Judicial Reforms Must Be Introduced On Master, Servant Laws Through Proper Legislation: SC

Court observes that it is the responsibility of the state to ensure equitable and just rights between employer and employees and provide for all citizens facilities of work and adequate livelihood

Judicial Reforms Must Be Introduced On Master, Servant Laws Through Proper Legislation: SC

The Supreme Court of Pakistan on Friday emphasised the need for introducing judicial reforms through proper legislation, apart from regulating the relationship of a 'master' and 'servant', to ventilate miseries and provide access to justice through special courts or tribunals.

"If any such tribunal or special court is constituted under some special law, it will not only ensure checks and balances but ardently and fervently ease and alleviate the sufferings of the aforesaid category of employees who presently have to go through the miseries and turmoil of the rigours and rigidities of procedure, and the backlog of cases, for a long time," the top court observed.

"Under Article 11, there is no concept of slavery, and the same is considered non-existent and forbidden, and no law permits or facilitates its introduction into Pakistan in any form," observed Supreme Court's Justice Muhammad Ali Mazhar as he authored a 13-page judgement on appeals regarding the employees of Punjab Provincial Cooperative Bank. 

The case was heard by a three-judge bench headed by Justice Mazhar, which comprised Justice Ayesha Malik and Justice Irfan Saadat Khan.
In the verdict, Justice Mazhar further observed that under Article 38 of the Constitution, it is the responsibility of the state to ensure equitable and just rights between employers and employees and provide all citizens, within the country's available resources, with facilities of work and adequate livelihood with reasonable rest and leisure. 

"Therefore, in all fairness, even under the relationship of master and servant, fundamental rights should be respected and followed, as the same are an integral part of due process."

The verdict stated that: "The relationship of master and servant cannot be construed as so sagacious that the master, i.e. the management of a statutory corporation or the corporation and/or company under the control of government having no statutory rules of service or the private sector, may exercise the powers at their own aspiration and discretion in contravention or infringement of fundamental rights envisioned under the Constitution," the judgment observed.

It said that under Article 3 of the Constitution, it is the state's responsibility to ensure the elimination of all forms of exploitation and the gradual fulfillment of the fundamental principle, from each according to his ability to each according to his work.

The verdict stated that the master and servant laws were designed to regulate relations between employers and employees during the 18th and 19th centuries, and the United Kingdom Act, 1823, described its purpose as better regulating servants, labourers, and the working class.

This particular law greatly influenced industrial relations and employment law in the United States, Australia (1845 Act), Canada (1847 Act), New Zealand (1856 Act), and South Africa (1856 Act).
These acts were generally regarded as heavily biased towards employers, designed to discipline the employees and repress the combination of workers in trade unions. 

The law required obedience and loyalty from servants to their contracted employer, and infringements of the contract were punishable before a court of law, often with a jail sentence of hard labour. It was used against workers organising for better conditions from its inception until well after the first United Kingdom Trade Union Act, 1871, was implemented, which secured the legal status of trade unions. 

Until then, a trade union could be regarded as illegal because of being in restraint of trade. 

"An unfair dismissal in the United Kingdom is the part of the UK labour law that requires fair, just, and reasonable treatment by employers in cases where a person's job could be terminated," the court observed.

"The Employment Rights Act, 1996, regulates this by saying that employees are entitled to a fair reason before being dismissed, based on their capability to do the job, their conduct, whether their position is economically redundant, on the grounds of a statute, or some other substantial reason."

The top court observed, "Any dismissal by an employer becomes automatically unfair when based on discrimination, a right protected under the Equality Act, regardless of the employee's tenure."

However, the court noted that the phrase 'master and servant' were no longer used as it impacted the relationship between an employee and their employer.

"Even the creator and inventor of this phrase "master and servant" have changed the niceties and minutiae of this colonial tenet and precept, and they brought some amendments to ventilate the ordeals and miseries of their employees/servants and part with various harsh and punitive provisions," the court said.

"Instead of espousing a rigid and inflexible application of this phrase, there is an acute need for expansion and development of some law and reforms in this sphere," the court added.

The top court said judicial reforms support and reinforce the administration of justice, which is indispensable for safeguarding, preserving, and maintaining the rule of law and encouraging timely delivery of justice.

"In our view, it is somewhat expedient and pragmatic to plan some special legislation (not in the fashion of Section 2A, inserted in the STA without amending the definition of civil servants in the Civil Servant Act 1973) to cope with the situation, deal with this grey area, and get rid of this archaic principle by establishing a special tribunal/court under a special law to approach the cases of the employees under the relationship of master and servant, which would not only uphold the basic human values which are vital to our social and economic lives but would virtually be a milestone for the government in safeguarding the fundamental rights of an extremely large category of employees who are deprived of expeditious access to justice as a consequence of no backing of statutory rules of service in various statutory organisations, corporations, autonomous bodies and, in particular, the persons employed in private, industrial and commercial establishments who are excluded from the definition of worker or workman under the labour laws due to the nature of their job," the court held.

"According to the master's mindset, the employee can be dismissed or terminated outrightly with good, bad, or no reason at all, without providing any opportunity of fair hearing on the justification of having no statutory flavour to regulate such employment."

"On account of no expeditious remedy or forum to challenge the adverse actions, such employees have to file civil suits and wait for a number of years for their decision, but if they are allowed a fast-track remedy under some legislation ensuring that some lawful justification for termination of contracts of employment is provided, and if such legislation also creates some rights and obligations for employers and employees with the formation of special courts or tribunals, then their cases will also be decided at a speedy pace, just as the cases of civil servants and workman/workers are decided by the Service Tribunal, NIRC, and labour courts within lesser time than the time normally consumed in civil courts."

The writer is an Islamabad based journalist working with The Friday Times. He tweets @SabihUlHussnain