' SHAHID ANWAR BAJWA, J.---A very peculiar but unfortunate situation, or shall I say, affliction, is common to all these petitions. All these petitions have arisen out of orders passed by Labour Courts. In some cases grievance petitions have been dismissed by the Labour Courts while in other cases grievance petitions have been allowed by the Labour Court and employees have been ordered to be reinstated in service with back benefits.
2. Under the Industrial Relations Ordinance, 1969, it was provided that Labour Appellate Tribunal shall be set up by Provincial Government. Consequently Labour Appellate Tribunals were set up and as far as Province of Sindh is concerned one. Labour Appellate Tribunal was set-up at Karachi for entire Province of Sindh. All along from 1969 till 2002 Labour Appellate Tribunal was named by retired Judges of this Court. In fact two of the retired Chief Justice Mr. Justice Inamullah Khan and Mr. Justice Agha Ali Haider also adorned the Sindh Labour Appellate Tribunal. On October, 26th 2002 Industrial Relations Ordinance 1969 was repealed and replaced by the Industrial Relations Ordinance, 2002. In the Ordinance of 2002 Labour Appellate Tribunals were abolished and it was provided that appellate forum shall be the High Court. It was also provided in the Industrial Relations Ordinance, 2002 that all appeals pending before Labour Appellate Tribunal shall stand transferred to High Court. Consequently not only appeals pending in the Labour Appellate Tribunal were transferred to the High Court, but in fact from commencement of the Ordinance, 2002 all fresh appeals etc. Become directly entertainable by the High Court.
3. The Industrial Relations Ordinance 2002 was repealed by the Industrial Relations Act, 2008. After having been passed by ]loth houses of Parliament, the Act received assent of President of Pakistan on 6-12-2008 and was published in the Gazette of Pakistan, on 15-12-2008. Section 86 of the Act 2008 provides as under:-- "86. Transfer of pending proceedings.--All appeals and applications of any kind pending in any High Court immediately before the commencement of this Act shall stand transferred to the Labour Appellate Tribunals from the date of commencement of this Act and it shall not be necessary for the Labour Appellate Tribunals to recall any witness or record any evidence that may have been recorded.
4. Act of 2008 in section 55 also provides that the Provincial Government may, by notification in the official Gazette constitute as many Tribunals as it may consider necessary. It was also provided under section 54 of Act 2008 and other its provisions that appeals against certain decision of the Labour Court shall lie to the Labour Appellate Tribunal. Legal position that emerged was that not only appeals and other proceedings pending before the High Court stood transferred to the Labour Appellate Tribunal with commencement of the Act, of 2008 but all fresh matters arising out of orders passed by Labou'r Court and for which appeal is provided in the Act 2008 could only by challenged before the Labour Appellate Tribunal.
5. Although the Act of 2008, as stated above, received assent of the President of Pakistan on 6-12- 2008 till today no Labour Appellate Tribunal has been constituted in the Province of Sindh. The learned counsel who made submissions in these matters pointed out that Labour Appellate Tribunals comprising of a Judge of High Court have been constituted in the North West Frontier Province and Balochistan and in the Punjab. Labour Appellate Tribunal chaired by a retired Judge of High Court has been working for last many months. However in Sindh no Labour Appellate Tribunal has, so far, been constituted. Vide order dated 15-10-2009 my learned brother directed Secretary Law to be present before Court. It was also ordered that Secretary Labour shall also be present in Court today. Since no Labour Appellate Tribunal has been constituted in the Province of.
Sindh all these writ petitions have been filed against orders passed by the Labour Courts and it is stated in all petitions that although an appeal is provided under section 54 of the Industrial Relations Act, 2008 and certain other sections however since no Labour Appellate Tribunal has been constituted in Province of Sindh, no remedy is available to the petitioners against impugned orders and therefore they have invoked constitutional jurisdiction of this Court.
6. After promulgation of the Industrial Relations Act, 2008, when matter came up single Bench of this Court, the following order was passed on 19-1-2009 in Labour Appeal No,1/2009.
"Learned counsel for the Appellant Tribunal has fairly conceded that on account of promulgation of the Industrial Relations Ordinance, 2008 (Act No,IV of 2008) all the Labour Appeals pending in the High Court shall be transferred to the learned Labour Appellate Tribunal from the date of commencement of the Act. As conceded by the learned counsel for the Appellant, Labour Appeal by virtue of section 86 of the above enactment stands transferred.
' Office is directed to dispatch the matter to the learned Labour Appellate Tribunal as and when the same is established. Orders accordingly."
7. Office placed the matter before the Honourable Chief Justice for appropriate orders and the following administrative order was passed by the Honourable Chief Justice on 27-1-2009.
"(a) All Labour Appeals, Revisions, Miscellaneous Applications and Transfer Applications may be transferred to Labour Appellate Tribunal as and when the same is established.
(c) Fresh Labour Appeals, Revisions, Miscellaneous Applications and Transfer Applications may not be instituted before this Honourable Court and the same may be instituted before the 'Labour Appellate Tribunal as and when the same is established."
8. The matter was again submitted to the Honourable Chief Justice and on 27-1-2009 it was ordered by the Honourable Chief Justice that Labour matters pending before the High Court may not he fixed in the Court. Result has been that there are more than 1500 Labour matters and almost more than 150 of them being those who were transferred from the Labour Appellate Tribunal to the High Court in 2002. It has been pointed out that in some of these cases appeals have been pending since 1997. This State of affairs in any case is not commendable, to say that least.
9. Syed Ghulam Nabi Shah, Secretary Law and Mr. Allam Din Baloch, Secretary Labour stated that the, Labour Appellate Tribunal has not yet been constituted. However they stated that urgent steps are being taken by the Province of Sindh to constitute Labour Appellate Tribunal. They have, however, stated that under the Industrial Relations Act, 2008 it is absolute discretion of the Provincial Government to decide as to who is to be the Chairman of the Labour Appellate Tribunal.
10. Mr. S.M. Yakoob, learned counsel in some of the matters stated that the matters have been pending for the last many years and if only one Labour Appellate Tribunal is constituted it would be throwing all these appeals on the Labour Appellate Tribunal. It would take some years, if not a decade for Labour Appellate Tribunal to dig itself out of the pile of accumulated pendency. He, therefore, suggested that at least two Tribunals be constituted: One Tribunal to hear the cases which are decided by Labour Court between Ist. And 15th of each month and other Tribunal for the case which are decided between 16th and last day of each month.
11. Mr. Khalid Javed, learned counsel supported Mr. S.M. Yakoob, to the extent that creation of only one Labour Appellate Tribunal would be a totally inadequate steps. He, however, suggested that two tribunals be constituted and one of them being made as Administrative Tribunal also, so that, like a Banking Court, it allocates work between itself and the other tribunal. In the alternate separate territorial jurisdiction may be conferred on each of the tribunals.
12. Mr. Mehmood Abdul Ghani, learned counsel also supported case of at least two tribunals. He however, submitted that he would not like the two tribunals to become the permanent fixture. His suggestion was that one Tribunal may be constituted in respect of matters decided by the Labour Courts after December, 6th 2008 i.e, the date on which President of Pakistan gave assent to the Industrial Relations Act, 2008 and second tribunal in respect of all the matters in which appeal or other proceeding had been initiated against the orders of the Labour Court before 6-12-2008. He, further submitted that in this way with the passage of time accumulated pendency would be cleared and hopefully in due time a day will dawn when only one tribunal would be needed and thereafter things will proceed in a reasonable State of happiness as they were proceedings before 2002.
13. Mr. M.A.K. Azmati, learned counsel was of the opinion that instead of getting into discussion of two tribunals or one tribunal, the need is that one tribunal should be constituted, because if we get into discussion on one or two tribunal, the matter is going to be further delayed.
14. All the learned counsel were unanimous at the point that Chairman of the Labour Appellate Tribunal could not be appointed without consultation with 'the Chief Justice of the Court. However Secretary Law stated that there is no such requirement laid down in the Industrial Relations Act, 2008 either in respect of Labour Appellate Tribunal or in respect of a Labour Court. Mr. Mehmood Abdul Ghani, learned counsel also referred to National Judicial Policy and particularly to its para. 2 of part relating to Independence of Judiciary. It is reproduced as under:-- "(2) No retired Judge of the superior Court shall accept an appointment which is lower to his status or dignity including appointment as Presiding Officer of Banking Court, Customs Court, Administrative Tribunal, etc."
15. I will first attempt to deal with question regarding as to whether there is any role for the judiciary in general and Chief Justice of the High Court in particular in the appointment of Chairman of Labour Appellate Tribunal and also in the matters relating appointments etc. Of Presiding Officers of Labour Courts. In order to appreciate the point we must first look at difference between a Court and a Tribunal. It is universally accepted that only Courts exercised judicial power: Court is a place where justice is judicially administered. Article 175 of the Constitution Provides as under:-- "175. (2) No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.
(3) The Judiciary shall be separated progressively from the Executive within fourteen years from the commencing day."
16. This particular aspect came up for consideration before Lahore High Court in Iftikhar Ahmed v.
The Muslim Commercial Bank Ltd. And another PLD 1984 Lahore 69 and it was observed as under:-- "7. There appears to be a very special feature in our 1973 Constitution. It includes a specific provision in Article 212 for the constitution of tribunals for purpose expressly given therein and provides for an appeal before the Supreme Court. Article 175 only speaks of 'Courts. The Supreme Court of Pakistan and a High Court for each Province have been created under that Article while power has been conferred on the Legislature to create other Courts and also to confer jurisdiction on them. This position may be contrasted with the Indian Constitution. Article 136(1) of the Constitution lays down that the Supreme Court may grant special leave to appeal from any judgment etc., in any cause of matter, passed or made by Court of tribunal in the territory of India.
Article 227 states that every High Court shall have superintendence over all Courts and tribunals throughout the territories in relation to which it exercised jurisdiction. Thus, while the Indian Constitution recognizes existence of tribunal sharing judicial power with Courts, it is conspicuously absent in the 1973 Constitution. This appears to be a very important departure from the previous Constitutional position as even Article 98(5) of the 1962 Constitution recognizes tribunals along with Courts. Strangely enough, however, the power of superintendence of High Courts was conferred only with regard to the Courts subordinate to them and not for tribunals as in the India Constitution. It is thus quite clear that the 1973 Constitution of Pakistan recognizes only such specific tribunals to share judicial power with Courts, as are particularly mentioned in Article 212 or elsewhere but none else. It may also be useful to note here that neither a Court nor any other judicial tribunal is relieved of the duty of deciding a matter before it justly, fairly equitably and objectively. The only difference is that a tribunal is not as much bound by the rules of procedure and the evidence as the Court of law are. I may also refer her to some observations of the Indian Supreme Court in support of tribunals sharing judicial power, with Courts, as made by Gajendragadkar Civil Judge in A.C. Companies v. P.N. Sharma (AIR 1965 SC 1595), while comparing Indian Constitution with that of Australia. The learned Judge remarked:- "Under our Constitution, there is no rigid separation of powers as under the Australian Constitution: and so, it would not be constitutionally inappropriate or improper to say that judicial power of the State can be conferred on the hierarchy of Courts established under the Constitution as well as on tribunals which are not Courts strictly so-called. Indeed, the fact that Article 136(1) refers to Court and tribunals and makes the determination, sentence or order passed by them subject to appeal to this Court by special leave, shows that our Constitution assumes that judicial power of the State can be---in and exercised by both Courts and tribunals alike."
' A similar remarks by Bachawat Judge in that case is as follows:-- "(1608)" Unlike Austriala, in our country the judicial power of the State may be vested not only in Court but also in other authorities. The Courts alone have no monopoly of this judicial power. An authority other than a Court vested with the judicial power of the State in this sense is regarded as a tribunal within Article 136."
' In Durga Shankar Mehta's case (AIR 1954 SC 520) B.K. Mukherjea Judge speaking for the Court observed:-- "It is now well-settled by the majority decision of this Court in the case of Bharat Bank Ltd. (A.I.R)
1950 SC 188) that the expression 'Tribunal' as used in Article 136 does not mean the same thing as 'Court' but includes, within its ambit, all adjudicating bodies, provided they are constituted by the State and are invested with judicial as distinguished from purely administrative or executive functions.'
8. The Constitution of Pakistan as regards judicial power is thus quite different from that of India and resembles the Australian Constitution inasmuch as that no executive authority can be empowered to exercise judicial power under Article 175 and any power so conferred by a Legislature shall be ultra vires."
17. Having noted this particular feature it was further observed in this judgment as under:-- "However, as discussed in para. 7 above, the judicial power as is contained in Article 175 can be conferred only on judicial tribunal called Courts and no other authority. Thus, the discussion about Courts and quasi-judicial tribunals is of no importance at all. So, as far as Pakistan is concerned, the distinction is to be found not between judicial and quasi-judicial tribunals but judicial and administrative tribunals and any Court or other authority, by whatever name called, shall be deemed to be a Court, constituted in pursuance of Article 175(2) of the Constitution and subject to the superintendence and control of the High Court of the Province, in which it is situate, if it exercise judicial power of the State, under an Act of a Legislature, and its existence is not specifically provided for by any other provision of the Constitution.
18. Despite the collection of elaborate views above, it has been generally observed that the definitions so far attempted are not exhaustive of the term 'Court'. However, inspired by all that has been said so far, and without claiming that it will be exhaustive, in my humble view, 'judicial power' is the legal right, ability and authority to hear and decide, objectively and after allowing opportunity to produce evidence, a judiciable issue, dispute, or controversy, concerning the existing legal rights, duties or interests of persons or property, arising out of relations and dealings, between two or more parties, who bring the same for an authoritative decision, binding on them and may include the authority to execute or get executed its decision and protect rights, prevent and redress wrongs and punish offences through legal process. Further, the judicial power must be conferred by the State under Constitution or law and not the mere consent of parties, on persons who are paid by the State and removable by it only. The authority or body in which this power is vested is generally called a 'Court' and in performing its functions it declares. Construes and applies law or custom or usage, having the force of law. The 'judicial power' is thus the instrument to be used by the Court."
18. Finally on question of subordination of Courts to the High Court, following observations were made:-- "32. The above position further establishes the view that the judicial power of Pakistan, save as is excepted in Articles 199(5) and 212, is to be vested in the Courts created under this Article and no forum, other than that specifically mentioned in the Constitution, can be created for the performance of judicial functions and exercise of judicial power. This conclusion is strengthened by the fact that the Constitution does exclude certain other subjects also from the purview of the Courts jurisdiction as given in its Articles 69, 225 and 247(7). Article 209, with regard to the Constitution of the Supreme Judicial Council may also be cited for the same purpose. All these Articles thus support the above view, for if the framers of the Constitution wanted, that the judicial power be conferred on any authority, other than a Court or, the same be curtailed, in any respect, it would have either so stated in Article 175 or that intention would have been made clear elsewhere.
Further, the intention of the Constitution to separate the judiciary from the executive progressively as contained in Article 175(3) and the Pre-amble also upholds the above position.
33. Again, the concept that there will be a High Court for each Province has to have its plain meaning, in the absence of a definition. Its clear concept will be that it is the highest Court in the Province and all other Courts must be inferior to and be subject to its supervision. Further, as Article 175 of the Constitution embodies the judicial power and also gives the hierarchy of the Courts i.e, a Supreme Court for Pakistan, a High Court for a Province and some other Courts as may be created by the Legislature, "the such other' Courts" must necessarily be inferior to the High Courts.,
34. It will be seen that there is no mention in the Constitution that the Supreme Court will have any Court subordinate to it, Ranval Textiles v Sindh though, according to Article 190, all executive and judicial authorities have to act in its aid and all Courts in the country shall be bound to follow its decision in view of Article 189. As for the High Courts, the Article 202 states that subject to the Constitution and law, a High Court may make rules regulating the practice and procedure of the Court or of any Court subordinate to it. Article 203 provides that each High Court shall supervise and control all Courts subordinate to it. Article 201 lays down that any decision of a High Court shall to the extent if decides a question of law, or is based upon or enunciates a principle of law, be binding on all Courts subordinate to it. The Constitution, however, does not specifically say as to which Court are subordinate to it. The scheme of the Constitution, however, appears to be that while all the Courts in Pakistan have to follow and also act in aid of the Supreme Court merely because of its opposition, the Courts in a Province have to follow the High Court and be bound by its decision as they are subordinate to it. So, the mere fact that there is no express indication in Article 175 of the Constitution that all "other Courts" to be created by or under law will be the Courts subordinate to the High Court is not at all important."
19. The same thing came up before the Supreme Court in Mehram All and others v. Federation of Pakistan and others, PLD 1998 SC 1445. A landmark judgment was delivered which was authored by Mr. Justice Ajmal Mian. Regarding Courts, Tribunal it was observed as under:-- "35. The appointment of the Judges of the Special Courts are required, by subsection (2) of section 14 of the Act, to be made by the Government after consultation with the Chief Justice of the High Court. The Executive does not have a free hand in the making of such appointments. As to the meaning of consultation we can do no better than to rely on the recent judgments of the Supreme Court in the cases of Al-Jehad Trust through Raseeul Mujahideen Habib Al-Wahabul Khairi, and others v. Federation of Pakistan PLD 1996 SC 324 and Al-Jehad Trust through Raees-ul-Mujahidin Habib-Al-Wahabul Khairi, Advocate Supreme Court and another (PLD 1997 SC 84). The Federal Government is bound to accept the recommendations of the Honourable Chief Justice of the High Court except for valid reasons justifying a departure. We were informed by the learned Attorney General for Pakistan and the learned Advocate-General, Punj913, that no Presiding Officer of the Special Court shall be removable except with the consent/concurrence or recommendation by the Honourable Chief Justice of the High Court. Even otherwise, the power of removal is basically an adjunct to the power of appointment. We, however, notice that the security of tenure for a certain period is also required to be provided by making necessary provisions in the statute itself as held by a Full Bench of this Court in the case of Imran v. Presiding Officer, Punjab Special Court No,VI, Multan and 2 others (PLD 1996 Lahore 542). In the precedent case, provisions of Suppression of Terrorist Activities (Special Courts) Act, 1975 and the Offences in Respect of Banks (Special Courts)
Ordinance, 1980, were examined threadbare. We allow two months' time of making necessary amendments in the law."
20. The above makes it clear that under the judicial system as established by the Constitution of the Islamic Republic of Pakistan, there are Courts and there are Tribunals. However, the Tribunals are only limited to the Tribunals specified in the Constitution such as Election Tribunal (Article 225), Administrative Tribunal (Article 212) and Tribunal relating to military affairs (Article 199(5)). Besides these Tribunals whenever judicial power is vested in a forum, whatever be its designation, be it called a Court, be it called a Tribunal or be it called a Commission, for all legal intends and purposes it is a Court and therefore has to be manned, controlled and regulated in accordance with the established judicial principles and the law relating to manning, regulation and control of Courts in Pakistan. Therefore, the Labour D Appellate Tribunal, legally speaking, through denominated as a Tribunal, is a Court: nothing more, nothing less.
21. This takes us to question of supervision of the Court and mandate of the Constitution.. In this regard a reference to case law may be relevant here. In Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others v. Sharaf Faridi and others, PLD 1994 SC 105, it was held that High Court shall supervise and control over the subordinate judiciary and such supervision and control can be achieved only when the judiciary is administratively and financially separate from the executive. The relevant observation occurs at Page 118 is in the following words:- - "Article 175 envisages separation and independence of Judiciary which includes the lower Judiciary as well. The lower Judiciary is a part of the Judicial hierarchy in Pakistan. Its separation and independence is to be equally secured and preserved as that of the superior Judiciary. The lower Judiciary is more dependent and prone to financial dependence and harassment at the hands of the Executive. In practice and effect the separation of the Judiciary is the main problem of the lower Judiciary which under several enactments and rules is practically under the control and supervision of the Executive. Articles 175 and 203 lay down that the Judiciary including lower Judiciary shall be separate from the Executive and 'High Court shall supervise and control all Courts subordinate to it. Such control and supervision can be achieved only when the Judiciary is administratively and financially separate from the Executive. Separation of Magistracy is the first step towards separation and independence . "
22. In Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others, PLD 1993 SC 341, which is another landmark judgment. It was held that lower judiciary is more dependent and prone to financial dependence and harassment at the hands of the executive. The relevant observations occur at page 369 are in the following words:- "The Constitution provides for separation of judiciary from the executive. It aims at an independent judiciary which is an important organ of the State within the constitutional sphere. The Constitution provides for progressive separation of the judiciary and had fixed a time limit for such separation. It expired in the year 1987 and from then onwards, irrespective of the fact whether steps have been taken or not, judiciary stands separated and does not and should not seek aid of executive authorities for its separation. Separation of judiciary is the corner-stone of independence of judiciary and unless judiciary is independent the fundamental right of access to justice cannot be guaranteed. One of the modes for blocking the road of free access of justice is to appoint or hand over the adjudication of rights and trial of offence in the hands of the executive Officers, This is merely a semblance of establishing Courts which are authorized to decided cases and adjudicate the rights, but in fact such Courts which are manned and run by executive authorities without being under the control and supervision of the judiciary can hardly meet the demands of Constitution."
23. In Shaikh Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others, PLD 1999 SC 504 relevant observations pertinent in this regard are at page 563 in the following words:- "14. Though the learned counsel for the petitioners, the petitioners in person and the learned Attorney-General have advanced very learned and elaborate arguments as is reflected hereinabove, but in my view the controversy involved is very short. In a recent judgment in the case of Mehram Ali and other v. Federation of Pakistan and others (PLD 1998 SC 1445) a Full Bench of this Court while examining the vires of the various provisions of the Anti-Terrorims Act, 1997 (Act XXVII of 1997) and after referring the case law, enunciated the following legal propositions:
(i) the Articles 175, 202 and 203 of the Constitution provide a framework of judiciary i.e, the Supreme Court, a High Court for each province and such other Courts as may be established by law;
(ii) That the words 'such other Courts as may be established by law' employed in clause (1) of Article 175 of the Constitution are relatable to the subordinate Courts referred to in Article 203 thereof;
(iii) That our Constitution recognizes only such specific tribunals to share judicial powers with the above Courts, which have been specifically provided by the Constitution itself Federal Shariat Court (Chapter 3-A of the Constitution), Tribunals under Article 212, Election Tribunals (Article 255). It must follow as a corollary that any Court or Tribunal which is not founded on any of the Articles of the Constitution cannot lawfully share judicial power with the Courts referred to in Articles 175 and 203 of the Constitution;
(iv) That in view of Article 203 of the Constitution read with Article 175 thereof the supervision and control over the subordinate Judiciary vests in High Courts, which is exclusive in nature, comprehensive in extent and effective in operation;
(v) That hallmark of our Constitution is that it envisages separation of the Judiciary from the Executive (which is founded on the Islamic Judicial System) in order to ensure independence of Judiciary and, therefore, any Court or Tribunal which is not subject to judicial review and administrative control of the High Court and/or the Supreme Court does not fit in within the judicial framework of the Constitution; That the right of access to Justice to all is a fundamental right, which right cannot be exercised in the absence of an independent Judiciary providing impartial, fair and just adjudicatory framework i.e, judicial hierarchy. The Courts/Tribunals which are manned and run by Executive Authorities without being under the control and supervision of the High Court in terms of Article 203 of the Constitution can hardly meet the mandatory requirement of the Constitution;
(vi) That the independence of judiciary is inextricable linked and connected with the process of appointment of. Judges and the security of their tenure and other terms and conditions."
24. Finally I may refer to Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, PLD 2001 SC 607, wherein it was held that functioning of any Court, or Tribunal, beyond the control and supervision of the High Court concerned in terms of Article 203 of the Constitution does not conform to mandatory requirement of the Constitution. Relevant part appears in the following words:-- "178. This is not the first time that the Federal Government has promulgated laws providing for creation of offences, the procedure and the punishments therefore and the establishment of Courts in the Provinces. Enforcement of the Anti-Terrorism Act, 1997 is a classic example of the above power of Federal Government. In the recent past, Articles 175, 202 and 203 of the Constitution provide a framework on Judiciary, i.e, there shall be a Supreme Court of Pakistan, a High Court for each Province and such other Courts, as may be established by law. The words `such other Court as may be established by law' are relatable to the subordinate Courts referred to in Article 203 of the Constitution. Article 225 of the Constitution also empowers the Federal Government to establish Election Tribunals which operate within the Province. However, the functioning of any Court or tribunal, beyond the control and supervision of the; High Court concerned in terms of Article 203 of the Constitution, does not fulfil the mandatory requirement of the Constitution in that, under Article 203 read with Article 175 of the Constitution, the supervision and control of the subordinate judiciary exclusively vests in the High Courts."
25. 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 v. Sindh Labour Court (2000 PLC 389). The facts were that a person in judicial service as Additional District and Sessions 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 Honourable 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 Honourable Judge ordered that office should send a copy of the order to the Labour Appellate Tribunal for information and 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."
26. Mr. Justice Ihsanul Huq Chaudhry in Nishat Group of Industry's case (1997 PLC 622) noted the pathetic state of affairs in the N.I.R.C. And passed the following observation: "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 judgment be sent to Mr. Mohammad Zaman Qureshi, newly appointed Chairman, N.I.R.C. To take up the matter in the concerned quarters,
27. The matter did not end there, or shall 7,261, the rot did not stop there. Mr. Justice Tanveer Ahmed Khan in Pakistan Telecommunication's case (1999 PLC 320) made, probably the most scathing re ;lark ever made against a Judicial Forum, against N.I.R.C. When his lordship said:- "Before parting with these cases after going through the judgment dated 15-7-1998 of the Chairman N.I.R.C. And the judgment, dated 31-8-1998 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 Ihsan-ul- Haq Chaudhry. J, qua the working of N.I.R.C. Reported in Nishat Group of Industries and another v.
Chairman N.I.R.C. And others (1997 PLC 622) which is in the following. Terms: "It is a matter of great regret that Government makes appointments in such sensitive posts recklessly. The Government, if serious to keep 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 quote above that the working of the commission is on decay and if some steps at the earlist are not taken to arrest this deteriorating situation it would be then too late in the day to mend the same.
' In 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."
28. The above discussion leads me to inexorable conclusions that:
(1) Labour Appellate Tribtinal is a Court as far as the law is concerned, notwithstanding its designation as a Tribunal.
(2) Labour Appellate Tribunal and the Labour Courts exercise judicial powers and being Courts must be subordinate to respective High Court in the provinces.
(3) Such subordinate includes complete administrative and financial control and supervision by the High Court.
(4) Such administrative control and supervision cannot be achieved unless complete sway is given to the High Coui in matters relating to appointment and other issues relating to Chairman of the Labour Appellate Tribunal and Presiding Officers of the Labour Courts.
29. Now I turn to question as to how appointment is to be made in respect of Chairman of the Labour Appellate Tribunal. Section 55 of the Industrial Relations Ordinance in its subsection (2) provides as under:-- "55(2). The member of the Tribunal shall be a person who is or has been a Judge or an Additional Judge of a High Court, and shall be appointed on such terms and conditions as Government may determine."
30. It may be of interest to state here that this is exactly the same phraseology as was used in the Industrial Relations Ordinance, 1969. The above quoted subsection lays down that a member of Tribunal should be a person who is or has been a Judge or an Additional Judge of High Court. The point need not be belabored upon that for a person to fall in the category of "is or has been" a Judge or an Additional Judge he must be a Judge or an Additional Judge validly appointed in accordance with 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 "union and the tests, laid down by the Honourable Supreme Court of Pakistan in Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs Islamabad and others PLD 2009 SC 789 must in all their glory and in all their severity apply in this regard. Therefore, a person who does not meet the criteria as have been specified in Sindh High Court Bar Association's case though he may have defacto held offices, but holding of such offices having been declared by the Honourable Supreme Court in this case in Para-22(iii) as "unconstitutional, void ab initio and of no legal effect" cannot be treated as "has been" a Judge or an Additional Judge and consequently does not fulfill requirements of section 55(2) - of the Industrial Relations Act, 2008.
31. But this is not the only legal requirement. The question is can a person by appointed as Chairman of the Labour Appellate Tribunal without after consultation with the Chief Justice of the High Court. Guideline in this regard is clearly laid down in the landmark judgment of Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahab-ul-Khairi and others v. Federation of Pakistan and others, PLD 1996 SC 324.
32. I have already in fair amount of detail quoted from earlier judgment that all judicial appointments must be subordinate to the High Court and it is only High Court which can and should exercise exclusive administrative and supervisory control over subordinate judiciary. Such supervisory and administrative control cannot even begin to exist if a credible and pivotal role is denied to the High Court in appointment of such persons. It will be axiomatic to say that a Court is subordinate to High Court but its Presiding Officers is to be decided and appointed by the Provincial Government without consulting High Court. Therefore, consultation with the Chief Justice of the High Court is sine-qua-non, an essential prerequisite and a condition precedent for all such appointments. I may draw sustenance from the following observations by the Honourable Supreme Court in Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324.
"Adverting to the above second peculiar feature that our country had federal system of Government which is based on tracheotomy of power, it may be observed that each organ of the State is required to function/operate with the bounds specified in the Constitution though one can say that the Judiciary is the weakest limb as it does not have the resources of power which the Legislature or the Executive enjoy but it has been assigned very important and delicate role to play, namely, to ensure that none of the organs or the Government functionaries acts in violation of any provisions of the Constitution or of any other law and because of the above nature of the work entrusted to the judiciary, it was envisaged in the Constitution that the judiciary shall be independent. I may reiterate that the independence of Judiciary is inextricably linked and connected with the Constitutional process of appointment of Judges of the superior Judiciary. The relevant Constitutional provisions are to be entrusted in a manner which would ensure the independence of Judiciary."
33. Consultation with the Chief Justice must be given the same meaning as has been given it in Al- Jehad Trust's case where it has been observed as under: "I am, therefore, of the view that the words "after consultation" referred to inter alia in Articles 177 and 193 of the Constitution involve participator consultative process between the consulters and also with the Executive. It should be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint or arbitrariness or unfair play."
34. Mere fact that a person has been a Judge or an Additional Judge in the past does not ipso facto qualify him to be a member of the Labour Appellate Tribunal. The reason is not far to seek.
Only the Chief Justice holding office at the relevant time is the most well equipped person to provide meaningful and purposive consultation which is current and relevant. Any past opinion by a past Chief Justice, though should receive highest consideration, cannot be said to be sufficient for the purpose of consultation with the Chief Justice holding such office at the time when the concerned appointment is being made. Therefore, before appointing any person to be member of the Labour Appellate Tribunal it is not only required that such person meets requirements of subsection (2) of section 55, but it is also essential that such person is appointed only and only after consultation with the Chief Justice of the High Court.
35. Although the Provincial Government was required by law on 6-12-2008 to constitute a Labour Appellate Tribunal, it cannot be noted except with regret that so far Labour Appellate Tribunal has not been constituted in the Province. Secretary Labour and Secretary Law are present in Court and they are directed to ensure that Member of Labour Appellate Tribunal is appointed within a period of a maximum of one month in accordance with the principles discussed above. They are further directed to ensure that all administrative paraphernalia such as Office and Court Room accommodation, requisite staff and other essentials are made available within this period.
36. Mr. Mehmood Abdul Ghani referred to Judicial Policy and his precise apprehension (not strictly contention) was that if a retired Judge or Additional Judge of this High Court is appointed as Labour Appellate Tribunal it may be challenged as violative of Para-2 of National Judicial Policy. He also referred to Para-3 of the National Judicial Policy in this regard. The said para. Is as under:- "(3) Instead of appointing retired judges/judicial officers as presiding officers of the Special Court/tribunal, qualified serving judges be appointed against these posts, in consultation with the Chief Justice of the High Court."
37. Mr. Mehmood Abdul Ghani pointed out that retired Sessions Judges who had been appointed as Presiding Officers of Banking Courts were relieved when Judicial Policy was announced.
38. --I think apprehension of Mr. Mehmood Abdul Ghani is misconceived. What the Judicial Policy in Para-2 ordains is that a retired Judge shall not accept appointment which is lower to his status or dignity. Thereafter on reference made to appointment as Presiding Officers of Banking Courts, Customs Courts or Administrative Tribunals. The policy does not absolutely forbid appointment of retired Judges of Judicial Tribunals. All that it ordains is that it should not be in a position lower to his status and dignity. I may mention here in passing that in Sindh High Court administrative order of the Chief Justice right from the beginning has been that writ petitions against orders of Labour Appellate Tribunal must be placed before a Division Bench whereas writ petitions against orders of Presiding Officers of Labour Court are placed before Single Benches. Therefore, this High Court has all along accepted and treated position of Chairman Labour Appellate Tribunal not below the status and dignity of a Judge of a High Court. I must hasten to add that Chairman of Labour Appellate Tribunal is not a Judge of High Court unless a sitting Judge is appointed as Chairman as is done in N.-W.F.P. And Balochistan but this Court has been.Giving all the due respects to the orders of the Chairman Labour Appellate Tribunal by placing challenges against them before Division Benches.
39. Learned counsel have made a number of suggestions and have emphasized the point that one Labour Appellate Tribunal would not be able to meet requirements and cope up with the accumulated detritus of year's. I will not comment upon such suggestion except saying that all these aspects must be considered by the Provincial Government before deciding whether one Labour Appellate Tribunal shall adequately meet the requirement and if the Government decides that more than one Labour Appellate Tribunals are to be constituted as to how work should be distributed amongst them. It need not be said that the Government will consult to all stakeholders before reaching a decision on this point. It all need not be said that whatever decision is made, it must be a speaking decision meeting all parameters of section 24-A of the General Clauses Act
40. Learned counsel have also expressed grievance that more than 1000 or so Labour related matters are pending in the High Court, all of them instituted before 6-12-2008. On my query office has informed me about pendency of Labour related matters, The details are as under: Labor Appeals 952 2003 157 2004 048 2005 102 2006 187 2007 339 2008 116 2009 003 Labour Miscellaneous: Appeals003 Labour Revision Applications 071 Constitution Petitions 128 1154
41. Mr. Mehmood Abdul Ghani referred to Judicial Policy and his precise apprehension (not strictly contention) was that if a retired Judge or Additional Judge of High Court is appointed as Labour Appellate Tribunal it may be challenged as violative of para-2 of National Judicial Police. He also referred to para-3 of the National Judicial Police in this regard. The said para. Is as under:- "(3) Instead of appointing retired Judges/judicial officers as presiding officers of the special Court/tribunal, qualified serving judges be appointed against these posts, in consultation with the Chief Justice of the High Court."
42. Mr. Mehmood Abdul Ghani pointed out that retired Sessions Judges who had been appointed as Presiding Officers of Banking Courts were relieved when judicial Police was announced.
43. I think apprehension of Mr. Mehmood Abdul Ghani is misconceived. What the Judicial Policy in Para-2 ordains is that a retired Judge shall not accept appointment which is lower to his status or dignity. Thereafter on reference is made to appointment as Presiding Officers of Banking Courts, Customs Courts or Administrative Tribunals. The policy does not absolutely forbid appointment of retired judges of Judicial Tribunals. All that it ordains is that it should not be in a position lower to his status and dignity. I may mention here in passing that in Sindh High Court Administrative order of the Chief Justice right from the beginning has been that writ petitions against orders of Labour Appellate Tribunal must be placed before a Division Bench whereas writ petitions against order of Presiding Officers of Labour Court are placed before single Benches. Therefore, this High Court has all along accepted and treated position of Chairman Labour Appellate Tribunal not below the status and dignity of a Judge of a High Court. I must hasten to add that Chairman of Labour Appellate Tribunal is not a Judge of High Court unless a sitting Judge is appointed as Chairman as is done in N.W.F.P. And Balochistan but this Court has been giving all the due respects to the orders of the Chairman Labour Appellate Tribunal by placing challenges against them before Division Benches. I have already quoted above the administrative order passed by the Honourable Chief Justice, High Court of Sindh by which it had been ordered that labour matters pending before High Court should not be fixed in Court. A similar situation had arisen when Industrial Relation Ordinance, 2002 was promulgated. It was provided in section 80(2)(d) that appeals pending in the Labour Appellate Tribunal would stand transfer to the respective High Courts upon commencement of the Ordinance of 2002. Consequently it was proposed to the then Honourable Supreme Court as follows:-- "It is further stated that under section 80(2)(b) of the I.R.O. 2002, only appeals pending before the Sindh Labour Appellate Tribunal stand transferred but the Tribunal has also sent revisions applications and other cases when under the provisions of I.R.O, 2002, revision have not been ordered to be transferred to this Court, therefore, in law revisions stand lapsed. It is proposed to seek appropriate order from the concerned bench of the Commission.
6. Revisions applications which have been transferred to this Court without having any order or provisions in the I.R,O., 2002 the same may be returned back to the custodian of the record of Sindh Labour Appellate Tribunal i.e, Presiding Officer, Sindh Labour Court No,1, Karachi being custodian of cases of Sindh Labour Appellate Tribunal Karachi.",
44. The then Honourable Chief Justice accepted the proposal and through an administrative order dated 27-1-2003 all Revision applications were sent to the Presiding Officer Sindh Labour Court No,1 Karachi. The question before Single Judge of the High Court in Munawar A. Malik v. Abdul Salam 2006 PLC 122, was whether Revision Applications have been rightly returned or they are deemed to be pending before this Court. After extensively referring to provisions of the Industrial Relations Ordinance 2002, it was held as under:-- "21. In the present case Revision Application No,K-167/2001 pending before the Labour Appellate Tribunal is deemed to be pending before this Court in which the operation of the impugned order of the revision application was suspended. As the revision application is pending before this Court therefore the said order would continue to operate. Thus the Labour Court was not justified in proceedings with the case and such proceedings are illegal therefore they are set aside."
45. Consequently the learned Single Judge acting judicially directed the office as under:-- "21. Office is directed to call above mentioned revision application from the concerned Court and place the same before this Court for further proceedings."
Consequently revision applications were called and thereafter listed before various benches.
46. No Labour Appellate Tribunal has been constituted, appeals are pending in the High Court since 2003 and many of them are those which were transferred in 2002 to High Court from the Labour Appellate Tribunal upon promulgation of the Industrial Relations Ordinance 2002. Since no Labour Appellate Tribunal has been yet constituted appeals cannot be sent to a vacuum and thrown in a void. In Constitution petition High Court must always endeavour to come to the aid of cause of Justice and to alleviate the suffering of helpless litigants. For the sake of arguments even if appeals cannot be listed as appeals there is nothing to preclude this High Court from treating those appeals as petitions because no adequate remedy is available to the petitioners, The office is therefore directed to list the Labour related appeals and other proceedings before appropriate bench of this Court according to Roster.
45. The present petitions are adjourned to 30-11-2009. Interim orders passed earlier shall continue till the next date.