There has been provision in the Industrial Relations Ordinance 1969, Industrial Relations Ordinance 2002, Industrial Relations Act 2008 and now in Punjab Industrial Relations Ordinance 2010 for appointment of retired high court or Supreme Court judges as Chairman National Industrial Relation Commission or Member Labour Appellate Tribunal or still further, retired district and sessions judges as member of the National Industrial Commission.
It goes without saying that when Constitution of Pakistan provides 62 years as the retirement age of the judge of the high court and 65 years of age as a judge of the Supreme Court of Pakistan, there must be some logic or wisdom behind that.
Keeping in view social, economic and environmental atmosphere in the country, with a growing population of almost two hundred million, it is high time that an examination be made if retired judges either of the apex court or the high court or of district and sessions courts should be appointed in the labour judiciary or still further only sitting judges of the high court or district and sessions judges on the labour court or tribunal alone should be appointed.
No doubt in the past, when labour law was not developed in this country and labour judiciary was required to be developed, retired judges of the high court like Justice Inamulllah Khan and Justice Z. A. Channa made major contributions in the development of labour laws and labour judiciary in the country.
Now when the National Judiciary Policy 2009 announced by the Supreme Court of Pakistan provide that retired judges should not be appointed, either as Member Labour Appellate Tribunal, Member or Chairman National Industrial Relation Commission, only sitting judges of the high court be appointed in the labour judiciary. Those who are in favour of appointment of the retired judges of the high court in the labour judiciary justify the appointment on the ground that the retired judges of the high courts through their vast experience would be in a position to properly administer justice. While those who argue against the appointment of retired judges of the high court as Member Labour Appellate Tribunal, are of the view that after attaining the age of 65 years or even 70 years in some cases, such judges are not physically or mentally capable to administer justice. It is also argued that if a young sitting judge of the high court is appointed as a member of the Labour Appellate Tribunal under the Industrial Relations Law, he will not only work hard with dedication, but would also ensure that his future promotion or alleviation in the high court would be at stake and there are even chances of alleviation in the Supreme Court. If a sitting judge is appointed as Member Labour Appellate Tribunal, his tenure whilst in the labour judiciary would be counted for the purpose of his promotion or alleviation either in the high court or Supreme Court.
One school of thought is of the view that a Labour Appellate Tribunal Member has passed 65 years or 70 years of age, then even if he is honest and not subject to any material temptation, he will be tempted to gain spiritual benevolence by overlooking and ignoring the provision of law and evidence and grant relief which otherwise he may now have granted earlier in his life whilst in the high court, only because he has now reached the fag end of his life and believes that he will be gaining the goodwill of Allah and His blessings if he gives judgement in favour of the workers, in view of the fact that removed workers are always the victims of victimisation of the employer. Workers on their part taking advantage of the seniority in age of the member of the Labour Appellate Tribunal play with the emotions of the member by praying with folded hands that they have been victimised and that Allah will bless the member and pray that workers be reinstated with full benefits. Whereas it is true that experienced retired judges of the high court especially from Sindh have been instrumental in laying foundation of labour jurisprudence in this country. It must be claimed with a word of caution that although they are extremely honest and hardworking, yet misplaced sympathy or giving decisions, in order to earn the blessings of Allah Almighty, on the sole consideration that the worker involved, deserve reinstatement. Such consideration should never interfere in their judicial wisdom or decisions. Though this may not be necessarily so in all cases in Labour Appellate Tribunal yet it does exist, even today in one form or the other, consciously or otherwise in some of the provinces. Even benefits are given by the member who not with any mala fide intention but ignoring the settled law and principle laid down by the apex court gives decision. It is high time that such a wake up call is given by some one or the fate of Labour Appellate Tribunal will be the same as that of the now disabled and crippled commission. It goes without saying that charity begins at home. Those who show benevolence, seldom realise that even in Islam, justice should be even handed and balanced and is to be administered not on the ground that one side is rich and other is poor, or one side is an employer and other side is worker. It is not even known if such judge even pay Rs 7,000 pm as minimum wage to their personal household servant. If any of their servants commit the slightest of the mistake, he will strictly be removed from service without serving any charge sheet. In institutions such as labour judiciary, benevolence in order to earn the blessings of Allah through misplaced sympathy should find no place.
Four things belong to a judge: to hear courteously, to answer wisely, to consider soberly and to decide impartially.
SOCRATES, 470-399 B.C.Franklin Pierce Adams, F.P.A. Book of Quotations, 1952.
--- "You cannot bring about prosperity by discouraging thrift;
--- You cannot help the wage-earner by pulling down the wage-payer;
--- You cannot help the poor by destroying the rich;
--- You cannot help men permanently by doing for them what they could and should do for themselves."
ABRAHAM LINCOLN In recent times, there is an increasing evidence of this, perhaps well meant but wholly unsustainable tendency towards a denudation of the legitimacy of judicial reasoning and process. The relief granted by the Courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the Courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of the legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, propriety, predictability and respectability.
Labour judicial institutions are created on taxpayers' money. The taxpayers should not expect judiciary to favour employers because these institutions have been built on the taxpayers' money. While the taxpayer, who invariably is an employer, expects that decisions are given on merits keeping in view evidence and law, the labour judiciary at any given point of time, in order to shorten litigation, maintain industrial peace and harmony, avoid bitterness and possible labour unrest should give in appropriate cases decisions and mould relief keeping in view altered situation and circumstances, and even award compensation in lieu of reinstatement, thereby bringing an end to labour litigation for all times to come.
Consistently the apex court on more than one occasion, has examined if compensation in lieu of reinstatement should be awarded so as to bring an end to industrial mischief, bitterness, prolonged litigation etc, and awarded compensation but no reinstatement.
The apex court on more than one occasion has ordered, even in cases of wrongful termination compensation in lieu of reinstatement. This is also a blessing earned by judiciary but for unknown reasons in a mechanical manner, as a general rule labour judiciary in all cases of wrongful termination, orders not only reinstatement but also grants full benefits even though there were examples where options have been given to the employees to conduct inquiry afresh.
When reinstatement by the superior judiciary is ordered no back benefits are given where options have been given to the employer to conduct inquiry afresh. Labour judiciary even at times wilfully and deliberately has ignored that during the intervening period, the employee has reached the age of superannuation or the age of retirement and therefore reinstatement is not the only option open, yet orders are given for reinstatement, ignoring the fact that a large number of youth unemployed in this country are being deprived of employment opportunities merely because of the labour judiciary tends to fulfil its urge of earning blessing of Almighty Allah by ordering reinstatement on the ground apparently that reinstatement and full benefits are the only option open to the labour judiciary.
The author has laid his hands on consensus draft titled Industrial Relations Act - 2010 prepared by Workers Employers Bilateral Council of Pakistan. This is a council constituted comprising all the trade unions of workers and employers federations and invariably recognised by the government. The consensus draft of this council reflects joint will of workers and employers in so far as industrial relations are concerned. In this draft in terms of Section 43(3) dealing with Labour Courts for appointment of Presiding Officer, it is demanded as under:-
"A person shall not be qualified for appointment as Presiding Officer unless he/she has been or is qualified to be a Judge or Additional Judge of High Court well conversant with existing Labour Laws." In relation to Labour Appellate Tribunal, the consensus draft in terms of Section 47(2) reads as under:-
"A Member of the Tribunal shall be a person who is or has been a Judge of High Court with good health not over 65 years of age having knowledge of Labour Laws and shall be appointed on such terms and conditions as Government may determine in consultation with Chief Justice of the respective High Courts."
In so far as National Industrial Relations Commission is concerned, the consensus draft in terms of Section 48(2) reads as under: "The Federal Government shall appoint a retired or sitting Judge of Supreme Court of Pakistan as Chairman and a person who is or is qualified to be appointed as Judge of the High Court to be a Member of the Commission in consultation with Chief Justice of Supreme Court or the respective High Courts, as the case may be."
The aforementioned reproductions of consensus draft of Workers Employers Bilateral Council of Pakistan, thus reflect Joint Will of both the workers and employers to the effect that a Labour Court will be presided over only by a Judge or Additional Judge of High Court as against existing provision of Session Judge or Additional Session Judge. It also provides that Labour Appellate Tribunal shall be a person who is or has been a Judge of the High Court with good health not over 65 years of age having a good knowledge of Labour Laws. Apparently, the Workers-Employers Bilateral Council had in mind, the past experience of Members of Labour Appellate Tribunal not in good health over 75 years of age, hard of hearing, unable to walk and escorted on the chair with the help of two attendants after being removed from the car, being appointed as Member Labour Appellate Tribunal.
In the past, when labour jurisprudence was not developed, appointment of former Justice Inamullah Khan and former Justice Z. A. Channa was acceptable as notwithstanding their age they developed labour jurisprudence in this country. Conducted cases on merits rather than on compassion. Thereafter there has been a gradual decline. Today, hardly any jurisprudence on the labour law is being developed. If in the past, retired judges were appointed, it was more out of necessity rather than policy. Young and energetic judges who adorn presently high courts and are interested in the development of labour jurisprudence or who would welcome, examine and deal with labour jurisprudence being developed in other countries and follow them are the need of the hour today for the harmonious growth of labour-management relations and for the purpose of industrialisation in this country.
In the recent judgement in Hombe Gowda Educational Trust vs State of Karnataka (2006) I SCC 430: 2006-I LLJ 1004 the Supreme Court of India has observed as under: "The recent trend in the decisions of this court seek to strike a balance between the earlier approach to the industrial relations wherein only the interest of the workmen was sought to be protected with the avowed object of fast industrial growth of the country.
In several decisions of this court it has been noticed how discipline at the work place/industrial undertakings received a setback. In view of the change in economic policy of the country, it may not now be proper to allow the employees to break the discipline with impunity. Our country is governed by rule of law.
All actions, therefore, must be taken in accordance with law. Law declared by this court in terms of Article 141 of the Constitution, as noticed in the decisions noticed supra, categorically demonstrates that the Tribunal would not normally interfere with the quantum of punishment imposed by the employer unless an appropriate case is made out therefore.
The tribunal being inferior to this Court was bound to follow the decisions of this court which are applicable to the facts of the present case in question. The Tribunal can neither ignore the ratio laid down by this Court nor refuse to follow the same." Under the Industrial Relations Law for the establishment of Labour Appellate Tribunal, it is provided that the government may establish more than one Labour Appellate Tribunal in the province.
In Punjab with establishment of the Punjab Appellate Tribunal under Industrial Relations Act 2008 almost 5,000 cases were transferred from the Lahore High Court to the Tribunal. During the last almost 1 1/2 years almost 1,000 further cases have been instituted. The same is the position in relations to the Labour Appellate Tribunal appointed in Sindh. It is humanly not possible for one single member of a Labour Appellate Tribunal to decide this backlog of the cases. It is, therefore, suggested that without disturbing the existing composition in the office of Member Punjab Appellate Tribunal and Sindh Appellate Tribunal, both in the province of Sindh and Punjab, one more sitting judge of high court exclusively be appointed as Member of the Labour Appellate Tribunal.
During the course of one or more years, it will be possible for the provincial governments to determine if retired or sitting judges be appointed as Member in the Labour Appellate Tribunal and decision to this effect may be taken by the provincial government. In this way, even the backlog of the pending cases both in Sindh and Punjab will be reduced to a manageable limit.