- —s.. .

I'
SUPREME COURT OF PAKISTAN

r PRESENT:
(Appellate Jurisdiction)

Mr. Justice Gulzar Ahmed, CJ

Mr. Justice Umar Ata Bandial
Mr. Justice Ijaz ul Ahsan
Mr. Justice Qazi Muhammad Amin Ahmed
Mr. Justice Jamal Khan Mandokhail
CIVIL APPEALS NO.803 AND 804 OF 2016
(Against the order dated 2112.2015, passed by the Islamabad High court, Islamabad,
in W.Ps. PJo07 and 080120101

Muhammad Shabbir. (in C.A No.80312016)

Muhammad Shahid. (in C.A.No.8041201 6)
.Appellants
Versus
Quaid-e-Azam University through its
Vice Chancellor, Islamabad and others. (in both cases)
Respondents

For the Appellants : Qazi Shehryar Iqbal, ASC

(in both cases) Syed Rifaqat Hussain Shah, AOR
For the Respondents Mr. Muhammad Munir Paracha, ASC
both cases)
For the Federation Mr. Sajid Ilyas Bhatti, Additional
Attorney General for Pakistan
Date of Hearing 18.01.2022

ORDER

Guizar Ahmed. CJ. - A 2-Member Bench of this Court has

passed an order dated 30.04.2019, whereby it has formulated two

questions of law, to be addressed and referred the matter to the then
11 ,Hon'ble Chief Justice of Pakistan for constitution of a larger Bench for
answering the same. Pursuant thereto, the matter has been taken up by
this larger Bench. Following are the two questions: -
1. Whether the judgments in the Air League case (supra), State
Bank of Pakistan case (supra) and Sui Southern Gas Co. Ltd.
case (supra) can co-exist with reference to the scope and
extent of the retrospective effect doctrine.

II. Whether all the decisions rendered by the Labour Court,

during the interregnum period, are null and void in the eyes
of law. If so, whether, and to what extent, such decisions can
be extended protection by applying the de facto doctrine.
 flJC.'VLL..L

C.As No.803404 of 20I -2-

2. The facts of the matter are that the appellant in Civil Appeal
No.803 of 2016, namely, Muhammad Shabbir was employed with
Respondent No. 1-Quaid-e-Azam University as Bearer, while the appellant
in Civil Appeal No.804 of 2016, namely, Muhammad Shahid was
employed with Respondent No. 1-Quaid-e-University as Cook. They were
issued charge-sheets and statement of allegations dated 05.03.2004. The
enquiry committee was constituted to conduct regular enquiry. The
appellants gave reply to the charge-sheets and statement of allegations.
The enquiry committee concluded the enquiry and gave its report finding
the appellants guilty of the charge. On receipt of the enquiry report, the
respondents issued show cause notices, which were replied by the
appellants. The competent authority through order dated 21.07.2004
imposed the major penalty of compulsory retirement from service on both
the appellants. The appellants filed departmental appeals and then filed
service appeals in the Federal Service Tribunal, Islamabad. On
announcement of judgment of this Court in the case of Muhammad
Mubeen-Us-Salam and others vs. Federation of Pakistan through

Secretary, Ministry of Defence and others (PLD 2006 SC 602), whereby

Section 2-A of the Service Tribunals' Act, 1973 was declared ultra vires
the Constitution, the service appeals of the appellants were abated. The
appellants then filed grievance petitions under Section 46 of the
Industrial Relations Ordinance, 2002 (the Ordinance of 2002) in the
Labour Court, Islamabad. The grievance petitions were contested by the
respondents. The Labour Court through its judgments dated 24.11.2010
partly allowed the grievance petitions of the appellants by setting aside
the penalty of compulsory retirement from service and converting it into
withholding of two increments. The appellants were directed to be
reinstated in service with back benefits. The respondents challenged the
judgments of the Labour Court by filing of writ petitions in the Islamabad
High Court, Islamabad. The High Court by the impugned order dated
F21.1 isposed of the petitions observing as follows:-
 I
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Ct4s No.803-804 of 2016 -3-

"The next objection upon the impugned judgment is that

same was issued during interregnum period after lapse
of IRA, 2008 pursuant to sunset clause. This objection
finds merit because impugned judgment was passed by
learned Trial Court on 24.11.2010 while on that time
there was no legislation in promulgation after lapse of
IRA, 2008 on 30.04.2010, while during the period
between 30.04.2010 to 18.07.2011 no labour law was in
prevalence, therefore, learned Labour Court could not
have assumed jurisdiction.
This point was decided by the Hon'ble Supreme Court in
case titled as "Air League PIAC Employees through
President vs. Federation of Pakistan etc." (2011 SCMR
1254) wherein it was held that "during the interregnum
period w.e.f 30.04.2010, when no industrial relations law
was holding the field, the workers had remedy under the
Ordinary Laws prevailing at that time, because in
absence of a special law the ordinary/ general laws come
forward to fill in the vacuum."
Similarly in case "State Bank vs. Presiding Officer Labour
Court, Islamabad" (Civil Appeal No.1150/2012) the
Hon'ble Apex Court held that "grievance petitions decided
between the period 30.04.2010 to 08.07.2011 stand
revived before the learned NIRC."
In the light of ratio set in by the Hon'ble Apex Court, the
impugned judgment is declared to have been passed
without lawful authority and jurisdiction. It is thus set
aside with observation that respondent No.2 may file a
grievance petition before learned NIRC under the IRA,
2012 in vogue."
ii
Relying upon Air League of PIAC Emplouees throug h President v.
Federation of Pakistan M/O Labour and Man p ower Division Islamabad
and others (2011 SCMR 1254) and State Bank of Pakistan throu gh its

Governor/Director Human Resources & another v. Presidin g Officer,

Labour Court (District & Sessions Jud ge) Islamabad & others (Civil Appeal

,No. 1150/2012 the High Court found that the judgments announced by
the Labour Court were without lawful authority and jurisdiction and
thus, set aside the same with observation that the appellants may file the
 -I. . - .... -.-- . .. t. r . I

II
C.As No.803-804 of 201 -4-

I. grievance petitions before the NIRC under the Industrial Relations Act,
2012. The appellants filed civil petitions before this Court against the
impugned orders of the High Court in which leave was granted vide order
dated 31.03.2016, "to examine whether on account of successive
legislation, the matter which had been competently initiated by the
appellants (their grievance petitions) on 19.06.2006, under the valid law
in force at that time was obliterated and not saved on account of IRA,
2008 and they were left remedy-less as the Labour Court according to
the learned High Court stood abolished during this period, thus having
no jurisdiction to decide the matter vide judgments dated 24.11.2010".
3. The appeals came up for hearing before a 2-Member Bench
of this Court when the order dated 30.04.2019 was passed formulating
the two aforementioned questions.
4. It is apparent from the record that the appellants have filed
grievance petitions before the Labour Court under Section 46 of the
Ordinance of 2002. During the pendency of the grievance petitions the
Industrial Relations Act, 2008 (the Act of 2008) was promulgated and
by Section 87 of this Act, the Ordinance of 2002 was repealed. Section
87(2)(b) of the Act of 2008 contained saving clause which, provided that
the proceedings commenced under the repealed Ordinance were saved
and were deemed to have been commenced under the corresponding
provisions of the Act of 2008. The grievance petitions filed by the
appellants continued before the Labour Court after promulgation of the
p /Act of 2008 and without any objection from the side of the respondents.
The Act of 2008 in its Section 87(3) provided as follows: -
"87 .....................................
(3) This Act shall, unless repealed earlier, stand
repealed on 30th April, 2010".

The apparent reading of the above quoted provision shows that the
Act of 2008 was a temporary legislation and it provided the date on
which it would stand repealed. The Act of 2008, thus, stood repealed by
J5

C.As No.803-804 of20J -5-

its very own mandate on 30.04.2010. It seems that the grievance

petitions which the appellants had filed, despite repeal of the Act of

2008, continued to remain pending before the Labour Court and the

Court also continued to function and hear the grievance petitions

filed by the appellants although there was no labour legislation in the

field after the repeal of the Act of 2008. Ultimately, the Labour Court vide

its two separate judgments, both dated 24.11.2010, allowed both the

grievance petitions in terms as noted above. The judgments of the Labour

Court were challenged by the respondents in the writ petitions, which

were decided by the Islamabad High Court, Islamabad (the High Court)

vide impugned orders dated 21.12.2015 in terms as noted above. During

the pendency of the writ petitions in the High Court, the Industrial

Relations Act, 2012 (the Act of 2012) was promulgated on 14.03.2012.

The Act of 2012 did not make provision for establishment of a Labour

Court, rather by Section 53 thereof, the Federal Government was

empowered to constitute a National Industrial Relations Commission

(NIRC). Section 33 of the Act of 2012, the individual grievance petitions

(grievance petitions) were made to be filed and decided by the NIRC.

Taking note of this change in law and also relying upon various other

provisions of the Ordinance of 2002, the Act of 2008 and the Act of 2012,

so also the law laid down by this Court in Air League's case (supra) and
State Bank of Pakistan's case (supra), while setting aside the
judgments of the Labour Court, the High Court observed that the

appellants may file the grievance petitions before the NIRC under the Act

of 2012.

5. Learned counsel for the appellants contended that on repeal

'of the Act of 2008 on 30.04.2010, the Act of 2012 was promulgated.

Section 88 of the Act of 2012 has not only saved the grievance petitions

filed by the appellants before the Labour Court but also the judgments of

the Labour Court given on the grievance petitions. Learned counsel

further contended that Clause (6) of Article 270AA of the Constitution,

 ii

W
C.As No.803-804 of 201

1973 has given continuity to the Act of 2008 and it continued to remain
in force and the Labour Court has competently, passed the judgments.

6. On the other hand, learned counsel for respondents No.1 &

S
2 (the respondents) while relying upon Air League's case (supra)

,contended that on the date when the judgments dated 24.11.2010 were
passed by the Labour Court, there was no labour laws in the field as the
Act of 2008 had repealed itself on 30.04.2010. The Act of 2012 was
promulgated on 14.03.20 12 and it specifically gave jurisdiction to the
NIRC for determination of grievance petitions. He further contended that
the Act of 2012 being a remedial and procedure legislation, it applied
retrospectively from the date the Act of 2008 was repealed.

7. In Air Leag ue's case (supra) petition under Article 184(3) of

'the Constitution was directly filed before this Court with a prayer S

follows: -
"It is, therefore, respectfully prayed that this honourable
Court may kindly be pleased to hold that IRA, 2008
stands protected up fill 30th June, 2011 by virtue of
Article 270-AA of 18th Amendment of Constitution of
Islamic Republic of Pakistan and respondents Nos.3 and
4 be directed to continue with the proceedings for
holding of secret ballot for the determination of CBA in
N
accordance with law."

8. The facts of the case were that the petitioner-Air League of

PIAC Employees was industry-wise Trade Union registered under the
Industrial Relations Laws with NIRC. It has applied to NIRC for holding
of a secret ballot for the determination of CBA. The NIRC was not
proceeding with the matter for the reason that the Act of 2008 stood
repealed. It was argued before the Court that Article 270AA of the
Constitution has protected the Act of 2008 and the NIRC was competent
to hold secret ballot for determination of CBA. The Court noted as a fact
that the Provincial Assemblies of all the four Provinces have made their
respective Industrial Relations Laws and also repealed the Act of 2008.
 cr:.:::t

1 C.As A'o.803-804 012014 -7-

The Court also noted as a fact that after 30.04.2010, the Labour Courts,
Labour Appellate Tribunals as well as NIRC stopped functioning for the
reason that there was no legislation promulgated at Federal level. In
paras 13-15 of the judgment this Court has observed as follows: -
"13. It is to be noted that initially the matters relating
to welfare of labour and Trade Unions were mentioned in
the Concurrent Legislative List at Items Nos.26 and 27,
as such the Federal Government as well as the Provincial
Governments both were competent to make legislation in
that behalf. The Federal Government promulgated the
IRO, 1969, which was repealed by the IRO, 2002 and
same was also repealed by IRA, 2008. Section 87(3) of
the IRA, 2008 provided that the said Act shall unless
repealed earlier, stands repealed on 30-4-2010, hence, it
was a temporary legislation, which was to die on 30-4-
2010 automatically if it was not extended by legislative
measure. Before the repeal of IRA, 2008, on 20-4-2010
Eighteenth Constitutional Amendment was passed,
whereby the Concurrent Legislative List was abolished
and the matters relating to labour and Trade Unions
were transferred to legislative competence of the
Provincial Governments. However, clause (6) of Article
270-AA of the Constitution provided that
notwithstanding omission of Concurrent List by the
Eighteenth Constitutional Amendment, all laws with
respect to any of the matters enumerated in the said
Lists in force, immediately before the commencement of -
the said amendment would continue to remain in force,
until altered, repealed or amended by the competent
authority. In terms of said clause the IRA, 2008
continued to be in force notwithstanding the abolition of
the Concurrent Legislative List till 30-4-2010 when in
terms of section 87(3) it stood repealed.
14. Now the question for consideration is what would
he implication of section 87(3) of the IRA, 2008,
especially after the Eighteenth Constitutional
Amendment; would it continue to be in force even after
30-4-2010 in view of clause (6) of Article 270AA. It is to
be mentioned here that the temporary law is also called
1' - rrnttrr: rcrit:
C.As No. 803-804 of 2016 -8-

"sunset law". The sunset law has been defined in

ii
"World Book Dictionary" as a law requiring a
government regulatory agency to undergo periodic
review for its continued usefulness; a law providing
that State agencies created by a Governor or a
legislature be terminated after a specified period."
In "Advanced Law Lexicon: 3rd Edition" the term sunset
law has been defined as a statute under which a
governmental agency or program automatically
terminates at the end of a fixed period unless it is
formally reviewed". The High Court of Sindh, in
Industrial Relations Advisors' Association's case has
thoroughly dealt with the implication of sunset law and
the repeal of a temporary legislation. Relevant paras from
the said judgment are reproduced hereinbelow:-
1179 The first question is whether the Act of 2008 is
a temporary law or whether it is a permanent law.
Mr. Khrzlid Anwar called it a "sunset" legislation. We
have already quoted above section 87t3) of the Act
of 2008. In Black's Law Dictionary "Sunset law" is
defined in the following words:—
"Sunset law.—A statute or provision in a law that
requires periodic review of the rationale for the
continued existence of the particular law or the
specific administrative agency or other
governmental function. The le gislature must take
positive steps to allow the law, agency, or functions
to continue in existence bu a certain date or such
will cease to exist." (Underlining added)
20. Craies on Statute Law 7th Edition, on the
subject of temporary and perpetual statutes, says
M
as under. -
"Acts are also classified, by reference to their
duration, as temporary or perpetual.
(a) Temporarq.---Temporary statutes are those on
the duration of which some limit is put by
Parliament. The Standing Orders of the House of
Commons require a time clause to be inserted in
such Acts. The Expiring Laws Continuance Acts
always contain a specific date for the expiry of the
continued Acts.
 ...A_.. •j....
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CAN No.803-804 of 201 MR

(b) Perpetual. --Perpetual Acts are those upon whose

continuance no limitation of time is expressly named
or necessarily to be understood.
They are not perpetual in the sense of being
irrevocable."
21. Crawford's Interpretation of Laws at page 103
states as under--
"71. Permanent, or Perpetual, and Temp oraru Acts.--
A permanent, or perpetual Act, is one whose
operation is not limited to a particular term of time
but which continues in force until it is duly altered
or repealed. A temporary Act, on the other hand, is
one whose life or duration is fixed for a specified
period of time at the moment of its enactment and
continues in force, unless sooner repealed, until the
expiration of the time fixed for its duration.
22. Mr. S Zafar, in his Book Understanding
Statutes primarily quoted from Crawford in respect
of temporary Acts. A law may be temporary because
I of nature of Legislative power. For example power to
legislate through Ordinances is quasi legislative
powers: power is legislative but exercise is
executive. The Constitution itself fixes life of such
F'
enactment. Then there may be Acts of Parliament
I which may also be temporary because either the Act
I itself or any other law provides for a terminal
moment for the enactment. Since section 87(3)
clearly stipulated a death knell moment for the Act
of 2008, notwithstanding it having been enacted as
an Act of Parliament it has to be treated as a
temporary law and has to be given effect
accordingly."
15. We are in full agreement with the conclusion
F'
given by the learned High Court on the question
of repeal of IRA, 2008 w.e.f. 30-4-2010. It is pertinent
to mention here that clause (6) of Article 270-AA
provides that notwithstanding the omission of
Concurrent Legislative Lists all laws with respect to any
I of the matters enumerated in the said lists shall continue
to remain in force until altered, repealed or amended by
the competent authority. It is clear from the language
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C.As No.803-804 of20J -to-

that as the Concurrent Legislative List was abolished,

therefore, protection was provided to all the permanent
laws enacted by the Parliament on the subjects
mentioned in the said list. Although the protection was
provided to IRA, 2008 by the said clause but it did not
have any effect on section 87(3), which remained
operative in its full force. Therefore, it killed the said Act
on 30-4-2010."

On the question as to what is the effect of repeal of the Act of

2008, the Court in paras 17 and 18 observed as follows:-

"17. Next question, which has cropped up is that what

would be effect of repeal of IRA, 2008. Learned counsel
for the petitioner has vehemently argued that in terms of
section 6 of General Clauses Act and Article 264 of the
'1
Constitution, the IRO, 1969, which was permanent
legislation, would be revived. It is to be noted that section
6 of the General Clauses Act applies to the cases where
any enactment is repealed by the General Clauses Act or
any other Central Act, therefore, the same is not
applicable in the instant case because of reason that IRA;
2008 was not repealed by any other legislation rather it
stood repealed on the expiry of period mentioned in
section 87(3) of the Act. Similarly, Article 264 of the
Constitution provided that where a law is repealed or is
deemed to have been repealed, by, under, or by virtue of
Constitution, the repeal shall not affect the previous
operation of law or anything duly done or suffered under
the law; affect any right, privilege, obligation or liability
acquired, accrued or incurred under the law; affect any
penalty forfeiture of punishment incurred in respect of
any offence committed against the law; or affect any
investigation legal proceeding or remedy in respect of any
such right, privilege, obligation, liability, penalty
forfeiture or punishment. However, it shall not revive
I
anything not in force or existing at the time at which the
repeal takes effect. Article 264 of the Constitution shall
not be applicable in the instant case firstly; for the
reason that the IRA, 2008 was not repealed by, under, or
by virtue of the Constitution, rather it died on expiry of
 ----- -----

C.As No.803-804 of 204 -11-

the statutory period. Secondly; the purpose of Article 264

of the Constitution is to provide protection to the
operation of law, rights, liabilities accrued, and penalties
incurred in respect of any repealed law and does not
state that it would provide protection to the laws
previously in force. Article 264 of the Constitution is in a
language that deals with the effect of repeal of laws and,
unless the Constitution provides otherwise, nothing will
Ii
be revived which was not in force or existing at the time
when the repeal takes effect. The IRA, 2008, was
repealed by its own force in terms of section 87(3). Had it
been an Ordinance issued under Article 89 of the
Constitution, on the expiry of its statutory period the
repealed law would have been revived but the provisions
of this Article would not be applicable here because IRA,
2008 is not an Ordinance and has been enacted by the
Act of Parliament, therefore, no sooner did it lapse on 30-
4-2010, no other law earlier repealed including IRO,
11
1969 could occupy the field. In addition to it, the
mandate of section 6 of General Clauses Act and Article
264 of the Constitution had not provided that on account
of repeal, the law previously in field would stand revived
as these provisions in broader sense had attached
finality to the actions which were already done. The
finding given by the High Court of Sindh that after the
repeal of IRA, 2008, the IRO, 1969 came back in
operation, is not tenable. Thus it is held that the IRO,
1969 would not be revived after the repeal of IRA, 2008.
18. As already stated above, the IRO, 1969 was
repealed by the IRO, 2002, which then was repealed by
IRA, 2008. However, the IRA, 2008 stood repealed after
the completion of its statutory period provided in section
87(3) and not by any other legislation, federal or
provincial, therefore, neither the IRO, 2002 nor the IRO,
1969 could revive on the strength of section 6 of the
General Clauses Act or Article 264 of the Constitution.
Furthermore by means of Eighteenth Constitutional
Amendment the Concurrent Legislative List was
abolished and the Federal Government had lost the
power to legislate regarding Labour Welfare and Trade
 GAs No.803404 of 2016 - 12-

Unions, which subject devolved upon the provinces. It is

to be noted that presently, no Federal Legislation can be
made on the Labour matters except recourse to the
provisions of Article 144(1) of the Constitution, which
provide that if one or more Provincial Assemblies pass
resolutions to the effect that Majlis-e-Shoora (Parliament)
may by law regulate any matter not enumerated in the
Federal Legislative List in the Fourth Schedule, it shall
be lawful for Majlis-e-Shoora (Parliament) to pass an Act
for regulating that matter accordingly, but any Act so
passed may, in respect to the Province to which it
applies, be amended or repealed by Act of the Assembly
of that Province. The Trade Unions, which are operating
within one province, can be dealt with under the Labour
Laws enacted in that province and the workman can also
avail the appropriate remedy provided under the said
legislation."

In paras 19-22 of the judgment, this Court dealt with the question

t as to which provision of law will take effect after the expiry of the Act of
2008 on 30.04.20 10 and observed as follows: -

"i g In view of the declaration so made hereinabove, the

next question arises that after expiry of IRA, 2008 on 30-
4-2010, which provision of law would take effect for the
interregnum period? It is to be noted that as stated
earlier after the Eighteenth Constitutional Amendment,
the Provincial Assemblies enacted the respective laws on
the subject of labour and Trade Unions after about two
months of expiry of IRA, 2008 and there is a vacuum for
the said period. This Court had dealt with the issue of
applicability of laws during the interregnum period when
any law was repealed or declared ultra vires. In the case
of Government of N,-WF.P. v. Said Kamal Shah (PLD 1986
SC 360) certain provisions of the N.-W.F.P., Pre-emption
Act, 1950, along with some other laws were declared
repugnant to Injunction of Islam and recommendations
were made to bring the said laws in conformity with the
Injunction of Islam, till 31st July, 1986. In pursuance of
the decision of the Court, the N.-W.F.P. Pre-emption Act,

I
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C.As No.803-804 of2OJ -13-

1987 was promulgated on 28th April, 1987. In terms of

its section 35 the N.-W.FY. Pre-emption Act, 1950 was
repealed however, the judgments and decrees passed by
the Court under the Repealed Act of 1950 were saved.
When the legality of a decree passed by the Civil Judge
on 15th April, 1987 was questioned on the ground that
the same was passed after the cut off date i.e. 31st July,
1986 and before the promulgation of N.-W.F.P. Pre-
emption Act, 1987 this Court in the case of Sarfraz V.
Muhammad Aslam Khan (2001 SCMR 1062) held that on
28th April, 1987 in pursuance of the directions of this
Court the Act was promulgated and till then the N.-
W.F.P. Pre-emption Act, 1950 was holding the field as it
was repealed from the commencement of the Act,
therefore, any proceedings conducted and decree passed
during this period would not be rendered without
jurisdiction and void; Article 203-1)(3)(b) of the
Constitution of Islamic Republic of Pakistan did not
provide that if any law had been declared against the
Injunctions of Islam the proceedings instituted under the
said law would also come to an end on the date fixed by
the Court for making such law in consonance with the
Injunctions of Islam; at the best its effect would be that
the fresh suits of pre-emption after the stipulated date
/ would not be instituted under the law which has been
found contrary to the Injunctions of Islam but the
claimants would be entitled for the enforcement of their
rights under the Muhammadan Law, like the Provinces of
Sindh and Balochistan where no statutory laws
governing pre-emption suits were applicable. It was
further observed that undoubtedly a right of pre-emption
is a substantial right of an individual and it could not be
taken away merely due to repeal of law under which suit
for its enforcement was filed; at the best such newly
enacted law would be deemed to have retrospective effect
by necessary implication because such change would
only be deemed to be procedural.

20. Next question is as to whether the Industrial

Relations Laws made by the provinces would have
retrospective effect or not? At this stage it would be
___
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C.As No.803-804 of201 -14-

appropriate to have a glance on the definition of

"workman" as provided in various Labour Laws. As per
the Industrial Disputes Act, 1947, the 'workman" means
any person employed (including an apprentice) in any
industry to do any skilled or unskilled manual or clerical
work for hire or reward and includes, for the purpose of
any proceedings under this Act in relation to an
industrial dispute, a workman discharged during that
dispute but does not include any person employed in the
naval, military or air service of the Crown. The definition
of 'workman remained almost the same in the
subsequent Ordinances/Acts with a little addition or
alteration. The same definition of 'worker' and
"workman" have been provided in the Provincial
Legislation made on the subject, which is holding the
field. Interestingly, almost the same definition of
"workman" has been provided in the West Pakistan
Industrial and Commercial Employment (Standing
Orders) Ordinance, 1968, namely, "workman" means any
person employed in any industrial or commercial
establishment to do any skilled or unskilled, manual or
clerical work for hire or reward. As the same definition of
workman has been provided in the Industrial Relations
Laws as well as Standing Orders, therefore, both the laws
are applicable to the persons failing within the definition
of "workman". Order 12(3) of the said Orders provides
that in case a workman is aggrieved by the termination
of a service or removal, retrenchment, discharge or
dismissal, he may take action in accordance with the
provisions of section 25-A of the IRO, 1969. It is clear
that the West Pakistan (Standing Order) Ordinance, 1968
provides rights to the workmen/ labourers whereas the
Provincial Industrial Relations . Laws provide mechanism
for the enforcement of the said rights and unless
otherwise provided or intended, the Industrial Relations
Laws are procedural in nature.

/ 21. The question of applicability of any law with

retrospective effect has been dealt with by this Court in
the case of Gui Hassan and Co. v. Allied Bank of Pakistan
(1996 SCMR 237) wherein after examining plethora of
CAs No.803-804 of 2016 -15-

case law, Mr. Justice Saleem Akhtar, as he then was,

observed that Statute providing change of forum,
pecuniary or otherwise, is procedural in nature and has
retrospective effect unless contrary is provided expressly
or impliedly or it effects the existing rights or causes
injustice or prejudice. The relevant para from the said
judgment is reproduced hereinbelow:--
"7. It is well-settled principle of interpretation of
statute that where a statute affects a substantive
right, it operates prospectively unless "by express
enactment or necessary indictment" retrospective
operation has been given. (Muhammad Ishaq v.
State PLD 1956 SC (Pak.) 256 and State v.
Muhammad Jamil, PLD 1965 SC 681). This principle
was affirmed in Abdul Rehman v. Settlement
Commissioner (PLD 1966 SC 362). However statute,
which is procedural in nature, operates
retrospectively unless it affects an existing right on
the date of promulgation or causes injustice or
prejudice the substantive right. In Adnan Afzal U.
Capt. Sher Afzal (PL.D 1969 SC 187). same principle
was re-affirmed and it was observed:-
"The next question, therefore, that arises for
consideration is as to what are matters of
procedure. It is obvious that matters relating to the
remedy, the mode of trial, the manner of taking
evidence and forms of action are all matters relating
to procedure. Crawford too takes the view that
questions relating to jurisdiction over a cause of
action, venue, parties pleadings and rules of
evidence also pertain to procedure, provided the
burden of proof is not shifted. Thus; a statute
purporting to transfer jurisdiction over certain
causes of action may operate retrospectively. This is
what is meant by saying that a change of forum by
a law is retrospective being a matter of procedure
only. Nevertheless, it must be pointed out that if in
this case process any existing rights are affected or
the giving of retroactive operation cause
inconvenience or injustice, then the Courts will not
r -

- C.As No.803-804 of 2016 -16 -

even in the case of a procedural statute, favour an

interpretation giving retrospective effect to the
statute. On the other hand, if the new procedural
* statute is of such a character that its retroactive
application will tend to promote justice without any
consequential embarrassment or detriment to any of
the parties concerned, the Courts would favourably
incline towards giving effect to such procedural
statutes retroactively."
The same view was expressed in Ch. Safdar Ali v.
/ Malik 1/cram Elahi and another (1969 SCMR 166)
and Muhammad Abdullah v. Imdad Au (1972 SCIWR
173), which was followed in Bashir v. Wazir All
(1987 SCMR 978), Mst Nighat Yasmin v. N.B. of
Pak. (PLD 1988 SC 391) and Yusuf All Khan v.
Hongkong and Shanghai Banking Corporation,
Karachi (1994 SCAR 1007).
From the principle enunciated in these judgments it
emerges that statute providing change of forum
pecuniary or otherwise is procedural in nature and
Fl
has retrospective effect unless contrary is provided
expressly or impliedly or it affects the existing right
or causes injustice or prejudice."
22. At the cost of repetition, it is to be noted that the
IRA, 2008 stood repealed on 30-4-2010 by virtue of its
section 87(3), whereas, the provincial legislation was
made on 13th June, 2010; 5th July, 2010; 14th July,
2010; and 22nd July, 2010 for the provinces of Punjab,
Sindh, Khyber Pakhtunkhwa and Balochistan,
Fl

respectively. Therefore, there was a period of about two

months for which there was no legislation, Federal or
Provincial, in force. The Labour Laws provide the
procedure and mechanism for the resolution of disputes,
registration of Trade Unions and establishment of Forum

I for the redressal of grievance of the labourers as well as

I employers, therefore, it is mainly a procedural law and in

C.As No.803-804 of 2016 -17-

the light of the well-settled principles of interpretation of

Statutes as mentioned above, the procedural law has
retrospective effect unless contrary is provided expressly
or impliedly, the same would thus be applicable
retrospectively w.e.f. 1-5-2010. Further, in the Province
of Sindh, the Industrial Relations (Revival and
Amendment) Act, 2010, the IRA, 2008 has been revived
w.e.f. 1st May, 2010, therefore, the interregnum period
has already been catered for."
With regard to the question of remedy to the workers, workmen or
,Trade Union after repeal of the Act of 2008 on 30.04.2010, the Court
observed as follows:-
"23. On the question of remedy before the NIRC, which
was provided in terms of section 25 of the IRA, 2008 it is
to be noted that the provision of NIRC was added for the
first time in 1972 by making amendment in the IRO,
1969 by means of Ordinance IX of 1972 whereby section
22A was inserted. The same was provided in IRO, 2002
and IRA, 2008. Now, in the Province of Punjab, by means
of section 47 of the PIRA, 2010 remedy has been
provided before the Labour Appellate Tribunal. Similarly,
in the Province of Balochistan, under section 25 of the
BIRA, 2010 remedy before the Industrial Relations
Commission and in the Province of Khyber
Pakhtunkhwa, in terms of sections 48 and 51 of KIRO,
2010 the remedy of appeal has been provided before the
Labour Court and Labour Appellate Tribunal. In the
Province of Sindh, as the IRA, 2008 has been revived,
therefore, in terms section 25 of the same, the provision
of NIRC has been continued. In the present
circumstances, after the promulgation of provincial laws
dealing with the Industrial disputes, the persons having
any grievance can approach the appropriate forum
provided under the respective provincial laws.

24. In the Indian jurisdiction, Trade Unions and

Industrial Labour Disputes are mentioned at Sr. No.22 of
 ,

-- i-•: 1L:

C.As No.803-804 o(20J -18-

p
I
k the List-Ill of the Seventh Schedule of the Constitution of
India, which form the joint domain of both the State
Governments and Union Territory of India as well as the
Central Government of India under those - subject,
therefore, the Trade Unions Act, 1926 has been
promulgated by the Parliament to deal with the matters
relating to registration of trade unions and trade
disputes etc., whereas, in view of the Eighteenth
Constitutional Amendment, Federal Legislation is not
empowered to legislate for the nationwide trade unions,
except for if need be, recourse to procedure laid down in
Article 144(1) of the Constitution, which provides that
one or more Provincial Assemblies may by resolutions
I empower the Majlis-e-Shoora (Parliament) to regulate any
matter not enumerated in the Federal Legislative List in
the Fourth Schedule, through an Act, which may be
amended by the Assembly of that Province.

25. In the Industrial Relations Laws initially the

provision of NIRC was not provided till 1972 when the
same was introduced by insertion of section 22A in the
IRO, 1969. However, the same was provided in the
subsequent legislations till IRA, 2008. Now after the
promulgation of Provincial legislations in terms of
Eighteenth Constitutional Amendment, the forum of
Industrial Labour Commission/ Labour Appellate
Tribunal/Labour Court has been provided for. Even
otherwise, persons falling within the definition of
"workman" have been provided remedy in terms of West
Pakistan (Standing Orders) Ordinance, 1968. Order 12(3)
of the said Orders provides that in case a workman is
aggrieved by the termination of a service or removal,
retrenchment, discharge or dismissal, he may take action
in accordance with the provisions of section 25-A of the
IRO, 1969. However, section 80 of the PIRA, 2010 as well
as the section 82 of the KIRO, 2010 provide that all cases
pending before the NIRC constituted under the repealed
IRA, 2008 shall stand transferred to Tribunal/Labour
Court and Registrar having jurisdiction in the matter; the
NIRC shall transfer the record of all the cases and trade
Unions to the Tribunal/Labour Court or Registrar; the
I
I CAs No.803-804 of 2014

Tribunal, Labour Court or Registrar may continue the

-19-

proceedings in a case transferred under this section from

the stage at which it was pending before the NIRC.
I Similarly, section 86 of the BIRO, 2010 provides that all
appeals and applications of any kind pending in any
High Court immediately before the commencement of
this Ordinance shall stand transferred to the Labour
Appellate Tribunals from the date of the commencement
of this Ordinance and it shall not be necessary for the
I
Labour Appellate Tribunals to recall any witness or
record any evidence that may have been recorded. As the
NIRC has been abolished, therefore, new fora have been
provided to the workers/workmen/labourers under the
newly enacted Provincial Labour Laws. It is pertinent to
mention here that the effect of change of forum has been
discussed in the case of Adrian Afzal v. Sher Afzal (PLD
1969 SC 187), wherein claim for maintenance was made
under section 488 of the Code of Criminal Procedure
before the City Magistrate which was ultimately
transferred to the Court of the District Magistrate, where
the respondent moved an application that in view of the
provisions of the West Pakistan Family Courts Act, 1964,
published in the Gazette on the 18th of July 1964, the
proceedings should be filed, as the Family Court was
vested with exclusive jurisdiction under section 5
thereof. The District Magistrate on the 9th of December,
1967, accepted the plea and directed the appellant to
seek his remedy before the Family Court. The matter
came up before this court and this court observed that
Ii the comparison of the concerned provisions indicates
that the provisions of the West Pakistan Family Courts
Act are of a more beneficial nature which enlarge not
only the scope of the enquiry but also vest the Court with
powers of giving greater relief with a right of appeal either
to the District Court or to the High Court; Furthermore,
the combined effect of sections 5 and 20 of the Act is
clearly to give exclusive jurisdiction to the Family Courts
without, diminishing or curtailing the rights already
possessed by a litigant with regard to the scheduled
matters. Ultimately the Court held that the Family
Courts Act had changed the forum, altered the method of
C.As N0.803-804 of 20I -20-

the trial and empowered the Court to grant better

remedies; it has, thus, in every sense of the term,
brought about only procedural changes and not affected
any substantive right; according to the general rule of
interpretation, therefore, a procedural statute is to be
given retroactive effect unless the law contains a contrary
indication; There is no such contrary indication in the
West Pakistan Family Courts Act; therefore, the Act also
affected the pending proceedings and the District
Magistrate was right in holding that the Courts of
Magistrates no longer had the jurisdiction either to
entertain, hear or adjudicate Upon a matter relating to
maintenance; he was, however, wrong in dismissing the
application, for, if he had no jurisdiction to adjudicate,
the only order he could have passed on the application
was to direct that the papers be returned to the applicant
for presentation in the proper Court. In view of the law
laid down in the said case, it is clear that mere change of
forum does not affect the rights of a person.

26. Under the Frontier Crimes Regulation, 1901

Council of Elders was provided for settling the disputes
of civil nature between the individuals. Revision against
the order of Council of Elders was maintainable before
the Commissioner. However, . by means of the
Balochistan Civil Disputes (Shariat Application)
Regulation, 1976 the Commissioner lacked jurisdiction
to hear the revision and in terms of paragraph-7 of the
Regulation, the matters pending before the District Court
or a Civil Court, subordinate thereto or in any Tribunal
stood transferred to the Court of Qazi and Majlis-e-,
Shoora having jurisdiction in the matter, upon such
transfer would be deemed to have been instituted therein
and would be heard and determined accordingly. In the
case of Mastak v. Lal (PLD 1991 SC 344), the validity of
the order of the Commissioner passed in revision petition
after the 18th February, 1977 when the Balochistan Civil
Disputes (Shariat Application) Regulation, 1976 was
extended to the area in dispute, was questioned. The
Court after considering the matter in detail held as
under:
 t -. LLLZLTT

C.As No.803-804 of 2014 -21-

11. Paragraph 7 of the Regulation definitely gives

f the impression that the Regulation was to have
effect on the pending suits and appeals and to that
extent it was retroactive. The only test laid down for
Ii transfer was as to whether the dispute is tribal
under the Regulation and if it was then it had to go
to the Court competent to try it irrespective of the
fact in which Court it was pending. Therefore, even
appeals have to go back to the Court of Qazi for trial
in accordance with Shariah and not to be
transferred in the appellate jurisdiction of Majalis-e-
Shura for disposal according to the law in force at
the time the proceedings were instituted. To that
extent, the express language of paragraph 7 of the
Regulation makes the provisions of the Regulation
applicable in the areas to which and when if is
extended retroactive over all proceedings pending
before any Tribunal, Court or District Court.
12. In view of the reasons given for holding that
appeal for the purposes of paragraph 7 includes the
Revision preferred by a party invoking the power of
the Commissioner under paragraph 48 of the F.C.R.
and pending suits and appeals before any District
Court or a Civil Court subordinate thereto, or any
tribunal, in the nature of an appeal, would be liable
to be transferred to the Court of Qazi for trial in
accordance with the injunctions of Shariat. The fact
that the appellant had instituted the Revision in the
Court of Commissioner cannot stand in the way of -
such a transfer because at the time when he
instituted the proceedings, that was the only
remedy which could possibly be invoked by him.
In the light of above case-law, it is clear that
during the interregnum period w.e.f. 30-4-2010, when no
Industrial Relations Law was holding the field, the
workers had remedy under the ordinary laws prevailing
at that time, because in absence of a special law, the
ordinary/ general laws come forward to fill in the
vacuum."
 J

-_ -

C.As No.803-804 of 2010 -22-

9. In State Bank of Pakistan's case (supra) the matter in

issue was that the respondents therein filed grievance petitions before
the Labour Court, Islamabad. The Labour Court in the respective
grievance petitions passed its judgments dated 11.01.2011, 26.06.2010
and 24.03.2011. The matter came up before this Court and it was argued
/that on very repeal of the Act of 2008 on 30.04.20 10, the Labour Courts,
which were constituted under the Act of 2008, have ceased to exist, in
that, no law for adjudication of individual grievances of workers was in
existence after 30.04.2010 and the Ordinance of 2011 having been
promulgated by which the Federal Government was given power to
constitute NIRC and by Section 33 of the Act of 2012 has given power to
NIRC to determine individual grievances of workers, the Court held that
the judgments of the Labour Court were coram non judice and set aside
the same and remanded the grievance petitions to the NIRC for deciding
them in accordance with law. The Court in this judgment relied upon 4fr
League's case (supra).

10. In Sui Southern Gas Company's case (supra), the question

before this Court was whether the very Act of 2012 was ultra vires the
Constitution on account of omission from the Constitution, the
Concurrent Legislative List by the Eighteenth Constitutional
, Amendment, on the ground that the Parliament was not competent to
legislate in the matters relating to Industrial Relations as the subject of
Industrial Relations has devolved upon the Provincial Legislature. The
Court after elaborate consideration came to the conclusion that the Act
of 2012 was intra vires the Constitution and the Parliament was
competent to promulgate the Act of 2012. The Court has dealt with the
question about the fact of repeal of the Act of 2008 and promulgation of
the Act of 2012 and with regard to the interregnum period has observed
( as follows: -
21. With regard to the question about the jurisdiction
of the NIRC formed under Section 25 of the Industrial
. ..aJ" W4 _;' 1 Y ::.uiLM'flLf::WSmr*i*ritf ti*itI

C.As N0.803-804 of 2016 -23-

Relations Act 2008 (which stood repealed w.e.f.

01.05.2010) in the interregnum till the promulgation of
IRA 2012, suffice it to say that as held by this Court in
Air League of PIAC Employees' case (supra) during the
interregnum period w.e.f. 01.05.2010, when no
Industrial Relations Law was holding the field, the
workers had remedy under the ordinary laws prevailing
at that time, because in absence of a special law, the
ordinary/ general laws come forward to fill in the
vacuum. Further, the IRO 2012 does not destroy any
existing right, rather by means of Section 33 thereof, all
the existing rights stood preserved and protected, as
such, it cannot be said that it affects any right or
obligation created by other laws, including any provincial
law. This Court has dealt with the issue of applicability
of laws during the interregnum period when any law was
repealed or declared ultra vires, and it has been
repeatedly held that at the best the newly enacted law
would be deemed to have retrospective effect by
necessary implication because such change would only
be deemed to be procedural [see: Government of N.W.F.P.
v. Said Kamal Shah (PLD 1986 SC 360) and Sarfraz v.
Muhammad Aslam Khan (2001 SCMR 1062)1. The
Labour Laws provide the procedure and mechanism for
the resolution of disputes, registration of Trade Unions'
and establishment of Forum for the redressal of
F grievance of the labourers as well as employers,.
therefore, it is mainly a procedural law and in the light of
the well settled principles of interpretation of Statutes,
the procedural law has retrospective effect unless
contrary is provided expressly or impliedly see: Air
League of Piac Employees's case (supra)]. Thus, it is held
that the IRA 2012 would be applicable retrospectively
w.e.f. 01.05.2010, when the IRO 2008 ceased to exist.

In para-23, the Court ultimately held as follows: -

23. For the foregoing reasons, the appeals as also the
petition are dismissed and it is held as under: -
(1) the Federal Legislature has extra-territorial
authority but no such extra-territorial authority has been
 - -.

C.As A'o. 803-804 of 20I -24-

conferred to the Provincial Legislature by the

Constitution;.
(2) the Federal legislature does, but the Provincial
Legislature does not, have legislative competence to
legislate to regulate the trade unions functioning at
trans-provincial level;
(3) the matters relating to trade unions and labour
disputes, etc., having been dealt with and protected
under the International Conventions, are covered under
Entries Nos.3 and 32 of Part-i of the FLL. Thus, the
Federal Legislature has legislative competence to legislate
in this regard;
(4) under the command of Entry No. 13 in Part-11 of the
FLL, the Federation has competence to enact laws
relating to the inter-provincial matters, Entry No.18
thereof further enlarges the scope of the said Entry;
therefore, the Federal Legislature has legislative
competence to legislate in this regard too;
(5) the IRA 2012 neither defeats the object of the
Eighteenth Amendment to the Constitution nor does it
destroy or usurp the provincial autonomy;
(6) the IRA 2012 has been validly enacted by the
Parliament and is intra vires the Constitution;
(7) the workers of the establishments/ industries
functioning in the Islamabad Capital Territory or
carrying on business in more than one provinces shall be
governed by the Federal legislation i.e. IRO 2012;
whereas, the workers of establishments/ industries
functioning or carrying on business only within the
territorial limits of a province shall be governed by the
concerned provincial legislations;
(8) as we have held that the IRA 2012 is valid piece of
legislation, it is held that the National Industrial
Relations Commission (NIRC) formed under Section 35 of
the IRA 2012 has jurisdiction to decide the labour
disputes, etc., relating to the employees/ workers of
companies/ corporations/ institutions/ establishments
functioning in more than one Province;
(9) the IRA 2012, being a procedural law, would be
P applicable retrospectively w.e.f. 01.05.2010, when the
IRO 2008 ceased to exist; and
 '-r

F
C.As No. 803-804 of 2014 -25-

(10) M/s Shaheen Airport Services is not a charitable

organization and IRA 2012 is applicable to it as it is
operating in more than one Province."

11. It will be observed from the above three judgments of this

Court that there is consensus of opinion that the Act of 2008 stood
repealed on 30.04.2010 and from 01.05.2010 there was no law in the
field of Industrial Relations either at the level of the Federation or in any
of the Provinces. The Court in Air League's case (supra) as well as in
SW Southern Gas Company's case (supra) has opined that in the
absence of law of Industrial Relations, which being a special law, the
workers' remedy would lie under the ordinary laws prevailing at that
time, which will come in and fill up the vacuum. Thus, from this opinion
it is clear that the Court has specifically meant that on 30.04.2010, the
Act of 2008 stood repealed, it being the special law operating in the field
of Industrial Relations having ceased to exist, the remedy which the
workers/Trade Unions would have immediately after repeal of the Act of
2008 before the forum provided under the ordinary civil laws, which
means Civil Courts and such forum was provided for the interregnum
period of two months i.e. uptill the promulgation by all the four
provincial legislatures their respective law of Industrial Relations.

12. In Air League's case (supra), this Court has also dealt with
the question of abolition of forum provided in the Act of 2008 in matters
relating to raising of grievance by workers and their Trade Unions and it
was observed that NIRC, which existed under the Act of 2008 stood
abolished on repeal of the Act of 2008 and new forum, which have been
provided under the newly enacted provincial labour laws, will have
jurisdiction to hear and decide the matters relating to the workers and
their Trade Unions. In Air League's case (supra), this Court has
,specifically held that law of Industrial Relations, which specifically
provides for procedure and mechanism for the resolution of disputes of
registration of Trade Unions and establishment of forum for redressal of
 :

C.A,c No.803-304 of 2014 - 26

grievances of workers and employers, is merely a procedural law, and in

the light of well settled principle of interpretation of statutes, the

'procedural law has retrospective effect until contrary is provided

expressly or impliedly. It was also held that when the Act of 2008 stood

repealed on 30.04.2010, the Industrial Relations laws made by the

respective provincial governments will become applicable from

01.05.2010. The Act of 2012 was not promulgated when the judgments

in Air League's case (supra) was announced. However, when the

judgment in State Bank of Pakistan's case (supra), was given, the

Federal Government had promulgated the Industrial Relations

Ordinance, 2011, which was holding the field and by Section 33 of the

said Ordinance, NIRC was constituted and was given jurisdiction to

determine individual grievances of workers. The Court held that

judgments given by the Labour Court, after repeal of the Act of 2008,

were coram non judice and the grievance petitions were remanded to

NIRC for deciding them in accordance with law. When SW Southern

Gas Company's case (supra) was decided by this Court, the Act of 2012

'was in the field and in fact its very vires was under challenged before the

Court. While holding the Act of 2012 to be intra vires, the Court further

proceeded to deal with the Act of 2012 and found it to be procedural law

and in the light of well settled principle of interpretation of statutes that

the procedural law has retrospective effect unless contrary is provided

expressly or impliedly, held that the Act of 2012 has retrospective

application with effect from 01.05.2010. It was also observed by the

Court that the Act of 2012 does not destroy any existing right, rather by

means of Section 33 thereof, all existing rights stood preserved and

protected and as such, it cannot be said that it affects any right or

obligation created by other laws, including any provincial law. The Act of

2012 was specifically made applicable from 01.05.2010 and the rights,

which the workers or Trade Unions had, were also found to be saved.
 C.As No.803-804 of 2014 -27-

13. We note that law of Industrial Relations, which has been

made from time to time, deals with the matters relating to adjudication of
disputes of workers and employers and also provides for procedure of
registration of Trade Unions and their Federations and also provides for
forums for determination of their disputes. The laws of Industrial
Relations promulgated by the Provincial Legislatures on repeal of the Act
of 2008, were rightly held to be procedural laws in Air League's case

(supra) and were rightly found to have retrospective application from

01.05.2010 and also in Sui Southern Gas Company's case (supra), this

Court has rightly held the Act of 2012 to be applicable from 01.05.2010.
However, as noted in Air League's case (supra) that the forum provided
under the Act of 2008, i.e., the NIRC having been abolished with the
repeal of the Act of 2008 and new fora have been created under the
Provincial Industrial Relations laws, such new fora shall have
jurisdiction to decide disputes between the workers and employers and
tmatters relating to their Trade Unions. The Labour Courts, constituted
under the Act of 2008, on the same analogy, also stood abolished on the
repeal of the Act of 2008 and the Act of 2012 having created new forum
of NIRC for dealing with the grievances, disputes of workers and
employers and matters relating to the Trade Unions and their
Federations in the Islamabad Capital Territory and in trans-provincial
establishments and Industry from 01.05.2010, could only exercise power
and jurisdiction for determination of grievances of workers and not the
Labour Courts, which ceased to exist on 30.04.20 10. Thus, Air League's
case (supra) so also State Bank of Pakistan's case (supra) and the
Sui Southern Gas Company's case (supra) are in harmony, in so far as

they propound the law about the application of the law of Industrial
Relations with retrospectivity and also can co-exist, for that, in all the
three cases, it was found that the forum provided under the Act of 2008
for adjudication of individual grievances of the workers ceased to exist on
,the
repeal of the Act of 2008 and the respective forums provided under
 - - -- -r7 . rrrrC- rr'ff------
F
CAs No.803-804 012014 -28-

the new Industrial Relations laws made by the Provincial Governments

shall have the jurisdiction to determine the individual grievances of the
'workers while by the Act of 2012, specific forum of NIRC was created for
determination of the individual grievances of the workers in Islamabad
Capital Territory and for trans-provincial establishments and Industry
and it would alone have jurisdiction to deal with the cases of individual
-:7
grievances of workers. Another ground that supports the above
conclusion is that the parties to the proceedings under the repealed Act
of 2008, have no vested right to have their cases heard and decided by
the forum created under the Act of 2008 i.e., the Labour Court rather on
promulgation of the Act of 2012, where the forum of NIRC has been
created and such having been given retrospective effect from 01.05.201d,
the forum of NIRC can only hear and decide the grievance petitions.
--------
14. Dealing with question No.11, about saving the judgments of
the Labour Courts on application of tie facto doctrine, we may note that
'.18

the Labour Courts were created as a forum for inter alia redressal of
individual grievances of the workers by the Act of 2008 and until the Mt
of 2008 remained in the field the Labour Courts were perfectly justified
in hearing and deciding the grievance petitions filed by the workers. The
Act of 2008 was repealed on 30.04.2010 and with it the forum of the
Labour Court, provided under the said Act, also ceased to exist. As from
01.05.2010, the Industrial Relations laws made by the Provincial
Governments came into application, while in matters of Industrial
Relations relating to the Islamabad Capital Territory and trans-provincial
,Establishments and Industry, the Act of 2012 became applicable. The
inten-egnum period has already been dealt with in Air Lea gue's case

(supra) so also in Si-ti Southern Gas Company's case (supra), that when
the law of Industrial Relations was not operating in the field, the workers'
remedy was found to be available under the ordinary laws, i.e., Civil
Courts, on the principle that special law of Industrial Relations not being
I
 • •.:. •-. - -

- -..
-

C.As No.803-804 of 201$ -29-

in existence after 30.04.2010, the ordinary laws will occupy the field and
fill up the vacuum. Thus, in both the cases, it was held that the Civil
Courts will be the appropriate forum in case of workers' grievance. On
the same principle, it can fairly be stated that from 30.04.2010 until the
'promulgation of the Act of 2012, which was published in the Gazette of
Pakistan on 14.03.2012, there was a vacuum in the field of Industrial
Relations in the Islamabad Capital Territory and in matters relating to
trans-provincial establishments and Industry and the special law relating
to Industrial Relations being not in the field, the ordinary civil laws will
come into operation and fill in the vacuum providing for remedies to
workers, employers and in matters relating to registration of Trade
Unions and Federation of Trade Unions.

15. Section 88 of the Act of 2012 contained repeal and saving

clause and while noting that the Act of 2008 has repealed itself it
provided that without prejudice to the provision of Sections 6 and 24 of
the General Clauses Act, 1897 every Trade Union of an establishment or
Industry located in the Islamabad Capital Territory or in more than one
province and existing immediately before the commencement of the Act
of 2012, which was registered under the repealed Act, shall be deemed to
be registered under the Act of 2012 and its constitution shall continue in
force until altered or rescinded. Further anyth ing done, rules made,
Inotification or order issued, officer appointed, Court constituted, notice
given, proceedings commenced or other action taken under the repealed
Act shall be deemed to have been done, made, issued, appointed,
constituted, given, commenced or taken as the case may be under the
corresponding provisions of the Act of 2012 and any document referring
,to the repealed Act relating to Industrial Relations shall be construedi as
referring to the corresponding provisions of the Act of 2012. Thus, every
Trade Union registered in the Establishment or Industry located in the
Islamabad Capital Territory or in more than one province, which was
- : AMAMPL,

C.,4s A'o.803-804 of 201è -30-

existing prior to the commencement of the Act of 2012 and was

registered under the repealed Act of 2003, were protected and saved with
the deeming provision as having been registered under the Act of 2012
and its existence was allowed to continue in force until altered or
rescinded. Similarly, rules made, notifications or orders issued, officer
appointed, Court constituted, notice given, proceeding commenced, or
other action taken under the repealed Act of 2008 were also saved and
protected by the deeming provision making them to have been done,
made, issued, appointed, constituted, given, commenced or taken under
the corresponding provisions of the Act of 2012, also any document
referring to the repealed Act of 2008, relating to Industrial Relations was
also saved and protected to be construed as referring to the
corresponding provisions of the Act of 2012.

16. The Act of 2008 stood repealed on 30.04.2010 and on the

established principle of interpretation of Statutes it stood obliterated.:
However, the Act of 2012 did not obliterate the transactions already
undertaken pursuant to the Act of 2008 but saved them as is specifically
noted in Section 88 of the Act of 2012. Thus, all transactions made
under the Act of 2008, as mentioned in Section 88 of the Act of 2012, are
saved and given protection of the law so also the pending grievance
tpetitions of the workers before the Labour Court. The transactions saved
by Section 88 ibid are those, which have been completed under the Act of
2008 while the said Act remained in the field. No sooner the Act of 2008
stood repealed on 30.04.2010, no new or fresh transaction can be found
to accrue under the Act of 2008 nor was it saved by Section 88 of the Act
of 2012. The Labour Court, being a creature of the Act of 2008, remained
functional until the Act of 2008 remained in force and when the Act of
2008 repealed itself on 30.04.2010, the Labour Court also ceased to exist
from such date. The grievance petitions filed by the appellants were
ng in the Labour Court on 30.04.2010 and their status remained
 _________________

C.As No.803-804 of 2014 -31 -

that of a pending proceeding. From 01.05.2010 NIRC was deemed to be

constituted to hear grievance petitions and thus, the only forum provided'
in the law to hear and decide the grievance petitions from 01.05.2010
was N1RC.

17. The de facto principle has been considered by this Court in

the case of Mehram AU vs. Federation of Pakistan (PLD 1998 SC'
1445), which is as follows: -

'Principle of de facto exercise of power by a holder of the

public office is based on sound principles of public policy
to maintain regularity in the conduct of public business
to save the public from confusion and to protect private
right which a person may acquire as a result of exercise
of power by the defacto holder of the public."

The same view was reiterated in the case of Malik Asad AU and

others vs. Federation of Pakistan through Secretar q , Law, Justice and

,Parhamentarq Affairs. Islamabad and others (PLD 1998 SC 161), the

principle of cM facto was considered and commented upon by this Court,
which is as follows: -

"Principle of de facto exercise of power by a holder of the

public office is based on sound principles of public policy
to maintain regularity in the conduct of public business
to save the public from confusion and to protect private
right which a person may acquire as a result of exercise
of power .by the defacto holder of the office."
F'

In the case of Pakistan Medical and Dental Council vs. Muhammad

Fahad Malik (2018 SCMR 1956), this Court has considered the principle
of defacto and observed as follows: -

"22. We held above that the Amendment Ordinances

had lapsed/been repealed therefore the Council
constituted thereunder had ceased to exist with effect
from 25.04.2016. As a necessary corollary, the
 CAs No.303-804 of 2016 -32-

Regulations of 2016 framed under section 33 of the

Ordinance of 1962 by the Council constituted under
section 3 thereof, both of which were substituted by the
Ordinance of 2015, also ceased to exist having been
illegally and invalidly framed. However, as regards the
various actions/activities/orders/decisions taken in the
ordinary day-to-day business of PMDC, we find that in
the instant circumstances, they are protected under the
de facto doctrine, until reviewed, revised, amended or
modified by the new Council to be constituted after
fresh elections are conducted."

In the case of Rashid All Channa vs. Muhammad Junair

t Farooqui (2017 SCMR 1519), this Court on principle of cM facto has

observed as follows: -

"4.

v) We are not persuaded by the argument of the

learned counsel that the de J'ecto doctrine is attracted to
the facts and circumstances of this case, which suggest
that the very appointments of the Chairman and
Members of the Commission suffered from serious
I defects and flaws. However, the matter did not end
there. The process and procedure adopted by the then
Chairman and Members for undertaking the exercise of
selection was replete with illegalities, departure from
recognized norms and deviation from the law, rules and
procedure which we have found hard to overlook or
sidestep. The impugned judgment has rightly refrained
from recording any findings on the basis of the de facto
doctrine or discussing the same having come to the
conclusion that not only was the legality of
F' appointments of the Chairman and Members of the
Commission open to serious question but the mode,
manner and procedure adopted by the Commission for
selection of recommendees was also illegal, unjust, non- -
transparent and suspect."

18. In the Major Law Lexicon 4 th Edition 2010, Volume 2 the de

facto principle has been commented upon as follows: -
 -. &

Ct4s No.803-804 012016 33 -

"De Facto Doctrine. The 'de facto' doctrine is now well

I established that the acts of the officers 'de facto'
performed by them within the scope of their assumed
official authority, in the interest of the public or third
persons and not for their own benefit, are generally as
valid and binding as if they were the acts offices de jure.
Gokaraju Rangaraju v. State of A.P., AIR 1981 SC 1473;
Also see P.K. Padmanabhan Nambiar v. Secretary to
Government, General Education (P.) Deptt., AIR 1998 Ker
59, 62, 63 paras 8 to 11."

19. The common and pre-dominant feature of de facto doctrine

is in relation to exercise of power by holder of the public office, when it is
found to be not legally entitled to exercise or performs such power of
public office, on the sound principles of public policy and to maintain
regularity in conduct of public business and to save the public froth
confusion and to protect the right which a person may have acquired as
a result of exercise of power by holder of public office not entitled to
perform or exercise such power, are saved on principle of de facto
, doctrine. Thus, where the very office, on which the power is exercised by
the holder of public office, has ceased to exist, as in the present case the
Labour Court being creature of the Act of 2008, on 30.04.2010 having
repealed itself, there was no public office by the name of Labour Court on
which de facto doctrine of holder of public office could be applied. As
noted above, necessary ingredients for de facto exercise of power by the
holder of public office is that the office should exist in the first place. If
there is no public office in existence then there is no concept in la* of
holder of public office. The holder of public office will remain until public
office remains. Where there is no public office in existence, there remains
nothing on which de facto doctrine could be applied. The Presiding
Officer of the Labour Court, when he pronounced the judgments dated
24.11.2010, in the grievance petitions filed by the appellants, did not
exercise power as a de facto holder of a public office, for that, the very
public office of Labour Court did not exist in law, there did not exist
r

(J.As No.803-804 of 20,4 -34-

holder of public office. Thus, when there was no Labour Court in the field
on repeal of the Act of 2008 on 30.04.2010, there existed no Presiding
Officer of the Labour Court as both stood abolished. From 01.05.2010,
under the Act of 2012, NIRC was established and given power to address
individual grievances of the workers. The NIRC only had jurisdiction to
decide the grievance petitions filed by the appellants from 01.05.2010.
The doctrine of de facto holder of public office not being applicable to the
case in hand, the judgments dated 24.11.2010 given by the Labour
Courts were patently without jurisdiction and coram non judice and could
not be saved on any principle of law, including the defacto doctrine.

20. As we have come to the conclusion that the judgments of the

Labour Courts were not protected either in reference to the scope of
'principle of retrospective application and also on de facto doctrine, thus,
no illegality is found in the impugned order of the High Court. The same
is maintained and the appeals are dismissed.

Larger Bench-I
IsIabad
20.0 1.2022
'APPROVED FOR REPORPNO'

Announced in open Court on 2Vtk.January,

- 2022.