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Case No. 4 (78) of 1982, decided on 31st December, 1983.

-- S. 22-A (1) and (2) read with Ministry of Labour and Works Notification No. SRO-1139 (1)/72, dated 6th November, 1972 Constitation and composition of National Industrial Relations Commission-Word "Member" in S. 22-A (2) includes part-time as well as ex-officio Members-Omission by Federal Government to fill up vacancy of part-time Member, held, cannot invalidate cons titution of N.I.R.C. otherwise consisting of more than seven Mem bers in terms of Notification, dated 6th November, 1972 issued under S.22-A (1)-Objection as to defective constitution of N.1.R.C. Application under S. 249-A of Criminal Procedure Code, 1898 raising objection to jurisdiction of N.I.R.C on grounds of its defec tive constitution and praying that all proceedings pending before Commission be stayed as orders passed therein would be coram non judice and nullity in eyes of law-Proceedings of N.I.R.C., held, not affected by any defect even if existed in its constitution Existence of a vacancy, held, will not render constitution of NIRC defective because of its having already more than required mini mum of seven Members vide Notification, dated 6th November, 1972-Objection, in circumstances, held, devoid of substance and application dismissed - Criminal Procedure Code (V of 1898), S. 349-A].

Muhammad Siddique v. Ch. Fazal Din and 3 others P L D 1982 Lab. 262 and M.U.A. Khan v. Rana M. Sultan P L D 1974 S C 228 rel.

S. M. Yaqub for the Complainant.

M. L. Shahani for Respondents/ Accused.

In the above titled case the respondents Messrs Ghulam Akbar and others submitted an application under section 249-A of the Cr. P.C. before me on 23rd October, 1982 raising the objections to the jurisdiction of the National Industrial Relations Commission to entertain and proceed with the said case on the ground that the Commission is not properly constitut ed in accordance with section 22-A of the industrial Relations Ordinance, 1969 and praying that all proceedings pending before the Commission be stayed as orders passed therein were coram non judice and nullity in the eyes of law.

2. After hearing Mr. S. M. Yaqub, Advocate for the complainant and Mr. M. L. Shahani, Advocate for the respondents-accused, 1 passed a short order, dated 12th April, 1983 dismissing the said petition as being without substance, for reasons to be recorded by me later on in detailed order, after I have had the opportunity of scrutinising the various notifications regarding the appointment of Members of the Commission, which had been issued by the Federal Government from time to time, as this information was not available to me at the camp office, Karachi.

3. I have now scrutinised the pertinent Notifications which have been made available to me by the office in Islamabad. The following are the reasons for my order.

4. The Commission was constituted by the Federal Government under section 22-A (1) of the Industrial Relations Ordinance, 1969 by the Notification No. S.R.O.-1139(1)/72, dated 6th November, 1972 to comprise a Chairman and other Members who were to be appointed by the Federal Government under section 22-A (4) of the I.R.O., 1969. The said Noti fication as amended by Notification S.R.O. 290 (1)/76, dated 26th March, 1976 reads as follows:

"Ministry of Labour and Works, Labour and Local Bodies Division, Islamabad, the 6th November, 1972.

No. S.R.O. 1139 (1)/72.-In exercise of the powers conferred by sub section (1) of section 22-A of Industrial Relations Ordinance, 1969 (XXIII of 1969) the Federal Government is pleased to constitute a National Industrial Relations Commission consisting of the follow ing, namely

(i) Chairman ;

(ii) Two part-time Members of the status of Joint Secretary to the Government of Pakistan one each to be nominated by the Ministry of Labour and Works and the Ministry of Industries;

(iii) Secretary, Labour Department, Government of the Punjab, Lahore (part-time Member);

(iv) Secretary, Industries, Commerce, Lahore and Mineral Develop ment, Government of the North-West Frontier Province, Peshawar (part-time Member) ;

(v) Secretary, Health, Labour and Social Welfare Department Government of Sind, Karachi (part-time Member);

(vi) Secretary, Industries. Commerce, Mineral Resources and Labour Department, Government of Baluchistan, Quetta (part-time Member) ;

(vii) One part-time Member to reprsent workers and one part-time Member to represent employers; and

(viii) Such other members as Federal Government may appoint.

(Sd.)

(Ataur Rehman),

Section Officer."

5. Subsection (3) of section 22-A provides that the qualifications for appointment as a Member or as the Chairman of the Commission shall be such as may be determined by the Federal Government. Such qualifications were determined by Notification No. S.R.O. 355 (1) 76, dated 3rd April. 1976 which reads as follows:

"Government of Pakistan

Ministry of Labour, Manpower, Health and

Population Planning

(Labour Division).

NOTIFICATION

Dated: 3-4-1976.

No. S.R.O. 355 (1)/76.-In exercise of powers under subsection (3) of section 22-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969), the Federal Government is pleased to determine as follows the qualifications for appointment as a Member or as the Chairman:

(i) To be qualified for appointment as the Chairman of the Com mission, a person shall be one who is, or has been a Judge of a High Court or a Secretary to the Government of Pakistan.

(ii) To be qualified for appointment as a Member of the Commission, a person shall be

(a) A Joint Secretary to the Government of Pakistan.

(b) Secretary to a Provincial Government in the Labour Department.

(c) A Law Graduate who has practised as an Advocate for not less than ten years ; or

(d) an Officer of the Federal Government or a Provincial Government who has for not less than three years, held a post in Grade-19 of the National Pay Scale and has not less than ten years' experience in the administration or interpre tation of Labour Laws.

OR

17 years' experience of Labour administration/Labour rela tions in Grade-17 or above in a Federal or Provincial Labour Department (added by Notification No- S.R.O. 686 (1)/82, dated 13th July, 1982)."

6. As at present constituted, the Commission comprises the follow ing 12 (twelve) members who have been appointed by the Federal Govern ment under respective Notifications :-

(i) Five full time Members viz. Chairman, Senior Member, Member -I, Member-II and Member-III.

(ii) Five part-time Members viz. Joint Secretary Labour and Four Secretaries Labour Department of each of the four Provincial Governments.

(iii) Two part-time Members to advise the Chairman; one represent ing employers and the other representing industry-wise trade unions, federations of such trade unions and federations at the optional level under section 22-A (5) of I.R.O., 1969.

7. Dealing now with the objections raised by Mr. M. L. Shahani for A the respondents/accused, the first objection is that the Commission comprises only four whole-time Members including the Chairman which it is contended, is not in compliance with section 22-A(2) of I.R.O., 1969 which provides that "the Commi3sion shall consist of not less than seven members including the Chairman". It is contended that the word "Member" in the said subsection means whole-time member and that the appointments of part-time/ex-officio members is not contemplated b section 22-A of I.R.O., 1969. In my opinion this contention has n force. The word "Member" has not been defined in the Ordinance, nor is it anywhere qualified to mean only a full-time Member. The word Member should, therefore, be given its ordinary wide meaning and in my view includes part-time/ex-officio members as well. A person appointed as part-time member is nonetheless a member and has the right to participate in the deliberations and activities of the Commission. It is not uncommon for the Government to appoint persons to sit on various Commissions, Corporate Bodies or other Bodies in their capacity as part -time or ex-officio members, in view of administrative or financial con siderations. Moreover, by conferring a discretion on the Federal Govern ment to determine the qualifications for appointment as Member under subsection (3) of section 22-A of I.R.O., 1969, the legislature has left the composition of the Members of the Commission to the discretion of the Federal Government to determine whether a Member shall be whole time/part-time or ex-officio Member. The qualifications prescribed by the Federal Government for appointment of the Members other than the Chairman who is or has been a judge of a High Court vide Notification No. S.R.O. 355 (1)/76, dated 3rd April, 1976 above reproduced, are such that in addition to their official duties as Secretaries or Joint Secretary of the Provincial/Federal Government, they shall act as part-time members of the Commission. This does not undermine their status as Members of the Commission, as for all intents and purposes, they are Members of the Commission and eligible to participate in its proceedings. As far as the power to appoint ex-officio Members is concerned, the same is additionally derived under section 15 of General Clauses Act, 1897 which provides that the appointment of a person may also be made by virtue of office of such person as held by the Lahore High Court in Muhammad Siddique v. Ch. Fazal Din and 3 others (P L D 1982 Lah. 262). I am therefore, of the view that the word Member includes also a part-time ex-officio Member.

8. The next objection is that the appointment of two Members under section 22-A (5) of I.R.O., 1969 to advise the Chairman, one to represent the employers and the other to represent the industry-wise trade unions, have not been appointed in the prescribed manner, as no rules prescribing the qualifications for their appointment have been framed. It was held by the Supreme Court of Pakistan in M. U. A. Khan v. Rana M. Sultan (P L D 1974 S C 228), that the omission to frame necessary rules by the designated authority cannot be construed as having the effect of rendering the statute nugatory and unworkable. In that case, the qualifications required for appointment of Chief Inspector of Mines, were to be prescribed by the appropriate Government under section 29 of the Mines Act, 1923. The appointment of the respondent as Chief Inspector of Mines by the Government, in the absence of the Rules was nevertheless held to be valid. It is further submitted that even if these two Members are excluded from the membership, for the sake of argument, the strength of the Commission including the part-time/ex-officio Members is more than the required number of seven Members.

9. The final objection is that the part-time Member required to be nominated by the Ministry of Industries under Notification No. S.R.O. 1139 (1)/72, dated 6th November, 1972 has not been filled in. It is no doubt true that the Ministry of Industries has so far failed to nominate) the part-time Member, but the existence of this vacancy will not render the constitution of the Commission defective as it already has more than the required minimum of the seven members. Moreover, subsection (4) of section 22-B of I.R.O., 1969 provides that the proceedings of the Commission are not affected by any defect in its constitution.

10. For the foregoing reasons, I do not find any substance in these objections, which are dismissed.

A. E.

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