SPEEDY DISPOSAL OF LABOUR
CASES
By
MAHMOOD ABDUL GHANI
The Constitution of Pakistan provides for inviolability of dignity of
man, freedom of association, trade, business or profession as also security of
person. In terms of Article 8 of the
constitution any law inconsistent with or in derogation of Fundamental Right
are to be treated as void. Right to
speedy and expeditious disposal of cases is part of the right to life and
liberty. It appears that the subordinate
judiciary in this country specially the labour courts
have still not realized the importance of right to speedy disposal of labour
cases although mandate on this behalf have been given by the
Under the Industrial Relations Ordinance 1969 appeals were to be filed
before fulltime Labour Appellate Tribunals both in
Under the Industrial Relations Ordinance 1969 the Chairmen of the Labour
Appellate Tribunals were retired judges of the Sindh High Court and Lahore High
Court. In Sindh such luminaries as Mr.
Justice Inamullah Khan, Mr. Justice Z.A. Channa, Mr. Justice Ahmed Ali U.
Qureshi, Mr. Justice Munnawar Ali Khan and Justice Dr. Tanzeelur Rehman were
responsible in developing voluminous case law and also laid foundation for
Labour Jurisprudence in the country. It
goes to the credit of these respectable judges that they decided labour appeal
cases within three to six months of filing of the appeals. Adjournments were hardly given. In fact Mr. Justice Z. A. Channa used to hear
the appeal and dictate the decision in open Court first before taking up next
appeal listed in Daily Cause List. Between three to four cases, each day, were
decided by them. Even otherwise on an
average, between 20 to 25 appeals on merits, which did not include withdrawal
of cases were decided by the Labour Appellate Tribunal
of Sindh. The fate of an appeal were
thus known to the employer and the workers within three to six months of filing of the appeal. No
doubt in
The system of Labour Appellate Tribunals were
functioning smoothly and to the satisfaction of both the labour and
management. Unfortunately, certain
Employers Associations and Federations belonging to textiles, pharmaceuticals,
Chambers of Commerce & Industry, Association of Trade & Industry almost
ignored altogether, taking interest in labour law matters. As and when called upon to contribute for
amendments in the Labour Laws, they came up with the out dated concept of right
of “hire and fire” which was subsequently given gloss of right to effective
management, without
realizing that there is no provision in the entire labour law, which prohibits
or restricts the right of employ to employ any workman. Even work on “contract” is invariably
recognized by the Superior Judiciary. Even right to terminate, retrench or
dismiss a workman is recognised. It is
unfortunate that all these years, since the promulgation of the Labour Laws, no
effort, whatsoever, was made by these Associations, Chambers and Federations to
ascertain and determine the role and the functions of the Labour Courts in the
province and the National Industrial Relations Commission at the Centre. Apparently, this task was left almost
exclusively to the Employers Federation of Pakistan who took up themselves the
bastion to plead and espouse the cause of employer in matters pertaining to
amendments in the labour laws of this country.
However both the Employers Federation of Pakistan and thereafter WEBCOP
(Workers Employers Bilateral Council of Pakistan) which is not only an offshoot
of Employers Federation of Pakistan but also consists of persons who are active
members of the Employers Federation of Pakistan, alongwith certain labour
leaders and Labour Federation started dealing with labour management relations
in this country and took it for granted that they alone are to be consulted for
amendments in labour laws.
It is with deep regret and remorse that both the ‘EFP’ and ‘WEBCOP’ had
not only not come up to the expectations of employers in the improvement of
labour management relations although both contributed in formulation of the labour
policy 2002 and the subsequent promulgation of Industrial Relations Ordinance
Needless to mention the purpose of industrial law and the object of
industrial justice can be taken to establish a balance between the interests of
the workers and those of the owners of industry so that harmony of their
relations may be achieved. It is not
easy, perhaps not even possible, to strike a perfect balance because
limitations with respect to the interests of either party are imposed by the
existing conditions. The decisive factor
for the decisions, in the existing state of affairs, would ultimately have to
be the attitude of the mind or the policy designed by those who administer
industrial justice. There is little
authority from the purely legal point of view in support of one attitude or the
other. In these circumstances, the
Legislature had earlier
considered it best not to confer the industrial
jurisdiction on the ordinary Courts and had created special Industrial Courts
now known as Labour Courts. One of the reasons behind it appears to be that the
Industrial and or Labour Courts are expected to be experienced in and
appreciative of social, economic, labour and industrial problems, while the
ordinary Courts are trained to administer purely legal justice with commendable
emphasis, of course, on rationality and logic which is, however, not the same
thing as the formulation of and adherence to a well designed policy within the
law. The jurisdiction to hear appeals
from the awards of the Industrial Courts was earlier conferred on the High
Court; but the nature of the jurisdiction of such Appellate Courts and their
outlook was the same as those of the special Courts from which the appeals were
preferred. The Chairmen of the Industrial Courts in
1st.
2nd
3rd
4th
5th
The Hon‘ble Prime Minister of Pakistan has announced in the National
Assembly that Industrial Relations Ordinance 2002 is to be repealed. It is not clear if the proposed Industrial
Relations Act, 2008 will be
formulated or framed with consultation of Federation and/or
WEBCOB. They have been earlier responsible for the mess in which basically
employers find themselves at present with the abolition of the Labour Appellate
Tribunal. Surely they cannot be expected to commit mistake again.
With the abolition of Labour Appellate Tribunal and promulgation of
Industrial Relations Ordinance
The removal of
judges and induction of new ones, thereafter in all the four Benches/Circuits
of Sindh High Court between 2002 and 2008, not more than 125 to 150 have been decided
which include bunch cases. The average
per year of disposal of labour cases comes to 25 cases, which if reduced on a
monthly disposal works out to
The institutions of Labour Appeals and Labour Revision Applications
during the period 2003 upto 2008 April at the Karachi Bench of the Sindh High
Court alone are as under :
Year No. of cases filed
2003
664
2004
430
2005
208
2006
296
2007
423
2008 upto April 24
Labour Revision Applications.
Year No. of cases filed.
2003 53
2004
33
2005
143
2006
23
2007
73
2008 upto April 04
Breakup of the
cases at
The State as a guardian of the
Fundamental Right of its people, is duty bound to
ensure speedy trial and avoid any excessive long delay 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 or labour cases and its fate is known both to
the worker and the employer speedily.
Once a person is able to establish that this basic and fundamental right
under Constitution has been violated, it is upto the Government to justify that
this infringement of Fundamental Right 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
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. Million 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 of the under-trials who are languishing in jail, yet 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 an unconscionable 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 touching 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 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 recognized
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 interest 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 realize 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
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 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 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
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
· 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
· 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
· The budget allocation for judiciary is
only 0.2 per cent of the GNP, out of which 50% i.e. 0.1 per cent is realized
from the court revenues.
Unfortunately, no such statistical data is available in
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 minimized. Perhaps the underlying concerns mentioned
above equally apply to
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
The right to a speedy decision is not only an important safeguard to
prevent undue oppressive incarceration, to minimize 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 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 involve delays, deceleration in the
process of disposal and unwanted adjournments.
(c) Once a
(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
i.e., 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 i.e. 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 procedure 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 specialized tribunals and
reduce load on Courts.
(u) Introduce plea bargaining in
(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
The right to a speedy trial is not only an important safeguard to
prevent undue and oppressive incarceration or unemployment but it serves to
minimize anxiety and concerns that accompany the termination of worker. This
right helps to limit the possibility of impairing the ability of an worker 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
Because the guarantee of a speedy trial is one of the most basic rights
preserved by the Constitution of U.S.A. 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 beings 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
judgment 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
·
The
seriousness of the offense 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 preexisting rights long drawn out evidences are uncalled
for. Alongwith an Application for
aforementioned predetermined and preexisting 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 arguments, 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,
Since labour appeals are a
continuation of a
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.
It is high time that the
parameters be laid down by the superior judiciary as to the grounds or
circumstances under which back benefits, if any, are to be granted. During the last six years when appeals were
filed and decided by the High Court, experience has shown atleast in Sindh,
though synopsis of the arguments have been filed in High Court and copies of
the same provided to the counsel of the other side, yet almost years have taken
place and no arguments have been filed by the workers representatives with the
result that the proceedings have been delayed.
Unfortunately, inspite of last chance repeatedly granted by the High
Court there have been delays much to the agony of the employer, This should
come to an end if Industry is to survive and function effectively employers
have to concentrate on their work and not be concerned about delay in disposal
of the Labour cases and appeal cases and grant of “back benefits”. Already million of rupees have been deposited
by the employers in