' SHAUKAT AZIZ SIDDIQUI, J.---: With this single order, I would like to answer the above mentioned writ petitions as the facts and law points involved are identical.
2. Precisely facts are that petitioner Muhammad Ramzan Achakzai of W.P No,4386/2014 (hereinafter to be referred as respondent No,4) alleges that the Federal Government has to constitute the governing body of the Workers Welfare Fund (WWF) under section 7, Workers Welfare Fund Ordinance, 1971 but the respondents have failed to fulfill their . Statutory obligations, hence the direction be issued to, them to constitute the governing body of WWF. Vide order dated 21.04.2015; this court directed the respondents to ensure the constitution of the governing board of WWF within one month. In the purported compliance of the direction of the said order, the respondents constituted the governing board of WWF vide notification dated 18.08.2015 and included the petitioner as member of workers for Balochistan.
3. The above referred notification prompted Sultan Muhammad, Khan, the petitioner of W.P No,2684/2015 to challenge the same on the ground that being the Secretary General of Pakistan Central Mines Federation and the President of Balochistan Federation of Trade Unions, his name was nominated as the representative of the workers on 06.01.2015 for the Governing Body of WWF but in the notification dated 18.08.2015 respondent No,4 was declared as member governing body of WWF, whereas he was not eligible to represent the workers.
' Arguments heard, record perused.
4. It will be advantageous to observe that the issues raised through these Writ petitions and especially the W.P No,2684/2015 concerns the interests and rights of the low paid, downtrodden and poor but the most important class of the society i,e, the workers who sets the machinery of the state in motion through their untired labor; therefore, the utmost care will be taken to resolve the controversy in the best interest of this class, which, most of them often has no voice to highlight and agitate its miserable living condition.
5. Having considered the contentions advanced at the bar, having perused the available material and having gone through the relevant statutes, it is observed that the state of Pakistan promulgated the Workers Welfare Funds Ordinance in 1971 when the subject of labor was part of the concurrent legislative list. However, with the 18th amendment in the Constitution of the Islamic Republic of Pakistan the concurrent legislative list was omitted and Article 270-AA was inserted and subject of labor became the concern of the provinces. The Federal legislation has to remain in force till the time the Provinces enact the statues about the subjects of concurrent legislative list and so far the Provinces have not enacted the laws on the subject of labor, therefore, the Workers Welfare Fund Ordinance, 1971 is still in field and this court has the jurisdiction to entertain any questions arising from the implementation of the provisions of this Ordinance.
6. The worker welfare fund is constituted by the Federal Government as per provisions of section 3 of WWF Ordinance, 1971 and under section 7 of the said Ordinance; the Federal Government has to constitute a governing body for the management and administration of WWF. It will be appropriate to reproduce Section 7 of WWF Ordinance, 1971 which reads as under: "Constitution of Governing Body:-
(1) As soon as may be after the commencement of this Ordinance, the (Federal Government) shall, by notification in the official gazette, constitute a governing body of the fund to whom shall be entrusted the management and administration of the Fund.
(2) The governing body shall consists of Secretary to. The Government of Pakistan in the Ministry dealing with matters relating to labour Welfare, who shall be its Chairman and not more than eighteen other members to be appointed by the. Federal Government of whom:-
(a) At least one shall be appointed from each Province upon the recommendation of the Provincial Government concerned;
(b) At least one shall be appointed from each province from amongst the workers; and
(c) At least one from each Province shall be appointed from amongst the employers.
(3) The members of the Governing board other than the Chairman shall hold the office for such period and on such term and conditions as may be prescribed.
(4) No act or proceedings, of the governing, body shall be invalid by reason only of the existence of a vacancy in, or defect in the constitution of the governing body."
7. The bare perusal of the section 7 reveals that the Secretary of the Government of Pakistan in the ministry dealing with the matters relating to labour Welfare is to be a member and Chairman of the governing body of WWF by virtue of his office. As far as the members to be appointed under clause (a) to subsection (2), they are to be appointed by the Federal Government upon the recommendations of the Provincial Governments concerned and to this extent it may be inferred that the nomination of these members comes within the sole discretion of the Provincial Governments.
8. The subject of controversy is the appointment of members of the governing body of WWF under clauses (b) and (c) of subsection (2) of section 7 of WWF Ordinance, 1971. Clause (b) provides that at least one member shall be appointed from each province from amongst the workers whereas clause (c) provides that at least one member from each Province shall be appointed from amongst the employers. The comments of the respondents Nos.1 and 2 reveals that in the appointment of the members of the Governing Body of WWF falling in the category of clauses (b) and (c) of subsection (2) of section 07 of WWF Ordinance, 1971, the respondents Nos.01 to 03 have not discharged their onerous duties as per the spirit of section 07 and they merely acted as a post office.
9. There is ambiguity in the meaning of subsection (1) of section 07 of WWF Ordinance, 1971 that the appointment of the member of the governing body especially falling in the clauses (b) and (c) is in the discretion of the Federal Government and the respondents Nos.1 to 3 are under the statutory obligation to exercise the said discretion fairly, honestly and reasonably to the best of their ability.
There is no mention in the statue that either the respondents Nos.1 to 3 are required to solicit the recommendations of the Provincial Governments or after soliciting any such recommendations, their hands are tied and they have to act upon those recommendations blindly. Contrary to the above referred statutory requirement of the exercise of independent mind, the comments and the impugned notification reveals that respondents Nos.1 to 3 felt themselves helpless and followed the recommendation of the Provincial Government blindly and made no effort to find out whether the recommendations were factually correct and that those met the statutory criteria envisaged in section 07 of the WWF Ordinance, 1971. On this score alone, the impugned notification is liable to be set aside.
10. It is further observed that under subsection (3) of section 7 of the WWF Ordinance, 1971, the members of the Governing Body have to hold the office as may be prescribed. The Workers Welfare Fund Rules were framed in 1976 and Rule-03 provides that the members of the Governing Body other than the Chairman shall hold office for a period of two years from the date of notification appointing him a member of the Governing Body provided that an outgoing member may continue in office until the appointment of his successor is notified. Perusal of the available material reveals that since February, 2009 the respondents Nos.1 to 3 did not issue any fresh notification for the constitution of the Governing Body of WWF, Ordinance, 1971 and ultimately the impugned notification was issued on 18.08.2015 on the direction of this court vide order dated 21.04.2015 in W.P No,4386/2014. This inaction on the part of the respondents Nos.1 to 3 is a clear reflector that these respondents are either oblivion to prove their statutory responsibilities under the WWF Ordinance, 1971 or they intentionally avoided. To discharge the same.
11. There is no cavil to the proposition that the representatives of the workers must be from the class of the workers as defined in section 2 of Industrial Relations Ordinance, 2002 and any person who does not comes within the definition of worker cannot be appointed as a member of the Governing Body to represent the Workers. Likewise, the representative of the employers must be from the employers who have been making the contributions in the Workers Welfare Fund and nobody should be appointed as the member of the representative of the employers in the Governing Body whose establishment has not been making the contributions in the WWF. It is argued for the respondents Nos.01 to 03 that the members of the Governing Body of WWF representing employers are appointed on the basis of nominations provided by the Provincial Governments and that WWF Ordinance, 1971 does not restrict the Federal Government to only appoint representative of the employers from the establishments contributing to WWF. As far as the recommendations of the Provincial Government is concerned, it has already been observed that the Federal Government is not under any statutory obligation to be bound by the said recommendations and it must consider that proposed member fulfill the criteria to be appointed in the Governing Body. Needless to mention that section 24-A of General Clauses Act, 1897 cast an onerous duty on the respondents Nos.1 to 3 to exercise the 'powers under section 7 of WWF Ordinance, 1971 reasonably, fairly, justly and for the advancement of the purposes of the Ordinance.
12. Section 4 of WWF Ordinance, 171 narrates the sources of the funding of WWF and the only source is the 02% of the every Industrial Establishment having the total income of not less than Rs,0.5 Million in an accounting year and this section leaves no ambiguity that only the Industrial Establishment contributing 02% of their income comes within the domain of WWF Ordinance, 1971, therefore, only from their representative, the member of the Governing Body should be appointed so that they may watch out that whether their contributions are being properly utilize to advance the object of WWF Ordinance, 1971. It is observed that even the response of respondents Nos.1 to 3 by itself establish that they have not discharged their obligations under section 07(1) of WWF Ordinance, 1971 read with section 24-A of General Clauses Act, 1897 and issued the impugned notification without applying the independent mind to the recommendation of the Provincial Governments. These respondents did not bother to probe that whether the proposed members falling in clauses (b) and (c) of subsection (2) of section 07 of WWF Ordinance, 1971 were meting out the criteria to be appointed as the member of the Governing Body of WWF Ordinance, 1971.
13. The stock of the above discussion is that, the W.P. No,2684/2015 is hereby accepted, the impugned, the impugned notification is hereby declared as illegal and unlawful and void ab initio whereas the W.P. No,4386/2014 is hereby disposed of with the direction to the respondents Nos.1 to 3 to appoint the member of the Governing Body within a period of two months from the date of order strictly in accordance with the WWF Ordinance, 1971 and the observations of the court.