1998 PLP 296 (PLC)

3. In the three other petitions the Awami Labour Union filed petitions against the Army Welfare Trust Cement Plant, Nizampur. In all the petitions the main question is involved that whether I.R.O., 1969 is applicable to the Army Welfare Trust or not and Army Welfare Trust, Nizampur is acted under the provisions of section 1(3)(a) of the I.R.O. 1969.

4. It is submitted by the learned counsel for the petitioners establishment that the A.W.T. is registered under Society Registration Act, 1860, as per the memorandum and article of Association, the project of A.W.T. are preliminary provide for the welfare of the personnels who are serving or have served in the Pakistan Army. It is also contended that Army Welfare Project Funds, G.H.Q., A.G.S. Branch (W&R), Directorate is also registered under the Association Registration Act, 1860. The Funds of A.W.T. vest in W&R Directorates, A.G.S. Branch, G.H.Q., Rawalpindi. It is stated that the entire funds of the A.W.T. are to be applied solely for the implementation of the purposes of the trust. Petitioner has appended with the petition the Memorandum and Article of Association of the A.W.T. in which the project of the Trust has been listed in clause (iii). It is apparent from the said documents that all the original members of the Trust are Senior Army Officers such as Adjutant General of Pakistan Army, Director, W&R, Directorate, G.H.Q., Rawalpindi, Director Pay, Pension and Account, G.H.Q. Directorate of Army FARMS, A.A.-G., W&R Directorate G.H.Q. and D.A.A. and G, D&H Directorate, Headquarters Islamabad that the learned counsel for the petitioner further contended that Nizampur Cement, Project is a unit of A.W.T. which Organisation has entrusted with the Welfare of the Army Personnel or ex-serviceman.

5. I have carefully considered the arguments advanced by the learned counsel for the parties in the light of available record on the file.

6. The Army Welfare Trust is governed by the G.H.Q. and Adjutant General Pakistan Army as its Chairman. It is also urged that the Nizampur Cement Plant was set up preliminary for meeting special defence requirements. The Cement Plant has capability of producing products which are used special structure, landing, strips which are exclusively made for the defence purposes, which are not directly use in ordinary project. The learned counsel for the petitioner has placed reliance on section 1(3)(a) of the I.R.O., 1969 which does not apply to the Army Welfare Trust or to any person, employed there in as A.W.T. is rendering services and is an installation connected with or incidental to the Armed Forces of Pakistan. To support his contention the learned counsel for the petitioner has relied upon 1976 PLC page 855, judgment from Lahore High Court as titled United Builders Association v. Presiding Officer, Punjab Labour Court and others. The ratio decidendi of the said judgment is that whether the army was engaged in getting of Highway of national importance constructed through Contractors as such the construction was connected with and incidental to the armed forces irrespective of use to which it may be put after completion and the source of funds and the employee of the said project cannot avail provisions of I.R.O., 1969 under section 1(3)(a) of the I.R.O., 1969. Reliance was also placed on 1978 PLC page 261 in which establishment of Army Stud-Farm whose function was to produce horses and mules for Pakistan Army was held to be incidental to the Armed Forces, the I.R.O., 1969 was not applicable. Reliance was further made on 1990 PLC page 218 and page

580. The first quoted judgment is a Divisional Bench (D.B.) judgment of the Peshawar High Court, in which it was held that persons employed in or working for the company which an installation connected with Aimed Forces of Pakistan and even connected therewith cannot avail of the provisions of I.R.O., 1969 by way of forming or getting registration of a trade union, in the said judgment writ petition was filed by the National Radio and Telecommunication Corporation Workers Union, Haripur, was dismissed, the same point regarding registration of a trade union in an establishment incidental to or connected with defence was involved.

7. On the other hand the learned counsel for the respondents have controverted the contentions of the petitioner. It has beet urged that the act of the petitioner's establishment is mala fide and is an attempt to defeat the legal process of registration of a trade union. It has also been submitted vehemently that the functions of the N.I.R.C. under section 22-A(8)(g) of the I.R.O., 1969 is to promote the formation of trade unions and not to suppress the same. It may not be out of the place to mention here that the respondent union in their written statement no serious attempt has been made to specifically denying the averments regarding the status of A.W.T., its objects and purposes it is controverted an organisation as is spelled out in paras. 2, 3 and 4 of the main petition filed by the Army Welfare Trust Establishment. Instead the written statement the contents are vague and un specific denial of the said paras without specifically denying that as per the memorandum and Article of Association of A.W.T. and registration of Army Welfare Trust Funds and its status are being governed by the G.H.Q. and how it was not establishment connected with the Armed Forces of Pakistan.

8. The learned counsel for the respondents union vehemently contended that if the A.W.T. Establishment has got any objection to the registration of Awami Labour Union he could raise the objections before the R.T.U. concerned but I am of the view that it does not oust the jurisdiction of the N.I.R.C., to adjudicate on this score.

9. The learned counsel for the respondents attributed mala fide to the petitioner, however, no details of mala fides against any individual has been pointed out. The sole question for determination according to the documents placed on the record and such documents are not rebutted by the respondents is whether or not the petitioner (Army Welfare Trust) Establishment is incidental to or connected with the Armed Forces of Pakistan.

10. The judgment cited by the learned counsel for the petitioner Awami Welfare Trust have been examined extensively and various establishment which have been held to be connected with or incidental to the Armed Forces of Pakistan are at par with the petitioner establishment and nothing has been brought out to distinct the establishment of the petitioner from the various establishment like Army Stud Farm and United Builders etc. in the nature of work. Apart from the instances of the abovecited judgment even a Cantonment Board, and Canteen Store Department, have been held to be ousted the purview of the I.R.O., 1969. Attention has also been drawn to 1983 SCMR page 1101 passed by the Hon'ble Supreme Court of Pakistan in Canteen Store Department Employees' Welfare Union, Karachi v. C.S.D, and others. It was held that C.S.D. is an Organisation connected with the Armed Forces of Pakistan hence covered by exemption prescribed under the scope of section 1(3)(a) of the I.R.O., 1969.

11. In all the above quoted cases referred by the learned counsel for the Army Welfare Trust Establishment it is quite apparent that the functions performed by the employees of various concerned were either incidental of directly connected and related to Armed Forces as such the provisions of section 1(3)(a) of the I.R.O., 1969 were found inapplicable.

12. But on the other hand the case-law quoted by the learned counsel for the Awami Labour Union in PLC 1992 page 405 titled Swiss Pak Pharmaceutical v. Register, Trade Unions and others is of a different nature wherein the petitioner company is manufacturing life saving drugs by its marketing through out the country and also abroad and in case of any failure to the petitioner company would not effect the credibility of any section of Armed Forces in any aspect while in the instant case the Nizampur Cent Plant is an establishment preliminary with the objective of catering for the increasing demand of Cement to the country and for meeting special defence requirements.

13. In these circumstances it is not only difficult but impossible to run smoothly such like sensitive nature project in the presence of a trade union. After my above discussion I am scrupulously of the view that the Awami Welfare Trust and its Nizampur Cement Plant Project is an establishment which is connected with and incidental to the Armed Forces Pakistan any by virtue of section 1(3)(a) of the I.R.O., 1969 is immune of applicability of I.R.O., 1969, and the act of forming or registration of Awami Labour Union as a trade union is against the law. The Awami Labour Union Nizampur Cement Plant and Registrar of Trade Union, Peshawar Division are permanently restrained to form or register the said Awami Labour Union as a trade union.

14. With the above observations the petitions are hereby disposed of accordingly. No orders as to costs. File be consigned to record room after completion. H.B.T./286/N.I.R.C. Order accordingly.