P L D 2006 FSC 1
SYED SHABBIR HUSSAIN KAZMI AND OTHERS
GOVERNMENT OF PAKISTAN
Per Saeed-ur-Rehman Farrukh, J-
Constitution of Pakistan (1973) Arts. 203-D,9,10,11,14,15 & 18-
R/w Bonded Labour System (Abolition) Act (III of 1992)-
Ss. 2(a)(b),(c),(d),(e),5,6,7,8 & 11-
We closely questioned learned counsel for the petitioners, in all these petitions, to demonstrate, if possible, that the impugned provisions of “the Act” were violative of the directions/guidelines given by Supreme Court in the above judgment. He failed to do so . We are fully satisfied that “the Act” was passed by the legislature strictly in line with directives of the Supreme Court. By purp0orting to challenge the vires of the impugned provisions of “the Act” what the petitioners really seek is the effacement of the binding effect of the two judgments, which is not permissible in law.
The judgments of Supreme Court declaring the law on the subject cannot be called in question by a person or by a batch of persons though he/they might not be party to the judgment. We may refer with some advantage to two decisions from Indian jurisdiction i.e. “M/s Shenoy and Co., Bangalore and others v. Commercial Tax Officer, Circle II, Banaglore and others” (AIR 1985 Supreme Court 621) and”M/s Star Diamond Co. India versus Unioin of India and others” (AIR 1987 Supreme Court 179), wherein it ws hed that Supreme Court decision was binding on all persons though they were not party before Supreme Court.
Even an obiter in a judgment by Supreme Court carries bindings effect. See “National Bank of Pakistan v. Banking Tribunal and others” (PLD 1994 Karachi 358 at 362) and M.Z.Khan v. Aziz-ud-Din Ahmad Khan” (2004 YLR 84).
In our view “the Act”, as a whole, is a beneficial statutory dispensation of vita importance as it is intended to curb and put to irreversible end the reprehensible institution of bonded labour not only in the brick kiln industry but also in other sectors in the country like haris tenants-at-will, labourers in mining industry, glass bangle industry, tanneries etc.
A perusal of the judgments of the Supreme Court (supra) would show that these indeed protected/upheld the following fundamental rights of the labourers:
(i) Security of life or liberty of a person-Article 9.
(ii) Safeguard as to arrest and detention-Article 10
(iii) Prohibition of all forms of forced labour-Article 11
(iv) Upholding of inviolability of dignity of man-Article 14
(v) Guarantee of freedom of movement-Article 15
(vi) Freedom of trade, business or profession-Article 18.
As against the above, significantly, Islam had fifteen centuries ago etched out in detail the fundamental rights of the mankind by unequivocal commandments. In the context of the controversy involved in these Shariat petitions, we shall refer to the rights of the labourers/workers only, in the sequel.
In Islam a workman is not entitled to any thing until his work be finished. The Jurists have explained this issue by giving an example of brick maker.
Forced labour is repugnant to Islam in the extreme.
How much regard the Holy Prophet (peace be upon him) had for the rights of the workers is conveyed by probably his last Hadith shortly before he left this world and met his Creator.
Even if the worker does not claim his rights, according to Islam the owner should be alive to his rights and cognizant of his full responsibility; he should fulfil his obligations, failing which he shall be held answerable before God on the Day of Judgment.
Naturally, the proprietor or the owner would like to extract as much work as possible from the servant or worker. But Islam aims at expelling this idea out of his mind.
Islam has called exploitation of worker the gravest possible violation of human rights and decency; it has also laid down guidelines for prevention thereof. It cannot tolerate his exploitation, in any form, for a single moment.
Thus Islam has formulated a social system based on the fundamental human rights and the relationship between the owner and the worker is comprehensively covered by it. This system favour neither the emergence of a capitalist class nor a of a technocrat class or bureaucracy but of an egalitarian system in which the rule of law prevails.
It is necessary at this stage to deal with the contention of the learned counsel for the petitioner that the workers employed in brick kiln performed their duties under contract with the owners. This was with reference to the practice of payment of advance amount to them by way of peshgi.
Islam has taken great care t ensure that the worker is not duped/lured into performance of contract which is fraudulent/unconscionable/vague. Such a course of action leads to exploitation of the workers as the employer by handing over certain amount to the worker obtains assurance from him that he would continue to work till such time that the services rendered by him do not offset/liquidate the liability of said amount.
It is common knowledge that almost all the workers in the brick kiln are alliterate; no deed is drawn specifying the terms and conditions of the contract with the result that the worker engaged at the brick kiln is kept groping in dark, all the time, as to when he would be treated to have discharged the liability qua the advance amount. After extracting sufficient work from him, if and when the worker approaches the employer for settlement of account, he is usually confronted with the reply that he had yet to complete the job entrusted to him. In the meantime, the advance amount having been utilized by the worker, the employer conveniently hands over further amount to him so as to keep him engaged at his brick kiln. This process goes on ad infinitem. There cannot be worse form of exploitative bondage of labour. The advance (peshgi) is a tool of intimidation to extract surplus work without payment of wages therefore.
Islam is the greatest emancipator of mankind and zealously upholds the dignity of worker in particular. Perusal of the Ayats of Holy Qur’an and the Ahadiths of Prophet (peace be upon him), quoted above would prove that exploitation of down-trodden and toiling labourer is strictly forbidden so that he is saved from eking out his livelihood in abject servitude. We are absolutely clear in our mind that the Peshgi system being vague and unconscionable, besides being exploitative in nature, is violative of the Injunctions of Islam.
According to Hazrat Abu Said Khudri, the Holy Prophet (peace be upon him) had interdicted the employment of a labourer without prior fixation of his wages.
Two beneficent conclusions of far-reaching effect, are deducible from these Ahadiths. It is postulated that he nature and extent of the job entrusted to the workers should be well-defined at the time of the contract. The worker, on the completion of the job, is to be paid his wages without any delay whatsoever. Thus only piece-rate work can be entrusted to the worker in the brick kiln industry i.e. specific number of bricks to be prepared in lieu of mutually agreed amount as his wages.
For what has been said above we are clearly of the view that the impugned definition in “the Act” are not violative of Islamic Injunctions on the subject. On the contrary, these are intended to achieve the lofty ideals put forth by Holy Qur’an and Sunnah of upholding the dignity of man in general and preservation/protection of the Fundamental rights of working class in the society in particular. [pp. 16, 17, 19, 20, 21, 22, 23, 24] A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P,Q,R,S,T,U