P.T.V. EMPLOYEES ITTEHAD UNION, PUNJAB through Secretary vs FEDERATION

IJAZ UL AHSAN, J.---Through this common judgment, we intend to decide I.C.A. No,53 of 2013 as well as W.Ps. Nos, 144562012, 4012-2013 and 31908-2014 as common questions of law arise in all these matters primarily challenging the vires of Industrial Relations Act, 2012 ("I.R.A. 2012").

2. The Appellant, PTV Employees Ittehad Union ("Ittehad Union") which is also the Petitioner in the Writ Petitions mentioned above, is a union of employees of Pakistan Television Corporation ("PTV").

It is registered under the Punjab Industrial Relations Act, 2010 ("PIRA 2010"). Respondent No,4, All PTV Employees and Workers Union ("APE") is also a union of employees of PTV which claims the status of industry wise trade union and has participated and won a referendum for declaration as Collective Bargaining Agent ("CBA"). Respondent No,4 seeks enforcement of provisions of Industrial Relations Act, 2012 ("IRA, 2012") while the Appellant challenges the vires of IRA, 2012, and the power of the Registrar Trade Unions appointed under the provisions of 2012, inter alia, to hold a referendum and declare any trade union as the Collective Bargaining Agent ("CBA").

3. In order to appreciate the controversy between the parties, a brief background of the law relating to Industrial relations in Pakistan would be beneficial. In the year 1969, in order to provide a uniform legal system for formation of Trade Unions, regulation of relations between employers and workers and settlement of disputes arising between them, the Federal Government promulgated the Industrial Relations Ordinance, 1969 ("IRO 1969") by repealing East Pakistan Trade Union Act, 1965, East Pakistan Labour Dispute Act, 1965, The West Pakistan Industrial Dispute Act, 1965, The West Pakistan Industrial Dispute Ordinance, 1968 and the West Pakistan Trade Union Ordinance, 1968.

Through an amendment introduced by an Ordinance in 1972, section 22-A was added to IRO 1969 and the National Industrial Relations Commission ("NIRC") was established.

4. Industrial Relations Ordinance, 1969 was repealed through Industrial Relations Ordinance, 2002 ("IRO, 2002"). In the year 2008, IRO, 2002 was repealed by enactment of The Industrial Relations Act, 2008 ("IRA, 2008"). Section 87(3) of IRA, 2008 contained a sunset clause where under IRA, 2008 was to expire on 30.04.2010. Before expiry of the life of IRA, 2008, neither its life was extended through a legislative instrument nor any fresh legislation was introduced. Consequently, IRA, 2008 came to an end on expiry of its fixed life by virtue of the sunset clause.

5. It may be mentioned here that before 2010, matters, relating to trade unions, labour disputes, labour welfare etc. were mentioned in the Concurrent Legislative List of the Constitution of Islamic Republic of Pakistan, 1973. All Acts and Ordinances prior to 2010 were enacted and promulgated by the Federation. On 26.10.2010, the Eighteenth Amendment to the Constitution was passed, through which amongst other things, the Concurrent Legislative List was abolished.

6. Through the Eighteenth Amendment, Article 142 was also amended insofar as the Majlis-e- Shoora (Parliament) was given the exclusive mandate to enact laws with respect to matters mentioned in the Federal Legislative List. The Provincial legislatures were given the power to make laws with respect to any matter not enumerated in the Federal Legislative List. In order to provide continuity and avoid legal and constitutional complications, Article 270AA was incorporated in the Constitution, the relevant portion of which is re-produced below for ease of reference: "Article-270AA. Declaration and continuance of laws etc.--

(1) .........................

(2) ...................

(3) ...............

(4) ....................

(5) ......................

(6) Notwithstanding omission of the Concurrent Legislative List by the Constitution (Eighteenth Amendment) Act, 2010, all laws with respect to any of the matters enumerated in the said List (including Ordinances, 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 extraterritorial 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) Notwithstanding anything contained in the Constitution, all taxes and fees levied under any law in force immediately before the commencement of the Constitution (Eighteenth Amendment)

Act, 2010, shall continue to be levied until they are varied or abolished by an Act of the appropriate legislature.

(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.

7. Article 270AA ibid saves existing laws, Ordinances, Orders, Bye-laws, Regulations, Notifications and other legal instruments having the force of law. In terms of Sub-Article 8, it provides that the process of devolution of matters mentioned in the Omitted Legislative List to the Provinces would be completed by the thirtieth day of June, two thousand eleven. Under Sub-Article 9, the Federal Government was bound to constitute an Implementation Commission within 5 days of commencement of the Constitution (Eighteenth Amendment) Act, 2010. In the afore-noted background, the Punjab Industrial Relations Act, 2010 ("PIRA, 2010") was enacted by the Provincial Assembly of Punjab on 09.12.2010. Similar laws were also enacted by the other provinces.

8. After enactment of PIRA and other provincial acts, an issue arose that the provincial laws did not cater for industrial disputes and formation of trade unions etc. for establishment located in Islamabad Capital Territory and other establishments which had presence in more than one province (Trans-provincial establishments). In addition, Pakistan was a signatory to ILO Conventions relating to freedom of association and right to organize and collective bargaining etc which needed to be enforced and implemented on countrywide basis which could only be done by the Federation. In an effort to address these issues, the Industrial Relations Ordinance, 2011 ("IRO, 2011") was promulgated on 08.07.2011. The vires of the said Ordinance was challenged before various courts including this Court in W.P. No, 24691 of 2011. However, the challenge did not succeed and IRO, 2011 was declared to be infra vires of the Constitution. Subsequently, the Parliament enacted the IRA, 2012. The Act received the assent of the President on 14.03.2012 which was published in Gazette of Pakistan Extraordinary Part-I, Islamabad on 14.03.2012. The vires of IRA, 2012 is now under challenge before us.

9. In the aforenoted background, the facts germane to the present controversy are as follows: The PIRA 2010 was promulgated on 09.12.2010 as a provincial law Subsequently, in the above background, IRO, 2011 was promulgated on 08.07.2011 as a Federal law. Before promulgation of the IRO, 2011, the Registrar NIRC had ordered a referendum in 2010 under IRA, 2008. However, before such referendum could be held, in view of the sunset clause in IRA, 2008, the said law expired on 30.04.2010. Respondent No,4 APE filed W.P. No,1662-2010 before the Rawalpindi Bench of this Court with the prayer that the referendum should be held notwithstanding expiry of IRA, 2008. Vide order dated 25.05.2010, the said petition was allowed with the consent of the parties. Consequently, NIRC directed that referendum be held on all Pakistan basis. Vide order dated 09.06.2010, this Court in a constitutional petition filed at the Rawalpindi Bench issued a direction to NIRC to conclude the referendum before 30.06.2010. A referendum was accordingly held on 29.06.2010 in which Respondent No,4 APE lost. PTV Central Employees Union ("PTV Central") won the said referendum.

Respondent No,4 APE filed objections to the result of the referendum before NIRC. Such objections were rejected on 01.07.2010 and CBA status was granted to PTV Central. Respondent No,4 APE challenged the said order through W.P. No,614 of 2011 before the Islamabad High Court. A restraining order was issued by the said Court against PTV Central which had won the referendum.

10. On promulgation of the IRO, 2011, PTV Central filed W.P. No,2327 of 2011 before the Islamabad High Court praying that it may be allowed to continue as the CBA. Respondent No,4, APE opposed the same taking the stance that IRO 2011 was ultra vires the Constitution because legislation relating to labour unions and related matters could only be undertaken by the Provinces. Therefore, PTV Central could not be allowed to continue as the elected CBA. The learned Islamabad High Court dismissed the petition filed by PTV Central. It appears that in the above background, NIRC passed an order on 24.09.2011 permitting Respondent No,4 APE to continue as the CBA for the entire country in view of the fact that before the referendum of 2010, APE was the incumbent union/CBA.

11. The Appellant PTV Ittehad, which is a provincial union registered under PIRA, 2010, filed W.P.

No,25102-2011 before this Court claiming that it was entitled to continue as CBA for Punjab in view of the fact that such status had been granted to it by the Registrar Trade Unions, Government of Punjab on 28.08.2011. Therefore, the order dated 24.09.2011 passed by NIRC allowing Respondent No,4 APE to continue as CBA for the entire country was invalid to that extent. This Court vide . order dated 11.11.2011 suspended the order of the NIRC dated 24.09.2011 and subsequently vide order dated 19 12.2011 clarified that PTV Ittehad would be allowed to operate as CBA only to the extent of the Province of Punjab.

12. In the meantime, IRA, 2012 was promulgated on 14.03.2011, the vires of which was challenged before this Court through W.P. No,14456-2012 by PTV Ittehad, the Appellant. The learned Single Bench, seized of the matter, referred it to the Hon'ble Chief Justice of this Court to constitute a larger Bench in view of the important legal and constitutional issues raised. The same was referred to a Division Bench of this Court.

13. Writ Petition No, 25102 of 2011 filed by the Appellant was dismissed by a learned Single Bench vide order dated 18 12.2012. The said order has been challenged through ICA No,53-2013 by the Appellant. W.P. No,14456 of 2012 was also ordered to be heard along with this ICA. By way of interim relief, operation of the judgment of the learned Single Bench dated 11.12.2012 was suspended.

14. On 30.01.2013, the Registrar Trade Unions, NIRC passed an order for holding of All Pakistan Referendum. The Appellant challenged the said order through W.P. No,4012 of 2013. Vide order dated 01.04.2013, a learned Single Bench of this Court directed the parties to maintain status quo.

The said petition was also directed to be placed before this Bench for hearing with connected matters. On 18.06.2013, the Registrar Trade Union, NIRC again passed an order permitting Respondent No,4 APE to act as CBA for the entire country till referendum was held. The said order was challenged by the Appellant through W.P. No, 31908 of 2014. Vide order dated 18.06.2013, a learned Single Bench of this Court suspended the order of the Registrar Trade Unions. The said petition was also directed to be heard by this Bench. The fate of ICA and the aforenoted petitions depends on our finding on the vires of IRA, 2012. Hence the same have been heard and are being decided together.

15. The main question requiring determination by this Court in all these matters is whether IRA, 2012 is ultra vires of the Constitution.

16. The arguments advanced by learned counsel for the Appellant/Petitioner to show that IRA, 2012 is ultra vires of the Constitution are summarized below: i) After promulgation of the Eighteenth Amendment to the Constitution, the subject of labour has devolved on the provinces. After such devolution, the Federation has no constitutional mandate to legislate on the subjects which fall within the domain of the provincial legislature. ii) The judgment of the Hon'ble Supreme Court of Pakistan in Air League of PIAC Employees through President v. Federation of Pakistan M/O Labour and Manpower Division, Islamabad and others (2011 SCMR 1254) forbids the Federation to legislate on the questions falling within the domain of the provincial legislature. iii) The pretext on which the Federation has promulgated IRA, 2012 is that it is empowered under the Constitution to legislate regarding matters involving international treaties and conventions. Since Pakistan is a signatory to the various labour conventions including ILO Convention No,87 on freedom of association and Convention No,98 on right to organize and collective bargaining, it has the power to introduce legislation for implementation of the said Conventions. He submits that the said pretext used by the Federation is misplaced as the said Conventions do no place any such obligation on the Federation and the matter can be placed before the competent authorities of the Federating Units for enactment of legislation in this regard. iv) It is further submitted that even if there is a vacuum regarding any law dealing with trans- provincial trade unions, the same cannot be filled by courts as it requires legislation which is beyond the jurisdictional parameters of courts. v) Referring to the preamble of IRA, 2012, it is submitted that the Act has been made applicable to organizations which have offices/businesses etc. in more than one province. To that extent, it travels into prohibited territory in terms of the Eighteenth Amendment to the Constitution in view of the fact that the subject of "Labour" falls within the legislative domain of the provinces. vi) Referring to Article 142 of the Constitution, it is submitted that Majlis-e-Shoora (Parliament) has the exclusive power to legislate with respect to any matter mentioned in the Federal Legislative List.

However, in terms of Article 142(c), a Provincial Assembly has the power and the Majlis-e-Shoora (Parliament) is prohibited from making laws with respect to any matter not enumerated in the Federal Legislative List. In view of the fact that the subject of "Labour" is not mentioned in the Federal. Legislative List, IRA, 2012 has been promulgated in violation of the Constitution. If at all there was any ambiguity in the law or there was absence of any provision relating to trans-provincial establishments, Article 144 of the Constitution provides a mechanism to deal with such situations. It provides that if one or more provinces require a matter to be legislated by the Parliament which is not mentioned in the Federal Legislative List, such Provincial Assembly or Assemblies may pass a resolution(s) to the effect that the Majlis-e-Shoora (Parliament) may by law regulate any matter not enumerated in the Federal Legislative List. None of the Provincial Legislatures has passed any such resolution(s). Therefore Majlis-e-Shoora (Parliament) could not on its own have legislated in the matter by promulgation of the IRA, 2012.

17. The learned Additional Advocate General, Punjab has defended PIRA, 2010 and adopted the arguments of the learned counsel for the Appellant.

18. The learned counsel for the Respondents as well as the learned Deputy Attorney General for Pakistan have defended the impugned legislation and have argued that IRA, 2012 is intra vires of the Constitution. A summary of submissions made on behalf of the Respondents is given below. i) Where any legislation under by Majlis-e-Shoora (Parliament) can be justified on the basis of any entry in the Federal Legislative List, it cannot be struck down. In this regard, they have referred Entry Nos,3, 27 and 31 and 32, 58 and 59 of the Fourth Schedule (Part-I) of the Federal Legislative List: They have also referred to Entry Nos, 3, 6, 13 and 18 of the Fourth Schedule (Part-II) of the Federal Legislative List: ii) Reliance has also been placed on Article 38-A of the Constitution which obligates the State to ensure equitable adjustment of rights between the employers and employees. It is submitted that in the context of Article 38-A of the Constitution, the State means the Federal Government/Parliament/Majlis-e-Shoora in inter-provincial matters. iii) Referring to the case of Air League ibid, it is submitted that the said judgment is not conclusive, it was rendered prior to promulgation of IRA, 2012 and does not prevent this Court from determining the vires of IRA, 2012 on the touchstone of the Constitution. iv) Reference has been made to the Preamble, section 2(x) and section 2(xxxii) of the IRA, 2012. It is submitted that the scope of IRA, 2012 is limited to a Specific class of establishments and workers in the Islamabad Capital Territory and Inter-Provincial Establishments by providing a legal framework for formation of trade unions, appointment of CBA, resolution of industrial disputes and other related matters. It is submitted that the IRA, 2012 does not encroach upon provincial autonomy in view of the fact that provincial legislatures cannot enact laws dealing with inter-provincial establishments and cannot be made applicable beyond the territorial limits of a province. v) It is submitted that it is settled law that in interpreting and construing Entries in the Legislative Lists, a liberal construction approach is to be adopted with a view to save the law as opposed to adopting a strict construction approach which would lead to legal and constitutional complications and deadlocks. vi) It is further argued that if separate trade unions for interprovincial establishments were to be registered in each province under the provincial laws, it would divide the trade union movement and adversely affect fundamental rights of workers. Such a situation would create confusion and chaos insofar as in one establishment having presence in various provinces, separate unions would be functioning under the respective provincial laws. Consequently, management of such establishments would have to negotiate separate Charters of Demands with each union individually which would cause dissatisfaction and disharmony amongst workers working in trans- provincial establishments in different provinces. It was, therefore, just and proper and constitutionally permissible in terms of Entry Nos,27, 31, 58 and 59 read with Entry Nos,3, 13 and 18 of the Fourth Schedule (Part-II) of the Federal Legislative List to have a Federal law in interest of uniformity in the unions of establishments, group of establishments and industry having branches in more than one province. vii)Pakistan Television Corporation is a corporation set up by the Federation having establishments in all provinces of the country. The Parliament/Majlis-e-Shoora is amply empowered in terms of Entry Nos,7, 31, 58 and 59 of Part-I read with Entry Nos, 3, 13 and 18 of Part-II of the Federal Legislative List to enact legislation of the nature of IRA, 2012. viii) As is evident from the preamble of IRA, 2012, one of its purposes is to discharge international treaties and conventions obligations which fall within the exclusive domain of the Federation in terms of Entry Nos,3 and 32 of Part-1 of the Federal Legislative List. ix) The learned Deputy Attorney General for Pakistan has vehemently argued that Entry No,27 read with Entry Nos, 58 and 59 of the 4th Schedule (Part-I) of the Federal Legislative List confer sufficient powers on the Majlis-e-Shoora (Parliament) to legislate on matters which relate to the subject of "labour" involving trans-provincial establishments and industry. He maintains that the Parliament has the power to legislate on all matters relating to inter-provincial trade and commerce, trade and commerce with foreign countries and matters incidental or ancillary thereto which relate to the Federation. In order to substantiate his argument, he has referred to Article 1 Section 8 Clause 3 of the United State Constitution which grants congress the power to regulate commerce with foreign nations and among the States ("Commerce Clause").

He submits that although the US Constitution provides that any powers that are not enumerated in the Constitution are reserved for the States, yet the US Supreme Court has held that congress has the power to legislate on labour laws relating to establishments directly, indirectly or incidentally engaged in interstate commerce. It has, therefore, repeatedly been held by US Supreme Court that the US Congress may legislate on the subject of labour in exercise of its powers to regulate interstate commerce and the limitation on the authority of the Congress not to legislate on matters not enumerated in the Constitution (contained in the Tenth Amendment to the US Constitution) does not debar it from doing so. It has been held that such legislation can be sustained with respect to powers when the means chosen, although not themselves within the granted powers, were nevertheless deemed appropriate aids to accomplishment of some purpose within the admitted powers of the national government. In this regard, he has placed reliance on United States v Darby Lumber Company (312 U.S. 100) and NLRB v. Jones and Laughlin Steel Corporation (301 U.S. 01). In the latter case, the US Supreme Court has held that congress can regulate activity relating to manufacturing of goods involved in interstate commerce and that it can also regulate relations between labour and management under the commerce clause. He maintains that the rules of interpretation of the Commerce Clause utilized by the US Supreme Court to uphold legislation relating to labour laws by the US Congress can be utilized in interpreting Entry No,27 read with Entry Nos,58 and 59 of Part-I of the Fourth Schedule of the Constitution. He has placed reliance on Pakistan Workers Federation, Balochistan through President Pakistan Workers' Federation Balochistan and others v. Government of Pakistan through Federal Secretary, Ministry of Law and Justice, Islamabad and others (2014 PLC 351) and KESC and others v. N.I.R.C. and others (PLD 2014 Sindh 553).

19.We have heard the learned counsel for the parties at length and gone through the record. On consideration of the arguments, examination of the record and analysis of the various provisions of IRA, 2012 in light of the Constitution, our answer to the aforenoted question, whether IRA, 2012 is ultra vires of the Constitution, has to be in the negative for the following reasons.

20. The most material and fundamental issue in determining the vires of IRA, 2012 is whether it is covered by and falls within the scope of any Entry in the Federal Legislative List which would furnish-justification and basis for the Majlis-e-Shoora (Parliament) to legislate on the subject.

Courts have held that widest possible meaning must be attributed, the rule, of liberal construction should be followed and every possible effort should be made to save the law rather than destroy it.

In this regard, we may state that it is a settled principle of constitutional interpretation that even where two views are possible, the one making the enactment constitutionally permissible has to be adopted. In this regard, reliance is placed on Nishat Mills Ltd. Nishatabad, Faisalabad v. the Federation of Pakistan through Secretary, Ministry of Food and Agriculture and 4 others (PLD 1994 Lahore 175), Sanofi Aventis Pakistan Limited and others v. Province of Sindh through Secretary Excise and Taxation Department, Karachi and 2 others (PLD 2009 Karachi 69), Defence Authority Club, Karachi and 5 others v. Federation of Pakistan through Secretary, Revenue Division and 2 others (2007 PTD 398), Messrs Al-Khalil Cold Storage v. Federation of Pakistan through Secretary Finance, Islamabad and 3 others (2010 PTD 1260), Commissioner of Sales Tax and others v. Hunza Central Asian Textile and Woolen Mills Ltd. and others (1999 SCMR 526), Messrs Haider Automobile Ltd. v. Pakistan (PLD 1969 SC 623), Messrs Sh. Abdur Rahim, Allah Ditta v. Federation of Pakistan and others (PLD 1988 SC 670) and Pir Rashid-ud-Daula and 3 others v. The Chief Administrator of Auqaf, West Pakistan (PLD 1971 SC 401).

21. In the above context, reference may also usefully be made to The Elel Hotels and Investment Ltd. and another v. Union of India (AIR 1990 SC 1664) where it was held as follows: "The cardinal rule of interpretation is that the entries in the legislative lists are not to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it. The widest possible construction, according to the ordinary meaning of the words in the entry, must be put upon them. Reference to legislative practice may be admissible in reconciling two conflicting provisions of rival legislative lists. In construing the words in a Constitutional document conferring legislative power the most liberal construction should be put upon the words so that the same may have effect in their widest amplitude."

22. Likewise, in case of United Provinces v. Atiqa Begum (AIR 1941 FC 16), the Federal Court held as follows: "I think however that none of the items in the lists is to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary and subsidiary matters which can fairly and reasonably be said to be comprehended in it. I deprecate any attempt to enumerate in advance all the matters which are to be included under any of the more general descriptions; it will be sufficient and much wiser to determine each case as and when it comes before the court."

23. This issue was more recently examined by the Indian Supreme Court in Offshore Holdings (Pvt.)

Ltd. v. Bangalore Development Authority (2011 (3) SCC 139). The reasoning reproduced below, given by the Court, being directly relevant to the lis in hand would be helpful in appreciating the principles of constitutional interpretation: "The Entries in the legislative Lists are not the source of powers for the legislative constituents but they merely demarcate the fields of legislation. It is by now well settled law that these Entries are to be construed liberally and widely so as to attain the purpose for which they have been enacted.

Narrow interpretation of the Entries is likely to defeat their object as it is not always possible to write these Entries with such precision that they over all possible topics and without any overlapping........................

The Court has to keep in mind that function of these constitutional Lists is not to confer power, but to merely demarcate the legislative heads or fields of legislation and the area over which the appropriate legislatures can operate. These Entries have always been construed liberally as they define fields of power which spring from the constitutional mandate contained in various clauses of Article 246. The possibility of overlapping cannot be ruled out and by advancement of law this has resulted in formulation of, amongst others, two principal doctrines, i,e, doctrine of pith and substance and doctrine of incidental encroachment. The implication of these doctrines is, primarily, to protect the legislation and to construe both the laws harmoniously and to achieve the object or the legislative intent of each Act."

While interpreting the Entries in the constitutional Lists a seven Judge Bench of the Indian Supreme Court in the case of Union of India v. Harbhajan Singh Dhillon [(1971) 2 SCC 779], held as under: "It must be remembered that the function of the lists is not to confer powers; they merely demarcate the legislative field."

The Federal Court, while interpreting the Government of India Act in the Governor-General-in- Council v. Releigh Investment Co. [1944 FCR 229, 261] observed: "It would not be right to derive the power to legislate on this topic merely from the reference to it in the list, because the purpose of the Lists was not to create or confer powers, but only to distribute between the Federal and the Provincial Legislatures the powers which had been conferred by sections 99 and 100 of the Act."

In Harakchan Ratanchand Banthia v. Union of India [(1969) 2 SCC 166] it was observed: "Before construing these entries it is useful to notice some of the well-settled rules of interpretation laid down by the Federal Court and by this Court in the matter of construing the entries. The power to legislate is given to the appropriate Legislature by Article 246 of the Constitution. The entries in the three Lists are only legislative heads or fields of legislation, they demarcate the area over which the appropriate Legislatures can operate."

A Constitutional Bench of Supreme Court of India in the case of Ujagar Prints v. Union of India, [(1989) 3 SCC 488] discussed the Entries in the legislative lists of the Indian Constitution and stated the principles which would help in interpretation of these Entries. While enunciating these principles, the Court held as under: "Entries to the legislative lists, it must be recalled, are not sources of the legislative power but are merely topics or fields of legislation and must receive a liberal construction inspired by a broad and generous spirit and not in a narrow pedantic sense. The expression "with respect to" in Article 246 brings in the doctrine of "Pith and Substance" in the understanding of the exertion of the legislative power and wherever the question of legislative competence is raised the test is whether the legislation, looked at as a whole, is substantially 'with respect to' the particular topic of legislation. (It may be noted that in Article 142 of our Constitution also, the expression "with respect to" has been used with reference to the Federal Legislative list)."

In the case of Jijubhai Nanabhai Kachar v. State of Gujarat [(1995) Suppl. 1 SCC 596] while referring to the principles of interpretation of Entries in the legislative Lists, the Supreme Court of India expanded the application to all ancillary or subsidiary matters and held as under: "It is settled law of interpretation that entries in the Seventh Schedule are not powers but fields of legislation. The legislature derives its power from Article 246 and other related articles of the Constitution. Therefore, the power to make the Amendment Act is derived not from the respective entries but under Article 246 of the Constitution. The language age of the respective entries should be given the widest scope of their meaning, fairly capable to meet the machinery of the Government settled by the Constitution. Each general word should extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it. When the vires of an enactment is impugned, there is an initial presumption of its constitutionality and if there is any difficulty in ascertaining the limits of the legislative power, the difficulty must be resolved, as far as possible in favour of the most liberal construction upon the legislative entry so that it may have the widest amplitude.... "[underlying added for emphasis] In Hoechst Pharmaceuticals Limited v. State of Bihar (1983) 4 SCC 45 it was held that: "The Court has to keep in mind that it is construing a Federal Constitution. It is the essence of a Federal Constitution that there should be a distribution of legislative powers between the Centre and the Provinces. In a Federal Constitution unlike a legally omnipotent legislature like British Parliament; the constitutionality of a law turns upon the construction of entries in the legislative Lists. If a legislature with limited or qualified jurisdiction transgresses its powers, such transgression may be open, direct or overt, or disguised, indirect or covert and it may encroach upon a field prohibited to it. Wherever legislative powers are so distributed, situation may arise where two legislative fields might apparently overlap, it is then the duty of the Courts, however, difficult it may be, to ascertain to what degree and to what extent, the Authority to deal with the matters falling within these classes of subjects exist in each legislature and to define, in the particular case before them, the limits of respective powers."

It was further held that [the] the conflict should be so patent and irreconcilable that co-existence of the two laws is not feasible. Such conflict must be an actual one and not a mere seeming conflict between the Entries in the two Lists. While Entries have to be construed liberally, their irreconcilability and impossibility of co-existence should be patent. One, who questions the constitutional validity of a law as being ultra wires, takes the onus of proving the same before the Court. Doctrines of pith and substance, overlapping and incidental encroachment are, in fact, species of the same law. It is quite possible to apply these doctrines together to examine the repugnancy or otherwise of an encroachment. In a case of overlapping, the Courts have taken the View that it is advisable to ignore an encroachment which is merely incidental in order to reconcile the provisions and harmoniously implement them. If, ultimately, the provisions of both the Acts can co-exist without conflict, then it is not expected of the Courts to invalidate the law in question."

In Fatehchand Himmatlal v. State of Maharashtra [(1977) 2 SCC 70]; it was held as under: "There must be a real conflict between the two Acts i,e, the two enactments must come into collision. The doctrine of Dominion paramountcy does not operate merely because the Dominion has legislated on the same subject-matter. The doctrine of "occupied field" applies only where there is a clash between Dominion Legislation and Provincial Legislation within an area common to both. Where both can co-exist peacefully, both reap their respective harvests (Please see: Canadian Constitutional Law by Laskin -- pp. 52-54, 1951 Edn)."

In the case of Muthuswa mi Goundan v. Subramanyam Chettiar [1940 FCR 188], Sir Maurice Gwyer, CJ supported the principle laid down by the Judicial Committee as a guideline, i,e, pith and substance to be the true nature and character of the legislation, for the purpose of determining as to which list the legislation belongs to.

In State of Bombay v. Narottamdas Jethabhai [1951 SCR 51], while examining the principles of interpretation of entries in legislative lists it was observed as follows: "The primary object of applying these principles is not limited to determining the reference of legislation to an Entry in either of the lists, but there is a greater legal requirement to be satisfied in this Interpretative process. A statute should be construed so as to make it effective and operative on the principle expressed in the maxim ut res magic valeat quam pereat. Once it is found that in pith and substance, an Act is a law on a permitted field then any incidential encroachment, even on a forbidden field, does not affect the competence of the legislature to enact that law."

"To examine the true application of these principles, the scheme of the Act, its object and purpose, the pith and substance of the legislation are required to be focused at, to determine its true nature and character"....

Where the Court comes to the conclusion that two legislations can be enforced in their respective fields without conflict, it would not invalidate the law. It is a settled canon of law that Courts normally would make every effort to save the legislation and resolve the conflict/repugnancy, if any, rather than invalidating the statute. Therefore, it will be the purposive approach to permit both the enactments to operate in their own fields by applying them harmoniously. [underlining added for emphasis].

24. From a brief survey of the afore-quoted case-law it is clear that the principles of interpretation of entries in the legislative lists are well settled in common law jurisdiction. These may be summarized as follows:

(i) The legislative lists do not confer powers of legislation. They merely demarcate the legislative fields in which the respective legislature may enact laws.

(ii) Entries in legislative lists must receive liberal construction. They should not be interpreted in a restricted, narrow and pedantic sense.

(iii) The doctrine of "Pith and substance" should be adopted in understanding the true nature and character of the impugned legislation.

(iv) Powers to legislate are derived from Articles of the Constitution, and not from entries in the lists.

The language of the Articles and entries in the lists must be given the widest scope of their meaning in order to facilitate enforcement of laws and the machinery of the government put in place for the said purpose.

(v) Each general word should extend to ancillary and subsidiary matters which can fairly and reasonably be comprehended in it.

(vi) Where vires of an enactment is challenged, there is a presumption of constitutionality in its favour. The onus to prove otherwise lies heavily on the one challenging it.

(vii) If there is difficulty in ascertaining limits of legislative powers, such difficulty must be resolved, as far as possible in favour of the legislature, putting the most liberal construction on the legislative entry.

(viii) Where legislative powers overlap, it is the duty of courts to define, in a particular case before them, the limits of the respective powers.

(ix) While entries should be construed liberally, their irreconcilability and impossibility of co- existence should be patent;

(x) If both laws can coexist, without conflict, courts would not invalidate a law.

(xi) Courts should adopt a purposive approach to permit both enactments to operate in their own fields by applying them harmoniously.

25. Having examined the jurisprudence on the subject of interpreting entries in to legislative lists, we now proceed to discuss the various contours of the proposition before this Court. In order to understand and appreciate the reason, rationale and necessity of enactment of IRA, 2012, it would be helpful to resort to the preamble of IRA, 2012 (Act No,X of 2012). For ease of reference, the same is reproduced below: "An Act to consolidate and rationalize the law relating to formation of trade unions, and improvement of relations between employers and workmen in the Islamabad Capital Territory and in trans-provincial establishments and industry.

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,98 on Right to Organize and Collective Bargaining; AND WHEREAS it is expedient to consolidate and rationalize the law in Islamabad Capital Territory and at trans-provincial level, relating to formation of trade unions and federations of trade unions, determining the collective bargaining agents, regulation of relations between employers and workers, the avoidance and settlement of any differences or disputes; arising between them or matters connected therewith and ancillary thereto."

From a perusal of the preamble, the following aspects become evident: i) IRA, 2012 is applicable only to establishments located in Islamabad Capital Territory and Trans- Provincial Establishments and undertakings which have presence, factories and offices etc in more than one province. ii) The law has been promulgated to provide a mechanism for enforcement of a fundamental right i,e, freedom of association as enshrined in Article 17 of the Constitution to workers working in establishments operating in the Islamabad Capital Territory and in trans-provincial establishments and industry. iii) It is designed to provide a uniform and unified legal system and mechanism for enforcement of ILO Convention Nos,87 and 98 throughout the country. iv) The law is aimed at providing a legal framework relating to formation of trade unions, federation of trade unions, determining collective bargaining agents, regulation of relations between employers and workers of establishments in the Islamabad Capital Territory and in trans- provincial establishments and industry considering that such mechanism would not be available under provincial laws which have reach and applicability only within the territorial limits of each province. v) For the aforenoted purpose, Chapter 8 of the IRA, 2012 provides for constitution of a National Industrial Relation Commission (NIRC). It has the mandate to adjudicate and determine industrial disputes in Islamabad Capital Territory and relating to workmen of trans-provincial establishments, to register trade unions and industry wise trade unions and federations of such trade unions, to determine collective bargaining agents amongst trade unions and industry wise trade unions, to deal with cases of unfair labour practices etc. NIRC also advises the Federal Government on matters involving trade unions and industry wise trade unions in Islamabad Capital Territory and at a trans-provincial level in respect of education of workers in the essentials of trade unionism. This includes education in respect of their rights and obligations and to secure the provision of facilities required therefor and to apportion costs between Government, trade unions and federations of such trade unions and employers in such manner as may be considered equitable. The NIRC has exclusive jurisdiction in the aforesaid matters over establishments and group of establishments situated in Islamabad Capital Territory and trans-provincial establishments.

26. Section 2(x), (xviii) and (xxxii) of IRA, 2012 defines the words "establishment", "Industry wise trade union" and "Trans-Provincial" in the following terms: "Section 2(x), "establishment" means any office, firm, factory, society, undertaking, company, shop or enterprise, which employs workmen directly or through a contractor for the purpose of carrying on any business or industry and includes all its departments and branches in the Islamabad Capital territory or falling in more than one province, whether situated in the same place or in different places and except in section 62 includes a collective bargaining unit, if any, constituted by any establishment or group of establishments.

Section 2(xviii): "industry-wise trade union" means a trade union having its membership in more than one province in a group of establishments owned by one employer.

Section 2(xxxii): "trans-provincial" means any establishment, group of establishments, industry, having its branches in more than one province."

From a plain reading of the above, it is clear and obvious to us that in pith and substance, IRA, 2012 applies to a distinct category of establishments and their workers, namely, those operating in the legislative competence of Majlis-e-Shoora (Parliament) or relate to the Federation.

Entry No, 59: Matters incidental or ancillary to any matter enumerated in this Part.

Entries in the Fourth Schedule (Part-II) of the Federal Legislative List: Entry No,3: Development of industries, where development under Federal control is declared by Federal law to be expedient in the public interest; institutions, establishments, bodies and corporations administered or managed by the Federal Government immediately before the commencing day, including the Pakistan Water and Power Development Authority and the Pakistan Industrial Development Corporation; all undertakings, projects and schemes of such institutions, establishments, bodies and corporations, industries, projects and undertakings owned wholly or partially by the Federation or by a corporation set up by the Federation.

Entry No,13: Inter-provincial matters and co-ordination.

Entry No,18: Matters incidental or ancillary to any matter enumerated to this Part.

28. With reference to entry Nos, 3 and 32 of the Fourth Schedule, Part-I of the Federal Legislative List ibid, it is evident from the preamble to IRA, 2012 that one of its objects is to insure that ILO Convention Nos,87 and 98 relating to freedom of association and right to organize and collective bargaining which have been ratified by Pakistan are enforced. By virtue of the ratification, it is primarily the responsibility of the Federal Government to implement its international obligations.

We have gone through the text of ILO Convention No,87 (Freedom of Association and Protection of the Right to Organize). Article 1 of the. Convention provides that Each Member of the International Labour Organization for which the Convention is in force undertakes to give effect to the provisions of the Convention.

Likewise, Article 8 of Convention No,98 makes it binding on Members of ILO who have ratified it.

Pakistan being a Member of ILO and having ratified the aforesaid conventions has undertaken as a binding obligation to give effect to the provisions thereof.

29. The learned counsel for the Appellant/Petitioner has attempted to argue that there is no obligation on the Federal Government to v) For the aforenoted purpose, Chapter 8 of the IRA, 2012 provides for constitution of a National Industrial Relation Commission (NIRC). It has the mandate to adjudicate and determine industrial disputes in Islamabad Capital. Territory and relating to workmen of trans-provincial establishments, to register trade unions and industry wise trade unions and federations of such trade unions, to determine collective bargaining agents amongst trade unions and industry wise trade unions, to deal with cases of unfair labour practices etc. NIRC also advises the Federal Government on matters involving trade unions and industry wise trade unions in Islamabad Capital Territory and at a trans-provincial level in respect of education of workers in the essentials of trade unionism. This includes education in respect of their rights and obligations and to secure the provision of facilities required therefor and to apportion costs between Government, trade unions and federations of such trade unions and employers in such manner as may be considered equitable. The NIRC has exclusive jurisdiction in the aforesaid matters over establishments and group of establishments situated in Islamabad Capital Territory and trans-provincial establishments.

26. Section 2(x), (xviii) and (xxxii) of IRA, 2012 defines the words "establishment", "Industry wise trade union" and "Trans-Provincial" in the following terms: "Section 2(x), "establishment" means any office, firm, factory, society, undertaking, company, shop or enterprise, which employs workmen directly or through a contractor for the purpose of carrying on any business or industry and includes all its departments and branches in the Islamabad Capital territory or falling in more than one province, whether situated in the same place or in different places and except in section 62 includes a collective bargaining unit, if any, constituted by any establishment or group of establishments.

Section 2(xviii): "industry-wise trade union" means a trade union having its membership in more than one province in a group of establishments owned by one employer.

Section 2(xxxii): "trans-provincial" means any establishment, group of establishments, industry, having its branches in more than one province."

From a plain reading of the above, it is clear and obvious to us that in pith and substance, IRA, 2012 applies to a distinct category of establishments and their workers, namely, those operating in the Islamabad Capital territory or inter-provincial establishments which operate in more than one province and are not establishments, operating only in a single province which would be governed by the provincial laws. This being the case, IRA, 2012 is neither in conflict with any provincial law nor dose it usurp or encroach upon provincial autonomy. Further, it see to secure fundamental rights of a defined and specific class of workers who would otherwise remain unprotected and unable to exercise their fundamental right under Article 17 of the Constitution. It deals with a subject and operates in an area which is beyond the legislative competence of provincial legislatures which do not have the power to make laws which would have extra territorial reach or be applicable to the classes of workers and establishments mentioned above and be enforceable beyond the territorial limits of each province. We are also of the view that PIRA, 2010 and IRA, 2012 operate in different fields, can co-exist without conflict and can be applied and implemented harmoniously and seamlessly in their respective fields. The question was recently examined by the Hon'ble Supreme Court of Pakistan in Pakistan Telecommunication Company Ltd. v. Member NIRC and others (2014 SCMR 535). Although the apex Court deferred the matter of examining the vires of IRA, 2012 to an appropriate case, the findings recorded with reference to IRA, 2012 are significant and material to the controversy before us. The same are reproduced below: "After combined reading of the scheme of new labour laws, both Provincial and Federal, it may be concluded without any fear of rebuttal that two parallell forums have been created, one on a provincial basis whereas latter is federal level forum, called NIRC. Both these forums are having jurisdiction to deal with industrial disputes and unfair labour practice and other allied matters either attributable to the employer or the workers/workmen, however, the Federal Law has drawn a clear demarcation line of jurisdiction of these two different forums, i,e, Labour Courts in the Provinces and the other NIRC at the Federal Level. It is not the nature of dispute, particularly, unfair labour practice, which confers jurisdiction on one or the other forum but it is the status of the employer or the group of employers, which would determine the jurisdiction of the Provincial Labour Court and that of the NIRC. To be more clear on the point we have no hesitation to hold that once it is established though any means that the employer or group of employers has an establishment, group of establishments, industry, having its branches in more than one Provinces, then the jurisdiction of the NIRC would be exclusive in nature and of overriding and superimposing effects over the Provincial Labour Court for resolving industrial dispute including unfair labour practice, etc. related to the employer, having its establishment or branches or industrial units in more than one Province; and recourse has to be made by the aggrieved party to the NIRC and not to the Provincial Labour Court.

Even otherwise under the provision of Article 143 of the Constitution of Pakistan, 1973, laws enacted by the parliament have been given overriding and superimposing effects over the laws enacted by a Provincial Assembly of any of the Provinces and in case of any clash or repugnancy between the two, the laws; enacted by the Parliament shall prevail. Thus, on the touchstone of the provision of Article 143 of the Constitution, the Act of Parliament has been placed on the high pedestal and any Provincial Law enacted by the Provincial Assembly shall give way to the Federal Law, enacted by the Parliament, if the former is inconsistent or repugnant to the latter. Therefore, it is held that the provision of Act X of 2012 (the IRA, 2012) has overriding effect on all Provincial Labour Laws."

27. In the above background, we now proceed to examine the various entries in the Federal Legislative List which can furnish justification and constitutional basis for enactment of IRA, 2012: a) Entries in the Fourth Schedule (Part-1) of the Federal Legislative List: Entry No,3: External affairs: the implementing of treaties and agreements, including educational and cultural pacts and agreements, with other countries; extradition, including the surrender of criminals and accused persons to Governments outside Pakistan.

Entry No,27: Import and export across customs frontiers as defined by the Federal Government, inter-provincial trade and commerce, trade and commerce with foreign countries; standard of quality of goods to be exported out of Pakistan.

Entry No,31: Corporation, that is to say, the incorporation, regulation and winding up of trading corporations, including banking, insurance and financial corporations, but not including corporations owned or controlled by a Province and carrying on business only within that Province, or cooperative societies, and of corporations, whether trading or not, with objects not confined to a Province, but not including universities.

Entry No,32: International treaties, conventions and agreements and international arbitration.

Entry No,58: Matters which under the Constitution are within the legislative competence of Majlis-e- Shoora (Parliament) or relate to the Federation.

Entry No, 59: Matters incidental or ancillary to any matter enumerated in this Part.

Entries in the Fourth Schedule (Part-II) of the Federal Legislative List: Entry No,3: Development of industries, where development under Federal control is declared by Federal law to be expedient in the public interest; institutions, establishments, bodies and corporations administered or managed by the Federal Government immediately before the commencing day, including the Pakistan Water and Power Development Authority and the Pakistan Industrial Development Corporation; all undertakings, projects and schemes of such institutions, establishments, bodies and corporations, industries, projects and undertakings owned wholly or partially by the Federation or by a corporation set up by the Federation.

Entry No,13: Inter-provincial matters and co-ordination.

Entry No,18: Matters incidental or ancillary to any matter enumerated to this Part.

28. With reference to entry Nos, 3 and 32 of the Fourth Schedule, Part-I of the Federal Legislative List ibid, it is evident from the preamble to IRA, 2012 that one of its objects is to insure that ILO Convention Nos,87 and 98 relating to freedom of association and right to organize and collective bargaining which have been ratified by Pakistan are enforced. By virtue of the ratification, it is primarily the responsibility of the Federal Government to implement its international obligations.

We have gone through the text of ILO Convention No,87 (Freedom of Association and Protection of the Right to Organize). Article 1 of the. Convention provides that Each Member of the International Labour Organization for which the Convention is in force undertakes to give effect to the provisions of the Convention.

Likewise, Article 8 of Convention No,98 makes it binding on Members of ILO who have ratified it.

Pakistan being a Member of ILO and having ratified the aforesaid conventions has undertaken as a binding obligation to give effect to the provisions thereof.

29. The learned counsel for the Appellant/Petitioner has attempted to argue that there is no obligation on the Federal Government to implement the conventions and the matter can be placed before the competent authorities of the provinces who may implement the same.

30. We are unable to subscribe to this view. In case such course of action was to be adopted, it could lead to anomalies, different and varied levels and methodologies of enforcement which would cause irreconcilable and contradictory situations. The possibility of different provinces interpreting different provisions of the Conventions differently cannot be ruled out. In view of the fact that the Federation being a "Member" has ratified the conventions, the Federation is principally and primarily obligated to implement provisions of the same and decide on the mechanism and methodology through which such implementation and enforcement can take place. Further, considering that implementation of treaties and agreements falls within the exclusive domain of the Federation in terms of Entry Nos, 3 and 32 ibid, in the interest of uniform implementation and enforcement of the treaties and conventions, it was just, proper and constitutionally permissible for the Federation to enact legislation especially so in areas which fall within the sphere of its jurisdiction i,e, Islamabad Capital Territory and for matters involving establishments which have presence in more than one provinces. Such matter needed to be dealt with in accordance with a uniform set of regulations, as opposed to different sets of regulations, enacted by Federating Units in accordance with their own interpretation of the meaning, scope, import and desirability of enforcement of international conventions. More importantly, these matters clearly relate to the Federation and squarely fall within the scope of entries Nos,58 and 59 ibid. Therefore, in our opinion enactment of IRA, 2012 can amply be justified on the basis of the aforenoted entries in the Part-I of the Federal Legislative List. Further, admittedly provincial legislatures lack the power to enact legislation involving trans-provincial establishments, because their powers extend only to the territorial limits of the respective provinces. Hence, the need for federal legislation which would be enforceable throughout the federation bringing within its ambit, all trans-provincial establishments.

31. At combined reading of Entry Nos, 31, 58 and 59 of Part-I of the Federal Legislative List together with Entry Nos, 3, 13 and 18 of the Part-II of the said list clearly indicates that trans-provincial establishments fall within the purview of the said entries. In the lis in hand, the Appellant/Petitioner, Pakistan Television Corporation, is a Federal Corporation established under a Federal law having offices, departments and stations etc. in all provinces of the country. Further, wireless and broadcasting is a federal subject in terms of entry No,7 of Part-I of the Federal Legislative List. We are, therefore, in no manner of doubt that all matters regarding regulation of PTV and all other matters incidental or ancillary thereto fall within the domain of the Federal Government. Matters relating to workers and their unions are ancillary and incidental to the regulation of PTV. It would also, therefore, be covered under Entry No,13 relating to inter-provincial matters and coordination.

The same principle would in our opinion apply with equal force to other all Trans-Provincial Establishments. In this regard, it has rightly been observed by a learned Division Bench of the Balochistan High Court in Pakistan Workers Federation, Balochistan through President Pakistan Workers' Federation, Balochistan and others v. Government of Pakistan through Federal Secretary, Ministry of Law and Justice, Islamabad and others (2014 PLC 351) as follows: "There are a number of companies and statutory corporations that have establishments in more than one province or throughout Pakistan; the underlying assumption of a central bargaining agent and industrial relations is that workers are dealt with in a uniform manner in respect of such companies and statutory corporations. The negotiating power of workers and also their interest will be undermined, if they are dealt with separately or there is more than one collective bargaining agent and different terms of employment and conditions of work are negotiated.

Consequently, unfair labour practices on the part of employers would become difficult to contest so too to redress worker grievances. It would also become difficult, if not impossible, to negotiate differences between the employer and workers though a single collective bargaining agent representing the same class of workers in respect of companies and corporations having establishments in more than one province; the determination of a legal and illegal strike or lockout too would be fraught with difficulty. Both the employer and the workers of inter-provincial establishments would face untold complications and problems if there are a number of collective bargaining agents representing the interest of the same class of workers and will "produce impracticable results" which is to be avoided.

We need to ensure that the infringement of worker rights do not take place whilst determining disputes between different trade unions. The principles of Policy (Chapter 2, Part II of the Constitution) requires the State to ensure the promotion of the "economic interests of backward classes" (Article 37(a)), "just and humane conditions of work" (Article 37(e)), raising the "standard of living of workers "(Article 38(a)), the provision of 'adequate livelihood with reasonable rest and leisure" (Article 38(b)) and the provision" of "basic necessities" (Article 38(d)). These principles must as far .a is practicable be adhered to, and permitting different collective bargaining agents representing the same interest in inter-provincial establishments would detract from the stated Principles."

32. Entry No, 27 of the 4th Schedule (Part I) of the Federal Legislative mentions the subject of inter provincial trade and commerce and trade and commerce with foreign countries etc. Admittedly the Parliament/Majlis-e-Shoora has the exclusive power to legislate on these matters. Likewise Entry No,31 relates to regulation of corporations whether trading or not with objects not confined to provinces. The Parliament is also competent to legislate on all matters incidental and ancillary to any matter enumerated in Part I of the Federal Legislative List.

33. The term "inter-provincial trade and commerce" in the context of labour laws has not been the subject matter of much litigation. This is because prior to the 18th Amendment to the Constitution, the subject of labour was included in the Concurrent List and the Parliament had traditionally enacted most of the legislation on the subject. However, in the post 18th Amendment scenario, when the concurrent legislative list stood abolished, the question has arisen whether the Parliament can still legislate on labour laws, keeping in view the fact that there are establishments under the same management which are not operating in one province only and have trans- provincial operations/presence and provincial legislatures lack legislative competence to enact laws dealing with such establishments. The question before us is whether the Parliament can enact laws (in this case labour laws) applicable to trans-provincial establishments and if so, whether exercise of this legislative power can be justified by any provisions of the Constitution. This question in similar circumstances has come up before the U.S Supreme Court in a number of cases. Under the U.S Constitution, Congress is empowered to legislate only on matters specifically assigned to it in the Constitution. Such matters are mentioned amongst others in Article-I of the US Constitution.

Labour is not one of such matters. In terms of the 10th Amendment to the said Constitution. "The Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people". Article I, section 8 subsection (3) of the said Constitution empowers the Congress to "regulate commerce foreign nations, among the several states and the Indian Tribes" ("Commerce Clause").

34.In the above background, the US Congress while pressing into service the Commerce Clause, passed legislation inter alia regarding trade unions, working conditions of workers, industrial disputes etc and the Federal Government enforced the same. The vires of such laws came under challenge before the United States, Supreme Court, in various cases. The main ground of challenge was that such laws were beyond the legislative competence of Congress and fell within the exclusive domain of the States. The US Supreme Court repelled such challenge by giving a wide interpretation to the term "commerce". It was held that the meaning and scope of the said term was not confined to exchange of goods only but extended to all other matters that had direct or indirect nexus or connection with interstate commerce. With reference to labour laws it was held that since working conditions of workers, their ability to form unions, engaging in collective bargaining unfair labour practices etc. had an effect on interstate commerce, Congress could legislate on matters involving labour laws in exercise of its powers to regulate interstate commerce. this context reference may be made to National Labour Relations Board v. Jones and Laughlin Steel Corporation (301 U.S 1), United States v. Darby Lumber Co. (312 U.S 100), Gibbons v.

Ogden (22 U.S 1), Heart of a Atlanta Motel Inc. v. United State, (379 U.S. 241), Katzenbach v. McClung (379 U.S 294) and Swift and Co. v. United States (196 U.S 375).

35. In the NLRB case ibid the National Labour Relations Act which was a law enacted by the US Congress was challenged on the ground that it was beyond the legislative competence of the Congress under the Constitution. It was argued that federal statute regulating labour in the states violated the Constitution insofar as Congress had no specific power to legislate on the subject of labour which fell within the legislative domain of the states. The US Supreme Court held that labour issues involving establishments manufacturing goods which were sold in other states had a direct impact on interstate commerce. Therefore congress had the power under the commerce clause to enact legislation to regulate matters relating to labour relations. In Gibson v. Ogden, Heart of Atlanata Motel, Katzenbach and swift & Co. ibid the reach of Commerce Clause was extended further to cover Civil Rights issues, navigation, transportation, communication, consumer and credit protection and monopolistic practice of establishments, companies and corporations whose business had a nexus with interstate commerce.

36. Pakistan and United States have federal constitutions which have a number of common features. Both are based on the principle of division of powers between the central government and the 'federating units. Article I section 8(3) (Commerce Clause) is similar to entry No,27 of the Fourth Schedule Part I of our Constitution. Likewise the Tenth Amendment to the US Constitution places the same restrictions on the power of the Congress as Article 142 of our Constitution places on the power of the Parliament (Majlis-e-Shoora). This issue as examined by a learned Division Bench of the Sindh High Court in Shaheen Airport Services v. National Industrial Relations Commission through Deputy Registrar and 2 others (2011 PLC 105). The learned bench came to the following conclusion: ".................... this court cannot lose sight of the fact that the union which the petitioner came up against in this court is an industry wise Trade Union which means that the Trade Union had membership in more than one provinces. If a Trade Union has membership in more than one provinces a priori the establishment must be existing in more than one provinces and must be involved in some kind of inter provincial trade. Here the word "trade" is not limited to only buying and selling of goods but is also included services rendered and performed. It may not be out of place to mention that under the United States Constitution Article 1 Section 1 legislative power vests in Congress of United States and Under Article 1 Section 8 there are 18 items and there is no item relating to labour and such like subject. However interstate commerce is one of the items (Article 1 Section 8 subsection (3) and the entire labour law of United States is based on this interstate commerce clause therefore, merely because entries 26, and 27 which existed in the Concurrent List have been deleted from the Constitution with the deletion of the Concurrent List does not mean that the jurisdiction of the Parliament to legislate in respect of situations services and items which fall within the inter provincial trade has also come to an end....."

A learned Division Bench of the Balochistan High Court has also elaborately discussed this, amongst other questions while upholding the vires of IRA, 2012 in its judgment reported as Pakistan Workers Federa-tion, Balochistan through President Pakistan Workers' Federation Balochistan and others v. Government of Pakistan through Federal Secretary Ministry of Law and Justice Islamabad and others (2014 PLC 351.)

37. Industrial Relations Act, 2012 has been enacted to deal inter alia with matters involving labour relations, formation of trade unions collective bargaining agents, unfair labour practices etc. relating to establishments located in the Islamabad Capital Territory and trans-provincial establishments and industry. The question arise whether the parliament could competently enact such law. In our view the answer has to be in the affirmative. This is in view of the fact that the parliament/ Majlis-e-Shoora has the power in term of Entry No,27 read with Entry Nos, 31, 58 and 59 to enact law to regulate inter provincial trade and commerce and all matter incidental or ancillary thereto. The power to regulate to inter provincial trade and commerce has to be broadly interpreted to include not only trade and commerce but also field related to or connected therewith. Labour relations, the working conditions of workers, formation of trade unions, collective bargaining agents, industrial disputes, unfair labour practices etc lave a direct bearing on and are, intrinsically connected with inter provincial trade and commerce. Therefore, we hold that the powers exercised under the afore mentioned entries have validly been exercised by the parliament in enacting IRA, 2012.

38.In the aforenoted context, reference may also be made to Entry No,58 of Part-I of the Federal Legislative List which empowers the Majlis-e-Shoora (Parliament) to legislate in all matters which "relate to Federation". We have already held above that in terms of Entry Nos,27 and 31 read with Entry Nos, 3 and 13 of Part-II of the Federal Legislative List, the Majlis-e-Shoora (Parliament) is competent to legislate on matters involving trans-provincial establishments. It is axiomatic to state that matters relating to establishments existing in more than one provinces relate to the Federation in view of the fact that provinces cannot enact laws to regulate and govern such establishments. Therefore, all matters involving trans-provincial establishments come within the legislative competence of Majlis-e-Shoora (Parliament) which can enact laws relating to such establishments in all matters which directly, indirectly or incidentally relate to such establishments and are ancillary thereto.

39. Perusal of the first recital to the preamble to IRA, 2012 amply demonstrates that it seeks to provide a legal mechanism for the recognition and enforcement of a fundamental right of freedom of association as enshrined in Article 17 of the Constitution. Under the said Article, every citizen shall have the right to form associations or unions subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order of morality. While workmen employed in provincial establishments can freely exercise their fundamental right under Article 17 of the Constitution, workmen employed in trans-provincial establishments cannot effectively do so in view of the fact that laws enacted by provincial legislatures relating to formation of trade unions, improvement of relations between employer and workmen, determining the collective bargaining agents and the avoidance and settlement of differences and disputes between employers and employees are confined to the territorial limits of the province. While workers of provincial establishments can exercise their rights and seek implementation of the same to the fullest, workers of trans-provincial establishments would be seriously hampered in exercise of such rights in many ways, which would be discussed in more detail in the later part of this judgment. As such there was need and necessity to enact Federal Legislation to provide the same rights to such workers. Articles 58 and 59 of Part-I of the Federal Legislative List provide ample justification and basis to do so.

40. Industrial Relation Act, 2012 provides an equal right to workers of trans-provincial establishments to exercise their freedom of association at a trans-provincial level which fundamental rights in any event, could not be denied to them nor could such right be curtailed by F any federal law or provincial legislation. In this regard, reference may also be made to Article 8 of the Constitution which categorically and unambiguously lays down that any law or any custom or usage having the force of law, insofar as it is inconsistent with the fundamental rights conferred in Chapter-1 of the Constitution shall to the extent of such contravention be void. Our Constitution prohibits the State from enacting any law which takes away or abridges fundamental rights conferred by it. It ordains that any law made in contravention of Article 8 shall to the extent of such contravention be void. On the said reasoning, IRA, 2012 which admittedly facilitates and regulates exercise and enforcement of a fundamental right with reference to workmen of trans provincial establishments cannot be struck down. Such action would clearly be violative of express dictates of the Constitution and negate the spirit of Article 8 of the Constitution. Such action would have the effect of taking away and curtailing a fundamental right available to workers of trans-provincial establishments and would run contrary to the reason, rationale and spirit of Articles 17 and 18 of the Constitution. Reliance in this regard is placed on full bench judgment of the Sindh High Court reported as KESC and others v. NIRC and others (PLD 2014 Sindh 553). The above reasoning gets further strength from the fact that IRA, 2012 is not in conflict with any provincial law and does not in any manner usurp or make inroads on the principle of provincial autonomy which is the underlying theme of the Eighteenth Amendment to the Constitution. It is clear and obvious that .provincial legislatures are not competent to preserve and regulate the rights of the workmen in trans- provincial establishments. Therefore, neither any constitutional violation has been committed nor has any prejudice been caused to the provincial autonomy by virtue of enactment of IRA, 2012.

41. There is yet another aspect of the case. In terms of Article 4(2)(b) of the Constitution, no person can be prevented from or hindered in doing that which is not prohibited by. law. By the same token, Article 4(2)(b) read with Article 17 of the Constitution provides an equal right to workmen of trans- provincial establishments to form trade unions, federations of trade unions, seek declaration of collective bargaining agents and get theirs disputes and grievances settled under a law regulating such activity. The absence of any law regulating trade union activities at trans-provincial level would amount to preventing exercise of such right. In our opinion, in case IRA, 2011 is struck down, the aforenoted constitutional rights of workmen employed in trans-provincial establishments would be seriously undermined which is neither desirable nor could such intent be attributed to the legislature while enacting the Eighteenth Amendment to the Constitution.

42.In view of the above, it will be in consonance with established canons of constitutional interpretation to tilt the balance in favour of legislation rather than invalidating it particularly when we have found that the Federal and provincial laws can be enforced independently to achieve the goal of allowing workers of provincial as well as trans-provincial establishments to exercise their fundamental rights guaranteed under Article 17 of the Constitution, there is no conflict between the two laws and both can be enforced without any legal or constitutional re-engineering.

43. We have also considered the effect of striking down the IRA, 2012. We find that if the said law is struck down, the following amongst other consequences would follow: a) If trade unions of trans-provincial establishments are required to be registered in each province under their respective IRAs, it would divide the trade union movement which would have an adverse effect on the entire concept of trade unionism in the country. b) Such a situation would create confusion and chaos. As a consequence, in one institution owned by the same employer, having establishments, factories, units or offices in various provinces multiple unions would be functioning under different provincial laws. c) The employers will not recognize the right of workmen to form one trade union CBA and carry out unified trade union activities in an establishment that operates at trans-provincial level. d) The number of workmen in each unit of trans-provincial establishments would be counted separately which would adversely impact on their rights in so far as applicability of benefits and security of job granted under various labour laws become available to workmen depending upon the total strength of workmen in an establishment. e) The bargaining capacity of workers would be considerably reduced insofar as presentation and settlement of charter of demands with the management is concerned. f) In the same establishment, on the basis of different charters of demand similarly placed workmen would arguably have different sets of terms, conditions and facilities depending upon the agreement reached by each union in each province. g) In consequence of registration of different unions in different provinces, the management of these institutions would have to settle separate charters of demand with each union as they would be registered separately in each province.

This would potentially create anomalous situations leading to discontent and dissatisfaction amongst workmen of the same establishment working under the same management but registered as members of different unions in different provinces.

In order to avoid complications of the nature discussed above, there a was an emergent need to have one uniform law.

44.As far as concerns the argument of the learned counsel for the Appellant/Petitioner that the procedure provided in Article 144(1) of the constitution has not been followed at the IRA, 2012 is liable to be struck down on this ground, the same is not tenable. We have already held that IRA, 2012 is covered by various Entries in the Federal Legislative List. As such the provisions of Article 144(1) of the Constitution are not attracted and are inapplicable to the present case.

45.Finally, it has vehemently been argued that in view of the judgment of the Hon'ble Supreme Court of Pakistan in the case of Air League ibid, IRA, 2012 is liable to be struck down and the decision of the Hon'ble Supreme Court of Pakistan is binding on this Court in terms of Article 189 of the Constitution. We have carefully gone through the judgment of the Hon'ble Supreme Court of Pakistan and find that the said judgment only decides the question whether IRA 2008 stood protected under the Eighteenth Amendment of the Constitution. Further, the order passed in the said judgment does not cover the present controversy as is evident from following paragraphs of the judgment: "Now turning towards the submission of the learned amicus curiae on the vires of Provincial Labour Laws on the ground that there are many Institution/Corporations which have their branches all over the country and there were country wide 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.

Thus, for the foregoing reasons, it is held that IRA, 2008 ceased to continue in force w,e,f, 30th April, 2010, as a consequence whereof petition is dismissed."

46. It is clear that the Hon'ble Supreme Court consciously left open the question that is before this Court. Article 189 of the Constitution provides that every decision of the Supreme Court to the extent that it decides a question of law or is based upon or enunciates a principle of law, is binding on all courts in Pakistan. In the present proceedings, the constitutionality of IRA, 2012 is under challenge which was not in the field at the time of the pronouncement of the aforenoted judgment.

Therefore, the Air League case does not lay down any precedent within the meaning of Article 189 of the Constitution. This view draws further support from a recent judgment of the August supreme Court of Pakistan in Pakistan Telecommunication Company Limited v. Member NIRC and others (2014 SCMR 535) wherein it has been observed: "During hearing of this appeal, a question arose as to whether the Parliament could enact any law relating to industrial relations disputes, regulating the conduct of employers and workers or workmen and to establish an exclusive forum for such disputes at Federal Level without the express consent or requisition of the four Provincial Governments. After Eighteenth Amendment, doing away with the Concurrent Legislative List, by abolishing the same and when the Ministry of Labour-II and all its affairs have devolved upon the Provinces, whether such express consent of the Provincial Governments at any level or at the forum of CCI was not essential to give validity to the Federal Law on the subject, however, before us neither in the petition nor during the course of arguments addressed at the bar, the vires of the Federal Law, referred to above, was brought under challenge, therefore, we would leave it open to determine this question of law in some other appropriate case, where the vires of the Federal Laws are expressly challenged."

We are, therefore, of the view that there is no bar on this Court to decide the vires of a subsequent law on the touchstone of the Constitution and the Air League case ibid can be distinguished on the grounds noted above.

47. For reasons recorded above, we find that IRA, 2012 is intra vires of the Constitution, its enactment was within the legislative competence of. the Majlis-e-Shoora (Parliament) and the same is a valid piece of legislation. Consequently, this ICA and connected petitions fail. The same are accordingly dismissed.

48. In view of the fact that the ICA and constitutional petitions have finally been decided through this judgment, all pending Civil Miscellaneous applications have become infructuous. The same are also dismissed.