MR. JUSTICE MUHAMMAD HASHIM KHAN KAKAR. (1). The instant constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution"), carries the following prayer clause: "(a) To declare that the impugned act of the respondents failing to constitute the Board under Section 8 of the Act, 2022 is contrary to law and facts.
(b) To further declare that the impugned act of respondent No. 4 by not making recoveries from the establishments is also contrary to law and facts
(c) To further declare that all acts being carried out after notification of the Act i.e 22.06.2022 are without lawful authority, hence corum non judice
(d) To direct the respondents to implement the Act i.e. the Baluchistan Workers Welfare Find Act, 2022 with its letter and spirit
(e) To direct the respondents to constitute the Board in view of Section 8 of the Act with its due notification
(f) To direct the respondent No. 4 to immediately start making necessary recoveries from the establishments in accordance with law and the Act.
(g) To restrain the WWB from making important decisions, including any sort of appointments as their law has been repealed, and the Board is sitting without lawful authority
(h) Any other relief deemed fit by this Hon'ble Court, in the interest of equity, fair play and justice.
2. We have heard Mr. Muhammad Ali Kanrani, learned counsel for the petitioners and Mr. Shai Haq Baloch, learned Additional Advocate General, duly assisted by Mr. Abdul Khaliq Mandokhail, Secretary Labour and Manpower Department, Government of Baluchistan/Chairman Workers Welfare Board (WWB), Mr. Noor-ul-Haq Baloch, Chairman Baluchistan Revenue Authority (BRA), Mr. Siraj-ud-Din, Secretary Workers Welfare Board and also perused the relevant documents and statutes.
3. The Workers Welfare Fund (WWF) was established by the Federal Government by promulgation of the Workers Welfare Ordinance, 1971 ("the Ordinance") for the purpose of providing residential accommodation and other facilities to workers and for matters connected therewith or incidental thereto and under Chapter-III-A and section 11-A of the Ordinance, the Workers Welfare Boards were also constituted at the provincial level for the purpose of efficient management and administration of allocated money and projects. The Constitution (Eighteenth Amendment) Act, 2010 amended various Articles of the Constitution, including Article 142 dealing with "subject matter of federal and provincial laws" which falls under Chapter-I: Distribution of legislative powers and concurrent legislative list and its entries (1 to 47) were omitted while empowering the provinces to legislate, regulate and administer the labour related matters. As a consequence of 18th Amendment to the Constitution whereby the concurrent legislative list was omitted, the provinces made appropriate legislation constituting their own Worker Welfare Fund/Boards in their provinces, the Government of Baluchistan also promulgated The Balochistan Workers' Welfare Fund Act, 2022 and The Baluchistan Companies Profits (Workers' Participation) Act, 2022. However, despite the lapse of about 16 months, the government has failed to implement the same.
4. The role of Parliament in legislating laws and the responsibility of the government to ensure their prompt and effective implementation is the fundamental principle of a civilized and democratic system. The Provincial Assembly is the highest legislative authority, where elected representatives debate, deliberate and pass laws that are crucial for the welfare and prosperity of citizens. Once a law has been enacted by the assembly, it is not merely a set of words on paper; it represents the collective will and decision of the people of our province. These laws are designed to address the challenges and needs of our people, and they carry a significant weight of responsibility.
5. It is the duty of the government to implement and enforce these Laws in their letter and spirit immediately after they have been passed. This responsibility includes not only the practical execution but also the monitoring and supervision of their implementation to ensure that the intended goals are achieved. Proper implementation and enforcement are essential for maintaining the rule of law, safeguarding the rights of the citizens and promoting justice, fairness, and the common good.
6. As stated above, both the Acts were passed by the Provincial Assembly in the month of June 2022, and despite the lapse of about 16/17 months, the respondents are failed to implement the same which has caused loss of millions to the provincial exchequer.
7. It is painful to observe that as per report, submitted by the respondents, the Federal Board of Revenue (FBR) accumulated mere 17 million over past two years on account of WWF and WPPF, with Rs. 11.4 million collected in tax year 2022 and Rs. 5.4 million in tax year 2023, whereas, the Balochistan Revenue Authority (BRA) as a collection agent can easily collect a potential amount, possibly reaching into the billions in contrast to the modest sums collected by FBR. It is also worth mentioning that several companies operating in Hub region have declared themselves as trans- provincial entities, claiming that they are fulfilling their WWF/WPPF obligations to Sindh Revenue Board (SRB) and FBR, however, our Act unequivocally mandates that all industrial establishments operating in Balochistan, including those in Hub, are required to pay WWF/WPPF being engaged in manufacturing activities within the province.
8. Similarly the question of liabilities under the Balochistan Act 2022, in terms of section 3(b), that a company "pay every year to the Fund not later than nine months after the close of that year five percent of its profits during such year" on the part of trans-province companies or the companies engaged in manufacturing activities in Balochistan but registered offices outside the province is also irrelevant because the law in is province would have to be applied and the workers here would get an amount proportionate to their number, even otherwise, this dispute has been set at rest by the Hon'ble Sindh High Court in Shafiquddin Moinee case, relevant part whereof reads as under: "In the case of trans-provincial companies, it is the Sind Act that applies, but interpreted, read and applied such that the obligation under the Act is only to make distribution to the workers in this Province, and only of an amount that is proportionate to their number here It is irrelevant where the registered office and/or the industrial undertaking of the trans-provincial company are located i.e. they could be located in this Province or elsewhere. Furthermore, in making the computation, the whole of the profits made by the company are to be used, regardless of where they were earned in the country"
9. It is strange to observe that the negligence on the part of provincial government while implementing the Acts in question and causing a huge loss to the public exchequer is evident from the fact that the collecting agent i.e. BRA has successfully collected a significant sum of Rs. 51.2 million in just the first three months of the current financial year, and the said amount has been collected from only four establishments. On the contrary, the FBR collected a mere Rs.11 million for the previous two years from 11 establishments under the previous system.
10. In view of the foregoing discussion, the petition is allowed in the following terms:
(1) Respondents are directed to immediately constitute the Governing Body under section 8(1) of the Balochistan Worker's Welfare Fund Act, 2022 by notification in the official gazette;
(2) To constitute the committee under sub section 1 of section 5 of the Balochistan Companies Profits (Workers Participation) Act 2022; Respondent No. 4 is directed to immediately start making necessary recoveries from all the establishments in accordance with law and the Act in question;
(4) The trans-provincial companies should be dealt with in the light of judgment, passed by the Honourable Sindh High Court in the case of "Shafiquddin Moinee v. Federation of Pakistan" reported in 2018 CLD 1088 Sindh;
(5) The present WWB is restrained from making important decisions, including any sort of appointments till constitution of new governing body under the provisions of Act of 2022.
Copy of this judgment be sent to the Chief Secretary, the Secretary Labour and Manpower Department, the Secretary Workers' Welfare Board and the Chairman Balochistan Revenue Authority, Government of Balochistan for information and compliance.