Messrs SUI SOUTHERN GAS COMPANY LTD.

and others---Appellants/Petitiioners Versus

FEDERATION OF PAKISTAN and others---Respondents

Citation: 2018 SCMR 802

Result: Order Accordingly
Court: Supreme Court of Pakistan
Date of Decision:
Judge(s): Mian Saqib Nisar, C.J., Mushir Alam and Sajjad Ali Shah, JJ
Case Number: Civil Appeals Nos.1583 to 1598 of 2014, 970 and 971 of 2013, 4, 5, 606 and
1152 of 2015 and Civil Petition No.2154-L of 2014 and Civil Misc. Application No.484-K of
2014 in Civil Appeal No.1598 of 2014.
JUDGMENT

JUDGMENT

MIAN SAQIB NISAR, C.J.--These appeals with the leave of the Court vide
orders dated 5.9.2013 ([Link]. Nos.970 and 971 of 2013), 27.11.2014 ([Link].
Nos.1583 to 1598 of 2014), 8.1.2015 ([Link]. Nos.4 and 5 of 2015), 30.6.2015
(C.A. No.606 of 2015) and 4.11.2015 (C.A. No.1152 of 2015) and petition (C.P.
No.2154-L of 2014) entail the common question of law thus are being disposed
of through this common judgment.

2. The Islamic Republic of Pakistan is a democratic State (Federation) with

its Federating Units (Provinces) and the Constitution of the Islamic Republic
Pakistan, 1973 (Constitution) recognizes and creates a balance between the
authority of the Federation and the autonomy of the Provinces, which
recognition has been given an iron cladding by virtue of the Eighteenth
Amendment, passed vide the Constitution (Eighteenth Amendment) Act, 2010.
This Amendment to the Constitution has inter alia introduced a drastic
enhancement in the legislative authority of the Provinces by deleting the
Concurrent Legislative List (CLL), whereby previously both the Parliament and
the Provincial legislatures could legislate on the subjects enumerated therein.
The omission of the CLL, left only a single Legislative List in the Constitution
which exclusively list subjects that can be legislated upon by the Parliament
alone, and by virtue of Article 142(c) of the Constitution any subject not
enumerated in these two lists would subject to the Constitution, be within the
legislative competence of the Provinces. Entry No. 26 of the erstwhile CLL
contained the subjects of "welfare of labor; conditions of labor, provident funds;
employer's liability and workmen's compensation, health insurance including
invalidity pensions, old age pensions", whereas, Entry 27 of the same dealt with
the subjects of "trade unions; industrial and labor disputes". Thus, prior to
Eighteenth Amendment, the subject of labour and trade unions were in the
domain of both the Parliament as well as the Provincial Assemblies. The labour
laws enacted by the Parliament which were applicable in the Federation as well
as the Federating Units. However, after the Eighteenth Amendment, the
Parliament enacted the Industrial Relations Act 2012 (IRA 2012) which was
challenged before the concerned High Courts (all the provincial High Courts as
also the Islamabad High Court) mainly on the ground that the same is
incompetently enacted by the Parliament as the subject of labour and the trade
unions was no more in the legislative domain of the Parliament rather within the
domain of the Provincial Assemblies. All the High Courts held (through
judgments impugned herein as also other judgments) in favour of the
constitutionality/validity of the IRA 2012. The factual background as also the
questions of law raised in the impugned judgments are as follows:

C.A. 970/2013, against order of High Court of Sindh dated 29.10.2010 passed in
C.P. No. 1796-D/2010 (2011 PLC 105)

The learned High Court of Sindh was faced with the question whether Shaheen
Air Port Services, is a charitable organization on the basis of being part of
Shaheen Foundation which is a charitable trust set up by the Government of
Pakistan, and thus whether a charitable organization fell within the ambit of the
Industrial Relations Ordinance, 1969 and whether the same was operative in
the interregnum of the lapse of the Industrial Relations Act 2008 on 30.4.2010
(as per Section 81(3) of the said Act) which question, the learned High Court
answered in the affirmative, holding that the Industrial Relations Act
2008/Industrial Relations Ordinance 1969 being Federal law was applicable to
Shaheen Airport Services as the same was operative in more than one Province
and that Shaheen Airport Services did not qualify as a charitable organization in
view of the activities that were entailed in the operation of its business.

Another question involved therein was that after the Eighteenth Amendment,
whereby Entries Nos.26 and 27 occurring in the CLL have been deleted,
whether the Industrial Relations Ordinance, 1969 has become ultra vires of the
Constitution for the reason that power to legislate on the subject no more
existed with the Federal Legislature, the Court held that if a Trade Union has
membership in more than one Provinces, merely because Entries Nos. 26 and
27 have been deleted, the jurisdiction of the Parliament to legislate in respect of
situations services and items which fall within the inter Provincial trade, did not
cease to exist.

C.A. 1583/2014, against order of High Court of Sindh dated 4.8.2014 passed in
C.P. No.304-D/2012 (PLD 2014 Karachi 553)

The learned High Court while considering the question as to whether the IRA
2012 is ultra vires of the Constitution, held that while there is no doubt that the
Eighteenth Amendment resulted in the deletion of the CLL, some room for
concurrent legislation by both the Parliament and Provincial Assemblies was
retained in Article 137 of the Constitution. Moreover, the IRA 2012 aimed at
protecting the Fundamental Right of the citizens to form association provided
under Article 17 and since Article 141 of the Constitution is clear that Provinces
cannot legislate on matters beyond their territorial boundaries, it is imperative
that the Federation steps into and protects such right of workers/employees
who wish to form inter-provincial trade unions/associations, which resolve is
further solidified with Articles 2A and 8 of the Constitution which emphasize the
protection of the fundamental rights and relied upon the judgment reported as
Pakistan Muslim League (N) v. The Federation of Pakistan (PLD 2007 SC 642)
and the Indian judgment of Elel Hotels and Investment Ltd and others v. Union
of India (AIR 1990 SC 1664) that advocates a liberal construction of the
constitutional legislative lists. Thus, holding the IRA intra vires of the
Constitution, the learned High Court held that there is no overlap in the
Provincial and Federal law since the IRA 2012 applies to inter-provincial
establishments and its workers/employees, whereas the Sindh Industrial
Relations Act, 2013 applies to establishments functioning only within the
Province of Sindh.

C.A. No.4/2015, against order of Islamabad High Court dated 3.12.2014 passed
in W.P. No. 4626/2014

The dispute before the learned Islamabad High Court involved the employees of
the SME Bank Limited, having its Branches throughout the Country i.e. in the
Provinces of Punjab, Sindh, KPK and Balochistan, and also the Islamabad
Capital Territory, who hired employees on contract basis who had thereafter
been working for the said Bank for periods of 2 to 13 years and terminated
them. The Bank contested the grievance notice of these employees contending
that a fresh grievance notice should have been sent to the Bank under the
Industrial Relations Act, 2002 (the prevailing law at the time) which contention
was not accepted by the learned High Court which finding is contested inter alia
in the present application before this Court.

C.A. No.606/2015, against order of High Court Sindh dated 18.3.2015 passed in
C.P. No. 4154-D/2013

The Sindh Labour Appellate Tribunal directed that the grievance petition filed
by the worker/employee ought to be heard by the NIRC constituted under the
IRA 2012. Being aggrieved, the Bank challenged the said order through a
petition under Article 199 of the Constitution on the ground that the grievance
petition had to be filed with concerned Labour Court constituted under the
relevant provincial statute i.e. the Sindh Industrial Relations Act, 2013 as the
matter did not lie under the IRA 2012. The High Court held that since the IRA
2012 applied to the present case, the proper forum was NIRC under the said
Act and not the Labour Court set up under provincial legislation.

C.A. No.1152/2015, against order of Peshawar High Court dated 9.6.2015

passed in W.P. No.634-P/2015 (2016 PLC 279)

The petitioner therein filed grievance petition before the Labour Court, Haripur
which was remitted to NIRC, Peshawar Bench. During the proceedings the right
of cross-examination was struck off, against which, the Bank filed a writ
petition, however, in the meantime, NIRC accepted the grievance petition,
consequently the writ petition was withdrawn. The appeal filed before the Full
Bench of the NIRC Islamabad was dismissed and the said order was assailed
through another writ petition. The learned Peshawar High Court held that the
allegation that the grievance petition of the petitioner (in the High Court) was
not maintainable before the NIRC was ill-founded, thereby declaring that the
NIRC was competent and the IRA 2012 was applicable to the Meezan Bank
Limited (which is a trans-provincial establishment).

C.P. No.2154/2014, against order of Lahore High Court dated 17.11.2014

passed in Review Application No.93/2012

The grievance petition filed by the worker was dismissed by the Labour Court
on the ground that the IRO is not applicable to Shaheen Airport Service. The
appeal was allowed and the matter was remanded, but the learned Lahore High
Court in a writ petition directed that as the identical issue was pending before
this Court the Labour Court would not proceed further till the decision of that
matter (C.P. No.11/2011). The review petition against that order was dismissed
in light of the identical matter pending before this Court concerning the
question as to whether, post the Eighteenth Amendment, the petitioner's case
would fall under the provincial law i.e. the Punjab Industrial and Commercial
Employment (Standing Orders) Ordinance, 1968 or the Federal law i.e. the
Industrial Relations Ordinance 1969 or Industrial Relations Act, 2008.

There are some other cases wherein the vires of the Industrial Relations
Ordinance, 2011 (IRO 2011) and IRA 2012 have been considered by the High
Courts but the same are not subject matter of these appeals/petition. The
factual background as also the questions of law raised therein are as follows:

Order of Lahore High Court dated 13.3.2012 passed in Writ Petitions Nos.24691
to 24695 of 2011 (2012 PLC 219)

The NIRC through order dated 19.8.2011 directed to suspend the proceedings
before the learned Labour Court. The vires of IRO 2011 was challenged through
writ petitions on the ground that after abolition of CLL by means of Eighteenth
Amendment, the subject of labour became the provincial subject and as such
the President of Pakistan had no powers to promulgate the IRO 2011. On the
basis of Entries Nos.3, 32 and 59 of Part-I of the FLL, the IRO 2011 was
declared to be intra vires of the Constitution.
Order of Islamabad High Court dated 27.6.2012 passed in Writ Petition
No.3472/2011

The learned High Court declared the IRO 2011 to be intra vires of the
Constitution on the basis of Entries Nos.3 and 32 of Part-I in the FLL.

Order of High Court of Balochistan dated 26.6.2014 passed in C.P. No.226/2012

(2014 PLC 351)

While considering the vires of the IRA 2012, the Court held that the IRA 2012
was properly enacted by the Parliament and is not ultra vires the Constitution,
therefore, the IRO 2012, which was succeeded by the IRA 2012, cannot be
categorized as being unconstitutional.

3. Heard the learned Counsel for the parties and perused the impugned
judgments with their able assistance. For brevity, the respective arguments of
the learned counsel for the parties are not cited separately, which shall be
considered and dealt with hereinafter in our detailed discussion on the
questions so formulated. From the pleadings/arguments of parties, the following
common questions of law emerge for determination of this Court:

(a) Whether the promulgation of the Industrial Relations Act, 2012 was
ultra vires of the Constitution by reason of encroaching upon the legislative
authority of the Provinces under Articles 141-144 of the Constitution?

(b) What is the extent of legislative competence of the federal and

provincial legislatures and whether a provincial legislature has extra-territorial
jurisdiction?

(c) Whether there is an overlap in the legal remedies/forums available to

the employees/workers who are employed in
companies/corporations/institutions/establishments in more than one Province
and what is the precise scope of jurisdiction of the National Industrial Relations
Commission (NIRC) formed under Section 35 of the IRA 2012 for inter-
provincial/trans-provincial labour and trade disputes?

(d) What is the precise scope of jurisdiction of the National Industrial

Relations Commission (NIRC) formed under Section 25 of the Industrial
Relations Act 2008 in the interregnum till the IRA 2012 was not enacted for
intra-provincial labour and trade disputes?

4. The case of the appellants/petitioners can be summarized as under:

(1) That by means of the Eighteenth Amendment to the Constitution the

CLL under which both the Parliament and Provincial Legislatures had
jurisdiction to legislative on the subjects enumerated therein was abolished, as
such, the matters previously covered under Entries Nos.26 and 27 thereof were
no longer under the legislative domain of the Parliament, because under Article
142(c) of the Constitution, the legislative competence of the Federal Legislature
is restricted only to the subjects that are enumerated in the Federal Legislative
List (FLL) and the legislative competence of the Provincial Legislatures have
exclusive jurisdiction to make laws on all residuary subjects. Further, under
Article 144(1) of the Constitution, the Parliament can also legislate on any
matter not enumerated in the FLL only in the eventuality if one or more
Provincial Assemblies pass a resolution to that effect. Therefore, prior to
promulgation of the IRA 2012 it was necessary that all the four Provincial
Assemblies should have passed the resolutions authorizing the Parliament to
regulate by law the subjects that are covered by it, but the said provision of the
Constitution was not resorted to. In the case of Air League of PIAC Employees
through President v. Federation of Pakistan M/O Labour and Manpower Division
Islamabad and others (2011 SCMR 1254) this Court has held that the Federal
Government has no power to legislate on the subject of labour welfare and trade
unions, which subjects, after the Eighteenth Amendment have devolved upon
the Provinces, which judgment under Article 189 of the Constitution is binding
on all Courts in Pakistan. Thus, the IRA 2012 is not valid law. It was also the
case of the appellants/petitioner that the IRA 2012 cannot be validated on the
basis of Entry No.3 of the FLL on the ground that it is intended to discharge
obligation under the International Treaties and Conventions such as the ILO
Conventions Nos.87 and 98, especially when the Provincial Legislatures have
already made the laws on the subjects covered by it (IRA 2012). Further, by
means of the IRA 2012 a parallel legal forum in the shape of NIRC established
under it (IRA 2012) alongside the Labour Courts established under the
Provincial laws has been created which has resulted in a confusion with regard
to the relevant forum to be approached.

(2) That since the promulgation of the Government of India Act, 1935 till
the Constitution of 1973, the subject of trade unions and workers welfare has
consistently never ever been in the Federal sphere of legislation. The
Parliament, through the Eighteenth Amendment, with a deliberate and
conscious decision, enhanced the quantum of provincial autonomy by abolishing
the CLL, which can be said to be one of the most important phases in the
constitutional history of Pakistan; however, the learned High Courts have
validated the Federal laws as if it had never taken place and the fact of the
devolution of powers has been sidelined and treated as inconsequential. In fact,
the upholding the federal law means an increase in the legislative power of the
Federation and reduction in the legislative power of the Provinces, which is
against the intent of the Eighteenth Amendment.

(3) That the learned High Courts have unanimously saved the Federal laws
by interpreting different entries of the FLL on the tacit assumption that there
never was any entry relating to trade unions and labour welfare. Various other
entries have been stretched to include trade unions and workers welfare while
disregarding the basic fact that this subject was previously the subject matter of
Entries Nos.26 and 27 of the CLL which have now been omitted i.e. transferred
exclusively to the Provincial sphere. It is obvious that entries should be
construed while taking an overall view of the contents thereof and not in
isolation as if the other entries have never existed in the first place. The fact
that the upholding the Federal legislation necessarily means invalidating and
striking down either full or certain provisions of all four provincial Acts
(Provincial Industrial Relation Acts). In fact, the findings of the learned High
Courts appear to be on the basis that there is a vacuum in the law, which in fact
was not there, as all the four Provincial legislatures had enacted laws providing
an alternate route.

(4) There is no bar on a Provincial legislature to make trans-provincial

legislation. The rights of the labourers/workers are better protected through
having Province-wide trade unions rather than trade unions which are operating
at the Federal level or in other provinces and can only be given relief by a single
body, namely the NIRC. Further, Article 17 of the Constitution does not
contemplate the necessity for nationwide trade unions. If the Provincial
legislatures, considered that a nationwide trade union was beneficial they could
have provided for the same through the constitutional mechanism provided by
Article 144 of the Constitution, by authorizing the Federal legislature to
legislate on this subject. They have, however, in their legislative wisdom,
consciously decided not to do so. It is a legislative policy matter on which the
concerned legislatures shall be allowed to decide and the learned High Courts
ought not to interfere therein.

(5) As per the definitions of terms 'employer', 'establishment', 'industrial

dispute' and 'industry' contained in the Provincial law of Sindh, every
commercial entity, whether it is operating on a trans-provincial basis or on a
provincial basis, irrespective of the fact as to whether it has certain employees
in other Provinces apart from Sindh would be covered by the Sindh Industrial
Relations Act, 2013 (SIRA 2013). However, the Federal Act (IRA 2012), as
interpreted by the High Courts, excludes in totality the jurisdiction of the
Provincial Labour Courts with regard to the trade unions operating for and in
relation to any company operating in Sindh which has branches in other
Provinces. Therefore, this was not a case of vacuum which the Federal law, by
referring to the so called trans-provincial trade unions had filled in. In fact, it
was a blatant usurpation of Provincial autonomy by the Federal Government
and deprivation of the jurisdiction of Provincial Labour Courts by limiting their
jurisdiction only to those companies which do not have branches in other
Provinces.
(6) In terms of Section 3 of the SIRA 2013, which deals with trade unions
and freedom of association, it is specifically provided that workers, without any
distinction whatsoever, shall have the right to establish and join trade unions of
their own choice. With the Federal law, this Section has been reduced in its
scope and ambit and will now apply to only those companies which do not have
branches in other Provinces. There is no justification whatsoever for this
arbitrary deprivation of the rights of workmen in Sindh merely because the
company for which they work has branches in different Provinces. Likewise, the
scope of Sections 17, 34 and 45 of the Act has also been reduced; inasmuch as,
the right of workmen to take a local dispute before a local Court has been
infringed.

(7) There is a critical distinction between legislative competence and

fundamental rights. Insofar as the question of legislative competence is
concerned the same is governed by the Article 142 of the Constitution and the
Articles relating to fundamental rights are irrelevant in this regard. The
fundamental rights are the rights conferred on citizens of Pakistan and have
nothing whatsoever to do with legislative competence, which is a totally
different concept. The learned High Courts have not only mixed together these
two conceptually distinct and disparate aspects of constitutional interpretation
but also the concept of legislative competence has been subordinated to the
concept of fundamental rights. This has been done on the assumption that a
trans-provincial trade union is desirable. Article 7, together with Article 8 of the
Constitution, controls all the fundamental rights. These Articles clearly lay down
restrictions upon the "State"; a restriction from passing a law in violation of the
fundamental rights. The definition of State includes both the Federal as well as
the Provincial organs of the State. The framers of the Constitution, irrespective
of the question of legislative competence, which has to be determined under
Article 142 ibid, stipulated that a violation of fundamental rights, either by the
Federal or by the Provincial legislatures would be illegal.

(8) The learned Balochistan High Court, upheld the Federal Legislation by
relying upon the interpretation of US Supreme Court, whereby the Entry
relating to "commerce" in the US Constitution has been stretched to include
trade unions and workers welfare, so by means of a similar process, the Entry
relating to commerce contained in Entry No. 27 of Part-I of the FLL in our
Constitution, may also be so structured. While holding so, the learned High
Court has ignored the fact that the entries in the US Constitution are very brief,
as against it, the Constitution of Pakistan set out at great length and detail
various topics which form the subject matter of the jurisdiction of the different
legislatures, and previously certain entries (Entries Nos.26 and 27) of the CLL
were dealing with these subjects but were abolished and no corresponding
entry was included/inserted in the FLL. Further, the US Supreme Court is
unique in the western world as being the only openly politicized judicial
institution; whereas, the Pakistan Supreme Court is a far better judicial model,
therefore, in these circumstances, interpretation given by the US Supreme
Court should not be followed by this Court irrationally.

(9) The learned High Courts have held that a Provincial legislature does not
have the power to pass laws in relation to companies which operate in more
than one province. There is nothing on the constitutional plane preventing the
Provincial Legislature from passing a law in relation to trade unions and
workmen, which would make it compulsory and mandatory for each company to
allow all its employees, no matter where they are working, to become members
of a trade union. Thus, a company incorporated in one Province and having its
head office therein and a branch office in other Province can allow all its
workmen to be members of a single union. There is nothing unconstitutional or
illegal about it, as all the workers can be subjected to the laws of the said
Province. Since the large companies usually have branches in different
Provinces e.g. all major banks and other corporate entities such as PIA, it is
obvious that the jurisdiction and legislative competence of the Provinces has
been curtailed by the learned High Courts. Even otherwise, having different
trade unions operating in different Provinces will cause no harm and detriment
to the workmen. It is not obvious that the interest of the small minority of
workmen in one Province are not co-terminus or identical with the thousand
employees in other Province. If there is only one trade union to cover both sets
of workmen, then it is obvious that the majority view will be based on the
interests of the vast majority of the workmen while the minority workmen's
grievances may be disregarded. The principle of justice being delivered to the
door step is radically breached by having only one forum at the Federal level,
namely, NIRC based in Islamabad. In contrast to this, there are more than 30
Labour Courts in the different Provinces, therefore, it is obviously to the
advantage of workmen to be able to have resort to a court at their door step.
Although the NIRC travels to different Provinces, obviously one Court travelling
on circuit is not a substitute for as many as 30 Courts operating all over the
country.

5. On the other hand, while supporting the judgments of the learned High
Court (impugned herein), it is the case of the respondents that this Court has
always leaned towards preserving the competence of the legislature and thus
saving a statute rather than striking it down. Therefore, while determining the
question whether any of the Entries of the FLL is wide enough to encompass
within its ambit the IRA 2012, maximum possible amplitude must be provided to
the Entries. The subjects of labour and trade unions are covered under many of
the Entries of the FLL; therefore, the IRA 2012 was competently legislated by
the Federal Legislature. Inasmuch as, as relied upon by the learned High
Courts, the subjects dealt with in the IRA 2012 are covered under Entries
Nos.3, 8, 27, 31, 32, 58 and 59 of Pert-I and Entries Nos.3, 13 and 18 of Pert-II
of FLL, therefore, being covered by the Entries in the FLL, the IRA 2012 cannot
be struck down. Further, a provincial law cannot operate beyond the territorial
limits of the Province; therefore, the provincial IRAs cannot secure the rights of
the employees working in Establishments which are trans-provincial. The IRA
2012, which guarantees the employees of inter-provincial establishments to
organize themselves form trade unions on inter-provincial level and to seek
appointment of Collective Bargaining Agent and also to have an industrial
dispute resolution mechanism at the Federal level, is not void. With regard to
the judgment of this Court in Air League of PIAC Employees' case (supra) it is
the case of the respondents that though under Article 189 of the Constitution a
decision of this Court is binding only to the extent it decides a question of law or
is based upon or enunciates a principle of law but in the said case the issue of
authority of the Federal or Provincial Legislature to legislate on the subjects in
issue has not been decided, therefore, the validity the IRA 2012 has to be
determined decisively in the instant proceedings.

6. Learned Additional Attorney General for Pakistan fully supported the

impugned judgments declaring the IRA 2012 to be a valid piece of legislation.
Learned Additional Advocate General Punjab adopted the arguments of learned
counsel for the appellants and her stance is similar to the appellants that after
the abolition of the CLL through the Eighteenth Amendment, the subject of
labour and trade unions falls within the legislative competence of the Provinces
and as such IRA 2012 is ultra vires the Constitution. Same is the stance of
learned Additional Advocate General Sindh. Learned Additional Advocate
General KPK supported the impugned judgments to the extent of validity of the
IRA 2012 and its applicability only to the Establishments existing at trans-
provincial level and the Trade Unions operating therein. However, according to
him the Provincial legislation can co-exist with the Federal legislation, as the
former would apply to the Establishments existing at trans-provincial level and
the Trade Unions operating therein, whereas, the latter would apply to the
Establishments/Trade unions functioning within one Province only. Same is the
stance of the learned Additional Advocate General Balochistan.

7. Before dilating upon the questions involved in the instant matter in the
light of the submissions made by the learned counsel as well as the
Constitutional and legal provisions and also the relevant case-law, it is
appropriate to first mention the history of the labour related laws which
remained applicable from time to time in Pakistan. At the time of the
independence of Pakistan in 1947, two laws on the subject i.e. the Trade Unions
Act, 1926 and the Industrial Disputes Act, 1941 were holding the field. The
Trade Unions Act had been enacted to provide for the registration of Trade
Unions, to specify their function, privileges and powers and other incidental
matters. Chapter III thereof provided for the rights and liabilities of registered
Trade Unions. The said Act neither specifically conferred on the Trade Unions,
whether registered or unregistered, either the power to represent workers in
any proceedings or the persons to resort to authorize a strike. However, Section
15 of the said Act specified the objects on which the general funds of a
registered Trade Union could be spent. In 1927, the Bombay Trade unions
Regulations were issued under the provisions of section 29 of the Act and after
the coming into force of the Government of India Act, 1935 the Central
Government, in 1938, issued the Central Trade Unions Regulations in respect of
the Trade Unions whose objects extended beyond one Province. The Bombay
Trade Unions Regulations were subsequently re-named, with regard to the
Province of Sindh, as the Sindh Trade Unions Regulations, under the provisions
of Section 3 of Sindh Act 1 of 1951. As far as the Industrial Disputes Act, 1947 is
concerned, it came into force on l.4.1947 and provided for the Investigation and
settlement of Industrial disputes by or through the Works Committees,
Conciliation Courts Boards of Conciliation, Courts of Inquiry and Industrial
Tribunals. Under Section 38 thereof, the Industrial Disputes Rules, 1947 were
framed by the Central as well as Provincial Governments. However, this Act was
repealed and replaced by the Industrial Disputes Ordinance, 1959, which was
promulgated on 21.10.1959. Section 34(1) of the Ordinance of 1959, like
Section 36(1) of its predecessor Act, entitled a workman, who was a party to a
dispute, to be represented in any proceedings under the said Ordinance by an
Officer of a Registered Trade Union. In 1960, the Federal Government framed
the Industrial Disputes (Central) Rules, 1960, superseding the earlier Rules of
1938. The Trade Unions Act, 1926 was substantially modified by Trade Unions
(Amendment) Ordinance, 1960 (Ordinance [Link] of 1960), whereby Chapter
III-E was added thereto providing for the recognition of registered Trade Unions
by the employers on the fulfillment of certain conditions by such Trade Union.
In March 1968 the West Pakistan Trade Unions Ordinance, 1968 and the West
Pakistan Industrial Disputes Ordinance, 1968 were promulgated. The right of
the Trade Unions to negotiate with the employer through its executive, in
respect of the matters connected with the employment and conditions of work,
was retained. In November, 1969, the Industrial Relations Ordinance, 1969 was
enacted to amend and consolidate the laws relating to reformation of trade
unions and to achieve uniformity, whereby the West Pakistan Industrial
Disputes Ordinance, 1968 was repealed. This new Ordinance was substantially
modified by the Industrial Relation (Amendment) Ordinance, 1970 (Ordinance
[Link] of 1970), the Labour Laws (Amendment) Ordinance, 1972 (Ordinance
[Link] of 1972), the Labour Laws (Amendment) Act, 1972 (Act No.V of 1972) and
the Industrial Relations (Amendment) Act, 1973 (Act [Link] of 1973). By the
Labour Laws (Amendment) Ordinance, 1972, Section 22-A was inserted in the
Industrial Relations Ordinance, 1969 which provided for the establishment of
the National Industrial Relations Commission (NIRC), for settlement of disputes
between employers and workers. The mechanism for the functioning of NIRC
was provided under the National Industrial Relations Commission (Procedure
and Functions) Regulations, 1973. Then comes the Industrial Relations
Ordinance, 2002, which repealed and replaced the Industrial Relations
Ordinance, 1969, however, all registered trade unions, were saved and were
deemed to have been registered under the new Ordinance. The Industrial
Relations Ordinance, 2002 was then repealed and replaced by the Industrial
Relations Act, 2008; however, once again the registered trade unions were
saved and were deemed to have been registered under the Act, 2008.
Importantly, the said Act was a temporary enactment as under Section 87(3)
thereof it was provided that unless repealed earlier, the IRA 2008 shall seize to
exist on 30.4.2010. Till that date, no legislation was made either to supersede or
to extend the period of operation of the said law; as such, by virtue of the said
sunset clause the IRA 2008 stood repealed on 30.4.2010. In the meantime, on
20.4.2010, through the Eighteenth Amendment to the Constitution, the CLL was
abolished, as such, Entries Nos.26 and 27 which provided the legislative
authority to the Federal Legislature alongside the Provincial Legislature
regarding the subjects, inter alia, of labor and trade unions, no more remained
in field. It is to be noted that Clause (6) of newly inserted Article 270AA of the
Constitution provided that the laws with respect to the matters enumerated in
the erstwhile CLL, including Ordinances, Orders, rules, bye-laws, regulations
and notifications and other legal instruments having the force of law, in force in
Pakistan, immediately before the commencement of the said amendment would
continue to remain in force until altered, repealed or amended by the competent
authority. After 30.4.2010 the Labour Courts, Labour Appellate Tribunal as well
as NIRC stopped functioning for the reason that the IRA 2008 had lapsed and
no further legislation had been made by the Federal Legislature. When
confronted with the issue, the NIRC, Islamabad, held that by means of the
Eighteenth Amendment, the IRA 2008 had been protected and was fully
operative till altered or amended or repealed by the competent authority. As the
Labour Courts as well as the Labour Appellate Tribunal stopped functioning, the
then Chief Justice of the Lahore High Court initiated suo motu proceedings. The
suo motu as also the Writ Petition No.10746/2010 was disposed of on the basis
of the report submitted on behalf of the Government of Punjab stating therein
that IRA 2008 stood protected only upto 30.6.2011 in accordance with the
protection provided under Article 270AA of the Constitution. On the same issue,
the High Court of Sindh, in Constitutional Petition No.D-1432/2010, held that
IRA 2008 stood repealed on 30.4.2010 by force of Section 87(3) thereof,
whereas the IRO 1969 stood revived from the said date. The Lahore High Court,
Rawalpindi Bench, in I.C.A. No.200/2008 held that IRA 2008 had been protected
till 30.4.2011 in view of Article 270AA of the Constitution. The Islamabad High
Court, in Writ Petition No.4917/2010, also held that in view of Section 87(3) of
IRA 2008, it (IRA 2008) stood repealed on 30.4.2010.

Thereafter, pursuant to the Eighteenth Amendment, the Provincial

Legislatures of all the four Provinces made legislation on the subjects of the
trade unions and labour disputes, etc. In the province of Punjab, on 13.6.2010,
the Punjab Industrial Relations Ordinance, 2010 (PIRO 2010) was enacted,
which was to remain operative till 10.9.2010, however, the life of the Ordinance
was extended for a further period of ninety days through a Resolution passed by
the Provincial Assembly on 23.7.2010. In the meantime, on 9.12.2010 the
Punjab Industrial Relations Act, 2010 (PIRA 2010) was enacted which repealed
the PIRO 2010. In the Province of Sindh, on 5.7.2010, through the Industrial
Relations (Revival and Amendment) Act, 2010, the IRO 2008 was revived w.e.f.
1.5.2010 as if it had never been repealed. In the Province of Khyber
Pukhtunkhwa, on 14.7.2010, the Khyber Pukhtunkhwa Industrial Relations
Ordinance, 2010 (KIRO 2010) was promulgated. Likewise, in the province of
Balochistan, on 22.7.2010, the Balochistan Industrial Relations Ordinance, 2010
(BIRO 2010) was issued, which was then replaced on 15.10.2010 by the
Balochistan Industrial Relations Act, 2010 (BIRA 2010).

9. The question whether the IRA 2008 stood repealed on 30.4.2010; or the
same had been protected either till 30.6.2011 or permanently; or if it lapsed/got
repealed, whether the IRO 1969 stood revived or not, came up for consideration
before this Court in Air League of PIAC Employees' case (supra) wherein, vide
judgment dated 2.6.2011, it was held that IRA 2008 ceased to continue in force
w.e.f. 30.4.2010. As no Federal Law remained in the field, thereafter, on
14.3.2012, the Federal Legislature promulgated the IRA 2012. As per its
preamble, the purpose of its promulgation was to consolidate and rationalize
the law relating to formation of trade unions, and improvement of relations
between employers and workmen in the Islamabad Capital Territory and in
trans-provincial establishments and industry. It was also to recognize the right
of fundamental right of 'freedom of association' as envisaged in Article 17 of the
Constitution, for implementation of the ILO Conventions Nos.87 and 98 and is
specifically applicable to only trans-provincial establishments.

10. Before going to the constitutional questions, it is appropriate to first

consider the ratio of the judgment of this Court in AIR League of PIAC
Employees' case (supra). In the said case, neither the constitutionality of any of
the Federal legislations nor the legislative competence of the Federal
Legislature to legislate on the subjects of labour and trade unions was
considered, rather the only issue therein was that whether after the Eighteenth
Amendment, the IRA 2008 stood protected or not, and if not protected whether
the IRO 1969 revived or not. The Court, without going into validity of the
federal or provincial legislations, held that IRA 2008 on the basis of Eighteenth
Constitutional Amendment stood protected and continued till 30.6.2011.
Further, without considering in detail whether the subjects of labour and trade
unions fall within the legislative domain of Federer or Provincial legislature only
made reference of Article 144(1) of the Constitution. Relevant paras therefrom
reads as under:-

"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 Pukhtunkhwa and Balochistan,
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 for the redressal of 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 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.

27. Now turning towards the submission of the learned amicus curiae on the
vires of Provincial Labour Laws on the ground that there are many
Institutions/Corporations which have their branches all over the country and
there were country wide Trade Unions but now Trade Union can only be
registered under the legislation of a specific province. It is to be noted that
instant proceedings have been initiated under Article 184(3) of the Constitution
with a limited purpose of having a declaration that. Industrial Relation Act,
2008 on the basis of Eighteenth Constitutional Amendment stood protected and
continued till 30th June, 2011, therefore, the vires of the same cannot be
considered in such proceedings. However, as stated earlier Article 144(1) of the
Constitution has provided mechanism for making central legislation in respect
of matters not covered in the Federal Legislative List.

29. Thus, for the foregoing reasons, it is held that IRA, 2008 ceased to continue
in force w.e.f. 30th April, 2010, as a consequence whereof petition is
dismissed."

It is evident from the above that this Court consciously left open the question of
the legislative domain of Federal or Provincial Legislature as also the
constitutionality of labour laws. Therefore, the said judgment passed by a
learned Three-Member Bench of this Court, is in no way an impediment in the
way of the High Courts or even this Court to consider and decide the validity of
the IRA 2012.

11. At this stage, it is also appropriate to consider the history of legislative

competence of the federal/provincial legislature regarding the subject of trade
unions and labour rights, etc. In this regard it is to be noted that prior to the
creation of Pakistan, the subject of trade unions, labour disputes and labour
matters were mentioned in Entry No.35 of List-I of the FLL and also in Entries
Nos.26, 27 and 29 of Part-II of the CLL of the Government of India Act, 1935.
The same was in the Seventh Schedule thereof and was controlled by Section
126(2) thereof, which is reproduced hereunder:-

List-I of the Federal Legislative List

35. Regulation of labour and safety in mines and oilfields.

Part-II of the Concurrent Legislative List

26. Factories.

27. Welfare of labour; conditions of labour; provident funds; employers' liability

and workmen's compensation; health insurance, including invalidity pensions;
old age pensions.

29. Trade unions; industrial and labour disputes.

Section

126. Control of Federation over Province in certain cases.-

(2) The executive authority of the Federation shall also extend to the giving of
directions to a Province as to the carrying into execution therein of any Act of
the Federal Legislature which relates to a matter specified in Part II of the
Concurrent Legislative List and authorises the giving of such directions:

Provided that a Bill or amendment which proposes to authorize the giving of any
such directions as aforesaid shall not be introduced into or moved in either
Chamber of the Federal Legislature without the previous sanction of the
Governor-General in his discretion."

The said subjects were mentioned in Entry No.5 of Part II of the Concurrent List
in Fifth Schedule of the Constitution of Islamic Republic of Pakistan, 1956. The
same was controlled by Article 126(2)(d) thereof, which reads as under:-

Part-II of the Concurrent List

5. Relations between employers and employees; trade unions; industrial and

labour disputes; welfare of labour including conditions of work; provident funds;
employers' liability; workmen's compensation; invalidity and old age pensions
and maternity benefits; vocational and technical training of labour; social
security and social insurance.
 Article 126.

(2) The executive authority of the Federation shall extend to the giving of
directions to a Province as may appear to the Federal Government to be
necessary for the purpose of clause (1), and the said authority shall also extend
to giving of directions to a Province-

(d) as to the carrying into execution in the Province of any Act Parliament which
relates to a matter enumerated in Part II of the Concurrent List and authorizes
the giving of such directions."

In the Constitution of 1962, there was only one legislative list pertaining to the
subjects within the legislative competence of Central Legislature, provided in
Third Schedule, however, the subjects pertaining to labour disputes and trade
unions, etc., were not mentioned in the said list. The said Schedule was
controlled by Article 131(2)(c) thereof, which reads as under: -

131. Central law-making power.-

(2) Where the national interest of Pakistan in relation to -

(c) the achievement of uniformity in respect of any matter in different parts of

Pakistan,

So requires, the Central Legislature shall have power to make laws (including
laws having extra-territorial operation) for the whole or any part of Pakistan
with respect to any matter not enumerated in the Third Schedule.

In the Interim Constitution of 1972, Part-II of CLL in Fourth Schedule deals with
the subject of trade unions and labour disputes, which was controlled by Article
138 thereof, which read as under: -

Concurrent List

29. Welfare of labor; conditions of labor, provident funds; employer's liability

and workmen's compensation, health insurance including invalidity pensions,
old age pensions.

31. Trade unions; industrial and labor disputes.

Before the Eighteenth Amendment, two Legislative Lists were available in the
Constitution of 1973, namely, the FLL, which contained the subjects in respect
whereof the Federation could legislate and the CLL, which contained the
subjects in respect whereof either the Federation or a Province could legislate;
whereas, the subjects which were not found in either of these two lists, were
within the exclusive domain of the Provinces. The Entries Nos.26, 27 and 30 of
the CLL in the Fourth Schedule dealt with the issue of trade unions and labour
welfare, etc., which was controlled by Article 70 thereof. The same are
reproduced here under:-

Concurrent Legislative List

26. Welfare of labor; conditions of labor, provident funds; employer's

liability and workmen's compensation, health insurance including invalidity
pensions, old age pensions.

27. Trade unions; industrial and labor disputes.

30. Regulation of labor and safety in mines, factories and oil- fields.

70. Introduction and passing of Bills.- (1) A Bill with respect to any matter in
the Federal Legislative List may originate in either House and shall, if it is
passed by the House in which it originated, be transmitted to the other House;
and, if the Bill is passed without amendment, by the other House also, it shall be
presented to the President for assent.

(4) In this Article and the succeeding provisions of the Constitution, "Federal
Legislative List" means the Federal Legislative List and in the Fourth Schedule.

Reference in this regard may also be made to the provisions of the Constitution
of India which contains three legislative lists i.e. the Union list, the State list
and the Concurrent List. Entries Nos.22 to 24 of the Concurrent List in Seventh
Schedule thereof deals with the subjects of trade unions and labour disputes,
etc. and is controlled by Article 246 thereof, therefore, the Union as well as the
States has joint powers to legislate in respect thereof. The same is reproduced
below: -

Concurrent List, List-III

22. Trade unions; industrial and labour disputes.

23. Social security and social insurance; employment and

unemployment.

24. Welfare of labour including conditions of work, provident funds, employers

liability, workmens compensation, invalidity and old age pensions and maternity
benefits.

246. Subject matter of laws made by Parliament and by the Legislatures of

States.- (1) Notwithstanding anything in clauses (2) and (3), Parliament has
exclusive power to make laws with respect to any of the matters enumerated in
List I in the Seventh Schedule (in this Constitution referred to as the Union
List).

(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause

(1), the Legislature of any State also, have power to make laws with respect to
any of the matters enumerated in List III in the Seventh Schedule (in this
Constitution referred to as the Concurrent List).

(4) Parliament has power to make laws with respect to any matter for any part
of the territory of India not included (in a State) notwithstanding that such
matter is a matter enumerated in the State List.

12. The relevant provisions of the Constitution of 1973 are Articles 97, 137,
141 to 144 of the Constitution, which for reference are reproduced below:-

97. Extent of executive authority of Federation.- Subject to the Constitution, the

executive authority of the Federation shall extend to the matters with respect to
which Majlis-e-Shoora (Parliament) has power to make laws, including exercise
of rights, authority and jurisdiction in and in relation to areas outside Pakistan:

Provided that the said authority shall not, save as expressly provided in the
Constitution or in any law made by Majlis-e-Shoora (Parliament), extend in any
Province to a matter with respect to which the Provincial Assembly has also
power to make laws.

137. Extent of executive authority of Province.- Subject to the Constitution, the

executive authority of the Province shall extend to the matters with respect to
which the Provincial Assembly has power to make laws:

Provided that, in any matter with respect to which both Majlis-e-Shoora

(Parliament) and the Provincial Assembly of a Province have power to make
laws, the executive authority of the Province shall be subject to, and limited by,
the executive authority expressly conferred by the Constitution or by law made
by Majlis-e-Shoora (Parliament) upon the Federal Government or authorities
thereof.

141. Extent of Federal and Provincial laws. Subject to the Constitution, Majlis-e-
Shoora (Parliament) may make laws (including laws having extra-territorial
operation) for the whole or any part of Pakistan, and a Provincial Assembly may
make laws for the Province or any part thereof.

142. Subject-matter of Federal and Provincial laws.--Subject to the Constitution-

-

(a) Majlis-e-Shoora (Parliament) shall have exclusive power to make laws

with respect to any matter in the Federal Legislative List;
(b) Majlis-e-Shoora (Parliament) and a Provincial Assembly shall have
power to make laws with respect to criminal law, criminal procedure and
evidence;

(c) Subject to paragraph (b), a Provincial Assembly shall, and Majlis-e-

Shoora (Parliament) shall not, have power to make laws with respect to any
matter not enumerated in the Federal Legislative List; and

(d) Majlis-e-Shoora (Parliament) shall have exclusive power to make laws

with respect to all matters pertaining to such areas in the Federation as are not
included in any Province.

143. Inconsistency between Federal and Provincial Law.- If any provision of an

Act of a Provincial Assembly is repugnant to any provision of an Act of Majlis-e-
Shoora (Parliament) which Majlis-e-Shoora (Parliament) is competent to enact,
then the Act of Majlis-e-Shoora (Parliament), whether passed before or after the
Act of the Provincial Assembly, shall prevail and the Act of the Provincial
Assembly shall, to the extent of the repugnancy, be void.

144. Power of Majlis-e-Shoora (Parliament) to legislate for one or more

Provinces by consent.-(1) If one or more Provincial Assemblies pass resolutions
to the effect that Majlis-e-Shoora (Parliament) may by law regulate any matter
not enumerated 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, as respects any Province to which it
applies, be amended or repealed by Act of the Assembly of that Province.

The learned High Courts while holding the IRA 2012 to be intra vires of the
Constitution has relied upon following entries of the FLL: -

Part-I

3. External affairs; the implementing of treaties and agreements, including

educational and cultural pacts and agreements, with other countries;
extradition, including the surrender of criminals and accused persons to
Governments outside Pakistan.

27. Import and export across customs frontiers as deemed by the Federal
Government, inter-provincial trade and commerce, trade and commerce with
foreign countries; standard of quality of goods to be exported out of Pakistan.

31. Corporations, that is to say, the incorporation, regulation and winding-up

of trading corporations, including banking, insurance and financial
corporations, but not including corporations owned or controlled by a Province
and carrying on business only within that Province, or cooperative societies, and
of corporations, whether trading or not, with objects not confined to a Province,
but not including universities.

32. International treaties, conventions and agreements and International

arbitration.

58. Matters which under the Constitution are within the legislative competence
of Majlis- e-Shoora (Parliament) or relate to the Federation.

59. Matters incidental or ancillary to any matter enumerated in this

Part.

Part II:

3. Development of industries, where development under Federal control is

declared by Federal law to be expedient in the public interest; institutions,
establishments, bodies and corporations administered or managed by the
Federal Government immediately before the commencing day, including the
[Pakistan Water and Power Development Authority and the Pakistan Industrial
Development Corporation]; all undertakings, projects and schemes of such
institutions, establishments, bodies and corporations, industries, projects and
undertakings owned wholly or partially by the Federation or by a corporation
set up by the Federation.

13. Inter-provincial matters and co-ordination.

18. Matters incidental or ancillary to any matter enumerated in this

Part.

13. It is well established by this Court, while considering the vires of a

legislative enactment under its powers of judicial review, can consider not only
the substance of the law but also the competence of the legislature. Further,
though it is an accepted principle that no mala fide can be attributed to the
legislature, however, the bona fides of the legislature as also the purpose and
object of a statute may also be considered in the determination of the vires of a
statute. The vires of a statute can also be determined on the ground that the
legislation is colourable. In the instant case the only issue involved is the
legislative competence of the Parliament vis-à-vis the legislative authority of the
Provincial legislature. In this regard it is to be noted that there is always a
presumption in favour of the constitutionality of a legislative enactment unless
ex facie it appears to be violative of any of the Constitutional provisions and in a
case where two opinions with regard to the constitutionality of an enactment
are possible, the one in favour of the validity of the enactment is to be adopted.
Meaning thereby that when a law is enacted by the Parliament, the presumption
lies that Parliament has competently enacted it (law), and if the vires of the
same (law) are challenged, the burden always lies upon the person making such
challenge to show that the same (law) is violative of any of the fundamental
rights or the provisions of the Constitution. It is also a cardinal principle of
interpretation that law should be interpreted in such a manner that it should be
saved rather than destroyed. The Courts should lean in favour of upholding the
constitutionality of a legislation and it is thus incumbent upon the Courts to be
extremely reluctant to strike down laws as unconstitutional. This power should
be exercised only when absolutely necessary for injudicious exercise of this
power might well result in grave and serious consequences. Reliance in this
regard may be placed upon the cases of Province of East Pakistan v. Sirajul Haq
Patwari (PLD 1966 SC 854), Mehreen Zaibun Nisa v. Land Commissioner,
Multan and others (PLD 1975 SC 397), Messrs Elahi Cotton Mills Ltd. and
others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and
6 others (PLD 1997 SC 582), Dr. Tariq Nawaz v. Government of Pakistan (2000
SCMR 1956), Mian Asif Islam v. Mian Mohammad Asif (PLD 2001 SC 499),
Pakistan Lawyers Forum and others v. Federation of Pakistan and others (PLD
2005 SC 719), Master Foam v. Government of Pakistan (PLD 2005 SC 373),
Federation of Pakistan through Secretary, Ministry of Finance and others v.
Haji Muhammad Sadiq (PLD 2007 SC 133), Syed Aizad Hussain v. Motor
Registration Authority (PLD 2010 SC 983), Dr. Mobashir Hassan v. Federation
of Pakistan (PLD 2010 SC 265), In re: Regarding Pensionary Benefits of the
Judges of Superior Courts (PLD 2013 SC 829) , M.L. Kamra v. Chairman-cum-
Managing Director, New India Assurance Co. Ltd. and others [(1992) 2 SCC 36],
M/s. Ispat Industries Ltd. v. Commissioner of Customs, Mumbai [(2006) 9
SCALE 652], Manish Maheshwari v. Asstt. Commissioner of Income Tax (AIR
2007 SC 1696), Bharat Petroleum Corpn. Ltd v. Maddula Ratnavalli and others
[2007 (6) SCC 81] and also to the case reported as Lahore Development
Authority through D.G. and others v. Ms. Imrana Tiwana and others (2015
SCMR 1739). In the last mentioned case, this Court has held that "The power to
strike down or declare a legislative enactment void, however, has to be
exercised with a great deal of care and caution. The Courts are one of the three
coordinate institutions of the State and can only perform this solemn obligation
in the exercise of their duty to uphold the Constitution. This power is exercised
not because the judiciary is an institution superior to the legislature or the
executive but because it is bound by its oath to uphold, preserve and protect the
Constitution. It must enforce the Constitution as the Supreme Law but this duty
must be performed with due care and caution and only when there is no other
alternative." The Court after relying upon Cooley: "Treatise on Constitutional
Limitations, Pages 159 to 186", H.M. Seervai: "Constitutional Law of India,
Volume I, Pages 260 to 262", Mr. A.K. Brohi: "Fundamental Law of Pakistan,
Pages 562 to 592", Mr. Justice Fazal Karim: "Judicial Review of Public Actions,
Volume I, Pages 488 to 492", summarized the rules which must be applied in
discharging the duty to declare laws unconstitutional, which read as under: -
(a) There is a presumption in favour of constitutionality and a law must not
be declared unconstitutional unless the statute is placed next to the
Constitution and no way can be found in reconciling the two;

(b) Where more than one interpretation is possible, one of which would
make the law valid and the other void, the Court must prefer the interpretation
which favours validity;

(c) A statute must never be declared unconstitutional unless its invalidity is

beyond reasonable doubt. A reasonable doubt must be resolved in favour of the
statute being valid;

(d) If a case can be decided on other or narrower grounds, the Court will
abstain from deciding the constitutional question;

(e) The Court will not decide a larger constitutional question than is
necessary for the determination of the case;

(f) The Court will not declare a statute unconstitutional on the ground that
it violates the spirit of the Constitution unless it also violates the letter of the
Constitution;

(g) The Court is not concerned with the wisdom or prudence of the
legislation but only with its constitutionality;

(h) The Court will not strike down statutes on principles of republican or
democratic government unless those principles are placed beyond legislative
encroachment by the Constitution;

(i) Mala fides will not be attributed to the Legislature.

14. There another rule of interpretation that entries in a Legislative List are
to be interpreted liberally. Reliance in this regard may be made to the following
cases:

(a) In United Provinces v. Mt. Atiqa Begam (AIR 1941 FC 16) it was held
that "none of the items in the lists is to be read in a narrow or restricted sense
and each general word therein should be held to extend to all ancillary and
subsidiary matters which can fairly and reasonably be said to be comprehended
in it".

(b) In Navinchandra Mafatlal v. The Commissioner of Income Tax, Bombay

City (AIR 1954 SC 58) it was held that "the cardinal rule of interpretation,
however, is that words should be read in their ordinary, natural and
grammatical meaning subject to this rider that in construing words in a
constitutional enactment conferring legislative power the most liberal
construction should be put upon the words so that the same may have effect in
their widest amplitude."

(c) In Sri Ram Ram Narain Medhi v. The State of Bombay (AIR 1959 SC
459) it was held as under:-

"It is well settled that these heads of legislation should not be construed in a
narrow and pedantic sense but should be given a large and liberal
interpretation. As was observed by the Judicial Committee of the Privy Council
in British Coal Corporation v. The King [(1935) A.C. 500]:-

"Indeed, in interpreting a constituent or organic statute such as the Act, that

construction most beneficial to the widest possible amplitude of its powers must
be adopted."

The Federal Court also in the United Provinces v. Atiqa Begum [(1940) F.C.R.
110] pointed out that none of the items in the Lists is to be read in a narrow or
restricted sense and that each general word should be held to extend to all
ancillary or subsidiary matters which can fairly and reasonably be said to be
comprehended in it."

(d) In M/S New India Sugar Mills Ltd v. Commissioner of Sales Tax,
Bihar (AIR 1963 SC 1207) it was held that "the entry should be interpreted in a
liberal spirit and not cut down by narrow technical considerations. The entry in
other words should not be shorn of all its contents to leave a mere husk of
legislative power."

(e) In Navnit Lal C. Javeri v. K.K. Sen, Appellate Assistant Commissioner of

Income-tax, Bombay (AIR 1965 SC 1375) it was held as under: -

"It is hardly necessary to emphasise that the entries in the Lists cannot be read
in a narrow or restricted sense, and as observed by Gwyer, C.J., in the United
Provinces v. Atiqa Begum, 1940 FCR 110: AIR 1941 FC 16, "each general word
should be held to extend to all ancillary or subsidiary matters which can fairly
and reasonably be said to be comprehended in it". What the entries in the Lists
purport to do is to confer legislative powers on the respective Legislature in
respect of areas or fields covered by the said entries; and it is an elementary
rule of construction that the widest possible construction must be put upon
their words."

(f) In Assistant Commissioner of Land Tax, Madras, and others v.

Buckingham and Carnatic Co. Ltd. [(1970) 75 ITR 603] it was held as under: -

"The legislative entries must be given a large and liberal interpretation, the
reason being that the allocation of the subjects to the lists is not by way of
scientific or logical definition not by way of a mere simplex enumeration of
broad categories. We see no reason, therefore, for holding that Entries 86 and
87 or List I preclude the State Legislature from taxing capital value of lands and
buildings under Entry 49 of List II. In our opinion there is no conflict between
Entry 86 of List I and Entry 49 of List II. The basis of taxation under the two
entries is quite distinct. As regards Entry 86 of List I the basis of the taxation is
the capital value of the asset."

(g) In Elel Hotels and Investment Ltd. and another v. Union of India (AIR
1990 SC 1664) = [(1989) 3 SCC 698)], wherein the Indian Supreme Court held
as under:-

"6. … … The cardinal rule of interpretation is that the entries in the legislative
lists are not to be read in a narrow or restricted sense and that each general
word should be held to extend to all ancillary or subsidiary matters which can
fairly and reasonably be said to be comprehended in it. The widest possible
construction, according to the ordinary meaning of the words in the entry, must
be put upon them. Reference to legislative practice may be admissible in
reconciling two conflicting provisions of rival legislative lists. In construing the
words in a Constitutional document conferring legislative power the most
liberal construction should be put upon the words so that the same may have
effect in their widest amplitude."

(h) In Union of India & Anr., Etc. Etc v. [Link] Rao & Ors., Etc. Etc (AIR
1996 SC 1219) it was held that: -

As held by a Constitution Bench of this Court in Sri Ram Ram Narain Medhi v.
State of Bombay (AIR 1959 SC 459), the heads of legislation in the lists should
not be construed in a narrow and pedantic sense, but should be given a large
and liberal interpretation. To similar effect are the decisions of this Court in
Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal and others
(AIR 1962 SC 1044 at p. 1049) and Banarasi Das and others v. The Wealth Tax
Officer and others (AIR 1965 SC 1387). In Union of India v. Shri Harbhajan
Singh Dhillon (1971 (2) SCC 779 at p.792), the Court quoted its earlier decision
in Harakchand Ratanchand Banthia and others v. Union of India and others
(1969 (2) SCC 166), wherein it was held thus:-

".... The entries in the three Lists are only legislative heads or fields of
legislation, they demarcate the area over which the appropriate Legislatures
can operate."

(i) In Godfrey Phillips India Ltd. and anothr v. State of U.P. [(2005) 2 SCC
515] it was held that "where there is the possibility of legislative overlap, courts
have resolved the issue according to settled principles of construction of entries
in the legislative lists. The first of such settled principles is that legislative
entries should be liberally interpreted, that none of the items in the list is to be
read in a narrow or restricted sense and that each general word should be held
to extend to ancillary or subsidiary matters which can fairly and reasonably be
said to be comprehended in it."

"The second principle is that competing entries must be read harmoniously. The
proper way to avoid a conflict would be to read the entries together and to
interpret the language of one by that of the other." [reliance in this regard was
placed upon the cases of Governor General in Council v. Province of Madras
[(1945) FCR 179 at pg. 191-192]; State of Bombay v. Narottamdas Jethabhai
(AIR 1951 SC 69); Bar Council of U.P. v. State of U.P. and another (AIR 1973 SC
231) = [(1973) 1 SCC 261]; D.G. Ghose & Co. (Agents) (P) Ltd. v. State of Kerala
and another [(1980) 2 SCC 410]; Federation of Hotel and Restaurant v. Union of
India [(1989) 3 SCC 634] and State of West Bengal v. Kesoram Industries (AIR
2005 SC 1646) = [(2004) 10 SCC 201], In the matter of Central Provinces and
Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938 (AIR 1939 FC 1)]

(j) In Sh. Jilubhai Nanbhai Khachar etc. etc. v. State of Gujarat and anr.
etc. etc. [(1995) Suppl. (1) SCC 596] it was held as under:-

"It is settled law of interpretation that entries in the Seventh Schedule are not
powers but fields of legislation. The legislature derives its power from Article
246 and other related Articles of the Constitution. Therefore, the power to make
the Amendment Act is derived not from the respective entries but under Article
246 of the Constitution. The language of the respective entries should be given
the widest scope of their meaning, fairly capable to meet the machinery of the
Government settled by the Constitution. Each general word should extend to all
ancillary or subsidiary matters which can fairly and reasonably be
comprehended in it. When the vires of an enactment is impugned, there is an
initial presumption of its constitutionality and if there is any difficulty in
ascertaining the limits of the legislative power, the difficulty must be resolved,
as far as possible in favour of the legislature putting the most liberal
construction upon the legislative entry so that it may have the widest amplitude.
Burden is on the appellants to prove affirmatively of its invalidity. It must be
remembered that we are interpreting the Constitution and when the court is
called upon to interpret the Constitution, it must not be construed in any
narrow or pedantic sense and adopt such construction which must be beneficial
to the amplitude of legislative powers. The broad and liberal spirit should
inspire those whose duty is to interpret the Constitution to find whether the
impugned Act is relatable to any entry in the relevant List."

(k) In Bharat Hydro Power Corp. Ltd. and others v. State of Assam and
another [(2004) 2 SCC 553] it was held as under: -

"It is likely to happen from time to time that enactment though purporting to
deal with a subject in one list touches also on a subject in another list and prima
facie looks as if one legislature is impinging on the legislative field of the
another Legislature. This may result in large number of statutes being declared
unconstitutional because the legislature enacting law may appear to have
legislated in a field reserved for the other legislature. To examine whether a
legislation has impinged in the field of other legislatures, in fact or in substance,
or is incidental, keeping in view the true nature of the enactment, the Courts
have evolved the doctrine of "pith and substance" for the purpose of
determining whether it is legislation with respect to matters in one list or the
other. Where the question for determination is whether a particular law relates
to a particular subject mentioned in one list or the other, the courts look into
the substance of the enactment. Thus, if the substance of enactment falls within
Union List then the incidental encroachment by the enactment on the State List
would not make it invalid. This principle came come to be established by the
Privy Council when it determined appeals from Canada or Australia involving
the question of legislative competence of the federation or the States in those
countries."

(l) In Messrs Haider Automobile Ltd. v. Pakistan (PLD 1969 SC 623) it was
held as under: -

"The items in the legislative list, as was observed in the case of the United
Provinces v. Mst. Atiqua Begum and others (AIR 1941 FC 16) are not to be read
in any narrow or pedantic sense. Each general word therein should be held to
extend to all ancillary or subsidiary matters which can fairly and reasonably be
said to' be comprehended within it. These items describe only comprehensive
categories of legislation by a word of broad and general meaning. Thus, by
being given the authority to legislate in respect of the Constitution,
organisation, jurisdiction and powers of the Supreme Court, the Central
Legislature, in my view, acquired the jurisdiction also to legislate with regard to
the number of Judges to be appointed, the salaries to be paid to them and the
terms and conditions upon which they were to serve in the Supreme Court."

(m) In Pir Rashid-ud-Daula and 3 others v. The Chief Administrator of Auqaf,

West Pakistan (PLD 1971 SC 401), it was observed as under:--

"In a Federal Constitution, in which an elaborate division of Legislative powers

is attempted, it is inevitable that controversy should arise whether one or the
other Legislature is encroaching on the other's legislative field, for, no matter
how careful the draftsman or how exhaustive the legislative lists it is not
possible to provide for all conceivable eventualities or to categories each
subject of legislation under a specific label. It is for the resolution of such
controversies that the Courts have evolved certain basic tests. A careful
examination of the relevant decisions indicates that the main principles
deducible from them are:--

(i) That legislation, the validity of which has to be tested, must be

scrutinized in its entirety in order to determine its true character in pith and
substance. (Great Saddelory Co,. Ltd v. The King (AIR 1921 PC 148).

(ii) That after considering the legislation as a whole in pith and substance it
has to be seen as to with respect to which topic or category of legislation in the
various fields, it deals substantially and directly and not whether it would in
actual operation affect an item in the forbidden field in an indirect way.
(Subrahmanyan Chettiar v. Muttuswami Gourdan AIR 1941 PC 47).

(iii) That none of the items in the lists is to be read in a narrow or restricted
sense and each general word therein should be held to extend to all ancillary
and subsidiary matters which can fairly and reasonably be said to be
comprehended in it. (United Provinces v. Atiqa Begum AIR 1941 FC 16).
[emphasis supplied]

(iv) That where there appears to be apparent overlapping in respect of the

subject-matter of the impugned legislation it must first be considered whether a
fair reconciliation cannot be effected by giving to the language of the federal
and concurrent context bear is yet one that can properly be given to it.
(Governor-General-in-Council v. Province of Madras AIR 1945 PC 98).

(v) That a general power ought not to be so construed as to make a

particular power conferred by the same Act and operating in the same filed a
nullity. (In re: C. P. Motor Spirit Act AIR 1939 FC 1)."

(n) In Fauji Foundation and another v. Shamimur Rehman (PLD 1983 SC

457), it has been held as under: -

"Item No. l as worded should be construed not in a narrow or restricted sense

but in a wider sense so as to include all ancillary or subsidiary matters which
can reasonably be included within it".

(o) In Pakistan Industrial Development Corporation v. Pakistan through the

Secretary, Ministry of Finance (1992 SCMR 891) after relying upon the cases of
Navinchandra's case (supra) and Mst. Atiqa Begum's case (supra), it was held as
under: -

"The Constitution provides governance to the country, confers rights, privileges

and liabilities on the citizens and also controls the working in all fields of life. It
is a living document and is to be interpreted in a widest possible manner to
ensure continuity and balance in the several constituents and organs of the
State. The item in the list in respect of which the power of taxation can be
exercised should not be interpreted in a restricted and pedantic manner."
(p) In Messrs Elahi Cotton Mills Ltd and others v. Federation of Pakistan
through Secretary M/o Finance, Islamabad and 6 others (PLD 1997 SC 582) it
was held as under: -

"The power to levy taxes is a sine qua non for a State. In fact it is an attribute of
sovereignty of a State. … The entries in the Legislative List of the Constitution
are not powers of legislation but only fields of legislative heads. The allocation
of the subjects to the lists is not by way of scientific or logical definition but by
way of mere simple enumeration of broad catalogue. … An entry in the
Legislative List must be given a very wide and liberal interpretation.

It is needless to reiterate that it is a well-settled proposition of law that an entry

in the Legislative List must be given a very wide and liberal interpretation.

(q) In Commissioner of Sales Tax and others v. Hunza Central Asian Textile
and Woollen Mills Ltd. and others (1999 SCMR 526) it was held as under:

19. The Darned Attorney-General is correct in his submission that Legislative

entries in a Constitution are to be interpreted liberally. This principle is well
recognized and was recently confirmed by this Court in its judgment (Full
Bench of 5 Judges) in the case of Elahi Cotton Mills Ltd. (PLD 1997 SC 582).
While considering the term "income-tax" in Entry No.49 in Part I of the Federal
Legislative List (Fourth Schedule) of the 1973 Constitution, it was observed
that, from the case-law and treatises considered in the judgment, one of the
principles deducible therefrom is that while construing the said word "income"
used in the entry in the Legislative List, restrictive meaning cannot be applied
… . While interpreting the word, it was recognized that the rule of
interpretation of any entry in Legislative List is that the same should be given
widest possible meaning. …

24. As observed, legislative entries should be given liberal and very wide
interpretation and that the judicial approach in this regard should be dynamic
rather than rigid. Another principle that has been noted in the earlier part of
this judgment is that the Legislature enjoys a wide latitude in the matter of
selection of persons subject-matter, events etc. for taxation. …

From the perusal of above case law, the following principles of Constitutional
interpretation with regard to the Entries in the legislative lists emerge: -

(1) The entries in the Legislative Lists of the Constitution are not powers of
legislation but only fields of legislative heads;

(2) In construing the words in an Entry conferring legislative power on a

legislative authority, the most liberal construction should be put upon the
words.
(3) While interpreting an Entry in a Legislative List it should be given
widest possible meaning and should not be read in a narrow or restricted sense;

(4) Each general word in an entry should be considered to extend to all

ancillary or subsidiary matters which can fairly and reasonably be said to be
comprehended in it;

(5) If there appears to be apparent overlapping in respect of the subject-

matter of a legislation, an effort has to be made to reconcile the Entries to give
proper and pertinent meaning to them.

(6) A general power ought not to be so construed so as to make a particular

power conferred by the same legislation and operating in the same field a
nullity.

(7) Legislation under attack must be scrutinized in its entirety to determine

its true character in pith and substance;

(8) After considering the legislation as a whole in pith and substance, it has
to be seen as to with respect to which topic or category of legislation in the
various fields, it deals substantially and directly and not whether it would in
actual operation affect an item in the forbidden field in an indirect way.

15. In the light of the above principles, now we shall consider the vires of
the Federal legislation i.e. IRA 2012. In this regard, the most important aspect
of the matter is that there are two types of establishments/organizations/
industries; firstly, the industries, etc. functioning within the territorial limits of
one Province only, and secondly, certain other establishments, etc. functioning
within the territorial limits of more than one Province or even in all the four
Provinces as well as the Federal Capital Territory. Now the moot question arises
whether, notwithstanding the fact that the authority to legislate with regard to
the matters concerning the trade unions and unfair labour practices vests with
the Federal Legislature or not, a Provincial legislature can legislate with regard
to the trade union/establishments functioning at trans-provincial level. In this
regard it is to be noted that Article 97 of the Constitution provides that "subject
to the Constitution, the executive authority of the Federation shall extend to the
matters with respect to which the both Majlis-e-Shoora (Parliament) has power
to make laws, including exercise of rights, authority and jurisdiction in and in
relation to areas outside Pakistan". Under the said Article, the executive
authority of the Federation is not restricted to the areas within Pakistan but
also extended in relation to the areas outside Pakistan. However, as per proviso
thereto, "the said authority shall not, save as expressly provided in the
Constitution or in any law made by Majlis-e-Shoora (Parliament), extend in any
Province to a matter with respect to which the Provincial Assembly has also
power to make laws". Under Article 137 of the Constitution, "subject to the
Constitution, the executive authority of the Province shall extend to the matters
with respect to which the Provincial Assembly has power to make laws". As per
proviso thereto, "in any matter with respect to which both Majlis-e-Shoora
(Parliament) and the Provincial Assembly of a Province have power to make
laws, the executive authority of the Province shall be subject to, and limited by,
the executive authority expressly conferred by the Constitution or by law made
by Majlis-e-Shoora (Parliament) upon the Federal Government or authorities
thereof". Further, as per Article 141 of the Constitution, "subject to the
Constitution, Majlis-e-Shoora (Parliament) may make laws (including laws
having extra-territorial operation) for the whole or any part of Pakistan, and a
Provincial Assembly may make laws for the Province or any part thereof". Under
Article 142 of the Constitution, the Parliament has exclusive power to make
laws with respect to (1) any matter in the FLL, (2) criminal law, criminal
procedure and evidence and (3) all matters pertaining to such areas in the
Federation as are not included in any Province; whereas, a Provincial Assembly
has power to make laws with respect to (1) criminal law, criminal procedure
and evidence and (2) any matter not enumerated in the FLL. Under Article
232(2) of the Constitution, in case of emergency, the Legislative authority of the
Federation extends to enacting laws for a Province, or any part thereof, with
respect to any matter not enumerated in the FLL. Thus, from the above
provisions of the Constitution it is clear that the Federal Legislature has extra-
territorial authority to legislate, but no such extra-territorial authority has been
invested with the Provincial Legislature. Thus, the Provincial Legislature has no
legislative competence to legislate law regulating the trade unions functioning
at trans-provincial level. Needless to observe that to deal with such a matter,
the Constitution itself has provided a mechanism i.e. entries Nos.58 and 59 in
Part-I of FLL, whereby the Federal Legislature has been mandated to legislate
in order to preserve and regulate a right, which in its exercise transcends
provincial boundaries, especially one guaranteed under Article 17 of the
Constitution. The scope of Entries Nos.58 and 59 shall be discussed in detail at
the latter part of the judgment, considering the scope of the Entries in the FLL.

16. Having decided the question regarding the legislative competence of the
Provincial legislature, now we shall consider the question whether the IRA 2012
is a valid piece of legislation or not, and whether by promulgating the said Act,
the Federal Legislature has gone beyond its legislative competence and
encroached upon the authority of the Provincial Legislature. In this regard it is
to be noted that although through the Eighteenth Amendment the CLL (Entries
Nos.26 and 27 whereof covered the subjects, inter alia, of labour disputes and
trade unions) was abolished from the Constitution, however, a new Entry No.32
in Part-I of the FLL was introduced which covered the subjects of "International
treaties, conventions and agreements and International arbitration". Previously,
somewhat similar subjects were available in Entry No.3 of Part-I of the FLL, i.e.
"External affairs; the implementing of treaties and agreements, including
educational and cultural pacts and agreements, with other countries;
extradition, including the surrender of criminals and accused persons to
Governments outside Pakistan". It has been argued by the learned counsel for
the appellants that if the interpretation of Entry No.3 of Part-I of FLL as made
by the learned High Courts is presumed to be correct, then the Federal
legislature could enlarge its legislative powers and legislate on any subject it
chooses simply because the Executive has signed a treaty in relation to that
topic; this would negate the basic concept of division of powers on which our
constitutional structure has been erected. In this regard it is to be noted that
the Parliament through Eighteenth constitutional amendment, though abolished
the CLL which contained the subjects of labour practices and trade unions
(Entries Nos.26 and 27 of the CLL), but with conscious application of mind,
through insertion of the new Entry No.32 ibid in the FLL, brought within the
legislative competence of the Federal Legislature the matters relating to the
international treaties, conventions, etc.; obviously, while doing so, it
(Parliament) was conscious of the fact that the matters relating to trade unions
and labour disputes, etc., have been dealt with and protected under the
International Labour Organization's Conventions No.87 (Convention concerning
Freedom of Association and Protection of the Right to Organise) and 98
(Convention concerning the Application of the Principles of the Right to
Organise and to Bargain Collectively) which 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 to discharge the obligations created
under the International Treaties and Conventions. Therefore, the IRA 2012 has
been validly enacted by the Parliament.

17. Additionally, Entries Nos.58 and 59, which fall at the end of the Part-I of
the FLL, have their own significance. These two entries are independent and
unfettered. Entry No.58 ibid covers the "Matters which under the Constitution
are within the legislative competence of Majlis-e-Shoora (Parliament) or relate
to the Federation". Further, Entry No.59 deals with the "Matters incidental or
ancillary to any matter enumerated in this Part". From the plain reading of
these two Entries, it is clear that besides the subjects enumerated in the
previous Entries, these Entries provide extended powers to the Federal
Legislature; inasmuch as, by means of these Entries, the legislative competence
of the Federal Legislature extends not only to the matters which under the
Constitution are within the legislative competence of the Parliament but also to
the matters which relate to the Federation and also the matters incidental or
ancillary thereto. Thus, in addition to the matters specifically enumerated in any
of the Entries in Part-I of the FLL, the matters which in some way relate to the
Federation would also fall within the legislative competence of the Parliament.
This interpretation also finds support from the fact that in terms of Article 141
of the Constitution, a Provincial Legislature does not possess extra-territorial
legislative competence and therefore, cannot legislate with regard to a subject
which in its application has to transcend the provincial boundaries. It is to be
noted that as clarified by the learned High Court the resort to Entry No.58 ibid
could only be made to deal with an extra-ordinary situation i.e. when a matter
may fall within the legislative competence of the Province but when it comes to
its application it has to travel beyond the territorial boundaries of the Province,
bringing it into the domain of the Federal Legislation. Thus, it is held that the
federal legislature has the competence to legislate relating to the
Establishments/Trade Unions functioning at the Federal as well as trans-
provincial level.

18. There is yet another Entry in Part-II of the FLL which provides the
legislative authority to the Federal Legislation, namely, entry No. 13 which
covers "Inter-provincial matters and co-ordination". This Entry also has two
parts, firstly, the inter-provincial matters and secondly, inter-provincial co-
ordination. It is clear that under the command of this Entry too, the Federation
has competence to enact laws relating to the inter-provincial matters/Trade
Unions. Further, Entry No.18 thereof covers the "Matters incidental or ancillary
to any matter enumerated in this Part". This Entry further enlarges the scope of
the above Entry. Thus, it is held that even on the basis of Entries Nos.13 and 18
ibid, the IRA 2012 is a valid piece of legislation.

19. As we have already held that the subjects of labour and trade unions fall
within the scope of Entries Nos.3, 32, 58 and 59 of Part-I and Entry Nos.13 and
18 of Part-II of FLL, we do not deem it appropriate to enter into the scope of
Entries Nos.27 and 31 as also other Entries which have been relied upon by the
learned High Court to uphold the validity of Federal legislations.

20. At this juncture it is to be noted that when a provincial legislature is not

competent to legislate with regard to the workmen of trans-provincial
establishments, obviously the Federation has to interfere in the matter with a
Federal Legislation to preserve and protect the fundamental rights of the said
workmen ensured under Article 17 of the Constitution. We are in agreement
with the observation made by the learned High Court that though in a Federal
system, provincial autonomy means capacity of a province to govern itself
without interference from the Federal Government or the Federal legislature,
but as the Provincial legislature does not possess extra-territorial legislative
authority i.e. it cannot legislate regarding the establishments operating beyond
the territorial boundaries of that province. In absence of a Federal legislation,
the right to form a trade union that can operate beyond the provincial
boundaries could not be secured by any provincial law, and as such, any matter
or activity of a trans-provincial nature would remain unregulated. The only
solution to the above said problem is a Federal legislation. The effect of non-
promulgation of IRA 2012 would be that the employer would not recognize the
right of the workmen to form a countrywide trade union and carry out unified
activities in his establishment at trans-provincial level; and also the number of
workmen working in each unit of an establishment working in a certain
Province would be counted separately which in turn would have adverse impact
on the rights of the workmen, in so far as applicability of benefits and security
of job granted under various labour laws are concerned as certain rights
granted under various labour laws become available to the workmen depending
upon the total strength of the workmen in an establishment. Needless to
observe that as mentioned in its preamble, the object of promulgation of IRA
2012 is "to consolidate and rationalize the law relating to formation of trade
unions, and improvement of relations between employers and workmen in the
Islamabad Capital Territory and in trans-provincial establishments and
industry". Further, as per Section 3 thereof "it shall apply to all persons
employed in any establishment or industry, in the Islamabad Capital Territory or
carrying on business in more than one province". Hence, the parliament in its
wisdom has intentionally left it for a Province to make legislation concerning the
establishments/trade unions functioning only within the limits of that Province,
without transgressing the territorial limits of the said Province. Thus, neither
does the IRA 2012 in any manner, defeat the object of the Eighteenth
Amendment nor does it destroys or usurps the provincial autonomy or the
principle on which the Federation was formed under the Constitution; rather it
facilitates to regulate the right to form unions at trans-provincial level, which
could not be attained through a provincial law.

21. With regard to the question about the jurisdiction of the NIRC formed
under Section 25 of the Industrial 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's 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)]. 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 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.

22. There is yet another question involved in the matter, namely, the
appellant-Shaheen Airport Services is a charitable organizations or not. It is the
case of the appellant that charitable organizations are excluded from the
operation of both the federal and provincial law, therefore, regardless of the
question whether the appellant is a trans-provincial establishment for purposes
of the federal law or whether it comes within the ambit of the provincial law,
the appellant falls outside the purview of both the IRA, 2012 and the SIRA,
2013, resultantly, no trade union can be registered within the appellant. In this
regard it is to be noted that the learned High Court has considered this question
in detail and has held that the Federal law was applicable to Shaheen Airport
Services as the same was operative in more than one Province and that Shaheen
Airport Services did not qualify as a charitable organization in view of the
activities that were entailed in the operation of its business. We are in
agreement with the findings of the learned High Court.

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 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-II 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 applicable

retrospectively w.e.f. 01.05.2010, when the IRO 2008 ceased to exist; and

(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.