2003 PLP 143 (PLC)

(1) No officer or member of a trade Union a banking company shall use any bank facilities including a car or telephone to promote trade union activities, or carry weapons into bank premises unless so authorised by the management or carry on trade union activities during office hours, or subject bank officials to physical harassment or abuse and nor shall he be a person who is not an employee of the banking company in question. (2) Any person violating any of the provisions of subsection (1) shall be guilty of an offence punishable with imprisonment of either description which may extend to three years, or with fine or with both."

2. Mr. Ashraf Khan, the learned counsel for the petitioners, at the outset, argued that the petitioner did not wish to challenge the whole section 27‑B of the Ordinance unconstitutional but he would confine his case to question the following stipulation made in subsection (1) of section 27‑B of the Ordinance. (1) Prohibition on use of car or telephone facilities even with the consent of the employer; (2) Prohibition on carrying on trade union activities during working hours and (3) Restraining an outsider from becoming a member or office bearer of a trade union.

3. The learned counsel argued that the above mentioned provisions were ex facie repugnant to Article 17 of the Constitution of Islamic Republic of Pakistan (the Constitution) and, therefore, could be questioned straightaway, without waiting for an occasion where it could be complained that they were applied in an unconstitutional manner. Indeed the pronouncement of the Honourable Supreme Court in Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416) acknowledges his right to do so.

4. With respect to the merits of his contentions Mr. Ashraf Khan argued that though there is no law authorising an officer or a member of a Trade Union to use telephone or transport facilities of the employer for promotion of Trade Union activities, such facilities can always be granted by the employer, inter al is through a settlement with the employees under the Industrial Relations Ordinance (I.R.O) and the provisions of such settlement can always be enforced under the law. It is the petitioners case that the amendment in question is unreasonable and ultra vires Article 17 of the Constitution, in so far as it purports to destroy a right which may in certain cases be available in terms of valid and enforceable settlements under the I.R.O. With regard to prohibition of Trade Union activities during office hours, learned counsel referred, inter alia, provisions of sections 26 and 30 of the Industrial Relations Ordinance and contended that certain duties conferred upon a Trade Union acting as a Collective Bargaining Agent have to be, by their very nature, performed during office hours. He argued that when a Union is required to enter into bilateral negotiations with the employer or represent the workers in conciliation proceedings or before other Courts or Tribunals such duties have to be performed during office hours and the prohibition in question would paralyse the proper functioning of a Trade Union under the law. As regards the last objection, Mr. Ashraf Khan argued that the I.R.O. explicitly recognised that 25% of the office‑bearers could be outsiders and the restriction stipulated in the impugned Act to the effect that only employee of a bank could be an office bearer of a union amounted to destruction of a pre‑existing right and an unreasonable restriction on the right to form unions guaranteed by the Constitution.

5. Ch. Muhammad Iqbal, learned Standing Counsel, appearing on behalf of the Attorney General of Pakistan, defended the impugned legislation as eminently reasonable and referred to the background in which the legislation was enacted. He argued that powerful Trade Unions in certain banks had assumed complete control over the affairs of the bank and had paralysed the functioning thereof. They had taken control of several vehicles, using them for union activities and for their personal requirements, were carrying on such activities in the bank premises disrupting normal functioning and indulging in violence, which even led to the murder of a bank employee in the premises. It was against this backdrop that the impugned legislation was effected. He argued that the rights guaranteed under Article 17 of the Constitution could always be subjected to reasonable restriction imposed by law inter alia in the interest of public order.

6. Mr. Muhammad Sabir, learned counsel for the respondent No.3, to the first place, contended that the impugned legislation could not be called in question on the touchstone of Article 17 of the Constitution inasmuch as the aforesaid Article only guaranteed the fundamental right to form a trade union, which was not impaired by the legislation in question. The functioning and the privileges of a Trade Union, however, were regulated by sub‑constitutional legislation and imposition of restriction or withdrawal of certain rights of a Trade Union through legislation could not be questioned. Responding to the specific issues raised by Mr. Ashraf Khan, he argued that there was no fundamental right guaranteeing that officers of a trade union should be provided with car or telephone facilities for promotion of union activities or that outsiders could become its office bearers.

7. We may observe here that even prior to the impugned amendments there was no law guaranteeing an office‑bearer of a trade union, the right to use telephone or car facilities or to indulge in such activities in violation of his basic obligations to perform his allocated duties during office hours. The main object of the legislation in question appears to be to make such activities punishable under the law and it is not possible to say that such law is prima facie repugnant to Article

17. At the same time it may be observed that there is no restriction on the power of an employer to grant certain facilities to members or officers of Trade Union and obviously an employee availing of such facilities granted voluntarily or through a negotiated settlement cannot be held punishable for availing the same. The question whether a violation of the statutory provision has taken place would depend on the facts and circumstances of each case and we would leave the question of interpretation of the above provisions in the context of telephone and car facilities to be decided on an appropriate occasion.

8. It is indeed correct that the right to elect outsiders as office‑bearers to the maximum of 25% which was available to the trade unions under the I.R.O. seems to have been taken away by the impugned legislation. It must, nevertheless, be kept in view that the vires of a statutory dispensation can only be questioned on the ground of being repugnant to a provision of a Constitution or a fundamental right recognised thereby. The argument that the impugned legislation ought to be struck down merely because it purports to take away a right conferred by an earlier legislation is patently misconceived. Moreover we find nothing in Article 17 to indicate that the right to have outsider as office‑bearers is necessarily implied in the right to form a trade union. As such the third ground raised by Mr. Muhammad Ashraf Khan must also be repelled.

9. At the same time we are unable to accept Mr. Sabir's contention to the effect that Article 17 of the Constitution only guarantees the right to form a trade union and any restriction can be imposed in relation to its functioning by ordinary legislation. The above view seems to be inconsistent with several authoritative pronouncements of the Honourable Supreme Court. In Benazeer Bhutto v. Federation of Pakistan (PLD 1988 SC 416) it was held by the Full Court that the right to form a political party contained, as a necessary concomitant, the right to function as such an entity. This view was reiterated in Benazeer Bhutto v. Federation of Pakistan (PLD 1989 SC 66) and Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473). The principle was applied to trade unions in Civil Aviation Authority v. Union of Civil Aviation Authority, employees (PLD 1997 SC 781), wherein it was acknowledged that the right to undertake Collective bargaining inhered in the right to form a trade union, ‑though the right to go on strike was only conferred by statute. There appears, therefore, some force in Mr. Muhammad Ashraf Khan's contention that by effectively restraining office- bearers of trade union from undertaking collective bargaining, the right to form a union is impaired and the amendment in question would be violative of Article

17. Mr. Muhammad Sabir responded by contending that the impugned legislation does not restrain officers of the Trade Union from performing their statutory obligations under section 26 of I.R.O. but only restricts other trade union activities during office hours.

10. Indeed it goes without saying that notwithstanding the impugned amendment no employee of a bank who happens to be an office bearer or member of a trade union has a right to claim exemption from performing his normal duties during his working hours, much less a fundamental right guaranteed by the Constitution. At the same time a law or an order made under a law which effectively infringes a fundamental right to form a trade union and undertake collective bargaining must be held void under mandate of the Constitution. The question whether a particular dispensation impairs the Constitutionally guaranteed fundamental right in this particular context could appropriately be resolved only in a concrete case coming up before the Court. Prima facie the impugned legislation does not appear to have violated the rights guaranteed by Article 17 though it is indeed possible that it may, in a given case, be applied in a manner violating the right. In such cases however, only the action purported to be taken under the impugned law can be questioned in an appropriate case. We are, therefore, constrained to dismiss this petition subject to the above observations. H.B.T./B‑68/K Petition dismissed.