Healthy industrial relations are of paramount importance. The existing Labour Legislation and machinery provided for enforcement and implementation of labour laws, namely Labour Court, Labour Appellate Tribunal and the National Industrial Relations Commission, constitute basically Labour Judiciary in this country.
The Authority under Payment of Wages Act, Commissioner for Workmen's Compensation, Commissioner under Social Security Ordinance, 1965 and the Adjudication Authority under Employees Old Benefit Act can also be treated broadly as within the ambit of the Labour Judiciary.
It need not be over emphasised that the purpose of Labour Laws and the object of industrial Law and Labour Legislation are to be establish the balance between the conflicting interests of the workers and those of the employers so that the harmony amongst them may be achieved. Labour Legislation in India and Pakistan have considered it best not to confer Labour and Industrial Jurisdiction on the ordinary Courts and have created special Labour Courts to deal with Labour-Management relations at the provincial level with the Labour Appellate Tribunal at the appellate stage.
The NIRC is to deal with matters pertaining to the industry wise trade union whose membership extends to more than one province. The reason behind the creation of these labour judiciary forums appears to be that the members and presiding officers of these special courts and tribunals would be experienced and appreciative of the social, economic, labour and industrial problems dealing with the labour and management. Originally these courts were known as industrial courts comprising one retired judge of the High Court and with one representative of the employers and one representative of the workers. The role of these two Members was Advisory.
Subsequently, the status of these courts was reduced and they were known as labour courts presided over by the Judge of the High Court or District and Session Judge. With the passage of time the status of the Labour Courts was again reduced and even Additional District and Session Judges were appointed as Members of the labour courts.
Unfortunately, however, prior to the decision of the Apex Court in the Al-Jehad Trust case, the appointments to the office of the Labour Court was done by the Provincial Governments. For the first time in the IRO 2002, appointments of the Presiding Officer of the labour court was to be made in consultation with the Chief Justice of the province. Unfortunately for very obvious reasons this provision was deleted in the Industrial Relations Act 2008 and the presiding officers are now appointed by the provincial governments once again.
In the case reported in PLD 2010 Kar 27, Justice Shahid Anwar Bajwa, the most experienced member of the labour bar, for the first time in his judgement after discussing the Al-Jehad Trust case reported in PLD 1996 SC 324, laid down the principle that the presiding officers of the labour court, member of labour appellate tribunal and member of NIRC are to be appointed in consultation with the Chief Justice.
It may be pointed out that under SRO 662 (1) of 2002 dated 16-09-2002; it has been provided that the Chairman of NIRC shall be a retired Judge of Supreme Court of Pakistan who shall be appointed in consulation with the Chief Justice of Pakistan. It may be mentioned that in the past, the presiding officers in the labour courts were appointed by the provincial governments not based on merit but invariably because of party affiliation and or the whims and fancies of the Chief Executive of the province.
In the case of A & B Beverages Shama Labour Union vs Sindh Labour Court (2000 PLC 389), this issue of such appointments of labour court judges has been admirably dealt with by the Sindh High Court. The facts were that a person in judiciary service as the additional and district sessions judge was dismissed from service in 1992 after due enquiry on charges of corruption. The then chief minister of Sindh set aside the dismissal orders.
The High Court of Sindh did not recognise such Judicial Officer as a Judicial Officer any more and he was not allowed to resume duties as district and sessions judge. The Government of Sindh posted him as Presiding Officer, Sindh Labour Court. The Hon'ble Sindh High Court on such appointment observed as under:-
"There is absolutely no doubt that he is still reputed to be corrupt and it is very unfortunate that such a person has been assigned the vital task of deciding the matter under the Labour Law." However, the Hon'ble Judge ordered that the office should send a copy of the order to the Labour Appellate Tribunal for information and to the Chief Secretary and the Secretary Law to consider whether such a person "who is still reputed to be corrupt deserves to be retained in service."
Such judicial appointments in the Labour Court are however rare. In Punjab, Mr Rafiq Tarrar was appointed as Presiding Officer of the Labour Court. He was subsequently elevated as Judge of the High Court, then elevated Judge of the Supreme Court and after his retirement he was even appointed as the President of Pakistan. In Sindh, Agha Ali Haider and Agha Imdad Ali were appointed as presiding officers of the labour courts. Subsequently both were elevated as Judges of the Sindh High Court.
Justice Agha Ali Haider even retired as Chief Justice of the Sindh High Court. After his retirement he was appointed as Chairman Labour Appellate Tribunal. Ghulam Rasool Shaikh was appointed as Judge of the Labour Court. Thereafter he was elevated as Judge of the High Court. Shahnawaz Khan was appointed as a judge of the labour court at Karachi and after break-up of One Unit, he was appointed as judge of the Peshawar High Court and thereafter elevated as judge of the Supreme Court of Pakistan. Rana Bhagwan Das was appointed as judge of the labour court at Karachi and was subsequently elevated as judge of the Sindh High Court and thereafter as judge of the Supreme Court of Pakistan and even therefore appointed as Acting Chief Justice of Supreme Court of Pakistan.
His lordship graced these offices with admiration. Nazim Hussain Siddiqui was presiding officer of the labour court and thereafter elevated as judge of the High Court. Subsequently was appointed as Judge of Supreme Court of Pakistan and retired as Chief Justice of Pakistan. Saiyed Saeed Ashhad was appointed as Presiding Officer of the Labour Court, elevated as Judge of the High Court, thereafter became Chief Justice of Sindh High Court and subsequently was elevated as Judge of the Supreme Court of Pakistan.
It therefore can be said with certain degree of pride that in the earlier stages, presiding officers of the labour court not only were elevated as Chief Justice but even judges of the Supreme Court of Pakistan and even Chief Justice of the High Court. Such was the high standard of the labour judiciary in Sindh and in Punjab.
It may be mentioned therefore that there was time in the past when the Labour Court was treated as a stepping stone for elevation to the High Court and even subsequently to the Supreme Court of Pakistan. This is no more so.
Reference to A & B Beverages Shama Labour Union case, where the Sindh High Court in its decision subsequently mentioned that certain presiding officer known to be and reputed to be corrupt was assigned the vital task of deciding matters under the labour laws and are still reputed to be corrupt and the High Court observed he be not retained in service. Fortunately, neither in Sindh or Punjab where there are full-time Labour Appellate Tribunal, any such stigma or observation appear against the Chairman of Labour Appellate Tribunal primarily because they were Hon'ble retired judges of the High Court of Punjab and Sindh who worked with self-respect and dignity.
The same observation with a feeling of regret cannot be stated to be true in the case of NIRC wherein the case of Nishat Group of Industries (1997 PLC 622) Justice Ihsanul Haq Chaudhry of Lahore High Court made the following observations:
"It is a matter of great regret that the government makes appointments to such sensitive posts recklessly. The government, if serious, to these 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. Let a copy of this judgement be sent to Mohammad Zaman Qureshi, newly appointed Chairman NIRC to take up the matter in the concerned quarters."
The matter did not end there, or shall I say, the rot did not stop there. Justice Tanveer Ahmed Khan in Pakistan Telecommunication's case (1999 PLC 320) made, probably the most scathing remark ever made against a judicial forum against NIRC when his Lordship said:
"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 Constittuional Petitions one comes to an irresistible conclusion that there is a judicial anarchy in the working of the NIRC, the Full Bench as quoted the observation of my learned brother Ihsan-ul-Haq Chaudhry, J, qua the working of the NIRC reported in the Nishat Group of Industries and another vs Chairman NIRC and others (1997 PLC 622), which is in the following terms:
"It is a matter of great regret that the government makes appointments to such sensitive posts recklessly. The government, if serious, to these institutions for 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.
"The 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 learned brother quoted above that the working of the Commission is on 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."
(To be continued)