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  • May 17th, 2008
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The growth of civilisation has generally been linked with the gradual development of a system of legal rules, together with a machinery for their regular and effective enforcement. Law is in a constant process of flux, and much of its development is due to legislative enactments and the role played by the judiciary in interpreting legal rules and principles in the context of the modern legal system and the needs of the society.

With the evolution and progress of industrial society, labour legislation has become very dynamic and complex. Inclusion of new labour enactments in the statute book, periodical amendments in the existing labour laws, and voluminous growth of case law have added new dimensions to industrial jurisprudence.

It is becoming increasingly difficult on the part of employers to comply effectively with the various statutory measures, for the employees to claim statutory benefits and for the government to enforce the statutory provisions, because of the complexity and rapid progress of labour legislation. In this context, what is required is a sense of awareness and responsibility and continual co-operative effort by all concerned towards the practical application of labour laws.

In order to understand different aspects of industrial jurisprudence, it is necessary to have a general idea of what jurisprudence is. The Oxford Dictionary defines jurisprudence as the science or philosophy of human law. Its Latin equivalent 'jurisprudentially' means either "knowledge of law" or "skill in law". It deals with the structure, uses, and functions of law and legal concepts. According to Holland, jurisprudence is a formal science of positive law.

Professor Allen views it as a scientific synthesis of the essential principles of law. Markby defines jurisprudence as "the elements of law". "Jurisprudence", according to Salmond, "is the name given to a certain type of investigation into law, an investigation of an abstract, general and theoretical nature, which seeks to lay bare the essential principles of law and legal systems."

Industrial jurisprudence is a new branch of law. Professor Allen observes that it is a science of industrial law. Salmond considers it as "an instrument of society to do justice". Webb views it as "a constitution in the industrial realm." Casselman's labour dictionary defines it as "the code dealing with the employer and employee relations established through various precedents." According to L.J. Smit, "it is a code which consists of various precedents established by decisions made in settling employees' problems and grievances." Gagliardo considers it as "some customs and rules by which relationships between the employers and the employees, or the master and servant, are governed.

Article 17 of the Constitution of Islamic Republic of Pakistan 1973 guarantees right to form an Association. The right to form an association or union is only for a lawful purpose. Since the right to form a union belongs to all workmen, every workman under an employer has the freedom to form a union of his own choice and to refuse to become a member of any union he does like.

However, this right does not include any guaranteed right of collective bargaining or the right to strike. There is no fundamental right to strike in Pakistan under any of the clauses of the Constitution. (All-India Bank Employees' Association v. National Industrial Tribunal AIR 1962 SC 171)

The richest source of industrial jurisprudence is judicial decisions. Industrial Courts, the erstwhile Labour Appellate Tribunal, the High Courts and the Supreme Court have all contributed in varying measure to the principles of industrial jurisprudence.

The role of the Supreme Court deserves special mention and comment; first, because it is the apex court and, second, because the law laid down by the Supreme Court is binding on all courts by virtue of the Constitution. By a series of judgements, over a period of 40 years, the Supreme Court in the Sub-Continent has produced a mass of legal principles and rules, though not necessarily consistent. Industrial case law, so developed, is the pillar of Industrial Jurisprudence.

Labour legislation in Pakistan covers all aspects of labour, more than labour legislation in any other country of the world. Through a body of legal enactments and judicially acknowledged principles, it covers industrial employment, non-employment, wages, working conditions, industrial relations, social security and welfare of industrial employees. Indeed, labour legislation is a result of the evolution of the concept of social justice, which aims at protecting those who cannot protect themselves.

THE SPECIFIC OBJECTIVES OF SOME OF THE LABOUR LAWS ARE:

(i) To protect and safeguard the interest and well-being of the working class against arbitrary and unilateral action of the employers.

(ii) To regulate and improve upon the working conditions of workers employed in different factories and establishments by stipulating measures to protect and promote their health, safety and welfare.

(iii) To provide for statutory fixation, payment and periodic revision of need-based minimum wages to employees in the "sweat" industries and the unorganised sector.

(iv) To ensure that the employees are paid their wages on fixed dates, at least once a month, and that no arbitrary and unauthorised deductions are made from their wages.

(v) To ensure that the service conditions are spelt out clearly and precisely by employers and made known to workmen and also to specify the mutual rights and obligations of workmen and employers.

(vi) To grant freedom of association to the working class to form trade unions and to have the right to organise by providing for the registration of trade unions, and to promote their welfare through collective bargaining.

(vii) To promote industrial peace by providing for an elaborate machinery for the prevention and settlement of industrial disputes.

(viii) To provide social security and EOBI benefits to employees in the event of the loss of the earnings of the bread-earner due to such eventualities as sickness, maternity, disablement and death.

(ix) To make statutory provision for the regular training of a certain number of apprentices in different trades.

(x) To provide for welfare facilities and social amenities to workers and their families outside their work place by raising separate welfare funds.

(xi) To provide for regular and periodic furnishing of statistics by industrial or commercial organisations on specified labour matters.

The civil court administers justice by interpreting existing law, whereas the labour court administers justice by creating new law. The civil court gather the facts of the case and decides as to whether the terms of contract have been violated or not.

On the other hand, the labour court has the power not only to decide whether the terms of contract have been complied with or infringed, but also to introduce new contracts in the light of current social values.

In Flour Mills Employees Union vs. Karachi Steam Roller Flour Mills Co Ltd 1964 PLC 593 at 600 a Division Bench of the Karachi High Court has admirably summoned up the purpose and object of industrial law and industrial justice with the following observations:

The purpose of industrial law and the object of industrial justice can be taken to establish a balance between the interests of the workers, and those of the owners of industry, so that harmony of their relations may be achieved. It is not easy, perhaps not even possible, to strike a perfect balance because limitations with respect to the interests of either party are imposed by existing conditions.

The decisive factor for the decisions, in the existing state of affairs, would ultimately have to be the attitude of the mind or the policy designed by those who administer industrial justice. There is little authority from the purely legal point of view in support of one attitude or the other. In these circumstances, the Legislature has considered it best not to confer industrial jurisdiction on ordinary courts and has created special Industrial Courts.

One of the reasons behind it appears to be that the Industrial Courts are expected to be experienced in, and appreciative of the social, economic, labour and industrial problems, while the ordinary courts are trained to administer purely legal justice with commendable emphasis, of course, on rationality and logic which is, however, not the same thing as the formulation of and adherence to a well designed policy within the law.

The jurisdiction to hear appeals from the awards of the Industrial Courts has recently been conferred on the High Court; but the nature of the jurisdiction of such appellate courts and, I believe, their outlook should be the same as those of the special courts from which the appeals are preferred, unless, in respect of their outlook, an error can be found which should be an error of law, fact or a legally recognisable policy and not merely disunity in the implicit attitudes of mind.

The Chairmen of the Industrial Courts in West Pakistan have been ex-Judges of the High Court, perhaps because the training in the administration of purely legal justice guarantees logicality, legality and the capacity to accurately grasp facts as well as the trends of thought. The discovery and development of policies must nevertheless remain the responsibility of the special courts.

In Pakistan Tobacco Co Ltd versus Pakistan Tobacco Company Employees Union 1961 PLC 1033 at 1049 the Supreme Court of Pakistan made a distinction between decisions made by the ordinary courts and by the Industrial Tribunal with the following observations:

It will be proper to state here the difference between an ordinary arbitration and a proceeding before an Industrial Tribunal. The arbitrator, like a court, simply determines what the rights of the parties are. He neither purports to grant nor can he grant to a party any right which it does not possess. If an arbitrator were, for instance, to find in a case of inheritance that one of the heirs is entitled under the relevant law to one-third shares of the estate of the deceased, he could not on equitable grounds convert that one-third to one-half.

The scope of the jurisdiction of the Industrial Tribunal is, however, entirely different. The Tribunal does not discover what the rights of the parties are. If he were simply to do that, he would never be able to help the workmen because the rights of the workmen are based on contract and cannot go beyond the terms of the contract. The Tribunal possesses a jurisdiction by which it alters the terms of the contract and grants to parties rights, which they do not possess under the law on what it considers to be just and equitable grounds.

Truly speaking, there are no fetters at all on the discretion of the Tribunal to vary the conditions of service. Some general principles on which the Tribunals should act are found in decided cases but they have no binding force as precedent and the jurisdiction of the Tribunal, subject of course to the jurisdiction of any appellate authority, remains supreme.

By and large, the preponderance of judicial opinion is that Industrial Courts are not civil courts except for limited purposes, and the proceedings before them are merely of a quasi-judicial nature. The word "Quasi" means not exactly. Generally an action is described as Quasi judicial when it has some of the attributes or trapping of a judicial action but not all.

Hence, they are not bound by the law of evidence in so far as procedure is concerned. The trend of judicial thinking is that the application of technical rules such as acquiescence and estoppel, is not appropriate to industrial adjudication. Though the provisions of the Qanoon-e-Shahadat do not apply to industrial adjudication, certain fundamental principles of the law of evidence may apply to the facts of a case.

The evidence to be submitted in industrial adjudication may be oral, consisting of statements made verbally by the parties or their witnesses at the hearing or documentary, consisting of letters, Agreements, statements of accounts, deeds, balance sheets and other documents put in by either side.

This clause vests the courts with the same powers as are vested in a civil court in the matter of enforcing attendance of any person and examining him on oath. The power includes the power to recall a witness for further examination or cross-examination.

Though the strict technicalities of the Qanoon-e-Shahadat do not apply to industrial adjudication, the rules of evidence to be observed are the same as those which apply in the courts of law. Adjudicators are often called upon to decide difficult questions of the admissibility of evidence, which is tendered before them. Generally speaking, all "hearsay" evidence is inadmissible, ie, any written or verbal statement made by a person who is not going to be called as a witness at the adjudication.

In examining its own witnesses on "examination-in-chief," a party is not entitled to put "leading questions," ie, questions so framed as to suggest the answer required, or to actually put that answer into the witness's mouth. But leading questions are permissible on cross-examination. The Labour Court powers in the matter of production, discovery and inspection of documents are strictly governed by the provisions of Order 11 of the Code of Civil Procedure. An industrial adjudicator has jurisdiction to direct a party to produce any document that may be in possession of a party for the purpose of proper adjudication of any issue referred to it by the government or framed by it.

The Supreme Court of India put its seal of approval on this view in its landmark decision in the Bharat Bank's case, wherein it stated that "the function of the tribunal is not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them, which it considers essential for keeping industrial peace."

In so pronouncing, the Supreme Court authoritatively shelved the traditional law of master and servant for good. In its subsequent decision (Rai Bahadur Diwan Badridas v. Industrial Tribunal (AIR 1963 SC 630), the Supreme Court finally gave short shrift to the employer's right to dictate terms of employment by proclaiming that the doctrine of absolute freedom of control has thus to yield to the higher claims of social justice. The concept of social justice is not based on contractual relations and cannot be enforced on the principles of contract of service.

It is something outside those principles of contract of service and is invoked to do justice without a contract to back it (Rashtriya Mill Mazdoor Sangh v. Apollo Mills Ltd (1960 II LLJ 263 SC). The court even extended this principle to managerial functions, though cautiously. It stated that the employer's right to manage his own affairs in the best way he chooses should be recognised by the industrial adjudication unless compelled by overriding considerations of social justice. The right would not be recognised and would be controlled if social justice and industrial peace require such regulation.

In Mohd. Kassin Larry v. Mohd. Samsuddin (1964 II LLJ 430), the Indian Supreme Court observed that it is now well settled that unlike ordinary courts which are bound by the terms of contract between the parties when they deal with disputes arising between them in respect of the said terms of contract, industrial adjudication is not bound to uphold the terms of contract, between the employer and the employee. If it is shown to the satisfaction of industrial adjudication that the terms of the contract of employment need to be revised in the interest of social justice, it is at liberty to consider the matter, and take into account relevant factors, and if a change or revision of the terms appears to be justified, and often enough it is, it may radically change the terms of employment.

The aforesaid enactment and judicial decisions of both the Supreme Court of Pakistan and India have made serious inroads into the employer's right in the matter of employment and permanency of service. The employer's right to transfer an employee from one department to another, or from one post to another, or from one branch to another, which was treated as incidental to the managerial functions, was also limited, and it was held that an industrial courts would be justified in upsetting such transfer where there was reason to believe that it was malafide, by way of victimisation, an unfair labour practice or dictated by some other ulterior motive and not connected with the business interest of the employer (Canara Banking Corporation Ltd v. Vithal (1963 1 LLJ 354). Similarly, it is now well established that an employer cannot have two sets of working conditions for its employees, and uniformity is insisted upon (Salem Erode Electricity Distribution Co v. Their Union, 1966 Vol 1, LLJ 443). The region-cum-industry formula also requires similarity of working conditions in similar industries in a region.

The Supreme Court has observed that social justice is a very vague and indeterminate expression and that no definition could be laid down which would cover all situations. According to Justice Holmes, social justice is "an inarticulate major premise which is personal and individual to every court and every judge."

But Justice Bhagwati, speaking for the Indian Supreme Court in Muir Mills Ltd v. Suti Mazdoor Union (1955 - 1 LLJ 1) said: "The concept of social justice does not emanate from the fanciful notions of any particular adjudicator, but must be founded on a more solid foundation." In J.K. Cotton Spinning and Weaving Mills Co Ltd v. Labour Appellate Tribunal (1963 II LLJ 436), the Indian Supreme Court assigned a more broader and positive role to the concept of social justice in industrial adjudication in these words: "The concept of social justice is not narrow, or one-sided, or pedantic, and is not confined to industrial adjudication alone. Its sweep is comprehensive. It is founded on the basic ideal of socio-economic equality, and its aim is to assist in the removal of socio-economic disparities and inequalities.

Nevertheless, in dealing with industrial matters, it does not adopt a doctrainnaire approach and refuses to yield blindly to abstract notions, but adopts a realistic and pragmatic approach. It, therefore, endeavours to resolve the competing claims of employers and employees by finding a solution which is just and fair to both parties with the object of establishing harmony between capital and labour, and good relationship." It is justice according to the conscience of society.

The Supreme Court of India observed in Mysore State v. Workers of Gold Mines (AIR 1958 SC 923) that "the concept of social and economic justice is a living concept of revolutionary import; it gives substance to the rule of law and meaning and significance to the ideal of a welfare state... In its attempt to do social justice, industrial adjudication has to adjust the rival claims of the employer and his workmen in a fair and just manner, and this object can best be achieved by dealing with each problem as it arises on its own facts and circumstances."

The application of the principles of social justice by industrial adjudication has carved out a place for labour in society and has drastically altered the old master and servant relationship. Workers have acquired the right to get minimum wages, bonus and also security of employment. In this process, the rights of employers to fix the terms and conditions of employment at their own discretion and also their right to "hire and fire" have been drastically curtailed. All this has been possible because of the bold efforts of our law courts which have given a comprehensive meaning to the doctrine of social justice.

It has to be borne in mind that industrial adjudication proceedings are not to be considered as proceedings purely between two private parties having no impact on the industry. These proceedings involve a larger public interest in which the industry (including the employer and labour) is vitally interested.

The system of industrial adjudication is designed to promote industrial peace and harmony so as to increase production and assist in the growth of national economy. It has to be considered in the background of our constitutional set-up, according to which the government has to strive to secure and effectively protect a social order in which social, economic and political justice must inform all institutions of national life, and the material resources of the community are so distributed as best to subserve the common good.

Labour legislation has intimate relations with the human factor in the industry. In fact, labour legislation was originally introduced to curb the excesses of the early factory system and to offer relief to factory workers groaning under inhuman conditions of service. Labour laws, which were protective in character to start with, gradually became ameliorative with the inclusion of welfare measures. In various countries, the basic or protective legislation was enacted through the efforts of more enlightened and liberal sections of society who could not stand the appalling hardships of the workers.

In other words, then social conscience revolted against the degradation of workers into a sub-human existence. Governments were pressurised to enact progressive welfare legislation to protect and promote the interests of the working class. Gradually, the concept of welfare has become an integral part of the philosophy of industrial jurisprudence.

(To be continued)

Copyright Business Recorder, 2008


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