2003 PLP 86 (PLC)

(7) Whether the respondents‑union violated the provisions of the I.R.O. and its constitution`?

5. In support of complaint respondent No. 1 produced 2 witnesses and got recorded statement of the representative. In rebuttal the appellants examined 4 witnesses and also recorded statement of appellant No.2. The learned Presiding Officer while settling issue No.1 in negative observed that the appellants being Government employees: on the declaration of essential service have no right to form union as provided under Article 17 of the Constitution of the Islamic Republic of Pakistan. The Court further observed that they also do not come within the definition of section 3 of the I.R.O., 1969. While resolving issue No.2 in the affirmative the learned Presiding Officer after assessment of the evidence came to the conclusion, that the members of appellants‑union do not fall within the definition of worker or workmen as provided under section 2 of the I.R.O., 1969. According to the Presiding Officer the employees of B‑WASA cannot form any union as their services have been declared as pensionable and essential service. It has further been observed that B‑WASA is working under the Government of Balochistan, which provides utility service and is working on no profit and loss basis and the labour laws are not applicable having its own E&D Rules. The learned Presiding Officer, settling Issue No.3 in the affirmative observed that the members of the appellants‑union are working in different categories according to their nature of job, like valveman, mechanic, helper and supervisor but they are Government employees and their department is not working as an industry nor on the basis of profit and loss. The learned Court further observed that they are working in the department of Government of Balochistan under the administration of State, therefore, they cannot avail the benefit of provisions of section 1 (3) of the I.R.O. 1969. Issue No.4 has been resolved in the affirmative by observing that the members of the appellants‑union are Government servant, therefore, formation of union and proceedings for registration of union was totally without lawful authority and without legal effect. The learned Judge of the Labour Court settled both Issues Nos. 5 and 6 in the affirmative for the reasons that B‑WASA has been declared as essential service and its employees cannot form union under the provisions of I.R.O. and registration was liable to be cancelled. The learned trial Court resolved Issue No.7 in the affirmative by stating that the formation of union is in violation of provisions of I.R.O. for the reason that Government Servant does not fall within the ambit of I.R.O. The Labour Court accordingly accepted the complaint which was filed under section 10 of the I.R.O. by declaring the registration certificate and CBA certificate issued to the appellants‑union to be illegal. The order dated 11‑2‑1998 was also set aside. The appellants‑union was also restrained not to style itself as union and to issue any charter of demand. Feeling aggrieved the appellants‑union filed the present appeal under section 11 of the said Ordinance.

6. I have heard Messrs Khawar Saeed and Azam Jan Zarkoon Advocates, learned counsel for the appellants‑union, while Messrs Ghulam Mustafa Mengal Assistant Advocate‑General and Altaf Hussain, Senior Research Officer representative of Registrar Trade Union for respondents.

7. After hearing the learned counsel for the parties and perusing the relevant record, I do not agree with the conclusion arrived at by the learned Presiding Officer 1st Labour Court Balochistan, Quetta, that the appellants being Government employees have no right to form union as per provisions contained under Article 17 of the Constitution of the Islamic Republic of Pakistan, that the B‑WASA is not an industry and is working under the Government of Balochistan rendering utility service on the basis of no profit no loss having its own E&D Rules, therefore, not protected by Labour Laws, being essential service the employees cannot form union under the provisions of I.R.O., the members of the appellants‑union are Government servant, the formation of union was without lawful authority and in violation of the provisions of I.R.O.

8. The contention that B‑WASA is a Department of Government or Balochistan under the Administration of State runs counter to the provisions of section 3 of the Balochistan Water and Sanitation Authority Act, 1989, which confers status of a corporation upon B‑WASH and not that of a Department of the Government. By virtue of section 3 of the said Act, the B‑WASA has the status of a body corporate in the name of the Balochistan Water and Sanitation Authority having perpetual succession and a common seal, with powers to acquire and hold property, both movable and immovable, and to sue or be sued by the said name. According to section 4 of the said Act, the general direction and administration of the affairs of the Authority and the determination of its general policy shall vest in the Board which may exercise all such powers and functions which tray be exercised or done by the Authority in accordance with the provisions of this Act. In sub clause (2) of section 4 it is provided that, the Board in discharging its functions shall act on generally accepted principles of development, execution, regulation, operation and maintenance of water supply, sewerage and sanitation schemes to improve the levels of service to persons in the Authority's area with special regard to the improvement of health and hygiene. Similarly it is provided under section 15 of the aforesaid Act, that, the Government Agencies and Departments carrying out water supply, sewerage and sanitation works under the authority of statutory powers and functions or the Rules of Business of the Government shall do so in accordance with such regulations as are made by the Authority in pursuance of this Act, By sub‑clause (2) of section 15, the Authority has been empowered to issue directives to Government Agencies and Departments to ensure compliance with the regulations made by the Authority in pursuance of this Act. The observations made by the Honourable Supreme Court in 1988 SCMR 765 are noteworthy. The relevant portion of which is reproduced below for the sake of facility:‑‑ "It is difficult to accept this contention. The State has multifarious functions to perform in different fields in discharge of its Constitutional responsibilities affecting the citizens in almost all walks of life. For this reason, it is the largest employer of manpower in the country. If all persons who are concerned with implementing Constitutional responsibilities of the State, are to be treated as employed in the Administration of State within the meaning of clause (b) of section 1 (3) of the Ordinance, it will, as a consequence, effectively put the largest employer in the country beyond the reach of labour laws. This could hardly be the intention behind clause (b). It is to be noticed that certain categories of State employees, for example, those serving in defence forces and police, have been expressly excluded from the ambit of the Ordinance, even though they too discharge duties relatable to the Constitutional responsibilities of the State. If clause (b), (ibid), was intended to cover all those who were employed in connection with the Constitutional responsibilities of the State it would have been un necessary to specifically exclude certain categories of State employees by name. Quiet obviously, the expression 'administration of State' has been used in a limited sense in the said clause. In Sindh Road Transport Corporation v. Staff Union (1975 PLC 361), this expression came up for consideration before a Division Bench of the Sindh High Court and the learned Judges took the view: 'the expression 'administration of the State' is to be interpreted in the 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'.

9. In view of above and other provisions of the Act it cannot be stated that the B‑WASA is an establishment being carried on by or under the Authority of Provincial Government but B‑WASA had been constituted under statute and has the status of a body corporate functioning under an Act of the Legislature and not under the Authority of Government.

10. After hearing the learned counsel for the parties, I am also of the view that the B‑WASA is an "Industry" within the meaning of Industrial Relations Ordinance, 1969 and is, therefore, covered by the aforesaid Ordinance. The employees/workers of the B‑WASA like valve men, mechanics, helpers etc. are not covered by the execution clause (B) of section 1 (3) of the I R.O., 1969 and cannot be stated to have been engaged in the administration of State. I am also fortified in my view by the dictum of the Honourable Supreme Court reported in 1.997 SCMR

66. Lahore Development Authority established under Lahore Development Authority Act, 1975 has been declared as an "industry" within the meaning of the word used in section 2(xiv) of the Industrial Relations Ordinance, 1969. It's employees have also been declared entitled to protection of labour laws. The observations made by the Hon'ble Supreme Court in the authority relied upon and reported in PLD 2000 SC 207 are noteworthy. The relevant portions of which is reproduced below for the sake of facility:‑‑ "The I.R.O. is basically a beneficial Legislature which provides for protection of the rights of labour classes. Its object amongst other is to ameliorate the conditions of workers. Such a legislation has to be construed liberally and beneficially. A restricted construction of the provisions of the I.R.O. would defeat the manifest objective of the legislation. Keeping in view the beneficial nature of the statute I am inclined to hold that except for those functions of Quetta Municipal Corporation which tray fall within the ambit of its regal functions its other functions, such as rendering civic services etc, would be covered by the expression 'services' used in the definition of word 'Industry' under the I.R.O. I am unable to subscribe to the view taken by the learned Judges of High Court that on account of omission of the word 'undertaking' from the definition of 'Industry' in the I.R.O., the Municipal Corporation would not be covered by the definition of 'Industry' as it stands now in the I.R.O. In my humble view the omission of word 'undertaking' from the definition of 'Industry' in the I.R.O. made no difference as the 'services' continue to remain a part of the definition of 'Industry'. I, therefore, respectfully feel inclined to agree with the interpretation of word 'Industry' by the Indian Supreme Court in the case of Nagpur Corporation and Bangalore Water Supply, In view of the above stated legal position, we are of the view that the conclusion reached by the learned single Judge in the above cases that the appellants fall within the meaning of an 'Industry' is not open to any exception. No other point was raised. No case for interference with the judgment of High Court is trade out. The appeals are accordingly, dismissed. However, as majority of respondents has not appeared and defended the cases, there will be no order as to costs."

11. There is hardly any substance in the contention that the members of B‑WASA being Government servants cannot form union. There is no evidence, which can indicate that the employees of B‑WASA do not fall within the definition of workmen/workers as defined under the provisions of IRO. Even otherwise the Balochistan Civil Servants Act, 1974 is not applicable to a person who is a worker/workmen as defined in the Factories Act, 1934 and Workmen's Compensation Act, 1923.

12. The Labour Court has also erred in law in holding that the employees of B‑WASA cannot form any union as their services have been declared as pensionable and essential. The order dated 30th March, 1992 issued by the Secretary Labour, whereby the employees of the B‑WASA have been directed not to deport out/absent themselves from their place of duties with immediate effect and until further orders, hardly bars the formation and continuance of union, as the same will also not ipso facto oust jurisdiction of the Labour Court, therefore, the employees can avail the protection of provisions of the IRO 1969. In the authority reported in 1994 PLC 553 the following observations have been made:‑‑ "The controversy raised to this petition is thus concluded by the judgment of the Supreme Court in the case of Pakistan Television Corporation (supra). The mere fact that the provisions of the Pakistan Essential Services (Maintenance) Act were applicable to a particular establishment, would not ipso facto oust jurisdiction of the Labour Court in respect of grievance petitions under section 25‑A of the Ordinance. In the instant case the Labour Court was vested with jurisdiction to adjudicate upon the grievance petition of respondent No.3, therefore, assumption of jurisdiction by the Labour Court cannot be interfered with in these proceedings."

13. The B‑WASA is rendering various types of services. The functions of the Authority are indicated in section 12 of the said Act. Keeping in view the Services, like water supply, sewerage and sanitation, it can safely be stated that the said Authority is an "industry" within the meaning of the Industrial Relations Ordinance, 1969. Even the absence of profit making motive not relevant for determining whether or not an undertaking or an organization is an industry?

14. Article 17 of the Constitution assures and guarantees to all citizens a right to form not only an "Association" but also a "Union". The Hon'ble High Court of Lahore while interpreting Article 17 of the Constitution reported in PLD 1993 Lahore 306, has held, that the employees of the Civil Aviation Authority have a right to form a union as any other citizen. The relevant portion of which is reproduced below for the sake of facility:‑ "It will be appreciated that Article 17 of the Constitution not only assures that right to form an association but in addition to that it also specifically/guarantees the right of formation of a union. It is well‑established principle of interpretation of Constitutional documents that each and every word has to be given due meaning. The use of word 'Union' in addition to 'Association' is clearly indicative of the importance which the Constitution attaches to the right of the workmen to form themselves into a trade union. The rationale for doing so is not difficult to understand. Though freedom to form political parties has been held to be a highest right vesting in an individual, the right to form a union is equally important, more so in a country like ours where we are ushering into an era of industrialization and it is of utmost importance that the relation between the employers and the workers remain smooth or free from turbulence. The maintenance of industrial peace in the country is, therefore, of utmost importance. One of the methods for achieving this objective is collective bargaining between the representatives of the workmens of the employers, which can best be done by the union of workmen. It was so observed by the American Supreme Court in National Labour Relations Board v. Truck Drivers Local Union ((1956) 353 U.S. 87). In New Standard Engineering Co. Ltd., v. NL Abhyankar and another AIR 1978 SC 982, it was opined that collective bargaining is the best guarantee for industrial peace. In view of Article 17 of the Constitution of the Islamic Republic of Pakistan, 1973, there cannot be any doubt that the employees of the Civil Aviation Authority have as much a right to form a union as any other citizen. The question which, however, arises is as to the effect of section 23 of the Pakistan Civil Aviation Authority Ordinance, 1982, on this right. This section ordains that provisions of Industrial Relations Ordinance, 1969 are not applicable to the employees of the Civil Aviation Authority. But the non‑application of the Industrial Relations Ordinance, does not in any manner imply that the right of the workmen to form a union has been taken away. Indeed this right exists independently of and is not conferred by the Industrial Relations Ordinance, 1969, which is regulatory in nature. In Volume 48 of American Jurisprudence 2nd para. 59, while commenting upon the right of workers to form a union, it is stated that:‑‑ 'It has long been recognized, generally without regard to statute, that employees are entitled to organize for the purpose of securing the redress of grievances and to promote agreements with employers relating to rates of pay and conditions of work, that they have the right to organize the labour unions for the purpose of promoting their common welfare by lawful means and that labour unions are legal when instituted for mutual help and lawfully carrying out their legitimate objects. American Courts gave scant heed to the common law rules for the suppression of labour unions, and only two States ever seem to have accepted the view that a combination of workmen to raise wages constituted a criminal conspiracy.".

15. In view of above position, the learned Presiding Officer, Labour Court erred in .law and has wrongly resolved the issue that the B‑WASA is not an industry and the employees are neither worker nor workmen as per provisions contained under the I.R.O., 1969 in the absence of any material on record. There is force in the contention of learned counsel for the appellants‑union that there is nothing do the record to show that the members of the appellants‑union employed in the B‑WASA, were performing or were connected with performance of any of the regal functions of the B‑WASA, so as to disentitle the appellants‑union to be remained as registered trade union of workers. There is also substance in the contention of learned counsel that the trial Court has failed to construe the definition of workman. The order dated 30th March, 1992 referred hereinabove will not ipso facto bar the application of the provision of I.R.O., 1969 regarding formation of union.

16. For the foregoing reasons, evidence and authorities, it can be concluded that B‑WASA is an industry within the meaning of I.R.O., 1969, its employees cannot be stated to be employed in the administration of State and are not covered by the exclusion clause (b) of section 1(3) of I.R.O., 1969. The declaration of the services as pensionable and the order stated to have been issued under the provision of Essential Services (Maintenance) Act, 1958, hardly put a bar regarding formation of union. The workers employed in the B‑WASA are entitled to protection of labour laws and have a guaranteed right to form union. The appeal is accordingly allowed and the decision of the 1st Labour Court Balochistan Quetta, is set aside. The Registrar would, however, be at liberty to initiate proceeding, if fresh cause, of action is available for lodging of complaint with the Labour Court. The appeal stands disposed of in the above terms. Q.M.H./124/Q Appeal allowed.