2018 PLP 6 (PLC N)

JAWAD HASSAN, J.

Through the instant petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner has made the following prayer: "It is, therefore, respectfully prayed that this writ petition may kindly be accepted and an appropriate writ may graciously be issued to declare that the impugned order/notice dated 11.01.2017 passed by the Respondent No.4 regarding fixation of date of Referendum in WAPDA and Coporatized Companies and further holding proceedings in this respect, as illegal, void, ab initio, coram non-judice, mala fide and without lawful authority. It is further prayed that the Respondent No.4 may kindly be restrained from conducting proceedings for holding Referendum in WAPDA and Corporatized Companies as vitiated in law." A. The Essential Facts:

2. The facts tersely revealed from the instant petition are that the Petitioner is an employee of Water and Power Development Authority (WAPDA) and being an active Member has been selected President of Pakistan WAPDA Workers Pasban Union (the "Union"). All Pakistan WAPDA Employees Insaf Union filed application for holding of Referendum in WAPDA and Corporatized Companies whereas the Union of the Petitioner filed an application before the Respondent No.3 for holding of Referendum in only WAPDA Establishment. One Manzoor Ahmed Kayani, who is working as Secretary under the Government of Pakistan, was given additional charge of Registrar Trade Unions (RTU) for three months (from 01.08.2016 to 31.10.2016), heard both the above referred applications on 13.10.2016 and ordered to hold the Referendum in WAPDA and Corporatized Companies and appointed the Respondent No.4 as Authorized Officer. Feeling aggrieved thereby, the Petitioner's Union filed Appeal No.12B/(07)2016 before the Member, National Industrial Relations Commission, Lahore, the Respondent No.2 who was pleased to suspend the order dated 13.10.2016 and observed that the RTU may proceed for holding of Referendum in the WAPDA establishment. Meanwhile, the Respondent No.3 has been retired and one Manzoor Ahmed Kayani, the then RTU has also relinquished the charge of the post of RTU on 31.10.2016 and at present, no Registrar to discharge the duties of RTU exists. The Respondent No.4 who is Registrar of the National Industrial Relations Commission, Islamabad also assumed the charge of the Joint Registrar of Trade Union, National Industrial Relations Commission, Islamabad. After assuming the charge of the said post, the Respondent No.4 issued the impugned notice/letter dated 11.01.2017 through which he has fixed the date of Referendum in WAPDA and Corporatize Companies. Hence, this petition. B. Submissions of the Petitioner:

3. The learned counsel for the Petitioner inter alia submitted that the impugned letter/notice/order is illegal and coram non-judice as the same has been issued without any jurisdiction by the Respondent No.4 which is violation of Section 4 of the Industrial Relations Act, 2012 (the "Act"); that neither any RTU was appointed by the Government through a notification in the Official Gazette nor any Joint Registrar Trade Unions for his assistance as provided under the law; that even otherwise, if the Respondent No.4 is notified, even then he cannot act as Joint Registrar in the absence of RTU; that the Respondent No.4 was not authorized to issue the impugned order, as such the impugned order as well as the subsequent proceedings thereon are nullity in the eye of law; that the action on the part of the Respondent No.4 is based on mala fide; that the impugned letter has been passed in violation of Articles 4, 8, 10-A and 25 of the Constitution, as such is liable to be set aside. In support of his contentions, the learned counsel for the Petitioner has placed reliance upon the cases titled Mst. Ummatullah through Attorney v. Province of Sindh through Secretary Ministry of Housing and Town Planning, Karachi and 6 others (PLD 2010 Karachi 236]), Muhammad Munir v. Registrar, Industry-Wise Trade Unions, National Industrial Relations Commission (NIRC), Lahore and 5 others (2014 PLC 159 [Lahore]), Muhammad Abbas v. Government of Punjab and others (2005 PLC (C.S.) 671), Abdul Khanan v. Government of Khyber Pakhtunkhwa through Chief Secretary and 4 others (2015 PLC (C.S.) 159), Nasir Said v. WAPDA through its Chairman and another (PLD 1987 Supreme Court 421), Rehmatullah and others v. Saleh Khan and others (2007 SCMR 729), Aftab Ahmed Kolachi v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and 2 others (2009 PLC (C.S.) 258), Director of Education (Schools), Lahore Region, Lahore and others v. Muhammad Abbas (1998 SCMR 215). C. Submissions of the Respondents:

4. On the contrary, in reply to the instant petition, the Respondent No.5 filed written statement raising certain preliminary objections regarding the maintainability of the Petition as well as on merits. The learned counsel for the Respondents vehemently controverted the arguments advanced by the learned counsel for the Petitioner and prayed for dismissal of the petition on the grounds that the instant petition has been filed by Abdul Qayyum, alleged President of the Union, which is in violation of Section 13 of the Act as every registered Trade Union is a body corporate and is entitled to sue and be sued by its name; that a constitutional petition by an individual as in the case in hand, is not competent under the law; that the instant petition has been filed against the impugned notice which is mere regarding fixation of date of Referendum in WAPDA and Corporatized Companies, as such is not maintainable; that this petition has become infructuous as the Referendum has already been held on 02.02.2017 under the orders of Hon'ble Islamabad High Court dated 23.09.2016 as well as order dated 01.02.2017 passed by this Court in Criminal Original No.279-W/2017; that W.P. No.4462/2016 against Referendum was disposed of being infructuous by the Hon'ble Islamabad High Court after the Referendum was held on 02.02.2017 and that too in presence of the learned counsel for the Petitioner in which the Union was party, as such the instant petition is also liable to be dismissed being infructuous; that the Petitioner has concealed certain material facts from this Court and obtained stay order; that the Referendum was held under the orders of the Islamabad High Court dated 23.09.2016 and therefore, cannot be said to be illegal; that this petition was filed mere to create hurdle in the way of Referendum which has already been held on 02.02.2017; that the Petitioner is not an aggrieved person; that the Referendum was held on 02.02.2017 in which the Union of the Respondent No.5 was declared successful and resultantly it was issued CBA Certificated on 21.03.2017 against which the Union filed an Appeal before the National Industrial Relations Commission, Lahore Bench, Lahore along with application for interim relief which was not granted to the Union and the main Appeal is still pending adjudication; that the grounds taken in this petition have also been taken in the said Appeal, as such the instant petition is not competent as the Petitioner has availed alternate remedy by filing said Appeal; that the tenure of the Petitioner's Presidentship has been expired, as such he is no more entitled to seek any relief from the Court; that the authority letter produced by the Petitioner is not approved by the Executive of the Union, as such is not valid under the law; that no resolution has been appended with the petition and the documents relied upon and associated with the petition are mere an authority letter which has no value in absence of any resolution; that the Petitioner has no locus standi to present the Union himself; that the impugned order/notice/letter was passed strictly following the specific directions of the Islamabad High Court, Islamabad regarding the same matter of Referendum. Learned counsel for the Respondents to strengthen his submissions, has placed reliance on the case titled M. Ashraf Bullo and another v. Pakistan International Airlines Corporation through Managing Director and 4 others (2011 PLC 142 [Sindh High Court]), The State v. Mansoor ur Rehman Khan Afridi (PLD 2000 Lahore 90), Air League of PIAC Employees v. Member NIRC and others (W.P. No.101/2017). D. Nub of the Matter/Moot Points:

5. In order to pass judgment upon the above mentioned facts, circumstances and arguments urged by the counsels for the parties at length, following moot points are essential for consideration and determination of this Court, arising out of instant petition: (a) Whether the instant writ petition, filed by the Petitioner individually in his own name instead of Union is maintainable, if not so what are its effects? (b) Whether the Petitioner has made concealment of material facts? E. Trade Union:

6. In order to resolve the controversy and to deal with the issues raised, I am of the view that before dilating upon any determination on all the above issues, it is essential to discuss the relevant law in respect of the Trade Union.

7. Importantly, the Constitution of the Islamic Republic of Pakistan, 1973 recognizes the freedom of association as a fundamental right of the citizens. The Industrial Relations Act, 2012 was promulgated to consolidate and rationalize the law in Islamabad Capital Territory and at trans-provincial level, relating to formation of trade unions and federations or trade unions, determining the collective bargaining agents, regulation of relations between employers and workers, the avoidance and settlement of any differences or disputes arising between them or matters connected therewith and ancillary thereto. The Trade Union is a combination of workmen whose primary purpose is to promote and defend workers' rights and interests in an industry or establishment. Article 17 of the Constitution not only guarantees freedom of association but also Collective Bargaining as a fundamental right. Trade Union has been defined in section 2(xxxi) of the Act which reads as follows: 2(xxxi): "trade union" means any combination of workmen or employers formed primarily for the purpose of regulating the relations between workmen and employers, or workmen and workmen or employers and employers, or for imposing restrictive conditions on the conduct of any trade or business, and includes a federation of two or more trade unions;"

8. Further, sections 3, 4, 5 and 6 of the Act provide Registration, Powers and Functions of Trade Union, and reads as follows: "

3. Trade unions and freedom of association

Subject to the provisions of this Act and notwithstanding any other law for the time being in force,

(a) workers, without distinction whatsoever, shall have the right to establish and, subject to the rules of the organization concerned, to join international associations of their own choice without previous authorization. Provided that in the establishment where women are also employed the Trade Union shall include the women in the executive of the said trade union with the same proportion in which they are employed in the establishment:-- Provided further that no worker shall be entitled to be a member of more than one trade union at any one time and on joining another union the earlier membership shall automatically stand cancelled; (b) employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join international associations of their own choice without previous authorization: (c) every trade union and employers association shall frame its own constitution and rules to elect its representatives in full freedom to organize its administration and activities and to formulate its programmes; and (d) workers and employers' organizations shall have the right to establish and join federations and confederations and any such organization, federation or confederation shall have the right to affiliate with international organizations and confederations of workers' and employers' organisations.

4. Registrar of trade unions.

For the purpose of this Act, the Government shall, by notification in the official Gazette, appoint the Registrar of Trade Unions who shall be assisted by one or more Joint Registrars.

5. Powers and functions of Registrar.

The Registrar, and the Joint Registrars, as the case may be, shall have the following powers and functions:

(a) the registration of trade unions under this Act and the maintenance of a register for the purpose; (b) to lodge, or authorize any person to lodge, complaints with the Commission for action, including prosecution, against trade unions, employers, workers or other persons for any alleged offence or any unfair labour practice or violation of any provision of the Act or for expending the funds of a trade union in contravention of the provisions of its constitution; (c) the determination of the question as to which one of the trade unions in an establishment or an industry is entitled to be certified as the collective bargaining agent in relation to that establishment or industry; (d) to inspect the accounts and record of the registered trade unions, or investigate or hold such inquiry in the affairs of the trade unions as he deems fit either by himself or through any officer subordinate to him and to authorize him in writing in this behalf; and (e) such other powers and functions as may be prescribed.

6. Application for registration.

Any trade union may, under the signature of its President and the Secretary, apply to the Registrar for registration of the trade union under this Act: Provided that there shall be at least two trade unions in an establishment.

7. Requirements for application.-Every application for registration of Trade Union shall be made to the Registrar and shall be accompanied by,

(a) a statement showing,

(i) the name of the trade union and the address of its Head Office; (ii) date of formation of the union; (iii) the titles, names, ages, addresses and occupations of the officers of the trade union; (iv) statement of total paid membership; (v) the name of the establishment or group of establishments, or the industry, as the case may be, to which the trade union relates along with a statement of the total number of workers employed therein; (vi) the names and addresses of the registered trade unions in the establishment group of establishments or industry, as the case may be, to which the union relates; and (vii) in case of a federation of trade unions, the names, addresses and registration number of member-unions, (b) three copies of the constitution of the trade union together with a copy of the resolution by the members of the trade union adopting such constitution bearing the signature of the Chairman of the meeting; (c) a copy of the resolution by the members of the trade union authorizing its President and the Secretary to apply for its registration; and (d) in case of a federation of trade unions, a copy of the resolution from each of the constituent unions agreeing to become a member of the federation.

8. Requirements for registration.

(1) A trade union shall not be entitled to registration under this Act unless the constitution thereof provides for the following matters, namely:

(a) the name and address of the trade union; (b) the objects for which the trade union has been formed: (c) the purposes for which the general funds of the union shall be utilized; (d) the number of persons forming the executive which shall not exceed the prescribed limit and shall include not less than seventy five percent from amongst the workmen actually engaged or employed in the establishment or establishments or the industry for which the trade union has been formed,

Provided that the condition of being employed in any establishment or an industry as aforesaid shall not apply to the remaining twenty five percent of the members of such executives; (e) the conditions under which a member shall be entitled to any benefit assured by the constitution of the trade union and under which any fine or forfeiture may be imposed on him; (f) the maintenance of a list of the members of the trade union and of adequate facilities for the inspection thereof by the officers and members of the trade union; (g) the manner in which the constitution shall be amended, varied or rescinded; (h) the safe custody of the funds of the trade union, its annual audit, the manner of audit and adequate facilities for inspection of the account books by the officers and members of the trade union; (i) the manner in which the trade union may be dissolved; (j) the manner of election of officers by the general body of the trade union and the term, not exceeding two years, for which an officer may hold office upon his election or re-election; (k) the procedure for expressing no confidence in any officer of the trade union; and (l) the meeting of the executive and of the general body of the trade union so that the executive shall meet at least once in every three months and the general body at least once a year. (2) Without prejudice to the provisions of subsection (1), a trade union of workmen shall not be entitled to registration under this Act

(a) unless all its members are workmen actually engaged or employed in the industry with which the trade union is connected; Explanation.

For the purpose of this clause, a dismissed, terminated of retrenched worker, whose dismissal, termination or retrenchment is pending adjudication before a Court of competent jurisdiction, shall be deemed to be an employed worker of that establishment; and (b) where there are two or more registered trade unions in the establishment, group of establishments or industry with which the trade union is connected, unless it has as its members not less than one-fifth of the total number of workmen employed in such establishment, group of establishments or industry, as the case may be."

9. Section 13 of the Act deals with the incorporation of a trade union which is as follows: "

13. Incorporation of registered trade union.-(1) Every registered trade union shall be a body corporate by the name under which it is registered, shall have perpetual succession and a common seal and the power to contract and to acquire, hold and dispose of property, both movable and immovable, and shall by the said name sue or be sued.

10. Collective Bargain Agents and its allied functions have been defined in Section 19 of the Act which reads as follows: "

19. Collective bargaining agent.

(1) Where there is only one registered trade union in an establishment or a group of establishments, that trade union shall if it has as its members not less than one-third of the total number of workmen employed in such establishment or group of establishments, upon an application made in this behalf be certified by the Registrar in the prescribed manner to be the collective bargaining agent for such establishment or group of establishments. (2) Where there are more registered trade unions than one in an establishment or a group of establishments, the Registrar shall upon an application made in this behalf by any registered trade union of an establishment or group of establishments, hold within fifteen days from the making of the application, a secret ballot to determine as to which one of such trade unions shall be the collective bargaining agent for the establishment or group: Provided that the Registrar may, in the case of a large establishment having its branches in more than one town, hold the secret ballot within thirty days from the making of the application: Provided further that the Registrar shall not entertain any application under this subsection in respect of an establishment or group of establishments, consisting of, or including, a seasonal factory within the meaning of section 4 of the Factories Act, 1934 (XXV of 1934), unless such application is made during the month in which the number of workmen employed in such factory in a year is usually the maximum. (3) Upon receipt of an application under subsection (2), the Registrar shall, by notice in writing call upon every registered trade union in the establishment or group of establishments to which the application relates:-- (a) to indicate whether it desires to be a contestant in the secret ballot to be held for determining the collective bargaining agent in relation to such establishment or group; and (b) if it so desires, to submit to him within the time specified in the notice a list of its members showing, in respect of each member, his parentage, age, the section or department and the place in which he is employed, his ticket number and the date of his becoming a member and if union is a federation of trade unions, a list of its affiliated trade unions together with a list of members of each such trade union showing in respect of each such member the said particulars. (4) Every employer shall,

(a) on being so required by the Registrar, submit a list of all workmen employed in the establishment excluding those whose period of employment in the establishment is less than three months and showing, in respect of each workman, his parentage, age, the Section or department and the place in which he is employed, his ticket number and the date of his employment in the establishment; and (b) provide such facilities for verification of the lists submitted by him and the trade unions as the Registrar may require:

Provided that, in computing the period of three months referred to in clause (a) in the case of a workman employed in a seasonal factory within the meaning of section 4 of the Factories Act, 1934 (XXV of 1934), the period during which he was employed in that factory during the preceding season shall also be taken into account. (5) The Registrar shall, after verification of the lists submitted by the trade unions, prepare a list of voters in which shall be included the name of every workman whose period of employment as computed in accordance with subsection (4), is not less than three months and who is a member of any of the contesting trade unions and shall, at least four days prior to the date fixed for the poll, send to each of the contesting trade unions a certified copy of the list of voters so prepared. (6) Every workman who is a member of any of the contesting trade unions and whose name appears in the list of voters prepared under subsection (5) shall be entitled to vote at the poll to determine the collective bargaining agent. (7) Every employer shall provide all such facilities in his establishment as may be required by the Registrar for the conduct of the poll, including actual expenditures of the poll, but shall not interfere with, or in any way influence, the voting. (8) No person shall canvass for vote within a radius of fifty metres of the polling station. (9) For the purpose of holding secret ballot to determine the collective bargaining agent, the Registrar shall,

(a) fix the date for the poll and intimate the same to each of the contesting trade unions and also to every employer; (b) on the date fixed for the poll so placed in the polling station set up for the purpose the ballot boxes which shall be sealed in the presence of the representatives of the contesting trade unions as to receive the ballot papers; (c) conduct the poll at the polling station at which the representatives of the contesting trade unions shall have the right to be present; (d) after the conclusion of the poll and in the presence of such of the representatives of the contesting trade unions as may be present, open the ballot boxes and count the votes; and (e) after the conclusion of the count, certify the trade union which has received the highest number of votes to be the collective bargaining agent:- Provided that no trade union shall be certified to be the collective bargaining agent for an establishment or group of establishments unless the number of votes received by it is not less than one-third of the total number of votes of workmen mentioned in the voters" list employed in such establishment or group of establishments :- Provided further that, if no trade union secures such number of votes in the first poll, a second poll shall be held between the trade unions which secure the two highest numbers of votes in the first poll and the trade union which secures a majority of the votes cast at the second poll shall be certified in the prescribed manner to be the collective bargaining agent:

Provided also that, if the number of votes secured by two or more trade unions securing the highest number of votes is equal, further poll shall be held between them until one of them secures a majority of the votes cast at such further poll. (10) If no trade union indicates under clause (a) of subsection (3) that it desires to be a contestant in the secret ballot, the Registrar shall certify the trade union which has made the application under subsection (2) to be the collective bargaining agent for a period of two years. (11) Where a registered trade union has been certified under clause (e) of subsection (9) and subsection (10) to be the collective bargaining agent for an establishment or group of establishments, no application for the determination of the collective bargaining agent for such establishment or group shall be entertained within a period of two years from the date of such certification except where the registration of such a registered trade union is cancelled before the expiration of the period:-- Provided that for the trade unions having membership of more than five thousand and presence in more than one province, the period of two years will be enhanced to three years. (12) The Registrar may authorize in writing an officer to perform all or any of his functions under this section. (13) After an application under subsection (2) is made to the Registrar, no employer shall transfer, remove, retrench or terminate any worker who is officer of any contestant trade union save with the permission of the Registrar." F. Determination:

11. Now I would like to thrash out the moot points mentioned above as under:

a. Whether the instant writ petition, filed by the Petitioner individually in his own name instead of Union is maintainable, if not so what are its effects?

12. While raising preliminary objections regarding the maintainability of the petition, the learned counsel for the Respondents has raised specific objection that the instant petition has been filed by the Petitioner, Abdul Qayyum, in his individual capacity, alleged himself to be the President of his Union, but the same should have been filed in the name of Union as prescribed under Section 13 of the Act that every registered Trade Union is a body corporate and is entitled to sue and to be sued by its name. The learned counsel has placed reliance on the M. Ashraf Bullo and another v. Pakistan International Airline's Corporation through Managing Director and 4 others (2011 PLC 142 [Sindh High Court]). But on the other hand by rebutting the said contention/objection the learned counsel for the Petitioner submitted that although the petition has been filed in the name of the Petitioner (Abdul Qayyum) who is an employee of WAPDA and being an active member of the Union has been selected as President of the Union and he has been duly authorized by his Union to file this petition. In this regard, he has drawn the attention of this Court towards Annexure-A (Page-7). The learned counsel for the Petitioner submitted that Annexure-A is the Authority Letter dated 17.01.2017 which has been issued by the Secretary General under his signature after adopting due procedure authorizing the Petitioner to file the instant petition.

13. The language of section 13, above referred, is very clear that "every registered trade union shall be a body corporate by the name under which it is registered, shall have perpetual succession and a common seal and the power to contract and to acquire, hold and dispose of property, both movable and immovable, and shall by the said name sue or be sued". Admittedly, the Union of the Petitioner is a registered Union and is therefore, a body corporate by the name "WAPDA WORKERS PASBAN UNION (REGD)". It is pertinent to note here that the affairs of the Trade Unions are managed by its Executive under its Constitution. Section 2(xi) of the Act mentions that "executive" means the body, by whatever name called, to which the management of the affairs of a trade union is entrusted by its constitution.

14. From the above, it can safely be held that the affairs of a Trade Union can be entrusted only to a body and not to an individual. This petition has been filed by the Petitioner in his own name (Abdul Qayyum) claiming to be the President of the Union and not in the name of his Union as the Trade Union is a corporate aggregate and is therefore, a distinct and separate person from its members or office bearers. Guidance can be sought from the M. Ashraf Bullo and another's case supra in which the Hon'ble Division Bench of this Court elucidated the issue of maintainability of the petition on this moot point. The Division Bench of Sindh High Court in the case supra has held which is as follows:-- "Institution of proceedings by individual office-bearers in the name of Trade Union. The Petitioners who claimed themselves to be General Secretary and Vice President of the Trade Union in the employer Corporation submitted that under the Industrial Relations Ordinance, 1969, even an individual office-bearer could file a petition; and that was to be deemed to be a petition filed on behalf of the Trade Union. Validity. No provision was available in Industrial Relations Ordinance, 1969 for the proposition submitted by the counsel for the Petitioners. Counsel for the petitioners was unable to place on record or point out any authority in support of such contention. If individual office-bearers were allowed to institute proceedings in the name of a Trade Union, it would result to total chaos. Every Trade Union has a constitution and matters were regulated by the constitution; and even if no provision was available in the constitution, the affairs of the Trade Union were entrusted to its executive. Affairs could be entrusted only to a body and not to an individual. Collective Bargaining Agent was not entitled to maintain a constitutional petition in respect of any grievance of its member; similarly a member or office-bearer of a Trade Union, could not maintain a constitutional petition for any grievance of the Trade Union. Petition being, not maintainable was dismissed in limine."

15. From the above case-law, it is clear that the Constitutional petition, if filed by an individual of a Trade Union is not maintainable for any grievance of the Trade Union. Furthermore, the learned counsel for the Petitioner has failed to cite any provision of law or any case law to establish that an individual, in his own name, can file a Constitutional petition for the grievance of the Trade Union. When law required a thing to be done in a particular manner, the same must be done accordingly and if prescribed procedure is not followed, presumption would be that the same has not been legally done. The Petitioner has placed on record only Authority Letter which is not supported by any resolution etc., as such the same would not resolve the issue. The Constitutional petition, on such score, is not maintainable. b. Whether the Petitioner has made concealments of material facts?

16. The learned counsel for the Respondents has laid much stress on the stance that the Petitioner has not come to the Court with clean hands as he has made concealment of material facts and obtained stay orders from this Court under the shadow of concealment. Learned counsel submitted that the impugned notice/letter dated 11.01.2017 was issued in compliance of the direction issued by the Islamabad High Court, Islamabad in W.P. No.3404/2016 on 23.09.2016, as such there is no illegality in the impugned order; that the W.P. No.4462/2016 in which the Petitioner's Union was also party as Respondent No.7 and duly represented through its counsel, was also dismissed vide order dated 22.02.2017 having become infructuous as the Referendum was taken place on 02.02.2017 but these facts have been concealed by the Petitioner from this Court and got certain interim injunction regarding the same Referendum. On the other hand, the learned counsel for the Petitioner remained unable to controvert the said contention of concealment of material facts, raised by the learned counsel for the Respondent No.5.

17. I have thoroughly gone through the documents attached with the written statement filed by the Respondent No.5 which reflect that the Respondent No.5, All Pakistan WAPDA Hydro Electric Workers Union, filed W.P. No.3404/2016 before the Hon'ble Islamabad High Court, Islamabad in which the Union of the Petitioner as well as others were also made party to the petition. The said Union in the petition had sought a direction to the Respondents No.1 and 2 therein to perform and complete their lawful public functions and under Section 19(2) of the Act and thereby adhered to the mandates of law and the rules of law. It also sought a direction regarding completion of exercise of secret ballot immediately for the determination of CBA in the WAPDA/Corporatized Companies in the interest of Workers. In the said petition, the Hon'ble Islamabad High Court, Islamabad passed the following order on 23.09.2016: "Since under the law Respondents are required to complete the process within one month, but unnecessary delay is being cause, therefore, Respondents are directed to complete the process within the time frame prescribed under the law. Disposed of"

18. A contempt petition (Criminal Original No.02-W/2017) was also filed when the said order was not complied with and thereafter I.C.A. No.17 of 2017 was filed which was dismissed vide order dated 17.01.2017 by the Division Bench of the Hon'ble Islamabad High Court, Islamabad. It is important to note that the instant petition was filed on 26.01.2017 and on the same date the Petitioner got stay order in respect of the impugned order and thereafter in C.M. No.1/2017 on 19.06.2017 by virtue of order dated 21.03.2017.

19. From the above situation, it is crystal clear that this petition was filed subsequent to the petitions before the Hon'ble Islamabad High Court, Islamabad and the Petitioner, who was party to that petitions before the Hon'ble Islamabad High Court, Islamabad, has not mentioned these facts in this petition and has concealed the material facts from this Court. Therefore, concealment of necessary facts had established the bad faith on the part of Petitioner, which is completely based on mala fide and ulterior motives. It is an established law that the concealment of material facts, in arguments and in pleadings cannot be over looked. Reliance in this regard is placed on the case titled Shahbaz Enterprises v. Government of Sindh (2014 CLC Karachi 174), in which the petitioner concealed material facts from the Court and the Court held that such conduct of petitioner would disentitle him from claiming discretionary relief under Article 199 of the Constitution. (also see Muhammad Sarfraz v. Nadeem Tahir Syed (2016 CLC Lahore 7).

20. Moreover, it is also essential to pin point here that the Petitioner filed an application (C.M. No.1/2017) seeking suspension of order/CBA Certificate, issued in favour of the Respondent No.5 dated 21.03.2017, passed by the RTU on 15.06.2017 and got the stay order by this Court vide order dated 19.06.2017. Learned counsel for the Respondent No.5 pointed out that the Petitioner had already filed Appeal under Section 12 of the Act before the Commission challenging the validity of same order dated 21.03.2017 and CBA Certificate and has got the stay order from this Court by concealing the fact of Appeal. The record shows that the Petitioner had already filed the Appeal before the Commission challenging the order dated 21.03.2017 along with application for interim relief. But no interim injunction was granted by the Commission and the stay order obtained by the Petitioner from this Court was subsequent to the Appeal which is still pending adjudication. Neither in the application for stay dated 15.06.2017, the Petitioner has mentioned the fact of filing his Appeal before the Commission nor during the course of arguments he has uttered even a single word in this regard and also remained unable to counter the objection raised by the learned counsel for the Respondent No.5 in this regard. The order dated 21.03.2017, which has been specifically assailed in the Appeal filed by the Petitioner, is the continuation of the order dated 11.01.2017 impugned in this petition.

21. On the touchstone of the above discussion, the instant petition is not maintainable, hence the same is hereby dismissed. MH/A-89/L Petition dismissed.