The Breakup of the cases at Hyderabad, Sukkur and Larkana with the number of disposal, are not available. The institutions' figure of Labour Appeals in the Rawalpindi Bench of the Lahore High Court covering the period from 2003 to 2008 April are 235.
Needless to mention that for unknown reasons in Punjab, the Lahore High Court does not entertain labour revision applications. During these seven years in Rawalpindi Bench only 85 appeals have been decided so far which include appeals withdrawn and other cases disposed of as compromise, dismissal for non-appearance and appeals withdrawn as being not pressed.
Figures in relation to the Lahore Bench and the other Circuits at Bahawalpur and Multan are not available. The same is the position regarding NWFP. Statistical figures are not available for these areas. The State, as the guardian of the Fundamental Rights of its people, is duty bound to ensure speedy trial and avoid any excessive long delays in trial of criminal or labour cases that could result in grave miscarriage of justice.
Speedy trial is in public interest as it serves social interests also. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible.
Once a person is able to establish that this basic and fundamental right under the Constitution has been violated, it is upto the Government to justify that this infringement of fundamental rights has not taken place and that the restrictions or provisions of law are reasonable and that the procedure followed in the case is not arbitrary but is just, fair, without delay, expeditious and reasonable. In case the Government fails to do so, the case made against the accused person should be dropped and closed and or the case of reinstatement be dismissed.
Similarly, in the case of wrongful termination the amount of 'back benefits' is awarded by the Labour Courts, which in some cases are more than the total length of service of the employee. Millions of rupees can be saved by speedy disposal of cases. Many poor people are not able to provide financial security as well as sureties and thus have to remain in jail even if the trial is delayed and prolonged.
It is the bounden duty of trial court to ascertain that the cases are disposed of speedily, at least those of the under-trials who are languishing in jail, but the judiciary is unable to enforce this for want of adequate number of courts and judges. The dictum 'Justice Delayed is Justice Denied' postulates that an unreasonable delay in the administration of justice constitutes denial of justice.
The mounting arrears in the trial and labour aid appellate courts, coupled with increased institution of court cases on account of the awareness of rights on the part of the workers, enactments of numerous laws creating new rights and obligations, industrial development in the country, increased trade and commerce and legislative and administrative measures affecting the lives of citizens at all levels, have assumed serious proportions.
Justice that comes too late has no meaning to the person it is meant for. During a prolonged and unending trial, the priorities of a worker towards life change along with the circumstances. The person can also lose 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 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 his large family. 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. 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 interest of a worker is concerned.
DELAY IS MAINLY CAUSED DUE TO THE FOLLOWING REASONS, AMONG OTHERS: Late appointment of judges - administration/states fail 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 lawyers in whose hands most of the work falls contribute to delay and arrears by their non-availability and unpreparedness.
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 "unfair benefits". A judge who seems to be unable to reach decision after proceedings has been held, possibly because the issues and evidence are too complicated.
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 a case is reserved for orders, in writing decision and announcing the same within a 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 willfully 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 while posted as Labour Court Presiding Officer.
h) Lack of adequate facilities like library, books, 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 of 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, now 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 Judge 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 per cent 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 by Employers Federation of Pakistan 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 preconviction, 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 balanced 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 and 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 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 involves 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 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 Judgments should be given in open court to parties.
(p) Lengthy judgments 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 procedures should be made applicable to all courts and abolish complicated civil and criminal procedures which are the root cause of the 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 Federal Law Minister.
(z) Set up National Judicial Commission to ensure strict judicial discipline and 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 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 an 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 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 charge but 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
(To be continued)