1993 PLP 13 (PLC)

AMIRUL MULK MENGAL, J.‑‑‑Following two Constitution petitions were filed by the Government of Balochistan through Secretary, Live -stock Department and Secretary, Agricultural and Cooperative Department challenging the registration of Live‑stock Employees Union and Agricultural Baledar Employees' Union, Balochistan as well as Agricultural Field Assistant Union Balochistan. Declaration of the aforesaid Unions as Collective 3argaining Agents was also challenged in these petitions.

1. Constitutional Petition No. 39 of 1992;

2. Constitutional Petition No. 90 of 1992. Paramount question for determination in the aforesaid two Constitutional petitions was identical, therefore, we proceed to decide both the aforesaid Constitutional petitions through this common judgment.

2. Relevant fats in Constitutional Petition No. 39 of 1992 are that Veterinary Assistants, Stock Assistants and Technical Staff of Live‑stock Department formed a Trade Union in the name and style of Veterinary Assistants, Stock Assistants and Technical Staff Union, Balochistan. After formation of the Union it applied for registration to the Registrar of Trade Unions on 12‑2‑1979 which, however, was declined by the Registrar on 27‑12 1979. Feeling aggrieved, the Union filed an appeal under section 7 of Industrial Relations Ordinance, 1969 (hereinafter referred to as the "IRO") before the Labour Court. The matter was decided by the Presiding Officer, 1st Labour Court, Quetta who accepted the appeal and directed the Registrar, Trade Unions to register the said Union. In pursuance whereof the Registrar registered the said Union vide Registration No. RTU/DLW/QTA/108 on 16‑2‑1981. Thereafter the name of the Union was changed as Live‑stock Employees' Union. After some time of its registration the Registrar, Trade Union certified it as Collective Bargaining Agent.

3. The plea of the Government in challenging the formation and registration of the Union is that the members of the Union are employees of the Department of Government of Balochistan and are Government servants as they are appointed, removed and dealt with under the Balochistan Live stock Department Subordinate (Grade‑1 to Grade‑15) Service Rules, 1979 which have been framed under section 25 of Balochistan Civil Servants Act, 1974. Petitioner Government has also attached alongwith the petition Balochistan Civil Servants (Efficiency and Discipline) Rules, 1983 contending that all disciplinary matters in respect of such employees are dealt with by said Rules. It was contended that the Union was dormant and only since last year it started demonstration, agitation and went on strike. The Department has never recognised this union or its activities as such. It was further pleaded by the petitioner‑Government that since the Government was not a party in the proceedings of registration or before the Labour Court, therefore no legal action could be taken by it. However, the counsel for the petitioner Government strenuously urged that since the formation of union, the Government had made all efforts to deregister the Union. Reference was made to letters dated 5‑11‑1990 approaching the Secretary with a request of deregistration of the Union. So much so that the Registrar was also approached to file complaint for the deregistration of the Union but he did not file any appeal/complaint to the Labour Court. Taking benefit of the I.R.O. the Union issued notices for strike and factually they staged strikes as a result of which the functions of the Department came to a standstill. The main plea of the petitioner‑Government is that the employees of the Department who are members of the Union being civil servants are governed by Balochistan Live stock Department (Grade 1 to 15) Service Rules, ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ therefore they cannot form union and such union cannot be registered within the purview of I.R.O.

4. Necessary facts arising out of C.P. No. 90 of 1992 are that the employees of the Department are Government servants as they are appointed, removed, dealt with under the Balochistan Agriculture Department (Extension and Research Wings) Technical Subordinate (Grade 1 to 15) Service Rules, 1983 which have been framed under section 25 of Balochistan Civil Servants Act, 1974, the disciplinary matters in respect of such employees are dealt with under the Balochistan Civil Servants (E&D) Rules, 1983. The Beldars, Palaydars, Malis, Tractor Cleaners, Vehicle Cleaners, Helpers, Head Malis, Tubewell Operators, Vehicle Drivers, Storekeepers, Budder, Crop Reporters, Tractor Drivers, Fitters, Mechanics and Film Van Drivers‑cum‑Operators etc. who belong to categories of employees working in Grade 1 to Grade 8 formed a Trade Union in the name and style of Agricultural Beldar Employees Union, Balochistan. Said Union applied for registration to the Registrar Trade Unions, Balochistan who registered the union vide Registration No. RTU/DLW/QTA/124 on 3‑6‑1984. Subsequently the Registrar certified the said Union as Collective Bargaining Agent under the provisions of I.R.O. The Government plea is that Government was neither a party nor given any notice by the Registrar during the said proceedings. Similarly Field Assistants, Farm Assistants, Overseers, Agricultural Inspectors who are working in Grade 5 to 9 formed a union in the name and style of Balochistan Agricultural Field Assistants Union, which was also registered by the Registrar of Balochistan Trade Unions vide Registration No. 7/RTU/QTA/1970, dated 8‑4‑1970. Subsequently the Registrar certified the said Union as Collective Bargaining Agent. The Government has now challenged the registration of both the aforesaid unions on the ground that the same was in violation of provisions of I.R.O. because its members were neither workers nor workmen as defined by the I.R.O. In June 1990 the members of the said union went on strike including hunger strike and remained absent from Government duty thus causing tremendous damage to the crops of Government Farms. Being confronted with such a situation, the Government asked the Law Department for taking appropriate action. Simultaneously Director Labour was requested to cancel registration of the aforesaid two unions. But he failed to do so. Hence these petitions.

5. Heard Mr. Shakeel Ahmed, Advocate for petitioners, Syed Ayaz Zahoor and Mr. Zafar Khan Mandokhail for respondents. Registrar Trade Unions was heard in person.

6. Learned counsel for petitioner‑Government in support of petition contended:‑‑ (a) that the members of respondents Unions are not employed in an establishment or industry within the meaning of section 2(xiv) of IRO; they on the other hand are employed in Agricultural Department, Government of Balochistan and object of employment is not to carry on any industry, therefore, neither they are workmen nor they could form a Trade Union. Registration of the unions, therefore, is without jurisdiction; (b) the members of respondent‑unions are civil servants and not workmen as such they were not entitled under law to form unions. They being governed by statutory rules framed under section 25 of Civil Servants Act, 1974, provisions of I.R.O. do not apply to them; (c) that the members of respondents‑union are performing duties in the administration of State hence on this count also, the provisions of I.R.O. are not applicable, as such, the registration of said unions is ab initio void; (d) that since the petitioner‑Government was not made a party neither before Registrar of the Trade Unions, Balochistan nor before Labour Court, therefore, the orders passed for registration are in violation of the principles of natural justice.

7. Mr. Ayaz Zahoor learned counsel for respondent unions controverting the aforesaid arguments pleaded as under:‑‑ (i) the petition suffers from laches as the impugned orders regarding registration of the unions have been passed several years ago; besides this alternate remedy was available to the petitioner‑Government which was not availed hence the petition is not maintainable as such; (ii) that the Government is estopped at this belated stage because it has negotiated with the unions without challenging their registration, hence petition be dismissed on this score alone. On merits learned counsel contended that members of the union are not in the civil service of the Province of Balochistan. Referring to section 2(d)(iii) of the Civil Servants Act, learned counsel contended that a person who is worker or workman as defined in Factories Act, 1934 (XXV of 1934) or Workmen's Compensation Act, 1923 (VIII of 1923) is not a civil servant, hence the members of the respondent‑unions who are Beldars, field Assistants, Malis, budders etc. are workmen, therefore, fully entitled to form a Trade Union of their own choice and are also entitled to register the same under the I.R.O. The main contention, however, was that since according to nature of work the members of Union are workers therefore provisions of I.R.O. shall apply to them.

8. While adopting the said arguments Mr. Zafar Khan Mandokhail added that member's of the Unions are not performing duties in the administration of State. Reliance was placed on the case of Faqir Muhammad v. Director of National Savings, Multan Region, Multan (PLD 1992 SC 127).

9. Before proceeding to determine the pivotal point raised in these petitions, we would like to dispose of the preliminary objections regarding maintainability of these petitions as being hit by laches‑‑‑‑‑‑‑‑ Syed Ayaz Zahoor and Mr. Mandokhail, Advocates strenuously urged that since years have passed when the unions were registered, therefore, the petitions are hit by laches.

10. It may be observed that as far as question of laches is concerned there is a stream of case laws on the subject. Superior Courts have sometimes dismissed writ petitions on the ground of short delays of months, whereas on the other hand Constitutional petitions have been entertained challenging actions being taken over decades. Strictly speaking there is no law of limitation' applicable to the filing of Constitutional petitions. However, the Courts have taken into consideration facts of each case in order to determine whether a writ was hit by laches or not. Thus it may be observed that no hard and fast rules can be laid down in this behalf.

11. As far as peculiar circumstances in which the present petitions were filed, it was pointed out by Mr. Shakeel Ahmad that Government was not a party before the Registrar of Trade Unions nor before the Labour Court passing orders of registration of the unions. Furthermore, under law the Government could not directly file an appeal for cancellation of the registration of the unions within the meaning of section 10 of I.R.O. Said section provides that a registration of a Trade Union shall be cancelled if the Labour Court so directs upon a complaint in writing made by Registrar that Trade Union has contravened any of the provisions of the Ordinance, or provisions of its constitution, or have incorporated in their constitution any provisions which are incons1stent with the Ordinance/Rules. So only the Registrar could go for cancellation of the registration of Trade Unions before the Labour Court. Referring to the letters attached with these petitions it was argued that Government in fact had approached the Registrar to move for cancellation but Registrar did not take any action in this regard. Since no remedy was available to the Government and the unions were initially dormant or at least not much active, therefore, it cannot be said that Government has accepted the registration of the unions and is thus estopped to challenge the same. Moreover the Government has continuously written letters to the Labour Department as well as to other concerned Departments inviting their attention that employees of the Department could not form trade unions or get the same registered being civil servants. Although the members of the Union placed documents showing that on their charter of demands Government had negotiated with them but the Government has simultaneously moved the Labour Department for taking action under law against such unions. In these c4xcumstances and respectfully following the principles laid down in 1987 SCMR 1119, we are inclined to hold that these petitions should not fail on the preliminary objections raised regarding laches and acquiescence but should be decided on merits as substantial question of law affecting the rights of the employees on the one hand and plea of the Government on the other is, involved.

12. Counsel for the petitioners mainly urged that the members of respondent‑unions are performing their duties in the administration of State hence provisions of I.R.O. do not apply to then in view of section 1(3)(b) of the I.R.O. On the other hand relying on the case of Faqir Muhammad v. Director of National Savings, Multan Region, Multan (PLD 1992 SC 127) learned counsel for the unions contended that the majority view of the Supreme Court on the subject is that the expression "Administration of State" should be interpreted in ‑‑‑‑‑ limited and narrow sense of the practical management and direction of the executive machinery or the operation of the various organs of the sovereign or conducting or carrying on the details of the Government. It, however, should not be extended to cover those employees of the State who are workers and perform duties which should not be covered by expression "Administration of State" like Malis, Chowkidars, Budders, Beldars, Tubewell Mechanics, Drivers etc.

13. We have thoroughly gone through the said judgment. There was difference of opinion regarding interpretation of "Administration of State". However, the Referee Judge of the Hon'ble Supreme Court on page 143 of the said judgment concluded as under:‑‑ "Following the test laid down in this judgment I am inclined to agree with my learned brother that the appellant, being a Chowkidar in a directorate concerned with mobilizing savings in the country, can hardly be described as a person employed in the administration of State:" It is worth to mention here that this proposition had already come before the Supreme Court in the case of Employees' Old‑Age Benefit Institution v. N.I.R.C. (1988 SCMR 765) where following conclusion was drawn:‑‑ "The expression `administration of the State is to be interpreted in a limited and narrow sense of the practical management and direction of the executive machinery or the operation of the various organs of the sovereign or the conducting or carrying on of the details of the Government."

14. Likewise in Constitutional Petition No.192 of 1991 a Division Bench of this Court while following the aforesaid ratio decidendi dismissed a petition wherein it was contended that the petitioner factory had been set up as subsidiary of Shaheen Foundation Pakistan Air Force and beneficiaries therefrom are persons connected with or incidental to Pakistan Air Force. It was argued that by virtue of section 1(3)(b) of I.R.O. petitioner factory was exempted from the application of I.R.O.

15. In view of the aforesaid authorities we, see no reason to place a different and separate interpretation to the term "administration of the State". But the question herein requires further probe and determination. According to petitioners' counsel the employees of the Association in fact are civil servants as they are governed by statutory rules known as Balochistan Agricultural Department (Extension and Research Wings) Technical Subordinates (Grade 1 to 15) Service Rules, 1983. These rules have been framed under section 25 of Balochistan Civil Servants Act, 1974. Similarly regarding employees of Live‑stock Employees' Union, the Government of Balochistan has framed Balochiatan Live‑stock Department Subordinate (Grades 1 to 15) Service Rules, 1989 which have been framed under section 25 of Balochistan Civil Servants Act, 1974; declaring that these employees are covered under Balochistan Civil Servants (Efficiency and Discipline) Rules, 1983.

16. Before proceeding further we consider it necessary to dispose of the preliminary objection raised by Mr. Ayaz Zahoor learned counsel for respondent union. It eras canvassed that the employees of the said unions do not fall in the category of civil servants. Reliance was placed on section 2(b)(iii) of Civil Servants Act which reads as under:‑‑ "(b) 'Civil servant' means a person who is a member of a civil service of the Province of Balochistan or who holds a civil post in connection with the affairs of the Province but does not include‑‑ (i) a person who is on deputation to the Province of Balochistan from the Federation or from any Province or other authority; or (ii) a person who is employed on contract, or on work charge basis, or who is paid from contingencies; or (iii) a person who is `worker' or `workman' as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act, 1923 (VIII of 1923)". Much emphasis was laid on clause (iii) of section 2(b) of the Civil Servants Act, wherein it is laid down that a person who is a `worker' or `workman' as defined in the Factories Act, 1934 or the Workmen's Compensation Act, 1923 is not included in the category of civil servant. It was further argued that since employees falling in this category have been expressly excluded from the definition of civil servant, therefore, provisions of I.R.O. shall apply to such employees, and they are entitled to form unions.

17. In order to appreciate the said arguments it is to be seen whether the employees of the respondent‑union are "workers" or "workmen" as defined in section 2(h) of the Factories Act or such employees fall within the category of worker or workman in the Workmen's Compensation Act, 1923 as defined by section 2(n) of the said Act.

18. Firstly we would see whether the employees of the Unions were found to be workers under Factories Act, either by the Labour Court or by the Registrar of the Unions. Prior to that we would like to reproduce the definition of worker under the Factories Act:‑‑ "(h) `worker' means a person employed directly or through an agency whether for wages or not, in any manufacturing process or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work whatsoever incidental to or connected with the subject of the manufacturing process, but does not include any person solely employed in a clerical capacity in any room or place where no manufacturing process is being carried on." Mr. Shakeel while meeting the said argument contended that concerned Government departments are not factories within the meaning of Factories Act. It was contended that only those persons who are employed directly or through an agency in any `manufacturing process' are workers. Neither the Labour Court has held that the members of the union are involved in any `manufacturing process' nor prima facie it was the case of the members of the union before the Registrar that they are involved in manufacturing process, therefore, it would be impossible to categories these members in the definition of worker as defend in the Factories Act.

19. We see sufficient force in this contention. It is clear from the plain reading of the definition that mere nature of work does not automatically bring an employee in the category of a worker under Factories Act unless such a worker additionally proves that he in fact is involved in a manufacturing process as defined in section 2(h) of the Factories Act. No finding to that effect has been given by the competent authority or the Registrar of the Union.

20. Adverting now to the definition of worker or workman in the Workmen's Compensation Act, it may be observed that workman has been defined in section 2(n) as under:‑‑ "(n) `workman' means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business) who is:‑‑ (i) a railway servant as defined in section 3 of the Railways Act, 1890 (IX of 1890) not permanently employed in any administrative, district or sub‑divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or (ii) employed on monthly wages not exceeding one thousand rupees, in any such capacity as is specified in Schedule II. Whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of Pakistan and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them. (2) The exercise and performance of the powers and duties of a local authority or of any department acting on behalf of the Government shall for the purposes of this Act, unless a contrary intention appears, be deemed to be the trade or business of such authority or department. (3) The Provincial Government after giving, notification in the official Gazette, nor less than three months notice of its intention so to do, may, by alike notification, add to Schedule II any class of persons employed in any occupation, which it is satisfied is a hazardous occupation and the provisions of this Act shall thereupon apply within the Province to such classes of persons: Provided that in making such addition the Provincial Government may direct that the provisions of this Act shall apply to such classes of persons in respect of specified injuries only."

21. The object of reproducing the definition clause of Workmen's Compensation Act was to conclude whether the Registrar of the Unions or the Labour Court have at all determined that members of the said Unions who otherwise are employed in different Government Departments fall in the category of worker or workman as mentioned herein above before ordering for the registration of said unions, because the condition precedent for employees of a Government Department to form a union would be to prove that they fall in the category of worker/workman; failing which the order/certificate of registration would be out of the four corners of law.

22. Learned Labour Court while directing registration of the Veterinary Assistant, Stock Assistant and Technical Staff Union of Live‑stock Department has not at all taken this aspect into consideration. The only ground which has been discussed and which found favour was that since the employees of the union do not fall in the category of administration of State, therefore, they are workers and had the right to form a union. Thus there is no finding either by the Registrar or by the Labour Court that members of the Union fall within the definition of worker or workman. In absence of any such finding, which of course, is a finding of fact, order of registration of the union passed by the Registrar or the Labour Court, would be without any lawful authority and thus the same would carry no legal effect.

23. The reason for reaching the said conclusion is that provisions of LR.O, shall apply only to the workman/worker but its application cannot extended to the civil servants. There is a separate forum to determine the terms and conditions of service of the civil servant which is the Service` Tribunal Balochistan. On account of the bar contained in Article 212(2) of the Constitution of Islamic Republic of Pakistan, the Labour Courts and Registrar under I.R.O. are not competent to pass any orders in respect of the civil servants. In this view of the matter we are fortified by the observations of hon'ble Supreme Court made in the case of Faqir Muhammad v. Director of National Savings, Multan Region, Multan (PLD 1992 SC 127). The relevant observations are reproduced asunder:‑‑ "There is yet another aspect of the matter. As an employee of the Federal Government he held a civil post in connection with the affairs of the Federation. Thus he was a civil servant within the definition of the term as given in the Civil Servants Act, 1973. Under section 3(2), Service Tribunals Act, 1973, the Federal Service Tribunal has the exclusive jurisdiction in respect of matters relating to the terms and conditions of a civil servant. On account of the bar contained in Article 212(2) of the Constitution, the Labour Courts were not competent to entertain the appellant's petition. In the circumstances the orders of the Labour Court and the Appellate Tribunal must be held to be without lawful authority and of no legal effect. I would support the judgment of the learned Chief Justice, although on grounds of my own. Accordingly, this appeal is dismissed with no order as to costs." Thus it may be clarified that all those members of Live‑stock Employees` Union, who do not fall within the category of worker or workman as defined in the Factories Act, 1934 or under Workmen's Compensation Act, 1923 shall be deemed to be civil servants and only those who fall within the category of worker/workman under the aforesaid two laws shall be entitled to form a 1lnion. Obviously civil servants cannot form a trade union as they are not governed by the provisions of I.R.O.

24. From the above discussion we are inclined to, set aside the order dated 31‑12‑1980 passed by Labour Court, Quetta ordering registration of the Union as well as the order dated 16‑2‑1991 passed by the Registrar of the Unions who registered the said unions ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ in pursuance of the order of the Labour Court.

25. Adverting now to the Agricultural Beldar Employees' Union Balochistan and Agricultural Field Assistants Union Balochistan, it may be observed that a similar view was taken by a, Division Bench of this Court in a Constitutional Petition No., 60 of 1985. The judgment has been produced before us during arguments and we respectfully follow the same. Identical points were agitated in the said Constitutional petition and following conclusion was drawn:‑‑ "We would, therefore, allow the above petition and declare the impugned order of the learned Labour Appellate Tribunal as being without lawful authority and of no legal effect, but would remand the case to it with the direction to provide opportunity to the parties to lead evidence on the question, whether the petitioner is covered by the definition of worker or workman as given in the Factories Act, 1934 or the Workmen's Compensation Act, 1923 and, in case, the petitioner falls within the definition of either of the above two Ads, the original order of the learned Labour Court shall be maintained."

25. Seen in the light of above observations the certificate of registration would be without jurisdiction because the learned Registrar has not at all applied his mind to this, important aspect of the matter. Neither any notice was given to the concerned Government Department nor it was ventured by the Registrar to determine whether members of the Union fall within the category of worker or workman as defined in the Factories Act, 1934 or Workmen's Compensation Act, 1923. Without determining this pivotal point, order of registration of Agricultural Beldar Union and Field Assistant Union could not be passed. The reason being that unless chaff is sifted from the grain, that is the workers amongst the employees are separated from the civil servants, no order of Registration could at all be passed. Any order so passed, therefore, would be without lawful authority and of no legal effect, because provisions of I.R.O. do not apply to civil servants as observed hereinabove.

26. Summing up the above discussion, it may be reiterated that unless Registrar of the Unions or Labour Court had come to the conclusions that the employees who had formed unions fall within the category of workers/workmen provisions of I.R.O. do not apply and Registrar and Labour Court had no authority at all to adjudicate upon the matter; let alone ordering registration of such unions. We are, therefore, inclined to declare the order of the Labour Court directing registration of the unions mentioned hereinabove as well as order of the Registrar of the Unions issuing certificates of registration of the said unions as having been passed without lawful authority and thus of no legal effect.

27. However, it may be observed that those employees of the said Government Departments, who consider themselves to fall within the category of worker/workman as defined in the Factories Act, 1934 and Workmen's Compensation Act, 1923 may apply afresh before appropriate forums who shall before passing any order on the same determine whether they in fact fall within tire category of worker/workman as defined in the Factories Act, 1934 or Workmen's Compensation Act, 1923 and then alone shall be competent to pass orders in accordance with law. In that event it would be necessary to issue notice to the Government /employer in order to furnish details of the nature of work or to place other necessary and relevant information regarding the duties being performed or salaries being drawn by such employees. The petitions are thus accepted with no order as to costs. A. A. /417/Q Petitions accepted.