the 18th Amendment. In the light of above orders of the Supreme Court, the provincial laws in conflict with federal laws, enacted before or after the 18th Amendment can be void under Article 143 of the Constitution which reads as under:
143.—Inconsistency between Federal and Provincial law. — If any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of Majlis-e-Shoora (Parliament) which Majlis-e-Shoora (Parliament) is competent to enact, then the Act of Majlis-e-Shoora (Parliament), whether passed before or after the Act of the Provincial Assembly, shall prevail and the Act of the Provincial Assembly shall, to the extent of the repugnancy, be void.
The judgement of Sindh High Court in the Shafiquddin Moinee v Federation of Pakistan through Secretary, Ministry of Human Resources Development, Islamabad & 2 Others 2018 CLD 1088, while upholding the vires of Sindh Companies Profits (Workers’ Participation) Act, 2015, concluded as under:
“34. In view of the foregoing discussion, we therefore answer the issue specified in para 2 above, which relates to the third category identified in the order of 19.09.2017, as follows. In the case of trans-provincial companies, it is the Sindh Act that applies, but interpreted, read and applied such that the obligation under the Act is only to make distribution to the workers in this Province, and only of an amount that is proportionate to their number here. It is irrelevant where the registered office and/or the industrial undertaking of the trans-provincial company are located, i.e., they could be located in this Province or elsewhere. Furthermore, in making the computation, the whole of the profits made by the company are to be used, regardless of where they were earned in the country”.
The above judgement, impugned in the Supreme Court, and its operation was suspended on 10.7.2018. Since it is yet not reversed by the Supreme Court, the bench of co-equal strength presently hearing the cases of levy under the Sindh Workers Welfare Fund Act, 2014 and the Sindh Companies Profits (Workers’ Participation) Act, 2015 cannot take a different view unless a larger bench is constituted as held by Supreme Court in PLD 1995 Supreme Court 423. It is also worth mentioning that in all these cases, the dispute is between the Federal and Provincial Governments and High Courts cannot hear these matters in view of Article 184(1) of the Constitution as held in The Punjab Province v Federation of Pakistan [(1960) 2-TAX (Suppl.–3) (S.C.Pak).
It is also worth noting that the Supreme Court in the Human Right Case No. 33954-P of 2018, in its order of March 3, 2020, directed: “The learned Additional Advocate General, Sindh shall also submit a comprehensive report in line with the report submitted by the Province of Punjab as to how many factories are operating in the Province of Sindh and the number of workers employed therein. Similar information, as required from the Province of Sindh, shall also be furnished by the Provinces of Khyber Pakhtunkhwa, Balochistan and the ICT. Adjourned to a date after one month”.
The Sindh High Court in a number of cases challenging the levy of WWF and WPPT by Sindh Government has asked the petitioners to deposit the amount with the Nazir till the disposal of the matter, even though it has no jurisdiction to hear the matter.
In the meantime, the Federal Government and the Punjab Government in utter disrespect of judicial pronouncements and knowing that the matter is sub-judice before the Supreme Court have issued administrative instructions creating further confusion. The Punjab Law and Parliamentary Affairs Department, in Letter No. Legis.13-77/2010(C-II) (P-I)6218, issued on December 15, 2020, addressed to the Secretary of the Government of the Punjab, Labour & Human Resource Department, claimed that the Federal Government or any of its agencies is not legally competent to collect workers welfare fund form the Punjab after the enactment of the Punjab Workers Welfare Fund Act 2019, which came into force on 13.12.2019. Earlier, the Federal Board of Revenue (FBR), in response to a letter by a chartered accountant firm in its Letter C.No.1 (110)R&S/2020 dated December 3, 2020, provided the diametrically opposite view claiming: “In view of decision by the Council of Common Interest (CCI) “WWF shall remain with the Federal Government till such time a mutually agreed mechanism is developed”. It is clarified that Federal WWF Ordinance, 1971 will apply all over Pakistan and FBR is the collecting authority in this regard. It is strange that in Punjab, the coalition Government of PTI, has issued contradictory statement and that too after agreement in CCI as per claim of FBR.
On December 21, 2020, a war of words took place between PPP and PTI on the issue of WWF and EOIB. According to a Press report, the Sindh Education and Labour Minister, Saeed Ghani, “slammed the illegal and unconstitutional seizure of the EOBI and Workers Welfare Fund by the Federal Government”. In retaliation, Leader of the Opposition in the Sindh Assembly, Firdous Shamim Naqvi, reportedly said, the PPP minister was “misleading the people only for political point-scoring”. He added that “the federation wrote a letter asking FBR to collect taxes from the agencies that operate inter-provincially. And such a simple thing is not understood by a minister”. He claimed that all formalities on the part of federal government “are already done and the people of Sindh have not been able to avail the benefits of these institutions [EOBI and Workers Welfare Fund] only due to incompetence of the Sindh government”. Neither the Sindh Education and Labour Minister nor Leader of the Opposition in the Sindh Assembly must realise that the issue is already sub-judice before Supreme Court and Sindh High Court. Either, they were not aware of it or deliberately showing disrespect towards orders of the superior courts and Constitution.
It is about time the Federal and Provincial Governments, instead of issuing contradictory instructions and creating further confusion in business and professional circles, requested the Supreme Court for declaratory judgement, especially when the matter is already seized by the Supreme Court in the Human Right Case [33954-P of 2018] though it did not take note of Article 184 when dispute is between or among the governments. Nobody assisted the Supreme Court that it has original and exclusive jurisdiction, ousting all courts, including Sindh High Court where petitions are pending. The governments must approach the Supreme Court for a declaratory judgement under Article 184(1) & (2) that reads as under:
- Original jurisdiction of Supreme Court.-(1) The Supreme Court shall, to the exclusion of every other Court, have original jurisdiction in any dispute between any two or more Governments.
Explanation.-In this clause, the word “Governments” means the Federal Government and the Provincial Governments.
(2) In the exercise of the jurisdiction conferred on it by clause (1), the Supreme Court shall pronounce declaratory judgments only.
The representatives of workers have been consistently emphasising the view that social security net should not be distributed among the provinces, rather it should be managed through the federation and implemented by the federating units. The trans-provincial fund, assets, institutions and the programs run by EOBI and Workers Welfare Fund (WWF) are difficult to be divided among the provinces. Besides, migration of workers would be a big challenge. They rightly pointed out that subject can be devolved but welfare of the workers/citizens cannot.
The Supreme Court already held in the case of Government of Sindh through Secretary Health Department and Others v Dr. Nadeem Rizvi and others [2020 SCMR 1]: “The performance of its positive obligations under the fundamental rights, for example right to life, prevention of slavery, forced labour, human trafficking, etc. constitute a “purpose” of the Federation for which it can carry out projects throughout Pakistan. For performance of the said purpose, it is not necessary to look into the legislative list when the main body of the Constitution provides the requisite powers. Refer to Province of Sindh v. MQM (PLD 2014 SC 531)”. Thus subject of labour though devolved through 18th Amendment, the workers and citizens are not—they remain the responsibility of Federation as elaborated in Pakistan Workers Federation, Balochistan v Government of Pakistan (2014 PLC 351).
(Concluded)
(The writers, lawyers and partners in Huzaima, Ikram & Ijaz, are Adjunct Faculty at Lahore University of Management Sciences (LUMS))
Copyright Business Recorder, 2021
The writer is a lawyer and author of many books, and Adjunct Faculty at Lahore University of management Sciences (LUMS), member of Advisory Board and Visiting Senior Fellow of Pakistan Institute of Development Economics (PIDE). She can be reached at [email protected]
The writer is a lawyer and author of many books, and Adjunct Faculty at Lahore University of management Sciences (LUMS) as well as member of Advisory Board and Visiting Senior Fellow of Pakistan Institute of Development Economics (PIDE). He can be reached at [email protected]
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