1995 PLP 306 (PLC)

(2‑A) A collective bargaining agent shall maintain with a branch of the National Bank of Pakistan or with a Post Office Saving Bank an account to which shall be credited the entire amount deducted by the employer under subsection (1) from the wages of the members of the trade union. (3) The employer shall provide facilities to the collective bargaining agent for ascertaining whether deductions from the wages of its members are being made under subsection (1).

21. The petitioner has not been able to show as to how is he an aggrieved party within the meaning of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. In the case of Messrs Associated Cement Companies Ltd. v. Pakistan through the Commissioner of Income‑tax reported in PLD 1978 SC 151 their Lordships of the Supreme Court were pleased to enunciate the principle that a writ petition can be maintained by a person provided he be an "aggrieved party" and in order to be an "aggrieved party" it would be imperative for a party to show that any of his proprietary or personal rights, as recognised by laws of the country, has been invaded or denied to him. The same principle has been reiterated in the case of Anjutrian Araian, Bhera v. Abdul Rashid and others reported in PLD 1982 SC 308 where their Lordships were pleased to hold that a person can be deemed to be "aggrieved" if he has some interest in the corpus of property to which the law attaches some sanctity. The same view has consistently been taken in the reported cases of:‑‑ (i). Pakistan Steel Re‑Rolling Mills Association v. Province of West Pakistan (PLD 1964 (W.P.) Lahore 138); (ii) Mian Muhammad Abdullah, District Manager, Government Transport Service, Lyallpur v. The Road Transport Corporation, Lahore through its Secretary and others (PLD 1964 (W.P.) Lahore 743); (iii) Sher Muhammad v. Chairman, Industrial Court of West Pakistan and others (PLD 1966 (W.P.) Lahore 1019); (iv) S. Sajjad Haider v. Government of West Pakistan and another (PLD 1967 Lahore 938); (v) Muhammad Abdus Salam v. Chairman, East Pakistan Election Authority and others (PLD 1965 Dacca 231); (vi) Haji Majakkir Ali v. Regional Transport Authority, Sylhet and others (PLD 1967 Dacca 6); (vii) The Punjab Miners Labour Union v. The West Pakistan Industrial Development Corporation, Jhelum (PLD 1972 Lahore page 489); (viii) Ch. Muhammad Yunus v. The Islamic Republic of Pakistan through ' the Secretary, Ministry of Communication, Government of Pakistan, Islamabad and 3 others (PLD 1972 Lah. 847); (ix) Rashid A. Khan v. West Pakistan Railway Board through its Chairman, Lahore and another (PLD 1973 Lah. 733); (x) Miss Nadra Imam v. The Appellate Committee for Permanent Residence Certificate (PLD 1976 Kar. 851); (xi) Messrs S.M. Ilyas and Sons Ltd. v. Monopoly Control Authority, Islamabad and another (PLD 1976 Lah. 834) and (xii) M/s. Tariq Brothers and another v. The Deputy Commissioner etc. (PLD 1995 Lah. 142).

22. Considering that the petitioner withheld and actually tried to conceal the fact that his application under section 10 of the Industrial Relations Ordinance of 1969 is still sub judice before the Registrar of Industry wise Trade Unions, (respondent No.1). The petitioner is not entitled to any relief in the discretionary Constitutional jurisdiction of this Court because he who seeks equity must do equity. This maxim has always been enforced by this Court and some of the leading decisions of this Court and also the Supreme Court are to be found in the cases of:‑‑ (i) Haji Noor Muhammad v. Ghulam Masih Gill (PLD 1965(W.P.) Baghdad‑ul‑Jadid 1); (ii) Abdul Hafeez v. Board of Intermediate and Secondary Education and another (1983 SCMR 566); (iv) Muhammad Siddiq and 2 others v. Settlement Commissioner, Punjab and others (1985 CLC 1897) and (v) Nasrullah Jan and 3 others v. Muhammad Karim and 14 others (1986 CLC 1).

23. On merits, the pith and substance of the petition is that after the addition of subsection (1‑B) to section 17 of the Water and Power Development Authority Act of 1958, service under the respondent authority has been declared to be service of Pakistan and every person holding a post under the respondent authority shall be deemed to be a civil servant for the purposes of the Service Tribunals Act of 1973.

24. The Water and Power Development Authority was established under the West Pakistan Water and Power Development Authority Act, 1958 (West Pakistan Act (XXXIX of 1958). Chapter II of the Act deals with the constitution of the Authority. Section 3 provides that:‑‑ "Section

3. Constitution of the Authority.‑‑‑(1) There shall be established an Authority to be known as the Water and Power Development Authority for carrying out the purposes of this Act. (2) The Authority shall be a body corporate, shall be entitled to acquire and hold property, shall have perpetual succession and a common seal and shall by that name sue and be sued."

24. Chapter IV of the Water and Power Development Act, 1958 deals with the Establishment. Section 17 provides:‑‑ "Section 17.‑‑‑Employment of Officers and servants.‑‑‑(1) The Authority may from time to time employ such officers and servants or appoint such experts or consultants, as it may consider necessary for the performance of its functions, on such terms and conditions as it may deem fit." ,

25. After subsection (1), the following subsections were added:‑‑ "(1‑A) Notwithstanding anything contained in subsection (1) or any rules made, or orders or instructions issued, by the Authority, or in the terms and conditions of service of any person employed by, or serving under the Authority, the Authority may at any time, retire or remove from its service any person without assigning any reason, after giving him not less than thirty days' notice or pay for the period by which such notice falls short of thirty days. (1‑B) Service under the Authority is hereby declared to be service of Pakistan and every person holding a post under the Authority, not being a person who is on deputation‑to the Authority from any province, shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973 (LXX of 1973)." Thus, by virtue of a deeming clause every person holding a post under, the Authority but not a person who is on deputation to the Authority from any Province, shall notionally be considered to be a civil servant for the limited and specific purpose of the Service Tribunals Act of 1973.

26. To be deemed to be a civil servant for the purposes of the Service Tribunals Act of 1973 (Act LXX of 1973) cannot be held to be synonymous with a "civil servant" as defined in clause (b) of subsection (1) of section 2 of the Civil Servants Act of 1973 (LXXI of 1973) which reads as follows:‑‑ "Section

2. Definitions.‑‑‑(1) In this Act, unless there is anything repugnant in the subject or context,‑‑ `Civil servant' means a person who is a member of an All‑Pakistan Service or of a civil service of the Federation or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include‑‑ (iii) a person who is a `worker' or `workman', as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen's Compensation Act, 1923 Thus, a person who is a `worker' or `workman' as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act of 1923 has been specifically excluded from the definitions of `civil servant'.

27. The Service Tribunals Act of 1973 (LXX of 1973), being an Act providing for the establishment of Service Tribunal to exercise jurisdiction in respect of matters relating to the terms and conditions of service of civil servants defines a civil servant as follows:‑‑ "Section

2. Definitions.‑‑In this Act, unless there is anything repugnant in the subject or context:‑‑ (a) Civil servant means a person who is, or has been, a civil servant within the meaning of the Civil Servants Act, 1973 (LXXI of 1973)." Section 4 of the Service Tribunals Act, 1973 provides for appeals: "Section

4. Appeals to Tribunals.‑‑‑ (1) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the. terms and conditions of his service may, within thirty days of the communication of such order' to him or with six months of the establishment of the appropriate Tribunal whichever is later, prefer an appeal to the Tribunal." Thus, the appeal has to be in respect of any of the terms and conditions of service.

29. The legal position which emerges is that the Water and Power statutory body established under the Water and Power Development Authority Act of 1958 and by virtue of subsection (2) of section 3 the Authority is a body corporate, having its own independent legal status distinct from the Government. The employees of Water and Power Development Authority are not civil servants stricto senso but are only deemed to be civil servants for the purposes of Service Tribunals Act of 1973, i.e. for the purposes of regulating matters relating to their terms and conditions of service. The formation, registration and all other matters relating to Trade Unions is clearly beyond the scope and purview of the Service Tribunals Act of 1973.

30. The legal effect and consequence of the addition of subsections (I‑A), (1‑B) and (1‑C) to section 17 of the Water and Power Development Authority Act of 1958 was held to be that:‑‑ "It is clear from these provisions that the employment in the Authority was declared to be service of Pakistan and remedy provided under Service Tribunals Act, 1973 was made available to such employees by deeming them to be civil servants under that Act., The two explanations subsequently added and `deemed always to have been so added' had the effect of bringing under purview of subsection (1‑A) even the Provincial Civil Servant serving the authority under provisions to subsection (1). All employees, except those on deputation, were without qualification or limitation, declared to be civil servants for the purposes of Service Tribunals Act. All the terms and conditions of their service, be it statutory or contractual, were made the subject‑matter of reference to Service Tribunal. Subsection (1‑A) of the Act, as will be seen contained overriding terms and conditions of employment and provisions thereof could like any other terms and conditions of service be brought before the Service Tribunal for adjudication. Article 212(2) of the Constitution ousting the jurisdiction of all other Courts came into play and so did section 6 of the Service Tribunals Act, abating "all suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before." This was held in the case of WAPDA and another v. Muhammad Arshad Quraishi (1986 SCMR 18) which was followed in Water and Power Development Authority v. Javaid Ahmad, Line Superintendent and another (1989 SCMR 1068 and the same view was again reiterated in the case of Project Director. Ghotki, (WAPDA) v. Commissioner, Workmen's Compensation and Authority under Payment of Wages Act, Sukkur and 3 others (PLD 1992 SC 451).

31. The basic question is what is Trade Union activity? In order to understand the concept and philosophy of Trade Unionism it is necessary to understand the historical process.

32. Prior to the advent of the Industrial Revolution, there were no fixed hours of work and workmen uses to labour for 16 hours a day on the average.

33. Workers were not allowed to combine or unite because of the then prevalent anti‑combination laws and any attempt by workers to unite or combine was deemed to be a conspiracy by virtue of those anti‑combination laws.

34. By about 1830 the process of the Industrial Revolution in England and Europe was complete, and correspondingly the bourgoisie became the dominant class. Kingships were mostly abolished or survived merely as figure heads. Henceforth, money was King.

35. In this background, working class leaders of the world met in London in 1864. The First Workmen's Association was formed and its basic demand was the right to form Trade Unions and regulate working hours by limiting them to 8 hours a day. On the 1st of May, 1886 workers of Chicago (U.S.A.) mostly of Automobile Industry demanded working hours to be fixed at 8 hours a day; took out a procession and held a demonstration: during which some of the workers lost their lives. In 1889 a meeting of working class leaders was held in Paris. The Second Workmen's Association commonly known as the Second International was formed. Working class leaders from the Untied States of America suggested and all others accepted the suggestion to commemorate the 1st of May as a Working Class Day commonly known as May Day having a red flag in memory of those workers who laid down their lives in Chicago. The demand of fixing working hours to a maximum of 8 hours a day was once again made and it was decided that the said demand would be pressed for throughout the world. These demands were more or less granted after the Bolshevik Revolution of 1917 in Russia. "Workers of the world unite, you have nothing to loose except your chains" had become an irresistible world‑wide slogan. Earlier, in the American Declaration of Independence in 1775, three basic rights had been recognized. The right to life, the right to liberty and the right to happiness. The French Revolution of 1789, gave birth to concept of Fraternite Equalite, Liberte (Fraternity, Equality, Liberty). Jean Jacque Rousseau's Le Contaract Sociale (Social Contract) declared that "man was born free yet he is in chains everywhere". Social democratic parties were formed in many countries of Europe after the Second International. Workers of the world started getting the right to vote during this period.

36. After the First World War the International Labour Organisation (ILO) was formed alongwith the League of Nations. International Labour Organisation (ILO) was adopted by the United Nations after the Second World War as an advisory body in matters relating to the working class. In Pakistan most of the conventions of the International Labour Organisation (ILO) have been adopted. In the Indo‑Pakistan Sub‑Continent laws beneficial for the working class were enacted for the first time in more or less the third decade of the 20th Century, for example, the Workmen's Compensation Act of 1932, the Factories Act of 1934 and the Trade Unions Act of 1926, which guaranteed the right of the working class to form Trade Unions.

37. Trade Unionism which is the result of along drawn historical process of struggle and sacrifice was finally safeguarded and guaranteed by the Constitution of the Islamic Republic of Pakistan of 1973. The preamble of the Constitution of the Islamic Republic of Pakistan of 1973 declares that:‑‑ "Whereas Sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust: 'And whereas it is the will of the People of Pakistan to establish an Order: `Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed.' Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality." Part II of the Constitution of the Islamic Republic of Pakistan provides Fundamental Rights and Principles of Policy. Chapter 1 provides fundamental rights. Article 17 guarantees Freedom of Association. "Article 17‑‑Freedom of Association.‑‑‑(1) Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality." The right to form Trade Unions is too fundamental to be defeated by virtue of a deeming clause in a subordinate legislation.

39. There is no merit in this petition which is dismissed with no order as to costs. A.A./M-1985/L Petition dismissed.