INDUSTRIAL RELATIONS
ORDINANCE, 2011
By:
MAHMOOD ABDUL GHANI
Advocate Supreme
Court of
The Ministry of Law, Justice and
Parliamentary Affairs have on 18th July, 2011 promulgated Industrial Relations
Ordinance, 2011. This Law in terms of Section 1(2) extends to the whole of
Under the Constitution of Islamic
Republic of Pakistan 1973, prior to 18th Amendment there was a Concurrent
Legislative List. Item No. 26 and 27 of the said Concurrent List reads as under:--
“26: Welfare of labour,
conditions of labour, provident funds, employers' liability and workmen's
compensation, health, insurance including invalidity pensions, old age
pensions.
27: Trade Unions, industrial and
labour disputes."
In other words prior to 18th
Amendment in the Constitution passed by Parliament on 20-04-2010 the Labour
Laws pertaining to Trade Union Industrial and Labour Disputes, welfare of
labour, workmen's compensation, old age pension, invalidity pensions could be
promulgated both by the Federal Government as also the Provincial Government. However,
the Parliament passed 18th Amendments on
"Furthermore by means of
Eighteenth Constitutional Amendment the Concurrent Legislative List was
abolished and the Federal Government had lost the power to legislate regarding
Labour Welfare and Trade Unions, which subject devolved upon the provinces. It
is to be noted that presently, no Federal Legislation can be made on the Labour
matters except recourse to the provisions of Article 144(1) of the
Constitution, which provide that if one or more Provincial Assemblies pass resolutions
to the effect that Majlis-e- Shoora (Parliament) may be law regulate any matter
not enumerated in the Federal Legislative List in the Fourth Schedule, it shall
be lawful for Majlis-e-Shoora (Parliament) to pass an Act for regulation that
matter accordingly, but any Act so passed may, in respect to the Province to
which it applies, be amended or repealed by Act of the Assembly of that
Province. The Trade Unions, which are operating within one province, can be
dealt with under the Labour Laws enacted in that Province and the workman can
also avail the appropriate remedy provided under the said legislation."
Again in Para 27 at Page 25 of
the said Judgment the Hon'ble Supreme Court of Pakistan were pleased to observe
as under:--
"Now turning towards the
submission of the learned Amicus Curiae on the vires of Provincial Labour Laws
on the ground that there are many Institutions/Corporations which have their
branches all over the country and there were countrywide Trade Unions but now
Trade Union can only be registered under the legislation of a specific
province. It is to be noted that instant proceedings have been initiated under
Article 184 (3) of the Constitution with a limited purpose of having a
declaration that IRA, 2008 on the basis of Eighteenth Constitutional Amendment
stood protected and continued till 30th June 2011, therefore, the vires of the
same cannot be considered in such proceedings. However, as stated earlier
Article 144 (1) of the Constitution has provided mechanism for making central legislation
in respect of matters not covered in the Federal Legislative List."
Reading the aforesaid Judgment of
the Supreme Court of Pakistan in terms of Article 189 of the Constitution is
the decision of the Supreme Court of Pakistan is binding on other Courts. This
provision of Article 189 of the Constitution of Pakistan 1973 reads as
follows:--
"Any decision of the Supreme
Court shall, to the extent that it decides questions of Law or is based upon or
enunciated principle of law is binding on all other courts in
Furthermore Article 190 of the
Constitution of Pakistan 1973 provides as follows:--
"All Executives and Judicial
Authorities through out
Reading judgment of the Supreme
Court of Pakistan and the aforementioned Articles of the Constitution of
Pakistan including 18th Amendment, it is very clear and obvious that no Federal
Legislation can be made on the Labour matters except recourse to the provision
of Article 144 (1) of the Constitution which provides that if one or more
Provincial Assemblies passed resolution to the effect that Majlis-e-Shoora
(Parliament) may by Law regulate any matter not enumerated in the Federal
Legislative List in the 4th Schedule it shall be lawful that Majlis-e-Shoora
(Parliament) to pass Act for regulating that matter accordingly. Even before
Supreme Court of Pakistan it was pleaded that there are Institution and
Corporations having branches all over the country and Trade Unions country
wide, yet keeping in view the. 18th Amendment, the Supreme Court of
"However, as stated earlier
Article 144 (1) of the Constitution has provided mechanism for making central
legislation in respect of matters not covered under Federal Legislative
List."
It is therefore very clear and
obvious that 1RO 2011 promulgated by the Federal Government on 18th July, 2011
is not only ultra vires the
Constitution of Pakistan 1973 read with Constitution (18th Amendment) Act 2010
but is also in clear breach and violation and in contempt of the judgment
delivered by the Apex Court in the case of Air League of PIAC Employees in C.P.
No. 24/2011. The correct course of action should have been for each of the four
Provincial Assemblies to have passed resolutions to the effect that
Majlis-e-Shoora (Parliament) may by law regulate any matters not enumerated in
the Federal Legislative List in the Fourth Schedule to pass an Act for
regulating that matter accordingly in relation to Unions whose membership
extends to more than one Province.
Needless to mention it is not
open for Majlis-e-Shoora either to circumvent or bypass the Constitution of
Islamic Republic of Pakistan 1973 and or even the decision of the
The preamble to the said IRO 2011
provides for consolidation and rationalization of law relating to formation of
Trade Union and Management relations between Employers and Workmen in the
The entire IRO 2011 is therefore ultra vires the Constitution of Islamic
Republic of Pakistan 1973 and has been promulgated by the Ministry of Law,
Justice & Parliamentary Affairs in violation not only to the Constitution
but also the guidelines provided for and the interpretation given in
Constitution Petition No. 24/2011 in the case of Air League of PIAC by the Apex
Court and is liable to be struck down. It is not out of context to point out
that IRA 2008 expired on
Needless to mention even when
18th Amendment was not passed by the Majlis-e-Shoora (Parliament)
One of the Judges elevated from
the Labour Bar, Mr. Justice Shahid Anwar Bajwa an icon of Labour Laws in our
country, in his Judgment reported in PLD 2010 Kar 1 has very admirably summed
up the purpose of Labour Courts and National Industrial Relations Commission by
reproducing extracts of the judgments in relation to these two organs of Labour
Judiciary earlier given by the Sindh High Court and Lahore High Court. Mr.
Justice Shahid Anwar Bajwa has observed as under:--
"What kind of ill can
executive control lead to is so commonly understandable and so widely
comprehended that one need not say anything in this regard? As far as Labour
Judiciary is concerned just three instances may suffice here. There is an
interesting case law in this regard and the case law is reported as A & B Beverages Shama Labour Union vs.
Sindh Labour Court (2000 PLC 389). The facts were that a person in judicial
service as Additional District and Session Judge was dismissed from service in
1992 after due enquiry of corruption charges. However, thereafter the Chief
Minister of Sindh set aside the dismissal order. The High Court did not
recognize him as a Judicial Officer and he was not allowed to resume duty. The
Government of Sindh posted him as Presiding Officer of Sindh Labour Court. The
Hon'ble Judge went on to say:
"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
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.”
Mr. Justice Ihsanul Huq Chaudhry in Nishat Group of Industry's case (1997 PLC
622) noted the pathetic state of affairs in the National Industrial Relations
Commission and passed 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 has to be manned by persons of
integrity and quality otherwise it would amount to sheer wastage of public
funds. Let a copy of this judgment be sent to Mr. Mohammad Zaman Qureshi, newly
appointed Chairman, National Industrial Relations Commission 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. Mr. Justice Tanveer Ahmed Khan in
"Before parting with these
cases after going through the judgment dated 15-07-1998 of the Chairman
N.I.R.C. and the judgment, dated 31-08-1998 of the Full Bench both subject
matter of these Constitutional petitions one comes to an irresistible
conclusion that there is a judicial anarchy in the working of the N.I.R.C. The
Full bench as quoted the observation of my learned brother Ihsanul Haq
Chaudhry, J, qua the working of
N.I.R.C. reported in Nishat Group of
Industries and another vs. Chairman N.I.R.C. 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 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"
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.”
It Shahid Islam's case (PLD 1996 Lahore 699) it was noticed that an
advocate who had not yet completed the requisite ten years of enrollment as
advocate High Court was appointed as a Member of N.I.R.C. in violation of rules
prescribing such qualification."
It is very clear and obvious that
once again certain individuals contrary to larger national interest and the
unanimous approved Constitution (18th Amendment) Act, 2010 have tried to not
only circumvent the Constitution of Islamic Republic of Pakistan 1973 but even
decision of the Apex Court by assisting in the framing of the IRO 2011.
Obviously this Institution was angry as a result of the decision of the
"Whatever is begun in anger
ends in shame."
Aforementioned observations of
Benjamin Franklin reflects shame whilst promulgating IRO 2011 ignoring
altogether the fact that Constitution (18th Amendment) Act 2010 was unanimously
passed by the Majlis-e-Shoora (Parliament). This Institution has disturbed
hornets nest which should expect to be swamped by the stinging wasps and would
end up with swollen face once "Ghazab Corruption Ki Ajab Kahani" is
revealed to this Nation. French Author Julis Renard has remarked:
"I fully know what
distinguishes men from the other beast: financial worries”
It is not known if Julis Renard
had in mind the Institution who in order to save their Bread and Butter and
continue with corrupt practices already referred to hear in above as enunciated
by the Lahore High Court and Karachi High Court have misguided the Federal
Government to ignore not only the decision of Apex Court but even the
Constitution (181'1 Amendment) Act 2010. Rational human being would have
followed guidelines laid down by the Apex Court in the case of Air League of
PIAC and had asked Provincial Assemblies to pass resolutions in terms of Article
144 (1) of the Constitution of Islamic Republic of Pakistan 1973 authorizing
Federal Government to promulgate the Law. Unfortunately this has not been done
and people of this country continue to suffer not only willful and deliberate
violation of the Constitution of Pakistan but even the decision of the Apex
Court who have in good faith not only correctly interpreted Constitution of
Islamic Republic of Pakistan 1973 including Constitution (18th Amendment) Act
2010 but have even given guidelines to the Provincial Assemblies which have all
been set aside and IRO 2011 have been promulgated to add to the woes and misery
and suffering of people of this country in general and the working class of
Pakistan including those in industrial and Commercial Sectors in particular. It
is not that Government of Sindh is conscious to the abolition of Concurrent
Legislative List and the completion of devolution process by
In a letter published in English
Daily Dawn Karachi dated 20th July, 2011, Mr. Mukhtar Hussain Soomro, Secretary
Labour Department Sindh has challenged and claimed that Provincial Governments
are not prepared to handle Labour Laws. He has rebutted the impression sought
to be created with the following letters whose extracts are being reproduced
verbatim:--
"APROPS of the letter
'Labour Laws need to be simplified' (July 8), the writer conveyed his
impression that provinces are not prepared to implement and handle Labour Laws,
particularly those of EOBI and WWF.
This perception is not based on
facts as the Labour Department, Government of Sindh, took measures which came
under print for public consumption on May 19, by Dawn's Mukhtar Alam, under the
heading 'Labour department devolution likely to meet June 30 deadline'.
He has mentioned in his letter
that the federal government should continue to oversee the functioning of
Labour affairs. In this regard, it is clarified that this would be in
contravention of Clauses 8 and 9 of Article 270AA of the amended Constitution,
which clearly stipulates that on omission of the Concurrent Legislative List,
the process of devolution shall be completed by
From the above provision of the
Constitution, it will be seen that matters which were mentioned in the Concurrent
Legislative List stand devolved to the provinces latest by June 30, 2011, and
after the said date the subject Labour, including its components, WWF and EOBI,
its infrastructure, assets and liabilities, including funds, arc to be
maintained and regulated by the provinces and any action or decision taken by
the federal government will be in conflict with the provisions of the
Constitution.
The 18th Amendment is a major
breakthrough in the constitutional history of
Since the provincial autonomy was
long cherished and awaited demand of the provinces, the government of Sindh,
therefore, through its Labour Department initiated all necessary draft
legislations for placing before the Provincial Assembly so that no hurdles came
while discharging public duties.
Sindh province, taking the lead,
also assisted its sister provinces in preparing a draft legislation of federal
Acts and Rules which needed to be provincialised in view of the passage of the
18th Amendment.
However, extra efforts are
required to be put in by the provinces to make it a success whereas the federal
government is constitutionally bound to facilitate the implementation of the
18th Amendment in totality."
The word "Trans" is not
a legal dictionary term. Its definition does not appear in Blacks' Law
Dictionary Revised Fourth Edition, nor in Ballentines
Law Dictionary, Third Edition. No such word is legally defined in Legal
Thesaurus by William C. Burton. This phrase 'Trans
Provincial" does not even appear in the Constitution of Pakistan 1973 nor
in the Federal Legislative List either in Part I or Part II. In Item No.
13 of Part II of Federal Legislative List the item refers to is:
"Inter-provincial matter and
co-ordination"
This above phrase is not similar
or akin to "Trans Provincial". Even in IRO 2011, the expression used
in Section 57 (5) explanation is industry wise trade unions and Federation of
such trade unions. In flagrant violation of Constitution (Eighteenth Amendment)
Act 2010, the phrase "Trans Provincial" has been coined and an
artificial meaning assigned as the same as industry wise trade unions in more
than one Province which is in violation to Constitution (Eighteenth Amendment)
Act 2010.
In brief
IRO 2011 is ultra vires the
Constitution of Pakistan, ultra vires the
Constitution (Eighteenth Amendment) Act 2010, in willful disobedience and
contempt of the decision of the