2020 PLP 189 (PLC)

JAWAD HASSAN, J.

Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner, National Bank of Pakistan (the "NBP"), has prayed to set-aside order dated 15th of October, 2015 as well as the proceedings conducted by the Respondent No.2 i.e. the Registrar/Authorized Officer, National Industrial Relation Commission, Islamabad (the "NIRC"), being illegal and without jurisdiction. I. BACKGROUND OF THE CASE

2. Pursuant to an earlier direction issued by this Court in Writ Petition No.23833 of 2015, vide order dated 12th of August, 2015, for holding referendum in the NBP, the Respondent No.1, the Registrar Trade Unions, NIRC, Islamabad, delegated his powers and functions to the Respondent No.2, who is an employee of the NIRC and has been appointed in accord with the relevant provisions of the Industrial Relations Act, 2012 (the "Act"). Thereafter, the Respondent No.2 decided the matter. II. PETITIONER'S SUBMISSIONS

3. Syed Naeem Bokhari, Advocate, learned counsel for the Petitioner contends that the Respondent No.1 had illegally delegated his powers to Respondent No.2 in order to conduct referendum in the trade union, therefore, impugned order dated 15.10.2015 and all proceedings conducted by Respondent No.2 pursuant to an illegal delegation by Respondent No.1 are coram non judice and void ab initio. Respondent No.1 had no authority to declare certain persons as workmen because, under the Act ibid, such powers only vest in the Labour Court and a Member of the Commission. He further submits that the Respondent No.2 cannot approve the elections of the union, which is the sole function of the Registrar appointed under Section 4 of the Act by the Federal Government and Section 27(b) of the Banking Companies Ordinance, 1962 which clearly bars the jurisdiction of the Respondent No.2 in such matters. In support of his contentions, learned counsel has placed reliance on the cases of "Muslim Commercial Bank Ltd. through Head of Human Resources Division v. M.C.B. Staff Union of Pakistan through President and 2 others" (2006 PLC 481), "Registrar of Industry-Wise Trade Unions, National Industrial Relations Commission, Islamabad v. Muslim Commercial Bank Employees Trade Union of Pakistan and another (2006 PLC 394), "United Bank Limited through V.P. General Manager v. Malik Muhammad Hussain and another" (2005 PLC 207), "United Bank Limited through V.P. General Manager v. Registrar, Industry-Wise Trade Unions, National Industrial Relations Commission, Islamabad and 3 others" (2005 PLC 196) and "Habib Bank Employees Union (C.B.A.) through General Secretary v. Federation of Pakistan through Secretary, Finance Division, Islamabad and 2 others" (2005 PLC 123) IV(sic) RESPONDENTS SUBMISSION

4. Learned counsel for the Respondents Ch. Muhammad Khalid Farooq raised preliminary objections qua maintainability of this petition by submitting that no resolution of the Board of Directors of the NBP has been annexed with it so as to authorize Mr. Shahid Iqbal Dar, EVP Regional Head, NBP, Lahore to file the writ; that copy of the Memorandum and Articles of Association has also not been appended with this petition. In this connection, reliance was placed on the case of National Bank of Pakistan and others v. Karachi Development Authority and others (PLD 1999 Karachi 26). He further submits that after removal of the President of the NBP, namely S. Ali Raza, pursuant to the decision dated 14th of November, 2011 of the Hon'ble Supreme Court of Pakistan passed in the case of "Mir Muhammad Idrees and others v. Federation of Pakistan through Secretary Ministry of Finance and others" (PLD 2011 SC 213), no authority whatsoever was given to the said Shahid Iqbal Dar by any subsequent President of the NBP to institute the titled writ petition before this Court. Learned counsel emphatically argued that the NBP has no right, under the law, to challenge the impugned order as well as the proceedings conducted by the Respondent No.2 and the only remedy available to the NBP is to approach the Commission/NIRC for the redressal of its grievance, if any, under Section 60 of the Act. Learned counsel pleads that if the writ petition is allowed then the valuable fundamental rights of all the persons employed under OG-III category of the NBP would be adversely affected. He clarifies that only an aggrieved party has a right to file writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for declaring any act or proceedings as illegal and without lawful authority while the impugned order as well as the proceedings have been conducted by the Respondent No.2 in the matter of secret ballot/referendum under the relevant provisions of Section 19 of the Act and the employer has been refrained to interfere with or in any way influence the balloting for the determination of Collective Bargaining Agent (CBA) under Section 31(1)(g) of the Act. Learned counsel next submits that the question of determination of an employee as workman is a mixed question of law and facts, which can only be decided after recording of evidence and such factual controversy cannot be resolved by invoking constitutional jurisdiction of this Court. Reliance has been placed on the judgment reported as "Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others"(2018 SCMR 802). Adds that the issue of OG-III category of the NBP has already been dealt with and decided by the Hon'ble Supreme Court of Pakistan in the case of "National Bank of Pakistan v. Punjab Labour Court No.7 and others (1992 SCMR 1891). To further strengthen his arguments, learned counsel also placed reliance on the judgments reported as "National Bank of Pakistan, Karachi v. Sindh Labour Appellate Tribunal, Karachi" (1993 PLC 480) and "National Bank of Pakistan v. Lutfullah Abro" (1990 PLC 142). He contends that until the proceedings are pending before the Respondent No.2 and interim orders have been passed regarding the objections, the writ petition is not maintainable in light of the law laid down in the case reported as "M. Riaz Ahmed v. Government of Pakistan through Ministry of Production" (2014 PLC 379). Adds that the Petitioner/NBP mislead this Court by attaching order dated 11th of February, 2014 with this petition as Annexure-B/1 because the said order has no connection with the election/referendum matter of the Respondents Nos.3 and 4 rather it was passed in relation to the employees of the NBP serving at Front Head Office CBU, Karachi. He maintains that the powers and functions of the Registrar have been described in Section 5 of the Act which provides that the Registrar may authorize, in writing, an officer to perform all or any of his functions under Section 19(2) of the Act and as such, the nominee of the Registrar Trade Unions/Authorize Officer is competent to exercise his powers while conducting elections/referendum in light of the rationale given in the case of "Muhammad Afzal v. Registrar of Trade Unions, Balochistan" (1994 PLC 735). Likewise, the Registrar/Authorized Officer may also determine the status of the employee as to whether he falls under the definition of workman or otherwise. Reliance has been placed on the case of "Government of Balochistan, Livestock Department v. Livestock Employees' Union, Balochistan" (1993 PLC 13) in this regard. In support of his contentions, learned counsel has also placed reliance on the judgment passed by the Apex Court of the Country in the case of "Messrs Packages Limited v. Muhammad Akbar and others" (2003 SCMR 1152) as well as order dated 12th of November, 2019 passed by this Court in Writ Petition No.67798 of 2019.

5. Ms. Sadia Malik, Deputy Attorney General, appearing on behalf of the NIRC has argued that first contention/averment made by the petitioner stating that all proceedings conducted by the Respondent No.2 (ZakaUllah Khan Registrar / Authorized Officer) pursuant to an illegal delegation by Respondent No.1 (Registrar Trade Union NIRC) are Coram non-Judice and void ab initio, is completely unreasoned and misleading on the ground that the authority delegated by Respondent No.1 to Respondent No.2 was valid enough as envisaged under section 19(12) IRA, 2012 that goes as "The Registrar may authorize in writing an officer to perform all or any of his functions under this section". That the authorized officer has rightly assumed and exercised the power conferred upon him by the then Registrar Trade Union (RTU). Reliance is placed on the judgment passed by the learned Division Bench of Quetta High Court reported as 1986 CLC 2911. She argued that there are two definitions of officer:- I. S.2(xxii) of IRA, 2012, "Officer in relation to a Trade Union, means any member of the executive thereof but did not include an auditor or legal Adviser. Section 2 (xxii) of RIA, 2012 Officers and Staff." II. Regulation 05 of National Industrial Relation Commission (Procedure and Functions) Nov. 18th, 2016 Regulations, 2016 "The Federal Government shall appoint the Registrar and Deputy Registrars of the Commission." (Regulation 5(1) of Procedure and Function 2016).

6. She further argued that now, the authorized officer is not only empowered rather under statutory obligation to perform all or any of the functions that are supposed to be performed by the Registrar of Trade Union once he lawfully assumes authority under the order of learned RTU. That the Registrar has been authorized, firstly to hold referendum for the determination of CBA and secondly to conduct the referendum proceedings in accordance with Section 5(c) of IRA as one of his functions. That the impugned order passed by Authorized officer is well reasoned and he has decided the matter in issue in the light of available information and scrutinized the job description/ nature of work of 107 workers and relied on the circular issued by the management that OG-III cannot be appointed as Managers. That the only yardstick to determine whether an employee falls in the definition of workman or not is its job description that will determine his status as envisaged in the light of judgment passed by Honorable Supreme Court of Pakistan. Furthermore, there is no PROVISION and there is no REQUIREMENT in law that a person has to declare himself as worker to contest election/referendum. Moreover, management is not at all aggrieved by the order that they have impugned in the instant writ petition, it's the worker who could be aggrieved and to get their remedy available under Section 12 of IRA, 2012. That conducting referendum and subsequently declaring a TU as CBA is not consisted of single transaction, it's a complete and comprehensive procedure that has to be followed with due caution. That under Section 19(5) of the Act Officer is bound to verify the list submitted. That Section 27-B and Section 91-A of Banking Company Ordinance 1962 and Section 87 of IRA, 2012, both have non-obstante clause so IRA, 2012 would have overriding effect. That there is no provision or requirement under IRA, 2012 that a person has to declare himself as worker to be added in the list of workers. Simply by saying that the proceedings were coram non judice does not amount it to coram non judice. At the end, she has argued that Registrar has justly decided the objection raised during the referendum proceedings on the basis of available record and he himself scrutinized the nature of job of 107 officers in consonance with the judgment passed by August Supreme Court. V. NUB OF THE MATTER

7. The main objection of learned counsel for the Respondents was that a remedy of appeal is available to the Petitioner against any order passed by the Commission and in presence of an alternate remedy no writ petition is maintainable. The reliance is placed upon Khairpur Textile Mills Employees' Union, Khairpur v. Registrar of Trade Unions, Karachi and 2 others (PLD 1975 Karachi 225), Syed Mansoor Ahsan v. Muhammad Tariq Chaudhry and others (1991 SCMR 668), Pakistan Steel Peoples Workers' Union v. Registrar of Trade Unions, Karachi and 6 others (1992 PLC 715), Piasi Union through Secretary-General, P.I.A. v. Registrar, Industry Wise Trade Unions and 4 others (1993 PLC 581), Farzand Raza Naqvi and 5 others v. Muhammad Din through Legal Heirs and others (2004 SCMR 400) Abdul Wahat, v. Government of Sindh through Secretary, Home Department, Karachi and 2 others (2004 YLR 2599), Mrs. Kausar Iqbal Bhatti, Advocate High Court Bahawalpur v. Shafqat Atta and 25 others (2010 CLC 224), Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others (PLD 2010 SC 969), Ghulam Qadir v. Station House Officer, Police Station Cantt., Bahawalpur and 4 others (2012 MLD 1173), Al-Rehman Associates through Special Power of Attorney v. Province of Sindh through Secretary Land Utilization Department and 2 others (2010 CLC 1734) and Mehmood Medical Store through Proprietors v. Service Hospital, Lahore through Medical Superintendent and 3 others (2012 YLR 174). VI. DETERMINATION BY THE COURT

8. I have heard the learned counsel for the parties and have also gone through the case-law relied upon by learned counsel for the parties as well as the relevant provisions of the Industrial Relations Act, 2012.

9. It is worth mentioning that a collective bargain agent is elected under section 19(2) of the Act. The Trade Union who receives the highest votes is to be declared as collective bargaining agent by the Registrar under section 19(9)(e) of the Act. The said order/certificate of Registrar can be challenged under section 12 of the Act before Commission.

10. In the case in hand, the Petitioner has challenged the impugned order dated 15-10-2015 passed by the Single Member of the Commission by way of present writ petition on the ground that no other remedy is available against said order of the Single Bench of the Commission, whereas the Respondents claimed that against the order of the Single Member of the Commission an appeal is available under section 58(1) (2) of the Industrial Relations Act, 2012.

11. In order to appreciate the contention of the parties, Section 58 of the IRA, 2012 is reproduced hereunder:-- Section 58.

(1) Notwithstanding anything contained in, this Act, or in any other law for the time being in force, any person aggrieved by an award or decision given or a sentence or order determining and certifying a collective bargaining unit passed by any Bench of the Commission, may, within thirty days of such award, decision, sentence or order prefer an appeal to the commission. (2) An appeal preferred to the Commission under subsection (1) shall be disposed of by the Full Bench of the Commission which shall

(a) if the appeal is from an order determining and certifying a collective bargaining unit, have the power to confirm, set aside, vary or modify such an order. (b) if the appeal relates to any other matter, the Full Bench may, confirm, set aside, vary or modify the decision or sentence passed and shall exercise all the powers required for the disposal of an appeal. (c) The decision of the Full Bench shall be delivered as expeditiously as possible, within a period of sixty days following the filling of the appeal, provided that such decision shall not be rendered invalid by reasons of any delay in its delivery. (d) The Full Bench may, on its own motion at any time, call for the record of any case or proceedings under this Act in which a Bench within its jurisdiction has passed an order for the purpose of satisfying itself as to the correctness, legality, propriety of such order, and may pass such order in relation thereto as it thinks fit: Provided that no order under this subsection shall be passed revising or modifying any order adversely affecting any person without giving such person a reasonable opportunity of being heard. From the above clause (1) of section 58, it is clear that if an order is, passed by any Bench of the Commission said order can be challenged before Full Bench of the Commission within 30 days by any aggrieved person.

12. In the case in hand, the Petitioner is aggrieved by the impugned order dated 15.10.2015; determining and certifying a collective bargaining unit passed by a Single Bench of the Commission. Therefore under section 58(1) of the Act, he has a remedy by preferring an appeal before Full Bench of the Commission.

13. The Petitioner can also approach the Full Bench of the Commission under section 58(2)(d) of the Act which gave Suo Motu powers to the Full Bench to examine the record of any Bench. A suo motu power can also be exercised on the basis of any grievance of any of the parties. The august Supreme Court of Pakistan in Norwich Union Fire Insurance Society Limited's case (1986 SCMR 1071) held as under: "

7. It is contended on behalf of the petitioner that the revision application filed by respondent No.1 before the Labour Appellate Tribunal under section 38 (3-a) of the Industrial Relations Ordinance was incompetent in law as this jurisdiction was not exercise-able on motion of parties. The next submission on behalf of the petitioner was that the amendment effected in law by means of Ordinance IX of 1975, whereby suo motu revisional power was vested in the Labour Appellate Tribunal, was not retrospective so as to apply to orders passed prior to the effective date of the amendment. So far as the first argument is concerned, no principle of law or any precedent was quoted to show that the suo motu statutory power cannot be invoked by the authority vested with it on the application of a party to proceedings before the subordinate forum or authorities. On a perusal of the provisions of subsection (3-a) of section 38, we find no warrant to hold that there would be any bar on the Tribunal to exercise this jurisdiction, if the requisite information comes before it from any source including an application made by any party Apparently the jurisdiction seems to be supervisory in nature in order to enable the Tribunal which is at the apex of the hierarchy of Tribunals set up by the Industrial Relations Ordinance to examine the legality or propriety of proceedings taken or an order passed by subordinate Tribunals. We, therefore, see no reason to disagree with the view taken by the High Court on this point."

14. Even otherwise, the question as to whether a person is `workman' or not is certainly a mixed question of law and facts which is to be decided in the light of facts of each case because mere designation per se of a person, amount of emoluments drawn by him or holding a power of attorney on behalf of employer, by itself, would not be the sole criteria for determining his status rather the nature of duties and function determine his status. This is also to be noticed that in many public and private organizations, the managerial staff usually do the manual work and probably all persons in supervisory capacity in one way or the other, do manual work in discharge of their duty, therefore, it may not be the true test to determine the status of a person who undertakes any sort of manual work or performs duty in supervisory capacity involving some manual work, as a workman. Reliance in this regard is placed upon the decisions of august Supreme Court of Pakistan in Dilshad Khan Lodhi's case (2008 SCMR 1530) and Fauji Foundation's case (2007 SCMR 1346). So, such determination of the status of a workman or otherwise involves a factual controversy and entails factual inquiry after recording of evidence, which is not the function of this Court in writ jurisdiction as it is settled law that such factual controversy cannot be decided through writ jurisdiction. Reliance is placed upon the decision of august Supreme Court of Pakistan in Dr. Sher Afgan Khan Niazi's case (2011 SCMR 1813), wherein, it was has held by august Court that: "

10. Besides that what has been discussed herein above there are certain disputed questions of facts which cannot be investigated while exercising Constitutional jurisdiction. "It is incumbent upon party seeking constitutional remedy to show that such party has a clear legal right and that such right is so clear as not to admit of a reasonable doubt or controversy. High Court will not go into disputed questions of fact in Constitutional jurisdiction. This is more so when it is supported by attending circumstances and relevant record. Constitutional jurisdiction of High Court, cannot be converted into that of an appellate Court. Disputed questions of fact cannot be entertained or allowed to be reagitated in writ jurisdiction. When the relevant law provides other forums for the purpose. ...In constitutional jurisdiction Court does not go into a question involving minute details nor can it decide facts of which no foundation is laid, unless it is shown that such controversy is devoid of supporting record, or perverse " Recently, the Hon'ble Supreme Court in "Habib Bank Limited v. Gulzar Khan and others" (2019 SCMR 946) has held that "person who was authorized by law to file a suit on behalf of a Bank in the Court (and verify and sign pleadings) could not be considered to be a 'workman'.

15. In view of the above discussion, when matter involves a factual controversy and the petitioner has an adequate alternate remedy to get this issue resolved by preferring an appeal before the Full Bench of NIRC against the impugned order dated 15-10-2015. The present writ petition is not maintainable

16. Since, I am inclined to dismiss the present writ petition on the ground of maintainability; therefore, I will refrain myself from discussing the merits of the case, so that the case of any of the party may not be prejudiced before the appropriate forum. VII. CONCLUSION

17. In view of what has been discussed above, the present writ petition is dismissed being not maintainable. ZC/N-14/L Petition dismissed.