2018 S C M R 802

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, C.J., Mushir Alam and Sajjad Ali Shah, JJ

Messrs SUI SOUTHERN GAS COMPANY LTD. and

others---Appellants/Petitiioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

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.

(Against the judgments date 4-8-2014, 29-10-2010, 3-12-2014, 18-3-2015, 9-6-2015

and 17-4-2014 of the High Court of Sindh, Karachi/Islamabad High Court,
Islamanbad/Peshawar High Court, Peshawar/Lahore High Court, Lahore passed in
C.Ps. Nos.D-304/2012, D-3195/2010, D-1762/2012, D-658/2012, D-3530/2011, D-
3196/2010, D-2948/2011, D-2947/29011, D-2701/2011, D-2269/ 2013, D-2188/2011,
D-1642/2012, D-1410/2010, D-4184/2012, D-153/ 2012, D-1796/2010, D-2428/2010,
W.P. No.4626/2014, 4628/2014, C.P. No.4514/2013, W.P. No.634/2015 and R.A.
No.93/2012).

(a) Constitution of Pakistan---

----Art. 184(3)---Vires of statute---Legislative enactment, vires of---Judicial review---

Scope---While considering the vires of a legislative enactment under its powers of
judicial review, the Supreme Court could consider not only the substance of the law
but also the competence of the legislature---Further no mala fide could 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---
Vires of a statute could also be determined on the ground that the legislation was
colourable.

(b) Constitution of Pakistan---

----Art. 184(3)---Legislative enactment, constitutionality of---Judicial review---

Scope---When a law was enacted by the Parliament, the presumption was that
Parliament had competently enacted it (law), and if the vires of the same (law) were
challenged, the burden always laid upon the person making such challenge to show
that the same (law) was violative of any of the Fundamental Rights or the provisions
of the Constitution ---Where two opinions with regard to the constitutionality of an
enactment were possible, the one in favour of the validity of the enactment was to be
adopted---Court should lean in favour of upholding the constitutionality of a
legislation and it was thus incumbent upon the Court to be extremely reluctant to
strike down laws as unconstitutional---Such power should be exercised only when
absolutely necessary as injudicious exercise of such power might well result in grave
and serious consequences.

[Case-law referred]

(c) Constitution of Pakistan---

----Fourth Sched.---Legislative Lists, interpretation of---Principles stated.

Principles of interpretation with regard to Entries in the Legislative Lists were

as follows:

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

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

legislative authority, the most liberal construction should be put upon the
words;

(iii) 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;

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

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

(v) If there appeared to be an apparent overlapping in respect of the

subject-matter of a legislation, an effort had to be made to reconcile the
Entries to give proper and pertinent meaning to them;

(vi) 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;

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

its true character in pith and substance; and
 (viii) After considering the legislation as a whole in pith and substance, it
had to be seen that with respect to which topic orcategory of legislation
in the various fields, it dealt substantially and directly and not whether it
would in actual operation affect an item in the forbidden field in an
indirect way.

[Case-law referred]

(d) Industrial Relations Act (X of 2012) ---

----S. 3 & Preamble---Constitution of Pakistan, Arts. 17, 97, 137, 141, 142 & Fourth
Sched, Pt. I, Entries 58 & 59---Industrial Relations Act, 2012, vires of---
Establishments/trade unions functioning at the Federal as well as trans-provincial
level---Legislative domain of Federal and Provincial Legislature---Scope---Federal
Legislature had extra-territorial authority to legislate,but no such extra-territorial
authority had been invested with the Provincial Legislature---Provincial Legislature,
therefore, had no legislative competence to legislate laws regulating the trade unions
functioning at trans-provincial level---Constitution itself had provided a mechanism in
form of Entries No.58 and 59 of Part I of the Federal Legislative List, whereby the
Federal Legislature had been mandated to legislate in order to preserve and regulate a
right, which in its exercise transcends provincial boundaries, especially one
guaranteed under Art.17 of the Constitution---When a provincial legislature was not
competent to legislate with regard to the workmen of trans-provincial establishments,
obviously the Federation had to interfere in the matter with a Federal legislation (such
as the Industrial Relations Act, 2012) to preserve and protect the Fundamental Rights
of the said workmen ensured under Art.17 of the Constitution---Parliament in its
wisdom had 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---Neither did the
Industrial Relations Act, 2012 in any manner,defeat the object of the Eighteenth
Amendment (to the Constitution) nor did it destroy or usurp the provincial autonomy
or the principle on which the Federation was formed under the Constitution; rather it
facilitated to regulate the right to form unions at trans-provincial level, which could
not be attained through a provincial law --- Supreme Court declared that the Industrial
Relations Act, 2012 had been validly enacted by the Parliament and was intra vires
the Constitution; that 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. Industrial Relations Act, 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.
(e) Industrial Relations Act (X of 2012)---

----S. 3 & Preamble---Constitution of Pakistan, Fourth Sched, Pt. I, Entries Nos. 3 &
32 & Fourth Sched, Pt. II, Entries Nos.13 & 18---Industrial Relations Act, 2012, vires
of---Establishments/trade unions functioning at the Federal as well as trans-provincial
level---Question as to whether the Federal Legislature was competent to enact the
Industrial Relations Act, 2012; held, that entry No.32 of Part I of the Federal
Legislative List, brought within the legislative competence of the Federal Legislature
the matters relating to the international treaties, conventions, etc.---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 No.98
(Convention concerning the application of the Principles of the Right to Organise and
to Bargain Collectively) which were covered under Entries Nos.3 and 32 of Part-I of
the Federal Legislative List---Federal Legislature, thus, had legislative competence to
legislate in such regard to discharge the obligations created under the International
Treaties and Conventions---Entry No. 13 of Part II of the Federal Legislative List,
which covered "Inter-provincial matters and co-ordination"also provided legislative
authority to the Federal legislature to enact laws relating to inter-provincial
matters/trade unions---Moreover Entry No. 18 of Part II of the said List enlarged the
scope of Entry No. 13---Federal legislature had the competence to legislate in relation
to establishments/trade unions functioning at the Federal as well as trans-provincial
level---Industrial Relations Act, 2012 was, therefore, validly enacted by the
Parliament.

(f) Industrial Relations Act (X of 2012)---

----S. 35---National Industrial Relations Commission ("NIRC"), jurisdiction of---

Scope---National Industrial Relations Commission (NIRC) formed under S. 35 of the
Industrial Relations Act, 2012 had jurisdiction to decide the labour disputes, etc.,
relating to the employees/workers of companies/corporations/institutions/
establishments functioning in more than one Province.

(g) Interpretation of statutes ---

----Procedural law---Retrospective effect---Procedural law had retrospective effect

unless contrary was provided expressly or impliedly.

Air League of PIAC Employees through President v. Federation of Pakistan

M/O Labour and Manpower Division Islamabad and others 2011 SCMR 1254 ref.

(h) Industrial Relations Act (X of 2012)---

----Preamble---Industrial Relations Act (IV of 2008), Preamble---Industrial Relations
Act, 2012---Date of applicability---Industrial Relations Act, 2012, being a procedural
law, would be applicable retrospectively w.e.f. 01-05-2010, when the Industrial
Relations Act, 2008 ceased to exist.

Khalid Anwar, Senior Advocate Supreme Court, Nisar A. Mujahid, Advocate

Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellants (in
C.As. Nos.970 and 971 of 2013)

Asim Iqbal, Advocate Supreme Court for Appellants (in C.A. No.1583 of
2014).

Dr. Muhammad Farough Naseem, Advocate Supreme Court for Appellants (in
C.As. Nos.1584, 1585, 1589, 1590, 1591, 1593, 1596, 1597 and 1598 of 2014).

Nemo for Appellants (in C.As. Nos. 1586, 1587, 1588, 1592, 1594 and 1595 of
2014).

Tariq Masood, Senior Advocate Supreme Court and Syed Rifaqat Hussain
Shah, Advocate-on-Record for Appellants (in C.As. Nos.4 and 5 of 2015).

Shahid Anwar Bajwa, Advocate Supreme Court and M.S. Khattak, Advocate-
on-Record for Appellants (in C.A. No.606 of 2015).

Mehmood Abdul Ghani, Advocate Supreme Court and M.S. Khattak, Advocate
on Record for Appellants (in C.A. No.1152 of 2015).

Khalid Ismail, Senior Advocate Supreme Court for Appellants (in C.P.
No.2154-L of 2014).

M. Makhdoom Ali Khan, Senior Advocate Supreme Court for Respondents (in
C.As. Nos.1583, 1585, 1586, 1590 to 1595 of 2014).

Rasheed A. Rizvi, Senior Advocate Supreme Court for Respondents (in C.A.
Nos. 1584 and 1587 of 2014).

Khalid Ismail, Advocate Supreme Court for Respondents (in C.As. Nos. 4 and
5 of 2015, 970, 971 of 2013).

Nemo for Respondents (in C.A. No.970 of 2013).

Amir Javed, Advocate Supreme Court for Respondents (in C.A. No.1152 of
2015).
 Salman Riaz Ch., Advocate Supreme Court for Respondents (in C.P. No.2154-
L of 2014).

Muhammad Waqar Rana, Addl. A.G.P., Shehryar Qazi, Addl. A.G. Sindh, Ms.
Asma Hamid, Addl. A.G. Punjab, Barriater Qasim Wadood, Addl. A.G.KPK,
Ayaz Swati, Addl. A.G. Balochistan, M. Bilal Nadeem, Dy. Registrar, NIRC,
Syed Farrukh Manayun, Joint Director Labour Department, Sindh, Raja
Maqsood, LO Labour Deptt. Punjab and Mazhar Hussain, SO (Coordination)
Ibd (on Court's Notice).

Saleem Khan, Advocate Supreme Court, Qazi Ahmed Naeem Qureshi,

Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for
Intervener.

Date of hearing: 10th January, 2018.

JUDGMENT

MIAN SAQIB NISAR, C.J.--These appeals with the leave of the Court vide
orders dated 5.9.2013 (C.As. Nos.970 and 971 of 2013), 27.11.2014 (C.As. Nos.1583
to 1598 of 2014), 8.1.2015 (C.As. 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 No.XIV 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 No.XIX of 1970), the Labour Laws (Amendment)
Ordinance, 1972 (Ordinance No.IX of 1972), the Labour Laws (Amendment) Act,
1972 (Act No.V of 1972) and the Industrial Relations (Amendment) Act, 1973 (Act
No.XXIX 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. A.Sanyasi 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.

MWA/S-13/SC Order according