' MUHAMMAD KHALID MEHMOOD KHAN, J.--- Through this single judgment, I propose to decide Writ Petition No,24691 of 2011, Writ Petition No,24692 of 2011, Writ Petition No,24693 of 2011, Writ Petition No,24694 of 2011 and Writ Petition No,24695 of 2011, as the issue, subject-matter of these petitions, is the same.
' With the consent of parties the above said petitions are being decided as Pacca cases.
2. The National Industrial Relations Commission through impugned order dated 19-8-2011 directed to suspend the proceeding before the learned Labour Court.
3. Learned counsel for petitioner submits that after 18th amendment of Constitution of Islamic Republic of Pakistan, the concurrent legislative list stands abolished, thus legislation on item of labour became the provincial subject and as such the President of Pakistan has no powers to promulgate Industrial Relations Ordinance, 2011 (hereinafter referred to as IRO 2011), the IRO 2011 is thus ultra-vices to the Constitution.
4. Learned counsel for petitioner submits that under Article 270AA of Constitution of Islamic Republic of Pakistan, the Federation has no power to legislate for industry wise trade unions, except Article 144(1) of the Constitution. Learned counsel relied on Air League of PIAC Employees through President v. Federation of Pakistan M/O Labour and Manpower Division Islamabad and others (2011 SCMR 1254).
5. Learned counsel adds that maximum time allowed under Article 270AA(8) has expired, the respective provinces have already legislated labour Laws and as such IRO 2011 amounts to transgression of legislative authority of provinces.
6. Learned counsel for respondents submits that Pakistan is the signatory of International Labour Organization Convention Nos.87 and 98 (hereinafter referred to as ILO conventions) and as per item 13 of the Federal legislative list, the parliament has the power to legislate on labour issues.
Learned counsel submits that Provincial Legislation could not legislate for industry wise trade union, hence, the Federal legislation is permissible under Items Nos.3 and 32 of Federal legislative list and Hon'ble Supreme Court of Pakistan has not held that Federation has no power to legislate on Labour issues.
7. Heard, record perused.
8. The IRO 2011 was promulgated on 8-7-2011 as Industrial Relations Ordinance, 2011 (V of 2011). The preamble of Ordinance V of 2011 shows the need and necessity as under:- "Whereas the Constitution of the Islamic Republic of Pakistan recognizes the freedom of Association as a fundamental right of the, citizens; And whereas the Islamic Republic of Pakistan has ratified ILO Convention No,87 on Freedom of Association and Convention No,9 on Right to Organize and Collective Bargaining."
9. Prior to 18th amendment in Constitution of Islamic of Pakistan, the item of Labour was the part of concurrent legislative list under item Nos.26 and 27 of the concurrent legislative list.
10. Article 270AA of the Constitution of Islamic Republic of Pakistan is read as under:--- 270AA. Declaration and continuance of laws etc.--- (1) The Proclamation of Emergency of the fourteenth day of October, 1999 the Provincial Constitution Order No,1 of 1999, the Oath of Office (Judges) Order, 2000 (No,1 of 2000), Chief Executive's Order No,12 of 2002, Chief Executive's Order No,19 of 2002, the amendments made in the Constitution through the Legal Framework Order, 2002 (Chief Executive's Order No,24 of 2002), the Legal Framework (Amendment) Order, 2002 (Chief Executive's Order No,29 of 2002) and the Legal Framework (Second Amendment) Order, 2002 (Chief Executive's Order No,32 of 2002), notwithstanding any judgment of any Court including the Supreme Court or a High Court, are hereby declared as having been made without lawful authority and of no legal effect.
(2) Except as provided in clause (1) and subject to the provisions of the Constitution (Eighteenth Amendment) Act, 2010, all other laws including President's Order, Acts, Ordinance, Chief Executive's Orders, regulations enactments, notifications, rules, orders or bye-laws made between the twelfth day of October, one thousand nine hundred and ninety-nine and the thirty-first day Of October, two thousand and three (both days inclusive) and still in force shall, continue to be in force until altered, repealed or amended by the competent authority.
' Explanation.--- For the purposes of clause (2) and clause (6), "competent authority" means,---
(a) In respect of Presidents' Orders, Ordinance, Chief Executive's Orders and all other laws, the appropriate Legislature; and
(b) In respect of notifications, rules, orders and bye-laws, the authority in which the power to make, alter, repeal or amend the same vests under the law.
(3) .......................................................................
(a)
(b)
(4) All orders made, proceedings taken, appointments made, including secondments and deputations, and acts done by any authority, or by any person which were made, taken or done, or purported to have been made, taken or alone, in exercise of the powers derived from any authority or laws mentioned in clause (2), or in execution of or in compliance with any orders made of sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding anything contained in clause (1), be deemed to be valid and shall not be called in question in any Court or forum on any ground whatsoever.
(5) ..............................................................................................................................
(6) Notwithstanding omission of the concurrent Legislative List by the constitution (Eighteenth Amendment) Act, 2010, all laws with respect to any or the matters enumerated in the said List (including Ordinance, Orders, rules, bye-laws, regulations and notifications and other legal instruments having the force of law) in force in Pakistan or any part thereof or having extra- territorial operation, immediately before the commencement of the Constitution (Eighteenth Amendment) Act, 2010, shall continue to remain in force until altered, repealed or amended by the competent authority.
(7) ..........................................................................................................................
(8) On the omission of the concurrent Legislative List, the process of devolution of the matters mentioned in the said List to the Provinces shall be completed by the thirtieth day of June, two thousand and eleven.
(9) For purposes of the devolution process under clause (8), the Federal Government shall constitute an Implementation Commission as it may deem fit within fifteen days of the commencement of the Constitution (Eighteenth Amendment) Act, 2010.
11. Through 18th amendment in Article 142 of constitution, the power of parliament to legislate on items of concurrent legislative list has been withdrawn.
12. The question required for consideration is, whether after abolishing the concurrent legislative list, the Federation is empowered to legislative for the matter directly, indirectly and ancillary to the subject of labour or not?
13. In the year 1969, for settlement of disputes between the employee and employer for avoiding any lahour unrest and for settlement of their dispute of Industrial and commercial activities in the country, Industrial Relation Ordinance 1969 (IRO 1969) was promulgated by repealing East Pakistan Trade Union Act, 1965, the East Pakistan Labour Dispute Act, 1965, the West Pakistan Industrial Dispute Act, 1965, the West Pakistan Industrial Dispute Ordinance 1968 and West Pakistan Trade Union Ordinance 1968.
14. Through an amendment vide Ordinance, 1972, section 22-A was introduced in IRO 1969 and National Industrial Commission (NIRC) was established for settlement of Labour disputes for Industry wise trade union and labour disputes.
15. Industrial Relation Ordinance, 1969 was repealed through Industrial Relations Ordinance 2002 (IRO 2002). In the year 2008, Industrial Relation Act, 2008 was promulgated and IRO 2002 was repealed. In IRO 2008 section 87(3) provides its life up till 30-4-2010, hence, it was a sunset law, and up till 30-4-2010, before the expiry of the life of IRO 2008, no time was extended nor any legislation was made. The said Ordinance laid to rest on expiry of fixed life.
16. On 26-4-2010, 18th amendment was passed under said amendment in Constitution, the concurrent legislative list stand abolished and the items referred in the said list became the legislative domain of provinces.
17. Article 270-AA of constitution provides saving to existing laws, Ordinances, orders, bye laws, regulations, Notifications and other legal instructions having the force of law under Sub-Clause
(8) of Article 270-AA the process of devolution of the matters mentioned in omitted legislative list was to be completed up to 13-6-2011 and under Sub-Clause (9) of Article 270-AA the Federal Government was bound to constitute implementation commission within the 15 days of commencement of 18th amendment. The perusal of Article 270-AA will show that all laws, orders, by laws etc. Was remain valid unless amended, altered and repealed by the provinces within the time fixed.
18. The Provinces completed their legislation on the subject referred to above.
19. A dispute arose that provincial laws were not providing remedy to Industry wise trade union and it was claimed that IRA 2008 is protected Federal Legislator under Article 270AA.
20. The honourable Supreme Court of Pakistan examined the dispute in Air League of PIAC Employees through President v. Federation of Pakistan M/O Labour and Manpower Division, Islamabad and others (2011 SCMR 1254) and Hon'ble Supreme Court finally held IRA 2008 was a sun set law and ceased to exist on expiry of its fixed life, the Honourable Court further held:--- "Next question, which has cropped up is that what would be effect of repeal of IRA, 2008. Learned counsel for the petitioner has vehemently argued that in terms of section 6 of General Clauses Act and Article 264 of the Constitution, the IRO, 1969, which was permanent legislation, would be revived. It is to be noted that section 6 of the General Clauses Act or any other Central Act, therefore, the same is not applicable in the instant case because of reason that IRA, 2008 was not repealed by any other legislation rather it stood repealed on the expiry of period mentioned in section 87(3) of the Act. Similarly, Article 264 of the Constitution provided that where a law is repealed or is deemed to have been repealed, by, under, or by virtue of Constitution, the repeal shall not affect the previous operation of law or anything duly done or suffered under the law; affect any right, privilege, obligation or liability acquired, accrued or incurred under the law; affect any penalty forfeiture of punishment incurred in respect of any offence committed against the law; or affect any investigation legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty forfeiture or punishment. However, it shall not revive anything not in force or existing at the time at which the repeal takes effect. Article 264 of the Constitution rather it died on expiry of the statutory period. Secondly, the purpose of Article 264 of the Constitution is to provide protection to the operation of law, rights, liabilities accrued, and penalties incurred in respect of any repealed law and does not state that it would provide protection to the laws previously in force. Article 264 of the Constitution is in a language that deals with the effect of repeal of law and, unless the Constitution provides otherwise, nothing will be revived which was not in force or existing at the time when the repeal takes effect. The IRA, 2008, was repealed by its own force in terms of section 87(3). Had it been an Ordinance issued under Article 89 of the Constitution, on the expiry of its statutory period the repealed law would have been revived but the provisions of this Article would not be applicable here because IRA, 2008 is not an Ordinance and has been enacted by the Act of Parliament, therefore, no sooner did it lapse on 30-4-2010, no other law earlier repealed including IRO, 1969 could occupy the field. In addition to it, the mandate of section 6 of General Clauses Act and. Article 264 of the Constitution had not provided that on account of repeal, the law previously in field would stand revived as these provisions in broader sense had attached finality to the actions which were already done. The finding given by the High Court of Sindh that after the repeal of IRA, 2008, the IRO, 1969 came back in operation, is not tenable. Thus it is held that the IRO, 1969 would not be revived after the repeal of IRA, 2008."
21. In the above said case Mr. Mahmood Abdul Ghani, learned Advocate Supreme Court as Amicus curiae contended as under:- "Mr. Mahmood Abdul Ghani, learned Advocate Supreme Court appearing as Amicus Curiae contended that the IRA, 2008 was repealed by means of section 87(3) and after its repeal the IRO, 2002 or IRO, 1969 could not be revived as earlier the matters relating to welfare of labour and trade unions were mentioned in the Concurrent Legislative List, which have become provincial subject after the Eighteenth Constitutional Amendment and the authority to legislate had been transferred to the provinces. He further contended that after such repeal the NIRC as envisaged under IRA, 2008 (earlier under IRO, 2002 and IRO, 1969) would be deemed to have ceased to exist."
22. The honourable Supreme Court of Pakistan has left the said issue open as under:--- "20. 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."
23. The argument of learned counsel for petitioner is that under Article 87 of the Constitution, the President, powers to promulgate the Ordinance is restricted to those legislation referred in Federal legislative list, the subject of labour its welfare and other matters is not the part of Federal legislative list hence the Industrial Relations Ordinance, 2011 is bad peace of legislature and is liable to be struck down. Learned counsel has vehemently argued that Hon'ble Supreme Court has already held that IRO 1969 and all subsequent legislation including the IRA 2008 has cease to exist as all provinces have promulgated their respective laws.
24. The President under Article 89(2) has the powers to promulgate Ordinance and the life of Ordinance is the specific. The power of the President to promulgate Ordinance is restricted to the extent of Federal Legislative List, IV Schedule Part I.
25. The Labour Laws promulgated by provinces shows that, there is no provision for regulating the dispute of Industry wise Trade union and Trans Provincial Industrial dispute.
26. The President promulgated Industrial Relations Ordinance, 2011 on 8-7-2011.
27. The preamble of the Ordinance shows that to, honour the International Labour Organization Convention 87 and 98, i,e, Right of freedom of association and right to organize and collective bargaining, admittedly Pakistan is the signatory of Industrial Labour Convention and Labour laws should be in consonance of International conventions. Prior to 18th amendment the matters relating to welfare of Labour and Trade Union were mentioned in Concurrent Legislative list of items Nos.26 and 27 and both Federal and Provincial Governments were empowered to legislate on these two items, after 18th amendment these two items came into the legislative authority of province, the provinces have legislated their respective laws, but the issue of Industry wise trade union and employees of these organizations who are managing their establishment in all the four provinces is not the subject matter of these provincial laws and rightly so, as one province cannot legislate about the domain of other provinces. However, for coping with this situation and to meet with the obligations under the Convention Nos.87 and 98 the legislation is required.
28. In this back ground it has to be seen whether not framing the law in consonance with International Convention is a violation of International commitment given by the State or not? And whether the President can promulgate laws for fulfilling obligation under International convention?
29. Islamic Republic of Pakistan is a Federal Republic comprising of four provinces, Balochistan, Khyber Pakhtunkhwa, Punjab and Sindh, Islamabad Capital Territory, Federally Administered Tehsil Area and such states and territories as are, or may be included, whether by accession or otherwise. There is parliament comprising of public chosen representative of its all components this show that Federation of Pakistan is based on cooperative Federalism, the sovereign authority vest in the parliament, the parliament has delegated certain powers to provinces to the extent of provincial territories and as such the constitution scheme sovereignty is not a duel, for example the provinces have no power and authority to amend the constitution, the provinces have no powers to grant passport to any one, nor can issue National Identity Cards etc. The sign of sovereignty, so in my humble opinion the powers to honour the intentional commitment is only with the Federation.
30. The item 3 of Federal Legislative list provides as under:- "External affairs, the implementing of treaties and agreements, including educational and cultural poets and agreements with other countries, extradition, including the surrender of criminals and accused persons to Government outside of Pakistan.
Item 59. Matters incidental or ancillary to any matter enumerated in this part."
31. The perusal of two entries in juxtaposition will show that Federation to implement the treaties and agreements with other countries has the powers to legislate, and item Nos.3 and 59 empowers the parliament to legislate on labour issues in addition to provincial powers.
32. There is no denial of the fact that National Industrial Commission is regulating the affairs pertaining to Labour disputes of Industry wise trade unions and the establishment in different provisions, Pakistan is the signatory of Intentional Labour Convention and as such for implementing the undertaking to international community the Federation has the powers to legislature on Labour issue which the provinces are unable to legislate.
33. In view of the above in my humble view the IRO 2011 is intra vires of the Constitution of Islamic Republic of Pakistan 1973.
34. The petition thus fails and is dismissed.