' This judgment shall dispose of the following Constitutional petitions in which same questions fall for determination:--
1. W.P. No, 13160 of 1993.
2. W.P. No, 7261 of 1993.
3. W.P. No, 7262 of 1993.
4. W.P. No, 7263 of 1993.
5. W.P. No, 7772 of 1993.
6. W.P. No, 9766 of 1993.
7. W.P. No, 10442 of 1993.
8. W.P. No, 10443 of 1993.
9. W.P. No, 10962 of 1993.
10. W.P. No, 10963 of 1993.
11. W.P. No, 11445 of 1993.
12. W.P. No, 11446 of 1993.
13. W.P. No, 11447 of 1993.
14. W.P. No, 11448 of 1993.
15. W.P. No, 11449 of 1993.
16. W.P. No, 11450 of 1993.
17. W.P. No, 111151 of 1993.
18. W.P. No, 11452 of 1993.
19. W.P. No, 11453 of 1993.
20. W.P. No, 13532 of 1993.
21. W.P. No, 13533 of 1993.
22. W.P. No, 13534 of 1993.
23. W.P. No, 13535 of 1993.
24. W.P. No, 11645 of 1993
25. W.P. No, 13696 of 1993
26. W.P. No, 13697 of 1993
27. W.P. No, 13747 of 1993
28. W.P. No, 14160 of 1993
29. W.P. No, 14488 of 1993
30. W.P. No, 15284 of 1993
31. W.P. No, 16818 of 1993
32. W.P. No, 873 of 1994
33. W.P. No, 970 of 1994
34. W.P. No, 1175 of 1994
35. W.P. No, 1176 of 1994
36. W.P. No, 1177 of 1994 and
37. W.P. No, 2590 of 1995.
2. The petitioners in all these petitions are running various Industrial and Commercial Units in the Province of Punjab wherein they have inter alia, employed unskilled workers. On 28-8-1969, the West Pakistan Minimum Wages for Unskilled Workers Ordinance, 1969 was promulgated by the Governor of West Pakistan which in section 3 provided for payment of minimum wages as specified in the schedule, to the unskilled workers employed in a commercial or industrial establishment situated in the area specified in column 1 of the Schedule. It is a common ground between the parties that at the relevant time the minimum wages fixed in that behalf were Rs,420 per month. The aforesaid Ordinance was, however, amended on 10-4-1993 by promulgation of West Pakistan Minimum Wages for Unskilled Workers (Amendment) Act, 1993 (Act No, IX of 1993) which had the effect of enhancing the rate of minimum wages to Rs,1,500 per month. The amending law which is a Federal Statute was given retrospective effect with effect from 1-7-1992.
The validity of amending the Ordinance has been challenged by the petitioners in these petitions.
3. On behalf of the petitioners, arguments in the main were led by Mr. Imtiaz Rashid Siddiqui, Advocate who raised two main contentions. The first objection was as regards the validity of the amending Act itself and the second related to the question of retrospectivity.
4. In elaboration of the first contention, it was urged by the learned counsel for the petitioner that as the West Pakistan Minimum Wages for Unskilled Workers Ordinance, 1969 was a Provincial Law having been promulgated by the Governor of the then Province of West Pakistan, the Federal Legislature by amending that Act by promulgating the West Pakistan Minimum Wages for Unskilled Workers (Amendment) Act, 1993 has acted ultra vires of the Constitution of Islamic Republic of Pakistan, 1973 particularly Articles 141 and 142 thereof. According to the learned counsel, law made by the appropriate legislature can only be amended by that Legislature and not by other Legislative Body and as such although the subject of legislation may fall under the concurrent list given in the 4th Schedule to the Constitution yet no amendment could have been made in that law by the Parliament. Heavy reliance was placed by the learned counsel in support of this argument on the judgment of the Privy Council in Attorney-General for Ontario v. Attorney-General for the Dominion and The Distillers and Brewers' Association of Ontario (18% Appeal Cases 348) and two cases from the Indian Supreme Court viz. Zaverbhai Amaidas v. State of Bombay (AIR 1954 SC 752) and T. Barai v. Henry Ah Hoe and another (AIR 1983 SC 150).
5. So far as the other limb of the case is concerned, although the learned counsel conceded the right of the Legislature to legislate retrospectively but according to him the amending Act cannot be made applicable to the transactions past and closed nor could the vested rights of the petitioner which they had acquired by discharges of the liability, according to law then in force be destroyed. Reliance was placed upon Molasses Trading & Export (Pvt.) Limited v. Federation of Pakistan and others (1993 SCMR 1905) by him in this behalf.
6. Mr. Ihsan Lillah, Advocate appearing for some of the petitioners contended that if the Act is made retrospectively applicable even to those cases where the payments have already been made it would be violative of Article 12 of the Constitution of Islamic Republic of Pakistan, 1973. It was explained by the learned counsel that under section 7 of the West Pakistan Minimum Wages for Unskilled Workers Ordinance, 1969, non-payment of wages at the minimum rate fixed under the Ordinance was an offence punishable with imprisonment and fine and by giving retrospective effect to the Amending Act No, IX of 1993, the offence retrospectively will be constituted in violation of Article 12 of the Constitution.
7. On behalf of the respondents, Mr. Faqir Muhammad Khokhar, learned Deputy Attorney-General for Pakistan, Mian Abdus Sattar Najam, learned Advocate-General and Kh. Ahmed Tariq Rahim, Advocate have been heard. In reply to the first contention of the learned counsel for the petitioners as to the power of the Parliament to amend the Provincial Statute, it has been contended that this question does not arise in the present cases inasmuch as the law namely Ordinance XX of 1969 which was amended by the Parliament through amending Act No, IX of 1993 though originally promulgated as a Provincial Statute was an "existing law" within the meaning of Article 268 of the Constitution of Islamic Republic of Pakistan, 1973 and could, therefore, be appropriately amended by the Parliament also. The learned Deputy Attorney-General also brought to the notice of the Court that the President in the exercise of powers conferred upon him by Article 268(3) of the Constitution by promulgating P.O. 4 of 1975 had for the purpose of adapting the law to the provisions of the Constitution amended it whereafter the law did not remain the Provincial Statute and became the Federal Law.
8. As regards the question of retrospectivity, the learned counsel for the respondents submitted that the same stands decided by the Supreme Court of Pakistan in its recent decision in the case of Annoor Textile Mills Ltd. v. The Federation of Pakistan and another (PLD 1994 SC 568) and cannot be reagitated before this Court.
9. Having considered the arguments addressed by the learned counsel for the parties, I am of the view that none of the contentions raised on behalf of the petitioners can succeed. Although it is true that the West Pakistan Minimum Wages for Unskilled Workers Ordinance, 1969 was promulgated as a Provincial Statute and, therefore, prima facie could not be amended as ruled by the Privy Council in the cited case of Attorney-General for Ontario v. Attorney-General for the Dominion and The Distillers and Brewers' Association of Ontario (1896 Appeal Cases 348) by the Federal Legislature but the position underwent a change on the enforcement of the Constitution of Islamic Republic of Pakistan, 1973 on 14-8-1973, when in view of Article 268 of Constitution, all laws in force on the commencement day became existing laws and continue to remain in force till such time they are altered, repealed or amended by the appropriate Legislature competent to legislate on the subject. It is not disputed by the learned counsel for the petitioners that the subject covered by legislation in question i.e, labour falls in concurrent list in 4th Schedule to the Constitution. The appropriate legislature in respect of those laws would, therefore, be both, the Federal and Provincial Legislature and either of them could amend it. The division of the existing law into Federal or Provincial Law is not called for. On the other hand, all laws in force at the time of commencement of 1973 Constitution can more appropriately be termed as existing laws rather than Provincial or Federal Laws and in respect of those laws whether promulgated by the Provincial Legislature or the Federal Legislature, the appropriate Legislature which is entitled to amend the same would be the Legislature which has the power to legislate in respect of that subject as given in the concurrent lists given in the 4th Schedule to the Constitution.
10. This question was examined in detail in Mehreen Zaibun Nisa v. Land Commissioner, Multan and others (PLD 1975 SC 397) wherein the validity of the Punjab Land Reforms Act, 1973 was challenged on the ground that it purported to amend a Federal Law. This argument was repelled by the Supreme Court by observing that Land Reforms Regulation, 1972 being an existing law and the subject of Land Reforms being in concurrent list, it could be amended by the Provincial' Legislature.
Reference may also be made to the pronouncement of this Court in Ghulam Muhammad and another v. The Deputy Registrar, Cooperative Societies, Sargodha etc. (PLD 1968 Lahore 758).
11. There is another aspect of the matter which is as pointed out by the learned Deputy Attorney- General that in exercise of the powers conferred by Article 268(3) of the Constitution, the President of Pakistan promulgated P.O. 4 of 1975 so as to bring the existing laws mentioned in the Schedule annexed thereto in accordance with the provisions of the Constitution. The effect of P.O. 4 of 1975 (Federal Adaptation of Laws Order, 1975) as given in section 2 thereof, so far as the West Pakistan Minimum Wages for Unskilled Workers Ordinance, 1969, was that it became applicable to the whole of Pakistan. It may be mentioned that the adaptation of these laws was carried out in view of the division of legislative powers as given in the 4th Schedule to the Constitution. It is, therefore, idle on the part of the petitioners to contend that the law i.e, West Pakistan Minimum Wages for Unskilled Workers Ordinance, 1969 was Provincial in nature.
12. Now the other, argument of the learned counsel for the petitioners namely that the amending Act No, IX of 1993 cannot be given retrospective effect so as to destroy vested right of the petitioners may be examined. It goes to the credit of the learned counsel for the petitioners that they have not disputed the power of the legislature to legislate retrospectively. Their contention, however, was that notwithstanding that the Act has been given retrospective effect from 1-7-1992, there was nothing therein to make it applicable in respect of those transactions which had become past and closed and for the period for which the petitioners had already discharged their liability. It was elaborated that on the basis of the law then prevailing the petitioners had discharged their liability towards the workers by paying them at the rate specified in the West Pakistan Minimum Wages for Unskilled Workers Ordinance, 1969 and as such with respect to that period, these transactions were past and closed and cannot be reopened. Heavy reliance was placed by the learned counsel for the petitioners in support of this contention on the pronouncement Of the Supreme Court of Pakistan in National Embroidery Mills Ltd. And others v.
Punjab Employees' Social Security Institution (1993 SCMR 1201).
13. The general principle of Interpretation of Statute on which the argument of the learned counsel for the petitioners proceeds is unexceptionable. Although the power of the Legislature to act retrospective is well-recognised but it is equally well-settled that in the absence of any express provision or necessary implication even the laws which have been made retrospectively applicable cannot be applied to the transactions past and Ilosed nor can vested rights be taken away or destroyed. There is also merit c the C contention of the learned counsel for the petitioners that by discharging the liability in accordance with the law then applicable not only the transactions in respect of that period became past and closed but the petitioners also acquired vested right which cannot be taken away by merely giving retrospective operation to the law. This argument of the learned counsel is supported by the following observations of the Supreme Court of Pakistan in the case of Molasses Trading & Export (Pvt.) Limited v. Federation of Pakistan and others (1993 SCMR 1905) which are instructive: "There seems to be a great deal of force in this submission. Before the insertion of section 3 the position was that upon the presentation of a bill of entry, by virtue of section 30 of the Act the levy of duty was crystallised. As explained in the case of Al-Samrez Enterprise, the liability to tax was created under section 18 with reference to this date, because it is the rate of duty by application of which the tax liability can be quantified or assessed. Simultaneously, any benefit of exemption also takes effect on the same date because in the very nature of things, the liability is wiped off by virtue of the exemption at the same time. Therefore, this is the crucial point of time at which by operation of law the liability is discharged. In other words, the rights and liabilities of the importers attained fixity on the said crucial date. Inevitably therefore a vested right has been created and the transaction is closed by the quantification of the tax, if any, or by the discharge of liability on that date "
14. But I am not inclined to accept this contention for the reason that the Supreme Court of Pakistan in the case of Annoor Textile Mills Ltd. And another v. The Federation of Pakistan and another (PLD 1994 SC 568) has already upheld the retrospective operation of the law with effect from 1st of July, 1992. Although the argument as pressed by the learned counsel for the petitioners was not examined by the Supreme Court of Pakistan having not been canvassed before it yet the fact remains that the dispute before the Supreme Court in the cited case was with respect to the liability of the employers to pay the additional amount on wages at the revised rate for the period of 1-7-1992 onwards. The demand of additional amount having been upheld by the Supreme Court of Pakistan, cannot be held to be without lawful authority by this Court.
15. It is also to be noticed that as held by the Supreme Court in Annoor Textile Mills case supra, the amending Act is beneficial in nature and has been promulgated with a view to confer additional benefit upon unskilled workers. That being so, even if two interpretations are possible, one which favours the object of which the act has been promulgated has to be accepted as observed by the Supreme Court in the case of Postmaster General, Eastern Circle (E.P.) Dacca and another v.
Muhammad Hashim (PLD 1978 SC 61).
16. It may also be pointed out that even according to the pronouncement relied upon by the learned counsel for the petitioners, the general rule that vested right or the accrued liability when discharged cannot be interfered with having become transaction past and closed, is subject to exception for there should be anything explicit or by necessary intendment in the enactment to the contrary. In the present case, the nature of the legislature which, as already observed, is beneficial and the fact that it has been made retrospective applicable are sufficient to demonstrate the necessary intendment of the legislature to make the amending Act applicable even in respect of those cases where the employers had discharged the liability. If the interpretation as canvassed by Mr. Imtiaz R. Siddiqui is accepted, the object of giving retrospective operation to the enactment would clearly be defeated as in that event the additional benefit conferred upon the workers would only be available to those cases where the employers had defaulted in compliance with the provisions of the original Act which cannot be the intention of the law givers.
16-A. The contention of Ihsan Lillah, Advocate that since non-payment of wages at the rate specified in Ordinance XX of 1969 is an offence under section 7, the retrospective effect to the amendment would amount to creating an offence retrospectively and would thus be violative of Article 12 of the Constitution is misconceived. There is nothing in the amending Act from which it could even remotely be inferred that any penalty or offence was being created with retrospective effect. The learned Deputy Attorney-General as also the learned Advocate-General and Kh. Ahmad Tariq Rahim, learned counsel appearing on behalf of the respondents have conceded this legal position.
' In view of what has been stated above, these petitions are dismissed leaving the parties to bear their own costs.