Labour judicial imperialism

Judicial activism, which germinated in the premises of the Supreme Court of India during the mid-1970, soon graduated into a sort of imperialism.
Judicial Imperialism by Labour Courts, the Labour Appellate Tribunal and National Industrial Relations Commission can be defined as the principle or policy adopted by these Institutions to wilfully and deliberately ignore Labour laws and evidences on record, and based on misplaced sympathy for workers, with motives either to perpetuate existence of their institution and or to twist the arms of employer appearing before Labour Judiciary with motive as was common earlier or either to earn the blessings of God, and or coerce the industry with elements of malice or to introduce their own brand of social justice decide cases.
It is recalled that Justice Iyer in the Husssainbhai case reported in 1978 Vol II LLJ 397 observed that the presence of intermediate contractors with whom alone the workers had immediate or direct relationship, if contractual, was of no consequence, and that on lifting the veil, the naked truth could be discerned though draped in different perfect papers arrangements, that the real employer was the management, not the immediate contractor. It is not clear what the expression "Lifting the veil" meant. This quotation, time and again has even been borrowed by our judiciary. Whose veil was lifted and for what purpose, in the face of a battery of decisions which distinguishes "contract from service" from "contract of service".
The Labour Judiciary have been enchanted to grant relief of compensation notwithstanding the fact that they do not find it necessary to give a ruling on the fundamental issue whether an institution falls within the ambit of Labour Legislation. The Labour Judiciary made prone to extra-statutory, untenable and even illegal reasons of an employee being poor in granting relief. It is disconcerting that cases in some province are decided by the subordinate Labour Judiciary in a desolate manner. This kind of generosity at the expenses of someone else, and even at the state exchequer to perpetuate the name and memory of deceased political figures, not required under the law, militates against the very concept of justice. While appreciating the sympathy of some of the learned Judges having retired performed Haj or Umrah, for the employees, it should be remembered that such decisions would open up a Pandora Box with claims flooding the Labour Courts, Tribunal and Commission with similar treatment.
The Labour Judiciary should resist the temptation to earn blessings without going minutely into the merits of the cases. The Labour Judiciary should refrain from following the policy of soft-peddling. The decisions should be according to the law and not on whims and fancies. It should not be based on the traditional, fascist system that prevails in the village panchayets, where cases are decided not on the basis of any judicial principles known to the modern world but by intuitive appeal. If this is not intellectual regression into the bygone ages what else could it be. It should not shower misplaced sympathy. The Labour Judiciary must realise that before showing misplaced sympathy, they must bear in mind that they are not messiahs, and that their powers and duties are also clearly circumscribed by the law. They should refrain the temptation to find compromise formulas rather than expounding the law. It is one thing that the Labour Judiciary by the process of judicial interpretation should adopt the law to suit the needs of society as observed by Justice Madan in the case of Central Inland Water Transport Corporation (1986 Vol II LLJ 171), but keeping in view the tricotomy of powers as enshrined in our Constitution, it should not arrogate to itself both the legislative and judicial or constituent powers. If the legislative process is too slow in our society, the judicial process is even slower and dilatory. If the legislature is pre-occupied with other actions, the courts are no different. A classic example is the abolition of Labour Appellate Tribunal in Sindh with the repeal of the Industrial Relations Ordinance 1969 and the promulgation of the Industrial Relations Ordinance 2002 wherein both appellate and revisional powers were conferred on High Court. On repeal of IRO 1969 in Sindh, a mere 39 cases were on the roaster of Sindh Labour Appellate Tribunal transferred to the High Court. In October 2008, when the Industrial Relations Act 2008 was passed by the Parliament, and once again the Labour Appellate Tribunals were made the appellate forum in Sindh almost 2750 appeals and revisions were pending in the two benches and the two circuit courts in Sindh that stand transferred to one Single Labour Appellate Tribunal manned by a former Judge of High Court passed his active age and well over 73 years to clear the back-log of labour cases. For more than two years, the Labour Appellate Forum in Sindh was non functional. In Punjab, the situation is no better. Almost 2,750 appeals from the Lahore High Court stand transferred to one single Labour Appellate Tribunal. In Punjab, the Tribunal has been made functional. However, keeping in view the volume of pending cases and fresh institutions, unless more than two Labour Appellate Tribunal are established, both in Sindh and Punjab, lop-sided judicial activism based on sympathetic considerations will continue to prevail. The National Judiciary Policy Commission should take serious notice of this impediment and order remedial measures aimed at improved labour management relations.
Slowness of the legislative process is no ground for the Labour Judiciary to display its activism and indulge in basic legislation at times. If legislatures are divided either by politics, overburdened with myriad other activities, and this is not only in Pakistan or India but in all democratic societies, and that is the price people have to pay for opting for the democratic system of government. If the legislature exceeds its power, the judiciary steps in. If the executive exceeds its powers, the judiciary steps in. If the Labour Judiciary exceeds its power what can the industry do. The only proper solution is the observance of restraint by the Labour Judiciary. The expression "social conscience" used by the Labour Judiciary to justify its decisions is an intangible abstraction. The supposition that a couple of judges in the Labour Judiciary represent the social conscience is obnoxious and open to universal ridicule. In one case in a certain province, the tribunal suggested the decision by picking up Holy Quran and not on the law and evidence on record.
It is often claimed that the Labour legislation is beneficial and for the welfare of the workers alone, which is misconceived. To say that the Industrial Relations Act is a worker-oriented legislation is a misnomer. It is for the common welfare of the employer and workman and for society and the country. The temptation to treat labour legislation as a moral legal norm for modus vivendi between partners in management, namely, capital and labour is misconceived. In our society, no doubt capital shall be the brother and keeper of labour and should not disown its obligation. Notwithstanding its concern for the welfare of the working class, nowhere has our Constitution proclaimed that gross indiscipline, fraud, violence and disorderly behaviour on the part of workers should be rewarded by generous court ex parte orders specially by National Industrial Relations Commission restraining the employer to exercise his legal and statutory rights aimed at initiating disciplinary action, and even orders of reinstatement with full benefits. No law has given a blank cheque to our Labour Judiciary to brand illegal strikes, slow down in work, misappropriation and defalcation in Banks, who act as custodian of public trust in banking institutions, as legitimate trade union activity, Justice Frankfurter once said, if subordinate judiciary want to be the primary shapers of policy, they should discard their robes and enter the legislature for translating their ideology into law. The Labour Judiciary must realise its survival depends on labour and the survival of labour depends on industry. It is a pyramid. If one crater is removed all will crash. It will have to be realistic but under no circumstances fanatical or emotional in dealing with labour cases.
Justice Hidayatullah, a distinguished former Chief Justice of India and subsequently Vice President of India rightly described these dysfunctional and decrepit decisions, especially of Labour Judiciary as "corkscrew judgements" and went on to observe: "It has become a fashion now to try our off-way cases rather than the run of the mill cases which are pending in the hundred of thousands and for several years. ... Some pink intellectuals at the bar (in Pakistan, professional labour leader acting as labour representative, especially in Sindh) and also a few on the bench who are anxious to get onto the front pages of newspapers to build up a reputation as champions of the weak and the downtrodden."
M.C. Setalvad, a prominent former Attorney General of India and one of the foremost leading advocate of India aptly remarked that advocates must be paid. Advocates who render valuable assistance to a court ought to be well paid. But for the court including the Labour Judiciary to order invariably in all cases reinstatement and grant for years back benefits is very much like a medieval emperor giving a bag of good coins to a person who has pleased him and must be avoided. If the Labour Judiciary treats the employer with disdain, if it exercises powers not conferred on it and on subjects when it is not competent to handle, if it encroaches on fields which are essentially legislative or executive, there is a very real danger of its powers being curbed as legislative and executive branches of the government, which are both more democratic and more powerful, will no longer tolerate a judicial encroachment on their fields. The Labour Appellate Tribunals should go back to a traditional disciplined approach it had adopted so successfully between 1969 upto 2002. Gone are the days of Justice Inamullah Khan, Justice Z. A. Channa, Justice Dr Tanzeel-ur-Rehman, Justice Mushtaq Ali Kazi to name few who can rightly be termed as the father of the Labour Judiciary in Pakistan. Case Law developed between 1969 and 2002 have set trends which unfortunately are now being disturbed and destabilised specially by the National Industrial Relations Commission and to a less extent by the Labour Appellate Tribunal.
Fortunately in Sindh there are presently seven Labour Law experts elevated to the Sindh High Court. In all earnestness and sincerity, the Chief Justice will ensure that the service of these labour law experts are utilised by establishing special labour benches so that the derailed labour case law are put back on trail. It will be good for the industry. Little do we realise if the industry does not exist, labour will not survive. All citizens cannot get employment in PIA, Pakistan Steel or Railway. These organisations eat away the hard-earned wealth of this country. Our leaders must refrain from acting as an emperor giving gold coins to persons who have pleased him with their hypocrisy. It is the taxpayers' money. It is the wealth of the people of this country. It should be not squandered away the way it is presently done, doling out millions of rupee as back benefits specially to employees in banks, otherwise charged with fraud and defalcation of public money deposited in banks, who are expected to act as custodian of public faith and confidence.
One of the judges elevated from the Labour Bar, Mr Justice Shahid Anwar Bajwa an icon of Labour Laws in our country, in his Judgement reported in PLD 2010 Kar 27, has very admirably summed up the purpose of Labour Courts and National Industrial Relations Commission by reproducing extracts of the judgements in relation to these two organs of Labour Judiciary earlier given by the Sindh High Court and Lahore High Court. Justice Shahid Anwar Bajwa has observed as under:-
What kind of ill can executive control lead to is so commonly understandable and so widely comprehended that one need not say anything in this regard? As far as Labour Judiciary is concerned just three instances may suffice here. There is an interesting case law in this regard and the case law is reported as A & B Beverages Shama Labour Union vs. Sindh Labour Court (2000 PLC 389). The facts were that a person in the judicial service as Additional District and Session Judge was dismissed from service in 1992 after due enquiry of corruption charges. However, thereafter the Chief Minister of Sindh set aside the dismissal order. The High Court did not recognise him as a Judicial Officer and he was not allowed to resume duty. The Government of Sindh posted him as Presiding Officer of Sindh Labour Court. The Hon'ble Judge went on to say:
"There is absolutely no doubt that he is still reputed to be corrupt and it is very unfortunate that such a person has been assigned the vital task of deciding the matter under the Labour Law." However, the Hon'ble Judge ordered that office should send a copy of the order to the Labour Appellate Tribunal for information and to the Chief Secretary and the Secretary Law to consider whether such a person "who is still reputed to be corrupt deserves to be retained in service."
Justice Ihsanul Huq Chaudhry in Nishat Group of Industry's case (1997 PLC 622) noted the pathetic state of affairs in the National Industrial Relations Commission and passed the following observations:
"It is a matter of great regret that the government makes appointments to such sensitive posts recklessly. The government, if serious to these institutions for industrial peace in the country, then these tribunals should be manned by persons of integrity and quality otherwise it would amount to sheer wastage of public funds. Let a copy of this judgement be sent to Mr Mohammad Zaman Qureshi, newly appointed Chairman, National Industrial Relations Commission to take up the matter in the concerned quarters."
The matter did not end there, or shall I say, the rot did not stop there. Mr Justice Tanveer Ahmed Khan in Pakistan Telecommunication's case (1999 PLC 320) made, probably the most scathing remark ever made against a Judicial Forum, against N.I.R.C. when his Lordship said:
"Before parting with these cases after going through the judgement dated 15-07-1998 of the Chairman N.I.R.C. and the judgement, dated 31-08-1998 of the Full Bench both subject matter of these Constitutional petitions one comes to an irresistible conclusion that there is judicial anarchy in the working of the N.I.R.C. The Full bench as quoted the observation of my learned brother Ihsanul Haq Chaudhry, J, qua the working of N.I.R.C. reported in Nishat Group of Industries and another vs. Chairman N.I.R.C. and others (1997 PLC 622) which is in the following terms:
"It is a matter of great regret that the Government makes appointments to such sensitive posts recklessly. The government, if serious to these institutions for the industrial peace in the country, then these Tribunals have to be manned by persons of integrity and quality otherwise it would amount to sheer wastage of public funds"
Learned Counsel appearing for both the sides have also made reference to such an atmosphere prevailing in the Commission. I myself fully subscribe to the view of my learned brother quoted above that the working of the Commission is decaying and if some steps at the earliest are not taken to arrest this deteriorating situation it would be then too late in the day to mend the same."
It Shahid Islam's case (PLD 1996 Lahore 699) it was noticed that an advocate who had not yet completed the requisite ten years of enrolment as advocate High Court was appointed as a Member of N.I.R.C. in violation of rules prescribing such qualification."
The United Nations Secretary General Ban Ki-moon in a different context recently remarked: "our foot is struck on the acceleration and we are leading towards an abyss". One wonders if he had in mind the subordinate Labour Judiciary. Today this Labour Judiciary is floating free in the sea. It is rudderless. We only hope it does not sink.