2005 PLP 452 (CLC)

M. Rafat Usmani for Petitioner. Khalid Habibullah for Respondents. M.A.M. Namazi for Respondent No.2. Faisal Arbab, Standing Counsel. Rafiq Rajori, Additional Advocate‑General. Date of hearing; 1st December, 2004. All these petitions raised the same questions of law and are being decided through this common judgment. The petitioners who were employers and making contributions in respect of every person drawing wages not exceeding Rs.1,500 in their insurable employment at the rate of 5% of their wages under section 9 of the Employees Old Age Benefit Act, 1976 appear to be aggrieved by the promulgation of the Labour Laws Amendment Ordinance, 1993 (Ordinance XXIII of 1993) dated 25‑9‑1993, whereby they became liable to make contributions in respect of all employees whose wages did not exceed Rs.3,000 per month and its subsequent repromulgation through Ordinance VII of 1994 on 31‑1‑1994 and Ordinance XXXIII of 1994 on 12‑5‑1994 and its passage as an Act of Parliament by way of Act XI of 1994 on 29‑6‑1994.

2. Learned counsel for the petitioner was unable to question the validity of Ordinance XXIII of 1993 when the additional burden was imposed for the first time inasmuch as the Parliament was not merely not in session but the National Assembly stood dissolved at that time. Therefore, no objection could be taken to the exercise of the President's power to Legislate through an Ordinance under Article 89 of the Constitution. As regards the Act of Parliament coming into force on 29‑6‑1994, it was contended that it purported to amend several laws as a consequence of repeal of Ordinance VII of 1994, which itself was invalid and therefore, it was an exercise in futility. We are afraid we find no substance in this contention. Section 2 of the Act purports to amend a large number of statutes specified in the schedule and item 8 thereof relates to the impugned amendment whereby the words "1500" have been substituted by the words "3000". Indeed section 3 does stipulate repeal of Ordinance VII of 1994. However, even if the petitioner's contention as to invalidity of the Ordinance is accepted it could be stated at the most that section 3 was a futile provision. Nevertheless, it could be conveniently excised and yet the impugned amendment could survive on the strength of section 2.

3. The only formidable contention raised by Mr. Rafat Usmani was that an Ordinance promulgated by the President under Article 89 of the Constitution was required to be laid before Houses of Parliament and would stand repealed at the expiration of four months of its promulgation unless earlier disapproved by either House upon a resolution or withdrawn by the President. The legislative power of the Parliament could not be usurped by the President through repeated repromulgation of Ordinance. Consequently, contributions in respect employees drawing wages between Rs.1,500 to Rs.2,000 could at least not be claimed for the period between 13th January, 1994 when Ordinance XXIII of 1993 was repealed and 29th June, 1994 when an Act of Parliament was enforced.

4. In support of his contention learned counsel placed strong reliance upon pronouncement of three members Bench of the Honourable Supreme Court in Collector of Customs v. New Electronics (Pvt.) Ltd. PLD 1994 SC 363, which to be fair to him squarely supports his view. In the aforesaid case Saleem Akhtar, J., in his minority opinion explained the rationale for providing the period for four months as life of an Ordinance. His Lordship pointed out that since fresh-elections were required to be held within 90 days of the dissolution of the National Assembly invariably sufficient time would be available for placing on Ordinance before the Parliament for its adoption as an Act thereof.

5. Ajmal Mian, J., speaking for the majority however, was prepared to concede that an Ordinance could possibly be repromulgated in case the Parliament stood dissolved at the time of expiry of four months from the first Ordinance. Nevertheless, he too was of the opinion that save in exceptional circumstances, the powers of the Parliament could not be usurped by the Head of the State through repeated repromulgation of the Ordinances.

6. Mr. Faisal Arab learned Standing counsel nevertheless, brought to our notice a subsequent pronouncement by a five‑member Bench of the Honourable Supreme Court in Riaz Ahmed v. State 1998 SCMR 1729 where both the views in New Electronics case were duly considered and dilated upon. It was observed that Article 89 only required an Ordinance laid before the Houses of the Parliament and this must obviously be done when it was still in force. In deed supremacy of the Legislature was recognized by the stipulation that it would cease to have effect upon disapproval by either House. Nevertheless, in case the Legislature chose to take time in deliberation over its provisions without approving or disapproving it, a vacuum could not be countenanced. Under such conditions the power to repromulgate an Ordinance ought to be conceded to the President. We have noticed that in a subsequent case Federation of Pakistan v. M. Nawaz Khokhar PLD 2000 SC 26 a seven- member Bench of the Honourable Supreme Court has proceeded on the assumption that Ordinance XX of 1997 which was repromulgation upon expiry of Ordinance CXI of 1996 was a valid piece of legislation.

7. In the circumstances, we are of the view that the later pronouncement of the Honourable Supreme Court by a larger Bench is binding upon us and therefore, with utmost respect, we are unable to accept Mr. Rafat Usmani's contention. For the following reasons these petitions are dismissed. M.B.A./H‑36/K Petitions dismissed.