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Dr. Ikramul Haq
In a meeting chaired by the Federal Minister for Inter Provincial Coordination, Dr. Fehmida Mirza, on October 10, 2018, it was reportedly conveyed that the trans-provincial fund, assets, institutions and the programmes run by Employees Old Age Benefits Institute (EOBI) and Workers Welfare Fund (WWF) were difficult to be divided among the provinces and that the migration of the workers would be a big challenge, if the subject was considered to have been devolved. There was apprehension that any ill-advised action would affect the welfare of the workers. The meeting was aimed at resolving the post 18th Constitutional Amendment related issues of EOBI and WWF. The Minister was reported to have claimed that the Government believed in cooperative federalism and committed to devise a mechanism based on consensus, to ensure the welfare of workers.
It appears that the Minister for Inter Provincial Coordination was not even aware of the fact that since 2006, amendments made in various labour laws to broaden their scope were struck down by the Supreme Court in its order of November 10, 2016 reported as Workers Welfare Funds m/o Human Resources Development, Islamabad through Secretary and others v East Pakistan Chrome Tannery (Pvt.) Ltd through its GM (Finance), Lahore etc. and others[(2016) 114 TAX 385 (S.C. Pak.)] and till today no remedial measures have been taken to retrieve losses caused to the Funds established under these laws for the welfare of millions.
Sections 2 and 4 of the Workers Welfare Ordinance, 1971 were amended by the Finance Act of 2006 and subsequently by the Finance Act of 2008 to broaden the scope of the obligation on industrial establishments to contribute towards the Workers’ Welfare Fund, established under Section 3 of the Ordinance of 1971. These amendments were declared ultra vires Constitution by Lahore High Court in East Pakistan Chrome Tannery (Pvt.) Ltd v Federation of Pakistan and others (2012) 105 TAX 81 (H.C. Lah.). This order was endorsed in 2016 by the Supreme Court in order cited above. Theissue was whether WWFis a fee or tax. The Supreme Court said it was ‘fee’ and not ‘tax’ and, therefore, the amendments made by the Finance Acts of 2006 and 2008 as Money Bill were unlawful.
Through the Finance Act 2008, various provisions of the Employees Old Age Benefits Act, 1976 pertaining to contributions to be made thereunder, were also amended widening the scope of obligation on employers to contribute towards the Employees’ Old-Age Benefits Fund established under Section 17 of the Act of 1976. These amendments were challenged through constitution petitions before the Sindh High Court which, through its judgment dated 3.10.2012 reported as Soneri Bank Limited through Jaffar Ali Khan and others v Federation of Pakistan through Secretary Law and Justice Division, Pak Secretariat, Islamabad and others(2013 PLC 134), held that the levy was a fee and not a tax, therefore, the amendments made by the Finance Act of 2008 could not have been lawfully brought about through a Money Bill. This view of Sindh High Court was also upheld by the Supreme Court.
Through the Finance Act of 2007 various provisions of the Workmen Compensation Act, 1923, the West Pakistan Industrial and Commercial Employees (Standing Orders) Ordinance, 1968, the Companies’ Profit Workers’ Participation Act, 1968, the Minimum Wages for Unskilled Workers Ordinance, 1969 and the Act of 1976 were amended through the Finance Act of 2007 to broaden the scope of the obligation of the employers in the respective statutes. These amendments were challenged before the High Court of Sindh which, through its judgment dated 26.2.2011, held that the amendments through the Finance Act of 2007 not falling within the purview of Article 73(2) of the Constitution could not have been lawfully inserted through Money Bill. The judgments of Lahore and Sindh High Courts were challenged in the Supreme Court that upheld the same in (2016) 114 TAX 385 (S.C. Pak.)] with the conclusion: “There may very well be certain levies/contributions that do not fall within the purview of Article 73(3) but still do not qualify the test of Article 73(2) and therefore cannot be introduced by way of a Money Bill, and instead have to follow the regular legislative procedure………….”.
The above shows the sheer incompetence of our governments and parliamentarians that they could not distinguish which laws are to be presented as Money Bill and which one should go to both the Houses. The beneficial amendments made wrongly in labour laws for the working classes over a decade back have not been corrected by Pakistan People Party (PPP) and Pakistan Muslim League (Nawaz) during the “Decade of Democracy” [2008-18]. It can be termed as the worst expression of callousness towards the labourers. Both the parties claim to be champions of the cause of the downtrodden but in reality this is merely for lip service. Together they got ten years to rectify the mistake pointed out by the courts but they remained unmoved. This also confirms that when the matter comes to welfare of the workers, our legislators are totally insensitive but when issue is of raising their own salaries, laws are passed within a few minutes in the Senate and National Assembly. They did not bother that their lapse has affected over half a million pensioners under EOBI and some five million workers of various categories including women, registered for contributions.
It is time that the Government of Pakistan Tehreek-i-Insaf (PTI) take the initiative and come to the rescue of the affectees. Dr. Fehmida Mirza, in consultation with Ministry of Law should get a Bill prepared in the light of observations of the Supreme Court in the above cited case and ensure retrieval of lost contributions retrospectively that is from 2006. No party in National Assembly and Senate is going to oppose this Bill or will get exposed as anti-labourer. Recovery of money and its settlement between federal government and provinces can be settled by Ministry of Inter Provincial Coordination for which, Article 144 is important if provinces are not inclined to enact their own labour laws, the only exception is Sindh that has enacted two laws (WWF and WPPF) so far. The curative amendment will bring billions in the national kitty for providing pension, decent housing, free education and health facilities etc. for the beneficiaries of welfare laws. The PTI Government is looking for money for such objectives, not knowing that billions are lying unpaid with industrial undertakings/employers.
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The writer, Advocate Supreme Court, is Adjunct Faculty at Lahore University of Management Sciences (LUMS). Email:ikram@huzaimaikram.com; Twitter: @drikramulhaq.