2021 PLP 250 (PLC)

ABDULLAH BALOCH, J.

This common judgment disposes of Constitutional Petitions Nos.1059, 780 and 482 of 2017, as common question of law is involved in all petitions. Constitutional Petition No.1059 of 2017 filed by Habibullah Coastal Power Union (CBA) under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 (hereinafter referred as "the Constitution") carries the following prayer: "It is accordingly respectfully prayed that this Hon'ble Court may pass a order in favours of the petitioners and against the respondents thereby the judgment dated 29.8.2017 passed by Learned Member Labor Appellant (sic) Tribunal Balochistan may kindly be set-aside and the learned Labor Court 1st Quetta may kindly be directed to proceed the grievance petition of the petitioner and to decide it on merits in the interest of justice. Any other relief in addition to the above may also be awarded to the petitioner." In C.P. No.780 of 2017 the petitioner prayed as under: "It is accordingly respectfully prayed that this Hon'ble Court may pass a order in favour of the petitioners and against the respondents thereby the orders dated 9.12.2016 passed by respondent No.4 to issuing registration in favour of respondent No.1 trade union may be declared null and void, having no legal effect in the interest of justice. Any other relief in addition to the above may also be awarded to the petitioner." In C.P. No.482 of 2017 the petitioner prayed as under: "It is, therefore, respectfully prayed that this Hon'ble Court may be pleased to:- i) Call for the record and proceedings from respondent No.1 with regard to the registration of respondent No.2 union; ii) Hold and declare that the registration and certification of respondent No.2 as CBA (Ann. "P" and "P/1") is illegal, void ab-initio and is liable to be quashed / set aside and in the alternate to direct the respondent No. 1 to initiate proceedings against the respondent No.2 under section 12 of the Balochistan Industrial Relations Act, 2010; iii) Suspend the operation / put in abeyance the impugned certificates of registration and CBA (Ann. "P" and "P/1") and may further be pleased to restrain the respondents from initiating / continuing any proceedings in furtherance of the impugned certificates; iv) Any other relief (s) which this Hon'ble Court may deem fit and proper in the circumstances of the case. Prayed accordingly."

2. Brief facts of the C.P. No.1059 of 2017 arc that in the first round of litigation the petitioner filed a petition under Section 52(4) read with Section 17 Balochistan Industrial Relations Act, 2010 (BIRA) in the trial Court for redressal of their grievances, which was contested by the employees by means of filing written statement and raised certain objections particularly challenged the jurisdiction of the learned Labour Court, such objections of the petitioner was rejected, vide order dated 30th August 2016, due to non-availability of the learned Appellate Tribunal the said order was challenged before this Court through C.P. No.796 of 2016. This Court while setting aside the order dated 30th August 2016 remanded the matter to the learned trial Court to determine the point of jurisdiction at the first instance, vide order dated 6th March 2017.

3. After remand of the case, the learned trial Court while disposing of the matter vide order dated 2nd May 2017 held that the MS Habibullah Coastal Power Company Ltd is not a trans-provincial establishment. Being aggrieved the petitioner filed a Revision Petition before the learned Labour Appellate Tribunal which was accepted while setting aside the order dated 2nd May 2017 with direction to the trial Court to return the grievance petition of the petitioner to file the same before the proper forum i.e. NIRC., vide impugned judgment dated 28th September 2017. Being aggrieved the petitioners filed the instant petitions.

4. We have heard the learned counsel for the parties and perused the record minutely, which reveals that the parties have disputed the jurisdiction of Labour Court and NIRC on the sole ground of Trans-Provincial "Establishment" the record reflects that the employers' company i.e. Habibullah Coastal Power Company Ltd. initially registered under Companies Ordinance, 1984 with Directorate of Labour Welfare, Government of Balochistan on 2nd January 1999 having its establishment only in Quetta, thereafter Trade Union of the petitioners in C.Ps. Nos.780 and 1059 of 2017 was registered under Balochistan Industrial Relations Act (BIRA), 2010 and thereafter the same union was declared as Collective Bargaining Agent (CBA) and looking after the labour affairs of the company, however, with the passage of time the employers' company opened its Liaison/Branches/Offices in Islamabad and Karachi in the years 2014-2015 and during the course another country wide CBA union was also registered by the workers with National Industrial Relations Commission (NIRC) on 9th December 2016 and duly declared as CBA on 28th December 2016 by the Registrar, Trade Union NIRC and started its function, during the course of time the CBA Trade Union registered under the BIRA, 2010 in Balochistan placed its charter of demand before the employer for initiating of negotiation, but the employer paid no head to their charter of demand, being aggrieved the Trade Union as well as the employer approached the trial Court for redressal of their grievances, while employers' company raised objection on the jurisdiction of Labour Court on the ground of being Trans-Provincial Establishment, the learned Labour Court after hearing the parties declared that the company of employer does not fall within the meaning of trans-provincial establishment, thus the Labour Court is competent to adjudicate upon the matter. Being aggrieved, the employer approached the Labour Appellate Tribunal Balochistan against the order 2nd May 2017. The petition filed by the employer before the Labour Appellate Tribunal, Balochistan, which was allowed, vide impugned judgment dated 28th September 2017, whereby the order passed by the Labour Court-1, Quetta was set aside and the company was declared as "Trans-Provincial Establishment".

5. Perusal of record reflects that both the parties before forums below as well as this Court annexed relevant documents in support of their contentions. It is admitted fact that the company was registered and based its establishment at Quetta and the trade union of the company was registered with the Registrar Trade Union Balochistan and in this regard the trade union brought on record its Registration Certificate, CBA certificate as well as correspondence letters and charter of demand submitted with the employer and the same fact was also not denied by the employer, on the other hand, in support of their contentions the employers' company placed on record the documents with regard to establishment of its offices at Islamabad and Karachi and employees working therein, while on the other hand, the CRA Union registered with NIRC also brought on record its registration certificate dated 9th December 2016 issued by NIRC under the Industrial Relations Act (IRA), 2012 and list of its office bearers, list of its workers, list of its membership and CBA certificate.

6. Before proceeding further in the matter, it would be useful to reproduce the definition of "Establishment" as provided by section 2(x) of IRA, 2012. "Establishment" means office, firm, factory, society, undertaking, company, shop or enterprise, which employs workmen directly or through contractor for the purpose of carrying on any business or industry and includes all its departments and branches in the Islamabad Capital Territory or falling in more than one province, whether situated in the same place or in different places and except in section 62 includes a collective bargain unit, or any constituted by any establishment by any establishment or group of establishments." Similarly, section 2(xxxii) of IRA, 2012 defines "trans-provincial" as follows: "trans-provincial" means any establishment, group of establishments, industry, having its branches in more than one province.

7. The Act has separately defined "Establishment" and "trans-provincial". According to section 2(x) of IRA, 2012, a number of entities come within the definition of "Establishment". If such entities have branches in more than one province, they shall be called trans-provincial Establishment. It is apparent that any company employing workmen for the purpose of carrying on any business or industry and having its departments and branches in more than one province comes within the definition of "trans-provincial". Admittedly, the petitioner is a company incorporated under the Companies Ordinance, 1984 and, therefore, its status as such shall be taken into consideration for the purpose of determining whether it is a trans-provincial Establishment. Reliance in this regard placed on Pakistan Telecommunication's case 2014 SCMR 535, the Hon'ble Supreme Court had the occasion to dilate upon the two enactments and their scope. After reviewing the provisions of Provincial Labour Laws and IRA, 2012, it was held that:

12. After combined reading of the scheme of new labour laws, both Provincial and Federal, it may be concluded without any fear of rebuttal that two parallel forums have been created, one on a provincial basis whereas latter is federal level forum, called NIRC. Both these forums are having jurisdiction to deal with industrial disputes and unfair labour practice and other allied matters either attributable to the employer or the workers/ workmen, however, the Federal Law has drawn a clear demarcation line of jurisdiction of these two different forum, i.e. Labour Courts in the Provinces and the other NIRC at the Federal Level. It is not the nature of dispute, particularly, unfair labour practice, which confers jurisdiction on one or the other forum but it is the status of the employer or the group of employers, which would determine the jurisdiction of the Provincial Labour Court and that of the NIRC. To be more clear on the point we have no hesitation to hold that once it is established through any means that the employer or group of employers has an establishment, group of establishments, industry, having its branches in more than one Provinces, then the jurisdiction of the NIRC would be exclusive in nature and of overriding and super imposing effects over the Provincial Labour Court for resolving industrial dispute including unfair labour practice, etc. related to the employers, having it establishment or branches or industrial units in more than one Province and re-course has to be made by the aggrieved party to the NIRC and not to the Provincial Labour Court.

13. Even otherwise under the provision of Article 143 of the Constitution of Pakistan, 1973, laws enacted by the Parliament have been given overriding and superimposing effects over the laws enacted by a Provincial Assembly of any of the Province and in case of any clash or repugnancy between the two, the laws enacted by the Parliament shall prevail. Thus, on the touchstone of the provision of Article 143 of the Constitution, the Act of Parliament has been placed on the high pedestal and any Provincial Law enacted by the Provincial Assembly shall give way to the Federal Law, enacted by the Parliament, if the former is inconsistent or repugnant to the latter. Therefore, it is held that the provision of Act X of 2012 (the IRA, 2012) has overriding effect on all Provincial Labour Laws. Judged from this angle, we are of the firm view that in the present case, the learned Judge in Chamber of the Lahore High Court. Lahore while drawing the impugned judgment dated 26-11-2012 could not properly comprehend the intents and objects of the above provisions of law, rather misconstrued and misinterpreted the same, resulting into miscarriage of justice, the impugned judgment being not sustainable in the eye of law is liable to be set at naught.

8. Keeping in view the dictum laid down by the Hon'ble Supreme Court of Pakistan in the above referred mother judgment, made it crystal clear that the establishment having its offices, branches and liaisons in more than one province falls within the meaning of trans-provincial under the IRA, 2012 the NIRC is competent to deal with the labour matters. Thus the learned counsel for the petitioners failed to point out any illegality or irregularity in the impugned judgment passed by the learned Labour Appellate Tribunal, Balochistan Quetta to warrant interference by this Court which is accordingly maintained. For the reasons discussed hereinabove, the Constitutional Petition No.1059 of 2017 being devoid of merits is dismissed.

9. As far as, Constitutional Petitions Nos.780 and 482 of 2017 are concerned filed by the parties for cancellation of registration of Unions registered under the BIRA, 2010 and the IRA, 2012 by the NIRC, but record reflects that without approaching the competent forum available under ibid acts, IRA, 2012 and BIRA, 2010, the parties have directly approached this Court, since the matter pertains to factual controversy cannot be resolved by this Court under constitutional jurisdiction, while a complete mechanism is provided in both the enactments i.e. IRA, 2012 and BIRA, 2010, relevant provision whereof are reproduced as under: IRA, 2012 "

11. Cancellation of registration.

(1) Subject to other provisions of this section, the registration of a trade union may be cancelled by the Registrar if the trade union has-- (a) contravened or has been registered in contravention of any of the provisions of this Act or the rules; (b) applied for such cancellation or ceased to exist; (c) obtained registration by fraud or by misrepresentation of facts; (d) obtained less than ten per cent of total votes polled in an election for determination of a Collective Bargaining Agent, or is not a contestant in such election; (e) failed to submit its annual returns to the Registrar as required under this Act or the rules; (f) contravened any of the provisions of its constitution; or (g) made in its constitution any provision which is inconsistent with this Act or the rules. (2) Where the Registrar is of opinion that the registration of a trade union should be cancelled, he shall submit an application to the Commission praying for permission to cancel such registration. (3) The Registrar shall cancel the registration of a trade union within seven days from the date of receipt of permission from the Commission. (4) The registration of a trade union shall not be cancelled on the ground mentioned in clause (d) of subsection (1) if the unfair labour practice is not committed within three months prior to the date of submission of the application to the Commission. (5) Where any person who is disqualified under section 18 from being a member or elected as, or from being an officer of a trade union is elected as an officer of a registered trade union, the registration of that trade union shall be cancelled if the Commission, upon a complaint in writing made in this behalf by the Registrar, so directs. (6) The registration of a trade union shall be cancelled by the Registrar if, after holding such inquiry as he deems fit he finds that such trade union has dissolved itself or has ceased to exist.

12. Appeal against the order/decisions etc. of Registrar.

A trade union, its members or an officer may prefer an appeal against the order, decision and proceeding conducted by the Registrar within thirty days before she Commission. BIRA, 2010 "

12. Cancellation of registration.

(1) The registration of a trade union shall be cancelled if the Labour Court so directs upon a complaint in writing made by the Registrar that the trade union has:- (a) contravened or has been registered in contravention of any of the provisions of this Act or the rules; (b) contravened any of the provisions of its constitution; or (c) made in its constitution any provision which is inconsistent with this Act or the rules. (2) Where any person who is disqualified under section 7 from being elected as, or from being, an officer of a trade union is elected as an officer of a registered trade union, the registration of that trade union shall be cancelled if the Labour Court, upon a complaint in writing made in this behalf by the Registrar, so directs. (3) The registration of a trade union shall be cancelled by the Registrar, if, after holding such inquiry as he deems fit, he finds that such trade union: (a) has dissolved itself or has ceased to exist; or (b) has not been a contestant in a referendum for the determination of collective bargaining agent; or (c) has not applied for determination of collective 'bargaining agent under section 24(2) within two months of its registration as another union or promulgation of this Act, whichever is earlier', provided there does not already exist a collective bargaining agent determined under section 24(9)(e) in an establishment, or group of establishments or industry; or (d) has secured less than fifteen per cent of polled votes as per final list of voters, during a referendum for the determination of collective bargaining agent.

13. Appeal against cancellation.

Any trade union aggrieved by an order passed:- (a) by the Labour Court under subsection (1) or subsection (2) of section 12 may prefer appeal to the Tribunal within thirty days of the passing of the said order: or (b) by the Registrar under subsection (3) of section 12 may prefer appeal to the Labour Court within thirty days of the passing of the said order."

10. Bare reading of the above provisions made it crystal clear that the aggrieved party can approach the available remedies for redressal of their grievances both the parties have wrongly filed the instant petitions before this Court, when there is no judicial order in the field to warrant interference. Thus, in view of the above, both the petitions are coram non judice are hereby directed to be returned to the petitioners, however they are at liberty to approach the competent forum for redressal of their grievance. Parties are directed to bear their own cost. SA/37/Bal. Order accordingly.