MANAGING DIRECTOR, RAVI RAYON LIMITED, KALA SHAH KAKU Versus PROVINCE OF PUNJAB

1. Petitioner has filed this writ petition with the following prayer:‑‑

2. "It is respectfully prayed that section 23‑B(10) of Industrial Relations Ordinance, 1969 may very graciously be declared to be an invalid and void piece of legislation.

3. It is further prayed that the impugned order as conveyed through Annexure 'B' may kindly be declared to be without lawful authority."

4. Learned counsel for the petitioner submits that aforesaid section of I.R.O., 1969 creates an inequality before the law between the company and the collective bargaining agent inasmuch as there is an inbuilt violation of principles of natural justice in the sense that before an order is passed by the Provincial Government, no right of prior hearing is provided to the Company. Therefore, same is hit by Article 25 of the Constitution. In support of his contention he relied upon the following judgments:‑‑

5. PLD 1964 SC 673 (Syed Abu-ul‑Ahla 'Madoodi's case),

6. PLD 1965 SC 90 (Zakir Ahmad's case), and

7. 998 PLC (C.S.) 8 (Sheikh Abdur Rashid's case).

8. He further submits that aforesaid provisions of law is hit by Article 2‑A of the Constitution and Courts are duty bound to decide the controversy between the parties in accordance with injunctions of Islam after the addition of Article 2A in the Constitution. In support of his contention he relied upon the following judgments:‑‑

9. PLD 1987 Karachi 404 (M/s. Bank of Oman Ltd's case) and

10. PLD 1987 Karachi 612 (Habib Bank Ltd's case).

11. He further submits that rights of the labourers are protected by the provisions of the Companies profits (workers participation) Act, 1968. Therefore, impugned section is ultra vires and, is liable to be struck down. In support of his contention he relied upon the following judgments:‑‑

12. 1981 PLC 380 (M/s. Anwar Jamil Ltd's case) and '

13. 1964 PLC 593 (Flour Mill Employees Union's case).

14. He further submits that the statutory auditors for the company had already submitted their annual audit report which is attached with the writ petition as Annexure‑A. He further submits that by virtue of section 259 of Companies Ordinance 1984, failure to comply with provisions of section 252 to 254 and 256 to 258 of the Ordinance has been made punishable and fine upto Rs.2,000 can be imposed. Therefore, the impugned order Annexure‑B, dated 20‑1‑1988 is also without lawful authority. The aforesaid action is liable to be set aside.

2. Service of respondents Nos.2 and 3 had been effected. They had engaged Mr. M.A. Hamid Awan, Advocate who had filed power of attorney on 24‑10‑1989. Office sent notice to the respondents on 30‑9‑2000 for 25‑10‑2000 but nobody entered appearance on behalf of the respondents. List of old cases was sent to the respective members of the bar with the following note well in time:‑‑

15. "Old cases will not be adjourned. Adjustment may be solicited, in highly exceptional circumstances with the consent of opposite counsel, through an application to the Additional Registrar latest by 7 days before the date fixed for hearing."

16. In this view of the matter ex parte order is passed against the respondents Nos. 2 and 3.

3. Learned Additional Advocate‑General submits, that the impugned order is valid and section 23 was promulgated by the competent authority. Respondent No. l has passed the order in administrative capacity. Therefore, question of providing of personal hearing does not arise.

4. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is better and appropriate to reproduce the preamble of the National Industrial Relations Ordinance, 1969 to resolve the controversy between the parties:‑‑

17. "Whereas it is expedient to amend and consolidate the law relating to the formation of trade unions, the regulation of relations between employers and workmen and the avoidance and settlement of any differences or disputes arising between them or matters connected therewith and ancillary thereto;

18. And whereas the national interest of Pakistan in relation to the achievement of uniformity requires (Federal) legislation in the matter;

19. The aforesaid preamble reveals that special statute regarding the relationship of the petitioner employee and the worker union respondent No.2 i.e. National Industrial Relations Ordinance, 1969, provides for a new and more effective machinery than hitherto available. The vires of the Industrial Relations Ordinance were challenged in Muhammad Ibrahim's case 1973 PLC 61 and observed as under:‑‑

20. "National Industrial Relations is law of necessity, hence valid, notwithstanding its promulgation during unconstitutional and illegal martial law regime.. Sufficient protection has been given to legislative acts of ex‑President in the Constitution of Pakistan, 1972 which might have been absolutely necessary on the doctrine of necessity."

21. Learned counsel for the petitioner relied upon Article 2A of the Constitution that section 23(B)(10) of I.R.O. is against the injunctions of Islam but he failed to point out that. the aforesaid section was hit by which principle of injunctions of Islam. Therefore, judgments cited by the learned counsel for the petitioner PLD 1987 Karachi 404 (M/s. Bank of Oman Ltd.'s case) and PLD 187 Karachi 612 (Habib Bank Ltd.'s case) have no relevancy to decide the present controversy. As far as enforcement of injunctions of Islam is concerned this Court in view of Article 203‑G of the Constitution has got no authority under the law to examine the same. In arriving to this conclusion I am fortified by the laid down by the Hon'ble Supreme Court in Hakim Khan's case PLD 1992 SC 595. Contention of the learned counsel for the petitioner that aforesaid section is hit by principle of natural justice and is liable to be struck down on the basis of the following judgments: has also no force.

22. PLD 1964 SC 673 (Syed Abu‑ul‑Ahla Madoodi's case),

23. PLD 965 SC 90 (Dr. Ahmad's case) and

24. 1998 PLC (Q.S.) 8 (Sh. Abdur Rashid's case).

25. In the cited cases action was set aside by the Courts but law was not struck down. Therefore, these judgment are distinguished on facts and law. The provisions of the Companies Ordinance are not in derogation of the provisions of the I.R.O. 1969. It is also pertinent to mention here that Companies Ordinance is a general law whereas the Industrial Relations Ordinance, 1969 is special law. It is settled principle of law that special excludes the general as per principle laid down by the Hon'ble Supreme Court in Zia‑ur‑Rehman's case PLD 1973 SC 49. In this view of the matter, section 23-B(10) is valid piece of evidence. It is better to reproduce section 23‑B(10) to resolve the controversy between the parties:‑‑

26. "(10)The collective bargaining agent for an establishment which is a factory the number of workers employed in which in any shift at any time during a year is fifty or more may apply to the Provincial Government to nominate an Auditor to audit the accounts of the factory once after the closing of every accounting year and for that purpose to inspect the accounts, records, premises and stores of the factory once every year. "

27. The aforesaid provision of law does not contain any prohibition that the Government passed the order on the application of Respondents Nos.2 and 3 without providing hearing to the petitioner. It is settled principle of law that principle of natural justice must be read in each statute unless and until prohibition is specified and expressed in the statute itself as per principle laid down by the Hon'ble Supreme Court in the following judgments:‑‑

28. PLD 1964 SC 410 (Fazal‑ur‑Rehman's case) and

29. PLD 1961 SC 5537 (M/s. Farid Sons Ltd' case).

30. In this view of the matter, the impugned order annexure‑B, dated 20‑1‑1988 is not sustainable in the eyes of law as the same was passed against the petitioner without providing personal hearing to the petitioner as per principle laid down by the Hon'ble Supreme .Court ' in the following judgments:‑‑

31. 1994 SCMR 1299 (Ghularn Mustafa Jatoi's case),

32. 1998 SCMR 429 (Tariq v. PIA),

33. PLD 1959 SC 55 (Chief Commissioner's case),

34. 1994 SCMR 2232 (Aneesa Rehman's case),

35. AIR 1981 SC 818 (Swadesh Cotton Mill's. case) and

36. PLD 1987 SC 304 (Pakistan and others v. Public at Large).

37. In view of what has been discussed above, the impugned order Annexure‑B, dated 20‑1‑1988 is set aside meaning thereby the application filed by respondents Nos.2 and 3 before respondent No. l shall be deemed to be pending adjudication who is directed to decide the application of the respondents Nos.2 and 3 after providing personal hearing to all the concerned parties i.e. petitioner and respondents Nos.2 and 3 with reasons within a reasonable time.

38. H.B.T./M‑401/L ???????????????????????????????????????????????????????????????????????????????? Order accordingly.