HAFIZ TARIQ NASIM, J.--- Through this single judgment I also propose to decide Labour Appeals No. 72 of 2008 alongwith this appeal, as common questions of facts and law involve.
2. Both these labour appeals are filed under Section 48 of the Industrial Relations Ordinance, 2002 (IRO 2002), against the judgment dated 27.03.2008 passed by the Punjab Labour Court No. 1, Lahore.
3. Appellants in both the appeals filed petitions under Section 46 of the IRO 2002 for the regularization of their services who were performing their duties as daily wagers with the respondents which were dismissed by the learned Labour Court No. 1, Lahore, through the impugned judgment dated 27.03.2008.
4. Learned counsel for the appellants argued the case at length and submits with vehemence that, IRO 2002 has been validated by the 17th amendment by adding Article 270-AA in the Constitution of Islamic Republic of Pakistan;
(ii) Section 80 of IRO 2002 repealed IRO 1969 and therefore, Section 23 of Civil Aviation Authority Ordinance, 1982 barring application of IRO 1969 on the employees of the Authority became inoperative and IRO 2002 became applicable on the employees; (i.e) Sections 6 and 24 of the General Clauses Act are not attracted in the present case because Section 80 of IRO 2002 has totally repealed IRO 1969 and a repealed law being a dead law cannot be made alive;
(iv) Section 80(2) of the IRO 2002 has saved certain proceedings taken under IRO 1969;
(v) In the impugned judgment the learned Labour Court has wrongly held that Civil Aviation Authority is included in the exclusion clause of Section 1 ( 4) of IRO 2002 by referring to ward "An Airport", whereas actually Section 1 (4)(g) is about a member of Watch and Ward, Security or Fire Service Staff of an Oil Refinery of Seaport and Airport and the appellants did not belong to such staff and if the interpretation made by the learned Labour Court is accepted then IRO 2002 will also not be applicable on the employees of every establishment working at Airport.
5. In support of his contentions, learned counsel for the appellants has relied on Civil Aviation Authority v. Wafaqi Mohtasib (Ombudsman) and others (2001 PLC (CS) 637) and Messrs Shaheen Airport Services v. Nafees-ulHassan Siddiqui and another (2001 SCMR 1307) and submits that the judgment passed by the Labour Court be reversed and the appellants be granted. The relief claimed in their petitions.
6. On the other hand, learned counsel for the respondents supports the impugned judgment and submits that Civil Aviation Authority Ordinance, 1982 ousted the applicability of IRO, since neither in IRO 1969 nor in IRO 2002 Civil Aviation Authority figures any where, hence Section 23 of the Civil Aviation Ordinance 1982 which was upheld by the Hon'ble Supreme Court in the case reported as Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees and another (PLD 1997 SC 781) shall be a prevailing law on the subject which clearly oust jurisdiction of Labour Court regarding employees of Civil Aviation Authority.
7. Further submits that IRO 2002 having been made part of the Constitution by virtue of Article 270- AA but by no means becomes a superior law since Article 270-AA only protects certain laws made during that period and merely on account of being protected by the Constitution no superiority can be attached to that because Constitution is the only supreme law of the land and all other law including the IRO 2002 are always subservience to the Constitution.
8. Arguments heard. Available record perused.
9. The only question which 'is to be resolved in the present controversy is that, "Whether despite an ouster clause of Section 23 of the Civil Aviation Authority Ordinance, 1982, IRO 2002 is applicable on the employees of the Civil Aviation Authority or not and whether employees of Civil Aviation Authority can invoke the jurisdiction of Labour Court under the provisions of IRO 2002 or not?"
10. It shall be advantageous to reproduce Section 23 of the Pakistan Civil Aviation Authority Ordinance, 1982 as well as Section 1(4) of the IRO 2002,which are as follows:--- "S.23 Ordinance XXIII of 1969 not to apply to Authority---The Industrial Relations Ordinance, 1969(XXIII of 1969), shall not apply to or in relation to the Authority or any person in the service of the Authority."
"S.I. Short title, extent commencement and application.-
(1) (2) (3)
(4) It shall apply to all persons employed in any establishment or group of establishments or industry except those employed (a) in the Police or any of the Defence Services of Pakistan; (b) in any institutions or services exclusively connected with the Armed Forces of Pakistan including Ministry of Defence lines of the Railways; (c) by the Pakistan Security Printing Corporation or the Security Papers Limited or Pakistan Mint; (d) in the administration of the State other than those employed as workmen by the Railways, Post, Telegraph and Telephone Departments; (e) by an establishment or institution maintained for the treatment or care of sick infirm, destitute and mentally unfit persons, excluding those run on commercial basis; (f) by an institution established for payment of employees' old-age pensions or for workers' welfare; (g) as a member of the Watch and Ward. Security or Fire Services Staff of an oil refinery or of an establishment liquefied petroleum gas or petroleum products or of a seaport or an airport: Provided that the Federal Government may suspend, in the public interest, by an order published in the official Gazette; the application of this Ordinance to any establishment or industry for a period specified in the order not exceeding six months at a time."
11. In respect of Section 23 of the Ordinance of 1982, the Hon'ble Supreme Court of Pakistan held in the case reported as Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees and another (PLD 1997 SC 781), as under:--- "Exclusion of application of provisions of Industrial Relations Ordinance, 1969 to the employees of Civil Aviation Authority and Pakistan Television Corporation by the Legislature and not by an executive order does not suffer from any Constitutional/legal infirmity and thus cannot be held to be violative of Art. 17(1) of the Constitution of Pakistan (1973) particularly keeping in view the background that all the employees of all the establishments are not covered by the provisions of Industrial Relations Ordinance, 1969.
The effect of exclusion of the application of provisions of IRO 1969 to the Authority is that there is no other statute available under which the employees of establishment can get their unions registered or can agitate their grievances through an orderly mechanism.
The effect of the enactment of Section 23 in the Pakistan Civil Aviation Authority Ordinance is that the provisions of IRO 1969 are no longer applicable to the Authority and to its employees."
12. Undisputedly, the judgment of the Hon'ble.
Supreme Court of Pakistan referred supra is of the year 1997 when IRO 1969 was operative. Prior to that Pakistan Civil Aviation Authority Ordinance, 1982 was promulgated, Section 23 of the said Ordinance provides that the IRO 1969 shall not apply to or in relations to the Authority or any person in the service of the Authority. It was in respect of the total ouster of the jurisdiction of the Labour Court under the IRO 1969, which was specifically imposed by Section 23 of Civil Aviation Authority Ordinance, 1982 and it was observed by the apex Court referring Article 17(1) of the Constitution of Pakistan that the words "subject to reasonable restrictions" employed in clause (1) of Article 17 of the Constitution do not admit and permit total denial of right. It was also observed that there are certain rights which are inherent of a trade union or a kind of its formation which inter alia includes a right to act as a collective bargaining agent. However, it was further clarified that right to go on strike and right to go slow are not rights which can be spelt out from Article 17(1) and the said rights can be founded on statutory provisions like the IRO 1969. It was in spite of the background that provisions of IRO 1969 had been completely made ineffective in the Civil Aviation Authority Ordinance, 1982, the Hon'ble Supreme Court of Pakistan in view of the fundamental rights of the workers for formation of trade union of course subject to "reasonable restrictions" observed that under Article 17 of the Constitution there cannot be total prohibition but the right can be regulated or restricted by law. It was observed that conception of a fundamental right is that it being a right guaranteed by the .
Constitution of Pakistan, cannot be taken away by the law and it is not, only technically inartistic but a fraud on the citizens for the makers of a constitution to say that a right is fundamental but that it may be taken away by law. It was observed that though there is no requirement under Article 17 of the Constitution that an association or a union is to be registered but it cannot effectively function unless it is registered and a legal framework" is provided within which it can operate as a Collective Bargaining Agent for its members and that the operation of a union is sine qua non for exercising the fundamental rights guaranteed under Article 17(1) of the Constitution. It was for this reason that the Hon'ble Supreme Court of Pakistan observed that it would be in the interest of the employees as well as Civil Aviation Authority that a legal framework alternate to the provisions of IRO be provided in order to regulate the relations between the employer and the employees on equitable basis. It was ordered by the Hon'ble Supreme Court that till the time a parallel legal framework of the IRO is provided the Authority with the agreement of the union can follow the procedure provided in the IRO as to the election of the office bearers of the union and the CBA. It was in spite of the fact that the provisions of IRO were no longer applicable to the employees of the Civil Aviation Authority as per Section 23 of the Civil Aviation Authority Ordinance, 1982.
13. The Federal Government had repealed IRO 1969 and promulgated IRO 2002 and Section 1 of this Ordinance defines the application of this law to the whole of Pakistan and persons in any establishment or group of establishments or industries except those detailed in Section 1(4)(a) to 1(4)(g) regarding which jurisdiction of the Labour Court is barred out rightly. The Civil Aviation Authority does not figure anywhere in these exceptions: It is a matter of common sense that this particular point must have been in the mind of the law-makers that such situation had fallen in the past and protection was given to the Civil Aviation Authority against the application of IRO 1969 which should have been continued in the new law also to save the Civil Aviation Authority from the provisions of IRO 2002, however, no such exception was given to it. In addition to that in view of proviso of Section 1 there was a right vested in the Federal Government to suspend the operation of the provisions of IRO 2002 for any establishment but for a period not exceeding six months. No such arrangement was made either. It is noted that under Section 23 of the Civil Aviation Authority Ordinance, 1982 the provisions of IRO 1969 were made inapplicable which does not mean that it shall remain applicable to all the laws made subsequently. It is held that the later law overrides the earlier law and as such IRO 2002 would therefore, render Section 23 of the Civil Aviation Authority Ordinance, 1982 inapplicable,.
14. After, going. Through all :aspects of the matter, I am of the firm, view that after repeal of IRO 1969, the Civil Aviation Authority in its Ordinance 1982 has not substituted IRO 2002 by amending'' Section 23, thus IRO 2002 is applicable to the employees of the Civil Aviation Authority. In arriving this conclusion I can take the strength from the law laid down by the Hon'ble Supreme Court of Pakistan in the case reported as Chairman Board of Intermediate and Secondary Education, Bahawalpur v.
Rizwan Rashid and 3 others (2005 SCMR 728), wherein it is held, "Law which touches upon the rights of the subjects must be construed strictly and nothing should be deemed or presumed in the said law unless it is covered through the express words---Penal provision in a statute cannot be imported to another provision and attracted unless it is specifically made applicable and in any case if there are two interpretations, the interpretation favourable to the subject should be accepted."
15. In the present controversy, it is not denied that IRO 1969 was made inapplicable by Section 23 of the Civil Aviation Authority Ordinance, 1982 but it is 'also all admitted position that IRO 1969 was repealed and IRO 2002 was promulgated in the year 2002 and there was no bar to amend Section 23 of the Civil Aviation Authority Ordinance but even today that plain language of Section 23 of the Ordinance ibid is still in field, meaning thereby that the word "IRO 1969" was not substituted by "IRO 2002", resultantly, the provisions of IRO 2002 which do not exclude the applicability of Labour Laws on the employees of Civil Aviation Authority shall remain in field and thus the employees of the Civil Aviation Authority can invoke the jurisdiction of Labour Court for the redressal of their grievance provided they cover in the definition of worker/workmen.
16. Viewing the case from all angles the impugned orders r passed by the learned Presiding Officer, Punjab Labour Court No. 1, Lahore dated 27.03.2008 cannot hold the field; the same are set aside and both the appeals are allowed. However, the cases are remanded to Labour Court No. 1, Lahore with a direction to decide the same on merits. .