The older I grow the more I distrust the familiar doctrine that age brings wisdom. Labour laws are begot by bad actions. At one time in our country, a famous German proverb "If the old dog barks, he gives counsel" applied in full force. Not so any more. Honesty stands at the gate and knocks. Bribery and corruption today enter in the labour judiciary at the appeal stage.
At present when appointments are made on political considerations, this yields to despotism. Justice Felix Frankfurter in the famous case American Federation of Labour vs. American Sash and Door Company, case reported in 335, US 538, 577 (1949) has observed: "A Court which yield to the popular will thereby licence itself to practice despotism, for there can be no assurance that it will not on another occasion indulge its own will."
Lord Justice Charles Bowen, an English Jurist in the case The Queen vs Justice of the County of London case reported in (1893) L.R. 2 Q.B. 492 has observed: "If no appeal were possible......this would not be a desirable country to live in....."
In Pakistan, especially in labour laws of this country, there are various provisions where no right of appeal is provided. It is left to the virtual mercy of labour judiciary to decide the case, be it whimsical, arbitrary or for any other consideration. No right of appeal is provided for in Newspaper Employees (Conditions of Service) Act 1973 in relation to an Award of Wage Board.
Standing Orders 11-A of Industrial and Commercial Employment (Standing Orders) Ordinance 1968 provides, that if an employer, even on financial considerations decides to exercise his legal and Constitutional right granted to him in terms of Article 18 of the Constitution of Pakistan 1973 to do business or otherwise, yet he cannot close down the business or terminate the services of more than 50 percent of the workmen, even on payment of all legal dues, without prior permission being obtained first from the labour court. No time limit is provided for deciding this case by the labour court. No right of appeal has been conferred on the employer or CBA to challenge the decision of the labour court for grant or refusal to grant permission to close down the establishment.
Employer who is being called upon to act honestly, stands at the gate and knocks the doors of the labour judiciary for justice, yet has to wait indefinitely for justice. Written arguments are filed six years back, yet repeated adjournments are granted to the other side. The only other option open is bribery and corruption which enters the gate without knocking.
Under the Constitution of Pakistan no person can be compelled to commence business or continue business so as to provide employment to several unemployed persons of this country. If no person can be compelled to commence business, then on the same analogy, no person can be compelled to continue business even if he is incurring huge accumulated financial loss.
Under the garb of regulating activity, certain labour legislations have even prohibited the employer his fundamental right as envisaged under Article 18 of the Constitution, to Freedom of Trade and Business. This is excessive delegation of excessive power. Right to carry business implies with it, right not to carry business. Freedom to carry on any trade and business is meaningless in the absence of freedom from obligations of trade and business or not to do any business.
A fundamental right cannot be taken away by any legislation except perhaps to ensure reasonable restriction. Under the garb of reasonable restriction, the provisions in labour legislations are wilfully and deliberately misapplied aimed at retarding industrialisation. If there is no right of appeal under the labour legislations either to an employer or for that matter to a workman or CBA, the said law is unreasonable being violative of law and is liable to be set aside by the judiciary.
Right of Appeal is a Fundamental Right as held by the Federal Shariat Court in PLJ 2005 FSC 80 at 88. Industrial and Commercial Employment (Standing Orders) Ordinance 1968 by conferring unrestricted, un-checkered power on the labour court to grant or refuse permission either to close down the establishment or retrench or terminate services of more than 50 percent workman is unconsciously discouraging private sector investment in this country. No time limit is provided within which these proceedings are to be decided by labour court which works as a discouragement to the employer to do business in this country.
Reasonable restriction as contemplated in Article 18 of the Constitution of Pakistan should not amount to total prohibition to employer, although indirect in nature. Carrying on business is a right not an obligation. Any industrial concern ought to have as much liberty to carry it on or close it down particularly when it does not yield any profits.
Companies Profit (Workers Participation) Act 1968 provides for the disbursement of profits made by the employer in the course with wage ceiling of employer and balance amount to be deposited by the employer in the Workers Welfare Fund constituted in terms of Workers Welfare Fund Ordinance 1971. Needless to mention, profit earned by individual employer is as a result of the efforts made by him and his workers only. The amount of profit earned as such is liable to be disbursed only amongst his own workers who have contributed towards the profits of the company.
Payments from such profits created from the common pool by Workers Welfare fund is in negation to the very concept of Companies Profit (Workers Participation) Act 1968. Amount so accumulated under the Workers Welfare Fund, although claimed to be spent for the welfare of the workers in general, means that profits earned because of hard labour of a particular establishment, are being spent not for the welfare of those workers, but for workers belonging to such loss-making organisations such as PIA, Pakistan Railways, Pakistan Steel Mills, Utility Stores Corporation etc who claim entitlement to the share from the Workers Welfare Fund although they have not contributed in the profits nor shares towards this fund. This requires heart and soul-searching and amendment in law.
The labour judiciary where presently appointments are made on considerations ignoring age, experience, health, memory, grasping power is still one of the place in our system where authority can be abused with virtual impunity. French Author Jules Renald has aptly remarked:
"I finally know what distinguishes a man from the other beasts: financial worries." J.P. Morgan, an American Financier and Banker has remarked: "A man always has two reasons for dong anything: a good reason and the real reason." Today retired persons have the real reason and not the good reason to run for such appointments. Aristotle, the 4th Century B.C. Greek Philosopher has said:
"At his best, man is the noblest of all animals; separated from law and justice he is the worst." If a retired person with superannuated looks, looks forward naturally to his fresh or continued employment, his judicial outlook, if any, will be somewhat vitiated. Today since the last few years, these persons travel on paths where angels fear to tread by propounding or signing, to be more appropriate, on theories and principles that cut at the root of our national economy. Needless to mention, in industrial relations we can follow the way of peace or of conflict. In our conditions, it cannot be both. The basic element of sound industrial relations in our country should be strong trade unions, enlightened employers and minimum intervention of government. The first two elements are woefully absent whereas the third element flourishes with full force, obviously with mala fide intentions.
Justice Oliver Wendell Holmes in the case of Dr Miles Medical Co vs. Park & Sons Co reported in 220 US 373, 411 (1911) has observed as under: "...the most enlightened judicial policy is to let people manage their own business in their own way." Today two options are open to the present rulers: Either to incur a daily Rs 100 crore loss incurred through dishonest, corrupt state owned, mismanaged and operated enterprises, or let us adopt a policy aimed at allowing business be owned, managed and operated by the private sector in their own way.
Theodore Roosevelt once said: "The decisions of the Courts on economic and social questions depend on their economic and social philosophy." We presently have neither an economic nor a social philosophy. No one can make time stand still. Today it appears that there is no respect for Courts or for its judicial process. If this is gone or steadily weakened, no law can save us as a society. Those in power, whatever their views on pseudo controversial decisions must inspire respect for our judiciary. Flagrant disregard of elementary standards of proper conduct should not and cannot be tolerated. Unfortunately, however, of late, specially in one province, the judiciary is confronted with disruptive, contumacious and at time stubborn defiance which is leading the people of this country to believe if this was the struggle waged against the dictator for restoration of an independent judiciary. Young lawyers have a long way to go before they reach the pinnacle of glory. Within reasonable bounds let us all wage peaceful struggle for restoration of a free, independent, unbiased, fearful, labour judiciary. We should get away from the idea that a labour court, tribunal or commission is the only place to settle disputes. People with claims are likely people with pains be they workers or employers. They want relief and results and they do not care whether it is in a courtroom, with lawyers and Judges or somewhere else. Presently despondency prevails everywhere. The shackles have to be broken. Labour Judiciary should not be a political institution. Should lawmakers of this country be law-breakers? There is a famous legal Maxim:
"The act is not criminal unless the mind is criminal" Abraham Lincoln has said well: "You can foul some of the people all of the time, and all of the people some of the time, but you cannot foul all the people all of the time."
(The writer is an advocate of Supreme Court)