SPEEDY DISPOSAL OF LABOUR CASES
MAHMOOD ABDUL GHANI
The Constitution of Pakistan provides for inviolability of dignity of man, freedom of association, trade, business or profession as also security of person. In terms of Article 8 of the constitution any law inconsistent with or in derogation of Fundamental Right are to be treated as void. Right to speedy and expeditious disposal of cases is part of the right to life and liberty. It appears that the subordinate judiciary in this country specially the labour courts have still not realized the importance of right to speedy disposal of labour cases although mandate on this behalf have been given by the Apex Court. No doubt, it must be left to the judicious discretion of the Labour Courts seized of an individual grievance to find out from the totality of circumstances of given cases, as to the quantum of time be taken for evaluation of speedy decision. It is unfortunate that notwithstanding the fact that the Division Bench of the Karachi High Court in 1991 PLC 758 at 760 have observed that proceedings under Labour laws are summary in nature, yet for unknown reasons both Labour Courts and Labour Appeals Forums, take years altogether to dispose off labour matters. It is understandable for the High Court, specially in Punjab, to justify delays because of number of judges and pressure of work, therefore expeditious disposal of Labour Cases are not possible. However, there is no explanation for the same in so far as the Labour Courts of this country are concerned. For example, in Karachi there are five Labour Courts, one in Hyderabad another in Sukkur and still further one more in Larkana. Similarly in Punjab there are three Labour Courts in Lahore and one each at Multan, Bahawalpur, Gujranwala, Rawalpindi, Faisalabad and Sargodha. In Baluchistan there are four Labour Courts one each at Quetta, Sibi, Hub and Gawadar and finally in NWFP there are six Labour Courts one each at Peshawar, Mardan, Haripur, Bannu, D.I. Khan and Swat. Labour Courts at Peshawar, Mardan and Haripur are full Labour Courts whereas three other labour courts in NWFP are ‘Part-time’. So also in Baluchistan, except for the Labour Court at Quetta three other Labour Courts are those with additional charge conferred on the District and Session Judges. However, both in Sindh and Punjab nine Labour Courts in each of the two provinces, all them invariably are fulltime Labour Courts. There is, under the circumstances, no reason why cases in Sindh and in Punjab cannot be decided and disposed off within the maximum period of two to three months.
Under the Industrial Relations Ordinance 1969 appeals were to be filed before fulltime Labour Appellate Tribunals both in Punjab and Sindh. In Baluchistan and NWFP, one of the learned judge of the High Court was notified as Labour Appellate Tribunal of those province. Keeping in view the volume of work in NWFP, the necessity of a fulltime Labour Appellate Tribunal is imperative. However, in view of almost negligible number of appeals in Baluchistan, atleast, for the time being, ‘fulltime’ Labour Appellate Tribunals need not be constituted.
Under the Industrial Relations Ordinance 1969 the Chairmen of the Labour Appellate Tribunals were retired judges of the Sindh High Court and Lahore High Court. In Sindh such luminaries as Mr. Justice Inamullah Khan, Mr. Justice Z.A. Channa, Mr. Justice Ahmed Ali U. Qureshi, Mr. Justice Munnawar Ali Khan and Justice Dr. Tanzeelur Rehman were responsible in developing voluminous case law and also laid foundation for Labour Jurisprudence in the country. It goes to the credit of these respectable judges that they decided labour appeal cases within three to six months of filing of the appeals. Adjournments were hardly given. In fact Mr. Justice Z. A. Channa used to hear the appeal and dictate the decision in open Court first before taking up next appeal listed in Daily Cause List. Between three to four cases, each day, were decided by them. Even otherwise on an average, between 20 to 25 appeals on merits, which did not include withdrawal of cases were decided by the Labour Appellate Tribunal of Sindh. The fate of an appeal were thus known to the employer and the workers within three to six months of filing of the appeal. No doubt in Punjab keeping in view the volume of work, the time for disposal of appeal was not as quick as in Sindh.
The system of Labour Appellate Tribunals were functioning smoothly and to the satisfaction of both the labour and management. Unfortunately, certain Employers Associations and Federations belonging to textiles, pharmaceuticals, Chambers of Commerce & Industry, Association of Trade & Industry almost ignored altogether, taking interest in labour law matters. As and when called upon to contribute for amendments in the Labour Laws, they came up with the out dated concept of right of “hire and fire” which was subsequently given gloss of right to effective management, without realizing that there is no provision in the entire labour law, which prohibits or restricts the right of employ to employ any workman. Even work on “contract” is invariably recognized by the Superior Judiciary. Even right to terminate, retrench or dismiss a workman is recognised. It is unfortunate that all these years, since the promulgation of the Labour Laws, no effort, whatsoever, was made by these Associations, Chambers and Federations to ascertain and determine the role and the functions of the Labour Courts in the province and the National Industrial Relations Commission at the Centre. Apparently, this task was left almost exclusively to the Employers Federation of Pakistan who took up themselves the bastion to plead and espouse the cause of employer in matters pertaining to amendments in the labour laws of this country. However both the Employers Federation of Pakistan and thereafter WEBCOP (Workers Employers Bilateral Council of Pakistan) which is not only an offshoot of Employers Federation of Pakistan but also consists of persons who are active members of the Employers Federation of Pakistan, alongwith certain labour leaders and Labour Federation started dealing with labour management relations in this country and took it for granted that they alone are to be consulted for amendments in labour laws.
It is with deep regret and remorse that both the ‘EFP’ and ‘WEBCOP’ had not only not come up to the expectations of employers in the improvement of labour management relations although both contributed in formulation of the labour policy 2002 and the subsequent promulgation of Industrial Relations Ordinance 2002, in which amongst other, a suggestion was made to abolish the Labour Appellate Tribunal and confer right of appeal to the High Court once again. Needless to mention that in the Industrial Dispute Ordinance, 1959 such power of appeal was available in labour matters to the High Court. However, experience had shown that keeping in view the volume of work in the High Court, and further keeping in view the nature of labour laws and the modern labour jurisprudence right of appeal should not be with the High Court but with the specially constituted Labour Appellate Tribunals who deal exclusively with labour management relations. Although Federations, representing the employers were formed to evolve labour management relations and make useful and constructive suggestions for amendments in the labour laws, yet experience has shown that over the years the Federation have not come up to the expectations of the employers. No wonder this Federation is gradually dying its natural death. For years together, accept for holding of dinners and making annual pilgrimage to Geneva to attend I.L.O conferences and or conducting seminar or attending conferences by few office bearers of the Federation abroad, no effort whatsoever, was made by the Federation to evolve and fight as to the problems pertaining to the employers in matters relating to Labour Court and labour appeal cases. Employers Federation apparently do not even have figures as to the number of cases filed in the Labour Courts and High Court, their disposal and reasons for the delay. Without realizing its consequences the Labour Courts and Labour Appeal Tribunal were abolished as suggested by WEBOP and EFP leading to misery and suffering of both labour and employer.
Needless to mention the purpose of industrial law and the object of industrial justice can be taken to establish a balance between the interests of the workers and those of the owners of industry so that harmony of their relations may be achieved. It is not easy, perhaps not even possible, to strike a perfect balance because limitations with respect to the interests of either party are imposed by the existing conditions. The decisive factor for the decisions, in the existing state of affairs, would ultimately have to be the attitude of the mind or the policy designed by those who administer industrial justice. There is little authority from the purely legal point of view in support of one attitude or the other. In these circumstances, the Legislature had earlier considered it best not to confer the industrial jurisdiction on the ordinary Courts and had created special Industrial Courts now known as Labour Courts. One of the reasons behind it appears to be that the Industrial and or Labour Courts are expected to be experienced in and appreciative of social, economic, labour and industrial problems, while the ordinary Courts are trained to administer purely legal justice with commendable emphasis, of course, on rationality and logic which is, however, not the same thing as the formulation of and adherence to a well designed policy within the law. The jurisdiction to hear appeals from the awards of the Industrial Courts was earlier conferred on the High Court; but the nature of the jurisdiction of such Appellate Courts and their outlook was the same as those of the special Courts from which the appeals were preferred. The Chairmen of the Industrial Courts in West Pakistan earlier have been ex-judges of the High Court perhaps because experts of the right type were not easily available and because the training in the administration of purely legal justice guarantees logicality, legality and the capacity to accurately grasp facts as-well as the trends of thought. The discovery and development of policies was nevertheless the responsibility of these special Labour or Industrial Courts. As on 30th April 2008 the pending cases in the five Labour Courts at Karachi are as under:
1st. Sindh Labour Court - 489
2nd Sindh Labour Court - 350
3rd Sindh Labour Court – 134
4th Sindh Labour Court - 520
5th Sindh Labour Court - 850
The Hon‘ble Prime Minister of Pakistan has announced in the National Assembly that Industrial Relations Ordinance 2002 is to be repealed. It is not clear if the proposed Industrial Relations Act, 2008 will be formulated or framed with consultation of Federation and/or WEBCOB. They have been earlier responsible for the mess in which basically employers find themselves at present with the abolition of the Labour Appellate Tribunal. Surely they cannot be expected to commit mistake again.
With the abolition of Labour Appellate Tribunal and promulgation of Industrial Relations Ordinance 2002 in Sindh about 300 appeals were pending which were transferred to the High Court. In addition, 30 Labour Revision Applications were pending in the Sindh Labour Appellate Tribunal which were transferred to the High Court. Between 2002 and 2008 a total of about 2900 Labour Appeals and Labour Revision Applications were filed in the two Benches of the Sindh High Court at Karachi and Sukkur and two Circuit courts at Hyderabad and Larkana. In Rawalpindi Bench of Lahore High Court between 2002 and 2008 about 235 Labour Appeals have been filed, and only about 85 appeals have been decided which include withdrawals of appeals during the last six years.
The removal of judges and induction of new ones, thereafter in all the four Benches/Circuits of Sindh High Court between 2002 and 2008, not more than 125 to 150 have been decided which include bunch cases. The average per year of disposal of labour cases comes to 25 cases, which if reduced on a monthly disposal works out to two to three cases per month as against an average of 25 to 30 disposals of labour appeal cases by the dissolved Labour Appellate Tribunal in Sindh each month. No doubt the High Court of Sindh and Punjab are overburdened with work. In addition, after the transfer of the cases from the respective dissolved Labour Appellate Tribunals to the High Court, fresh numbers were allotted with the result that with new allotted Final Hearing numbers to these labour appeals cases invariably are taken up almost at the end of the days proceeding. Even then cases are not proceeded primarily because legal practitioners seek adjournment either on the ground of ill health, being engaged in other cases or being out of station. This sorry situation of affairs was pointed out to the Chief Justice Mr. Justice Sabihuddin Ahmed who had instructed that one Judge of the High Court at Karachi should hear the labour appeal cases but with all respects, the desired result could not be achieved. After 3rd. November 2007, there has been an almost negligible disposal of cases in the High Court for reasons and grounds mentioned hereinabove.
The institutions of Labour Appeals and Labour Revision Applications during the period 2003 upto 2008 April at the Karachi Bench of the Sindh High Court alone are as under :
Year No. of cases filed
2008 upto April 24
Labour Revision Applications.
Year No. of cases filed.
2008 upto April 04
Breakup of the cases at Hyderabad, Sukkur and Larkana with the number of disposal are not forthcoming. The institutions figure of Labour Appeals in the Rawalpindi Bench of the Lahore High Court covering the period 2003 upto 2008 April are 235. Needless to mention that for unknown reasons in Punjab, the Lahore High Court does not entertain Labour Revision Applications. During these seven years in Rawalpindi Bench only 85 appeals have been decided so far which include appeals withdrawn and other cases disposed off as compromise, dismissal for non-appearance and appeals withdrawn as being not pressed. Figures in relation to the Lahore Bench and the other Circuits at Bahawalpur and Multan are not available. The same is the position in so far as NWFP and Baluchistan are concerned. Statistical figures are not available for these areas.
The State as a guardian of the Fundamental Right of its people, is duty bound to ensure speedy trial and avoid any excessive long delay in trial of criminal or labour cases that could result in grave miscarriage of justice. Speedy trial is in public interest as it serves social interests also. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible or labour cases and its fate is known both to the worker and the employer speedily. Once a person is able to establish that this basic and fundamental right under Constitution has been violated, it is upto the Government to justify that this infringement of Fundamental Right has not taken place and that the restrictions or provisions of law are reasonable and that the procedure followed in the case is not arbitrary but is just, fair, without delay, expeditious and reasonable. In case the Government fails to do so, the case made against the accused person should be dropped and closed and or the case of reinstatement be dismissed. Similarly in case of wrongful termination the amount of ‘back benefits’ is awarded by the Labour Courts, which in some cases are more than the total length of service of the employee. Million of rupees can be saved by speedy disposal of cases. Many poor people are not able to provide financial security as well as sureties and thus have to remain in jail even if the trial is delayed and prolonged. It is the bounden duty of trial Court to ascertain that the cases are disposed of speedily at least of the under-trials who are languishing in jail, yet the Judiciary is unable to enforce this for want of adequate number of courts and judges.
The dictum ‘Justice Delayed is Justice Denied’ postulates that an unreasonable delay in the administration of justice constitutes an unconscionable denial of justice. The mounting arrears in the trial and labour aid Appellate Courts coupled with increased institution of court cases on account of the awareness of rights on the part of the workers, enactments of numerous laws creating new rights and obligations, industrial development in the country, increased trade and commerce and legislative and administrative measures touching the lives of citizens at all levels, have assumed serious proportions.
`Justice that comes too late has no meaning to the person it is meant for. During a prolonged and unending trial, the priorities of a worker towards life change along with the circumstances. The person can also loose everything on account of the pending proceedings not as court fees but payments made to advocates, professional labour leaders and even to labour court staff. Therefore, speedy trial should be recognized as an urgent need of the present judicial system in order to decide the fate of thousands of litigants. It will help to enhance the faith of general public in the present judicial system. In order to have a strong socio-economic system, it is important that each and every stage of decision of a worker who is the head of a family and is the only bread earner, his responsibility is also towards the large family left behind him. It is not only the worker but also his other members of the family who suffer because of delays in disposal of labour cases. Speedy disposal ensures that a society is free of such vices. Speedy disposal of his case would also help save a worker from psychological stress, such as worries anxiety, disturbances to peace at home, etc. Speedy decision is hence a mandatory requirement as far as protecting the interest of a worker is concerned.
Delay is mainly caused due to the following reasons amongst others:
- Late appointment of judges – administration / states fails to recruit requisite number of judges within a stipulated time.
- The writ jurisdiction of the High Court and the style of its exercise.
- Face value of certain senior lawyer in whose hands most of the work falls contribute to delay and arrears by their non-availability and un-preparedness.
- At times litigants also do not realize their responsibilities. Sometimes, the sole object of their going to court is to obtain a stay order or an injunction to harass the adversary or delay labour cases so as to obtain “Back Benefits”.
- Lax judge who seem to be unable to reach decision after proceedings has been held, possibly because the issues and evidence are too complicated and not summary in nature.
Experience has shown that proceedings before the Labour Court are not concluded before two to three years. There are cases as old as five or six years still pending before the Labour Courts. Some of the reasons for this inordinate delay in the Labour Courts are :
a) Non-availability of Presiding Officer and vacancy due to transfer or retirement of Presiding Officers in the Labour Courts in some cases for months/years, and non appointment of Presiding Officer by the Provincial Government.
b) Full fledged application of CPC in cases of individual grievances, like filing of written statement, framing of issues, filing and or oral recording of evidence, and lengthy cross-examination, oral/written arguments etc.
c) Delay on the part of the Presiding Officer once, case is reserved for orders, in writing decision and announcing the same within reasonable time.
d) Delay caused due to repeated adjournments sought by the counsel or the representatives either on personal grounds, engagements in other courts/Tribunals or even High Court etc. or on unavoidable grounds like general strikes in the city or transport strike etc.
e) Indifferent attitude on the part of some counsel/representative to willfully and deliberately prolong litigation with an eye on ‘back benefits’ granted to the workers on reinstatement.
f) Conduct aimed to prolong litigation so as to make workers virtually suffer and ‘bleed’ so that the matter is settled on terms dictated by the employer.
g) Lack of facilities to the Presiding Officers who are District Judges by not providing equivalent facilities as in the District leading to a feeling of discontentment amongst them whilst posted as Labour Court Presiding Officer.
h) Lack of adequate facilities like library, books, steno etc. resulting in delays in disposal of cases.
i) Location of Labour Courts specially in Karachi and Lahore at different premises leading to logistical problems of the counsel/representatives, thus delay in attending courts in time hence adjournments.
The Standing Committee of Indian Home Affairs, under the Chairmanship of Pranab Mukherjee, presently Foreign Minister of India presented its Report on Law’s Delays: Arrears in Courts” to the Hon‘ble Chairman, Rajya Sabha on December 31, 2001 which was laid on the Table of Rajya Sabha on 7th March, 2002. The bewildering statistics revealed by the Standing Committee point out the magnitude of the problem. Long pendency of cases in Supreme Court, High Courts and Labour Courts and Tribunals has become a matter of serious concern. A statistical presentation, inter alia, of number of pending cases relating to Indian Supreme Court, High Courts and Subordinate Courts and analysis thereof is given below:
- Over 20 million cases pending in the District / Subordinate Courts;
- 3.5 million cases pending in High Courts; Madhya Pradesh, Patna, Rajasthan, and Calcutta High Courts have cases pending since 1950, 1951, 1955 and 1956 respectively;
- Percentage of under-trials in India is 73% of their total jail population;
- Inhuman conditions of women under-trials; no separate jail rooms for women except in Tihar Jail in the entire country, to give only a few examples;
- There are only 10.5 Judge per million of India population, and that is one of the lowest in the world;
- The number of vacancies in the Subordinate Courts is 1,900 against the total strength of 12,500 (about 15% of the total strength) and 170 in High Courts as against the total strength of 647 (about 26% of the total strength);
- The budget allocation for judiciary is only 0.2 per cent of the GNP, out of which 50% i.e. 0.1 per cent is realized from the court revenues.
Unfortunately, no such statistical data is available in Pakistan nor any attempt by Employers Federation of Pakistan has been made to collect such statistics.
The most important and guiding ruling of the Apex Court of India on speedy trial and disposal of cases is the case of A.R. Antulay v. Avdesh Kumar, wherein ten main guidelines on the subject were laid down. The concerns underlying the right to speedy trial from the point of view of the accused are: the period of remand and preconviction, detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction. The worry, anxiety, expenses and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimized. Perhaps the underlying concerns mentioned above equally apply to Labour Court cases and their disposal in Pakistan.
Assurance of a fair trial is the first imperative of the dispensation of justice. It is prejudicial to a person to be deprived of his liberty without trial in accordance with the law or ordered to be reinstated based on surmises, conjectures and speculative considerations. It is prejudicial to a person to be denied fair trial. The process of justice should be such that it should not harass the parties both workers and the employers and from that angle the court may weigh the circumstances.
The time imperative can never be absolute or obsessive. Even a delay of one year in the commencement of trial or disposal of labour cases is bad enough; how much worse would it be when the delay is as long as 3 or 5 or even 10 years. While each day’s delay is important and must be considered, there is no magical formula, the slightest breach of which should lead to the release of the accused or even reinstatement of a worker and or dismissal of his case.
The right to a speedy trial is a derivation from the provision of Magna Carta. This principle has also been incorporated into the Virginia Declaration of Rights of 1776 and from there into the Sixth Amendment of the Constitution of United States of America which reads, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial……….” Perhaps this principle can broadly apply to Labour Court cases in Pakistan.
The right to a speedy decision is not only an important safeguard to prevent undue oppressive incarceration, to minimize anxiety and concern accompanying the accusation and to limit the possibility of impairing the ability of an accused to defend himself and expeditious disposal of cases but also there are social interest in providing a speedy decision. The right to speedy decision begins with the actual restraint imposed by arrest and consequent incarceration and or dismissal or termination of worker and continues at all stages, namely the stage of investigation, inquiry, trial, appeal and revision so that any possible prejudice that may result from impermissible and avoidable delay from the time of the commission of the offence till it consummates into a finality, can be averted. This right is actuated in the recent past and the Courts have laid down a series of decisions opening up new vistas of fundamental rights on the ground of inordinate and undue delay stating that the invocation of this right even need not await formal indictment of charge.
The court has to adopt a balancing approach by taking note of the possible prejudices and disadvantages to be suffered by the worker and employer by avoidable delay and to determine whether the worker in a labour proceeding has been deprived of his right of having speedy trial with unreasonable delay which could be identified by the factors – (1) length of delay, (2) the justification for the delay, (3) the workers assertion of his right to speedy trial, and (4) prejudice caused to the worker by such delay. However, the fact of delay is dependent on the circumstances of each case because reasons or delay will vary, such as delay in investigation on account of the widespread ramification of crimes and its designed network either nationally or internationally, the deliberate absence of witness or witnesses, crowded dockets on the file of the court etc.
The following suggestions/observations and some of which seems to have been actuated by sheer exasperation and desperation, were voiced on procedural inadequacies, flaws and deficiencies in the judicial system from various individuals, lawyers, retired judges representing wide spectrum of society:
(a) In a vast majority of cases, adjournments are taken on false pretexts, and the law does not have any appropriate method to tackle them. A strict view on the adjournments is required.
(b) Every transfer of a judge involves repetitive and wasteful procedures, which involve delays, deceleration in the process of disposal and unwanted adjournments.
(c) Once a Labour Court completes recording of evidence and arguments of advocates, it should be made mandatory for the Judge to deliver the judgment within a maximum time limit of 15 days thereafter.
(d) Serving summons and warrant notices is another area, which takes a lot of time. For this, modern gadgets such as phones, wireless systems, fax machines, internet facilities connected with Labour Court headquarters should be accepted as valid and should be made accessible to both Civil and Criminal Courts, so that summons and notices can be sent faster.
(e) No oral evidence be insisted where matter rests solely on documentary evidence. Witnesses should not be harassed by adjournments. Affidavit in evidence be filed alongwith the grievance application and affidavit of employee be filed alongwith the reply statement.
(f) Evidence should be tape-recorded or reported by short-hand stenographers and a verbatim record can be kept which can be used while delivering decisions.
(g) At least for two years all the vacations i.e., summer vacation, winter vacation etc. should be terminated as a special case to dispose of the labour cases and also Presiding Officer should sit for the whole day so that the maximum number of cases can be disposed of.
(h) Avoid double numbering system of proceedings i.e. first time inward entry should be the final number of the proceeding; it will save time.
(i) Preparation and Service of Summons should be allowed mainly through Advocates.
(j) Emphasis has to be on final disposal of matters than on disposing interim applications and, therefore, interlocutory orders should be an exception rather than the rule. Interim orders should not result in prolongation of the case.
(k) In criminal cases, verification of complainant can be similar as in civil courts.
(l) Where an Advocate or labour representative is appointed, presence of parties should be insisted upon only at crucial stages of case unless it is pleaded that the applicant is not available or has ceased interest in proceedings.
(m) In High Courts, all Benches should be Single Judge Benches.
(n) Legible photocopies of papers should be acceptable in all courts.
(o) Copies of Judgments should be given in open court to parties.
(p) Lengthy judgments should be avoided. Written arguments in Labour Courts and Appellate Court be encouraged.
(q) Supreme Court and High Court decisions ought to be published by those Courts just as the Acts and Rules are published by the Government, since these decisions are constitutionally binding on lower courts.
(r) Arbitration procedure should be made applicable to all courts and abolish complicated civil and criminal procedures which are the root cause of the delays.
(s) Get rid of corrupt officials. Retire them compulsorily.
(t) Set up more specialized tribunals and reduce load on Courts.
(u) Introduce plea bargaining in Pakistan in Labour Cases also
(v) Revamp further legal education.
(w) Introduce Shift system in court as suggested by Federal Law Minister.
(z) Set up National Judicial Commission to ensure strict judicial discipline and expeditious disposal of labour cases.
The United States of America is the only country, which has enacted a legislation to implement the Constitutional guarantee of speedy trial to all accused persons. The Federal Act of 1974 is titled the ‘Speedy Trial Act’ and was passed in 1974. This Act prescribes a set of time limits for carrying out the major events in criminal proceedings such as the giving of information and indictment in the prosecution of criminal cases. The Speedy Trial Act of 1974 requires the trial of a defendant to commence within seventy days from the filing date of the indictment or from the date on which the defendant appears before a judicial officer of the court, whichever date is later. The indictment must be filed within 30 days from the date of arrest or service of summons. If a violation of the provisions of the Speedy Trial Act occurs, the indictment against the defendant must be dismissed. The district court, however, retains the discretion to dismiss the indictment either with or without prejudice. In the case of United States v. Taylor, the question was a determining whether a dismissal of an indictment for non-compliance with the Speedy Trial Act should be with or without prejudice. The Court ruled that the district court at least must consider the seriousness of the offense, the facts and circumstances of the case, which led to the dismissal, and the impact of a re-prosecution on the administration of the Speedy Trial Act and on the administration of justice. Perhaps the salient feature of Speedy Trial Act 1974 to start with can be applied in labour matters even on Appeal Courts in Pakistan.
The right to a speedy trial is not only an important safeguard to prevent undue and oppressive incarceration or unemployment but it serves to minimize anxiety and concerns that accompany the termination of worker. This right helps to limit the possibility of impairing the ability of an worker defend himself. This right is actuated in the recent past and the Courts have laid down a series of decisions opening up new vistas of Fundamental Rights. In fact, more cases are coming before the Courts or quashing of proceedings on the ground of inordinate and undue delay stating that the invocation of this right even need not await formal indictment of charge. The principle can equally be applied in cases before Labour Court and Appellate Court cases on labour matters, which are inordinately delayed as is discussed with reference to statistics above.
Because the guarantee of a speedy trial is one of the most basic rights preserved by the Constitution of U.S.A. it is one of those Fundamental liberties embodied in the Bill of Rights, which the due process clause of the Fourteenth Amendment makes applicable to the States. The protection afforded by this guarantee is activated only when a criminal prosecution has begun and extends only to those persons who have been ‘accused’ in the course of that prosecution. Invocation of the right need not await indictment, information, or other formal charge but beings with the actual restraints imposed by arrest if those restraints precede the formal preferring of charges. Possible prejudice that may result from delays between the time governments discovers sufficient evidence to proceed against a suspect and the time of instituting those proceedings is guarded against by statutes of limitation, which represent a legislative judgment with regard to permissible periods of delay. In two cases, the Court held that the speedy trial guarantee had been violated by States which preferred criminal charges against persons who were already incarcerated in prisons of other jurisdictions following convictions on other charges when those States ignored the defendants’ requests to be given prompt trials and made no effort through requests to prison authorities to obtain custody of the prisoners for purposes of trial. This principle can be applied in labour matters if possible to start with through Public Interest Litigation
In determining whether to dismiss with or without prejudice, a Labour Court shall consider, among others, each of the following factors:
- The seriousness of the offense or the gravity of the charges;
- The facts and circumstances of the case which led to the dismissal and or termination of service;
In so far as labour cases are concerned, almost 70 to 80% of the cases filed in the labour courts pertain to enforcement of rights guaranteed in law, settlement or award. Since these cases are/or pertain to enforcement of predetermined and preexisting rights long drawn out evidences are uncalled for. Alongwith an Application for aforementioned predetermined and preexisting rights, a short synopsis of Affidavit-in-Evidence be filed. Notice both of the petition and the Affidavit-in-Evidence be given to the employer who must necessarily file Reply and Counter Affidavit within a period not exceeding 10 days. Thereafter, on one day, Cross-examination be limited and they be conducted both on these evidences. To avoid delay instead of oral arguments, written arguments, be filed and the Presiding Officer should decide the cases within seven days of its being reserved for orders.. Keeping in view the summary nature and disposal of cases, Labour Court case can be decided within sixty days if not within the statutory period of seven days. Delay in disposal of the Labour Courts are mainly because unfortunate attempt to prolong proceedings with a view to earn “back benefits”. In law it be mentioned that if any delay is caused beyond a period of sixty days then invariably without attributing anyone to be responsible for the delay no back benefit be awarded. Only thus the workers and their representatives will ensure expeditious disposal of the cases in the Labour Courts within the stipulated period provided in law.
Since labour appeals are a continuation of a Labour Court proceedings, and evidence are already on record, these record and proceedings are invariably summoned by the appellate forum, and no further evidence is to be recorded. Alongwith the filing of the appeal, a brief synopsis of the Written Argument be filed, and within ten days of the receipt of the notice of the appeal and the synopsis of the argument, the other side should file his Written Argument. Only in exceptional cases, and if the appellate forum feels the necessity, oral arguments by way of clarification be addressed. Thus, in this speedy manner, Labour Appeals can be decided within a period of thirty days.
The above proposal may not be acceptable either to some labour leaders or the advocate for want of eye on “back benefits”. But if the essence and the spirit of labour laws are be followed then it is in the interest of both the labour and the employer which has to be kept in view and not the interest of few litigant workers or their representatives.
It is high time that the parameters be laid down by the superior judiciary as to the grounds or circumstances under which back benefits, if any, are to be granted. During the last six years when appeals were filed and decided by the High Court, experience has shown atleast in Sindh, though synopsis of the arguments have been filed in High Court and copies of the same provided to the counsel of the other side, yet almost years have taken place and no arguments have been filed by the workers representatives with the result that the proceedings have been delayed. Unfortunately, inspite of last chance repeatedly granted by the High Court there have been delays much to the agony of the employer, This should come to an end if Industry is to survive and function effectively employers have to concentrate on their work and not be concerned about delay in disposal of the Labour cases and appeal cases and grant of “back benefits”. Already million of rupees have been deposited by the employers in Karachi alone by way of arrears of back benefits which have been deposited originally in Sindh Labour Appellate Tribunals and subsequently transferred to the High Court. In the last six years this amount has multiplied three folds in the High Court. It is this evil of back benefits which primarily is responsible for delay in the disposal of Labour Cases both in the Labour Court and the appellate forum. No sooner the superior judiciary evolves a long drawn strategy and lays down guidelines, even by way of public interest litigation, the performance pertaining to Labour Courts and appellate forums will improve. It is for industrial peace and harmony and cordial labour management that these suggestions be given serious thought and attempt be made to implement the same.