2019 PLP 167 (PLC)

MUHAMMAD ALI MAZHAR, J.

The Constitution Petition has brought to challenge the Registration Certificate of Trade Union and CBA Certificate issued to the respondent No.2 by the respondent No.1 for the establishment of the petitioner (NADRA).

2. The learned counsel for the petitioner argued that the National Database and Registration Authority (NADRA) was established by the Federal Government in March, 2000 pursuant to Section 3 of the National Database and Registration Authority Ordinance, 2000. The respondent No.1 is the Registrar of Trade Unions Sindh, Karachi appointed pursuant to the provisions of Industrial Relations Act, 2008 which was revived through Industrial Relations (Revival and Amendment) Act, 2010 The Registrar of Trade Unions Sindh, Karachi is inter alia empowered under Section 15 of Revived and Amended IRA, 2008 to register trade unions. The Revived and Amended IRA, 2008 was further repealed by the provincial Sindh Industrial Relations Act, 2013 (SIRA, 2013) which is currently in force. The respondent No.2 is NADRA Employees Union Sindh registered under Revival and Amended IRA, 2008 vide a certificate of registration dated 15.05.2012 issued by respondent No.1 in violation of the provisions of NADRA Ordinance. Pursuant to the Impugned Registration, respondent No.2 started raising unjustified demands and threatened to go on strike if the said demands were not fulfilled by the petitioner which may have serious implications on the smooth functioning of statutory duties of registration of citizens and maintenance of databases and the National Database Warehouse. He further argued that according to Section 43 of NADRA Ordinance, the applicability of the Industrial Relations Ordinance, 2002 is excluded. He referred to Section 8 of the General Clauses Act, 1897 and argued that the reference to IRO, 2002 in Section 43 of NADRA Ordinance also includes the Revived and Amended IRA, 2008 and SIRA, 2013. It was further contended even it is assumed that petitioner and its employees are not excluded from the purview and ambit of Revived and Amended IRA, 2008 and SIRA, 2013, yet by virtue of the very nature of the petitioner establishment and its statutory mandate and functions, the said laws would not have applied to it under section 1(3)(b) of Revived and Amended IRA, 2008 and section 1(3)(ii) of SIRA, 2013 for the reason that the petitioner is part and parcel of the administration of the State and thus persons in its service shall be deemed to be employed in the administration of the State therefore the petitioner's establishment is exempted hence the respondent No.1 had no jurisdiction to pass any order registering respondent No.2. He further contended if industrial relations laws are applicable to NADRA then being an establishment having its headquarters at Islamabad and its employees, officers and offices in all the provinces of Pakistan, could only be subjected to the Industrial Relations Act, 2012 (a Federal Law) and not SIRA, 2013 (Provincial Laws) as per the definition of "establishment" provided in the Industrial Relations Act, 2012 which means any office, firm, factory, society, undertaking, company, shop or enterprise, which employs workmen directly or through a 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. The learned counsel concluded that the registration of Respondent No.2 as a trade union vide certificate of registration dated 15.05.2012 issued by respondent No.1 to respondent No.2 was without lawful authority hence liable to be set aside with all consequent acts and orders.

3. The Assistant Law Officer Labour, Registrar of Trade Unions, Sindh Karachi appeared on behalf of the respondent No.1. He placed on record a complaint filed by the Registrar of Trade Unions under Section 12 of the Sindh Industrial Relations Act, 2013 in the labour court for soliciting an order against the respondent No.1 (union) to which registration certificate was issued on 15.5.2012 and C.B.A. certificate on 19.7.2012 for the establishment of respondent No.2. It is inter alia contended in the application that respondent No.1 by misrepresentation obtained the registration of the union and failed to point Section 43 of the National Database and Registration Authority Ordinance, 2000 which excluded the application of the said ordinance. The union violated Section 43 of NADRA Ordinance and obtained certificate of registration hence the registration of respondent No.1 is liable to be cancelled. It is a matter of record that despite various opportunities and notices, nobody appeared to represent the respondent No.2 nor any reply was filed.

4. Heard the arguments. For the ease of reference, Section 43 of NADRA Ordinance is reproduced as under:- Section

43. Ordinance XCI of 2002 not to apply to Authority.

The Industrial Relations Ordinance, 2002 (XCI of 2002), shall not apply to or in relation to the Authority or any person in the service of the Authority.

5. The purpose of National Database and Registration Authority Ordinance, 2000 is to provide for establishment of National Database and Registration Authority so as to facilitate the registration of all persons and the establishment and maintenance of multipurpose databases, data warehouses, networking, interfacing of databases and related facilities. Another purpose was to improve and modernize registration and database system for its multiple beneficial uses and applications in efficiently and effectively for running the affairs of the State and the general public thereby achieving the goals of good governance, public service and minimizing scope for corruption and inefficiency. To carry out the purpose of this Ordinance, the Authority constituted under Section 35 of this Ordinance may from time to time appoint Registration Officers, members of its staff, experts, consultants, advisers and other officers and employees on such terms and conditions as it may deem fit. Whereas, under Section 36 of the same Ordinance, it is explicitly provided that the Chairman, members, Registration Officers, members of its staff, experts, consultants, advisers, other officers and employees of the Authority shall be deemed to be public servants within the meaning of Section 24 of the Pakistan Penal Code, 1860. Under Section 43 of the National Database and Registration Authority Ordinance, 2000 it is envisioned that the Industrial Relations Ordinance, 1969 (XXIII of 1969) shall not apply to or in relation to the Authority or any person in the service of the Authority. While Section 46 encapsulates that the provisions of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force. In exercise of powers conferred by Section 45 of the National Database and Registration Authority Ordinance, 2000 read with Sections 35 and 37, the Authority was pleased to make National Database and Registration Authority Employees (Service) Regulations, 2002. The aspiration of framing regulations was to streamline and rationalize the service structure for all registration officers, members of its staff, officers or employees of the NADRA together with the terms and conditions of their service in a clear and appropriate manner. The terms and conditions of the employees are governed by these Regulations. Under Section 2, clause (i) employee means any Registration Officer, member of its staff, officer or employee of NADRA holding a post in NADRA, but does not include a person employed on a short-term contract for a period not exceeding twelve months or employed on work-charge basis or paid from office contingencies.

6. The bone of contention is that the respondent No.2, despite clear bar contained under Section 46 of the National Database and Registration Authority Ordinance, 2000 obtained a certificate of registration as NADRA Employees Union Sindh on 15.05.2012 and on 19.07.2012, the Registrar of Trade Union Sindh (Respondent No 1), issued a CBA certificate to the respondent No.2 under section 24 of the Industrial Relations (Revival and Amendment) Act, 2010. It appears that while awarding the registration and CBA certificate by the Registrar of Trade Union Sindh, Karachi, he failed to consider the niceties and exactitude of Section 43 of the Database and Registration Authority Ordinance, 2000 in which it is clearly eloquent that Industrial Relations Ordinance, 1969 shall not apply to the Authority. On 14.03.2012, Industrial Relations Act, 2012 was promulgated which repealed Industrial Relations Act, 2008 without prejudice to the provisions of Sections 6 and 24 of the General Clauses Act.

7. The Industrial Relations Act, 2012 is applicable to all persons employed in any establishment or industry in the Islamabad Capital Territory or carrying on business in more than one province. In Section 2, definition clause (xxxii) trans-provincial means any establishment, group of establishments, industry, having its branches in more than one province. The purpose of highlighting this provision is to address the point at issue that though Industrial Relations Laws are not applicable to National Database and Registration Authority but even if it is presumed that these laws are applicable then National Database and Registration Authority is a trans-provincial establishment, hence no trade union could be registered by the Registrar Trade Union Sindh but the registration could be applied to the National Industrial Relation Commission (NIRC).

8. Before adverting this limb of argument, it is imperative to thrash out a silhouette and backdrop of Section 43 of the National Database and Registration Authority Ordinance, 2000 which specifically excluded the provisions of Industrial Relations Ordinance and this (NADRA) Ordinance has been given overriding effect notwithstanding anything contained in any other law for the time being in force. In the case of Pakistan Workers Federation, Balochistan v. Federation of Pakistan (2014 PLC 351), the learned division bench of Balochistan High Court held that Industrial Relations Act, 2012 was properly enacted by Parliament and is not ultra vires to the Constitution, therefore, the Industrial Relations Ordinance, 2002 which was succeeded by the Industrial Relations Act, 2012, cannot be categorized as being unconstitutional. It was further held that NADRA was setup pursuant to a Federal law and its reach is throughout Pakistan hence it would come within the domain of the Inter-province Clause termed as trans-provincial, therefore, trade unions in respect of NADRA cannot be registered by the Registrar Trade Unions Balochistan under the Balochistan Industrial Relations Act, 2010. The learned division bench further observed that the Industrial Relations Act, 2012 was enacted on 14th March, 2012 and as such on the day when the trade union was registered, the Industrial Relations Act, 2012 was in the field. The learned division bench concluded that the registration of the NADRA Employees Union Balochistan was ultra vires, however, the constitutionality of Section 43 of the NADRA Ordinance was not examined.

9. Section 43 of the NADRA Ordinance must be read in the light of well settled exposition of law set forth under Section 8 of the General Clauses Act which is linked and concomitant to the construction of references to repealed enactments. For the ease of reference, Section 8 of the General Clauses Act is reproduced as under:-

8. Construction of references to repealed enactments: (1) Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted. (2). Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re-enacted, with or without modification, any provision of a former enactment, then references in any Central Act or in any Regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.

10. The words repeals, re-enacts and the provisions so repealed, come into sight in Section 8 of the General Clauses Act, 1897 are significant and noteworthy. This confines the operation of rule of construction of references only where any provision of former enactment is repealed and re-enacted. In such a case it is only the precise re-enacted provision that can be construed and deduce in place of repealed provision. The whole object of the General Clauses Act seems to safeguard and take care of the legality of things done under former Acts. When changes are made in the law it is distinctively and unambiguously made known as that where any Act or regulation is repealed and re-enacted, reference in any other enactment to provision of the repealed former enactment must be read and construed as references to the re-enacted new provisions unless a different intention appears. Section 8 of the General Clauses Act as an illustration of general and well established principle of interpretation with the repealed and re-enactment and normally not upset the scheme and provision of other enactment which relate to the repealed enactment.

11. Broadly speaking, legislation by referential incorporation falls in two categories : First, where a statute by specific reference incorporates the provisions of another statue as of the time of adoption. Second, where a statue incorporates by general reference the law concerning a particular subject, as a genus. In the case of the former, the subsequent amendment made in the referred statute cannot automatically be read into the adopting statute. In the case of latter category, it may be presumed that the legislative intent was to include all the subsequent amendments also, made from time to time in the generic law on the subject adopted by general reference. This principle of construction of a reference statute has been neatly summed up by Sutherland thus: "A statute which refers to the law or a subject generally adopts the law on the subject as of the time the law invoked. This will include all the amendments and modifications of the law subsequent to the time the reference statute was enacted." (Sutherland's Statutory Construction, 3rd Ed., Art. 5208, P. 5209). The Corpus Juris Secundum also enunciates the same principle in the following terms: "....where the reference in an adopting statute is to the law generally which governs the particular subject, and not to any specific statute or part thereof ..the reference will be held to include the law as it stands at the time it is sought to be applied, with all the changes made from time to time, at least as far as the changes are consistent with the purpose of the adopting statute" (Swamikamu's General Clauses Act, (6th Edition-2011)

12. In the same context the judgment of National Telecommunication Corporation v. National Industrial Relations Commission (2014 SCMR 1833) is also relevant in which the Hon'ble Supreme Court has held as under:-

12. Section 8 of the General Clauses Act which, in its essence and substance, provides what section 88 of Act IX of 2012 does and thereby gives added strength to the aforesaid exclusion by adumbrating that "where this Act or any other Act after the commencement of this Act repeals and re-enacts, with or without modification of any provision of former enactment, then reference in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as reference to the provisions so re-enacted". Therefore, we have no hesitation to hold that Act IX of 2012 would not apply to the officers and employees of the National Telecommunication Corporation in the absence of any different intention appearing in any of its provisions. There is also nothing in Act XVII of 1996 and that of 2012 as could present a conflict between the two. A close and careful reading of the two would unmistakably show that they are in harmony with each other...."

15. Having thus considered, we have no hesitation to hold that Industrial Relations Act IX of 2012 does not apply to the officers and employees of the National Telecommunication Corporation and that impugned judgment being against the express provisions of the law cannot be maintained.

13. Along with the comments filed on behalf of the Registrar, Trade Unions Sindh, copy of application filed by the Registrar Trade Unions Sindh against NADRA Employees Union Sindh (respondent No.2) under Section 12 of the Sindh Industrial Relations Act, 2013 is attached, which pertains to the cancellation of registration of trade union if the labour court so directs upon the complaint in writing made by the Registrar that the union has contravened or has been registered in contravention of any of the provisions of this Act or the Rules; contravened any of the provisions of its constitution; or made in its constitution any provision which is inconsistent with the Act or the Rules. Though the Registrar has filed an application for the cancellation of the registration of the Trade Union, but it is imperative to hold that the cancellation of trade union registration may be directed by the labour court for the union which has been registered in contravention of Sindh Industrial Relations Act, 2013 but here the case is altogether different in which the exactitudes of Section 43 of the NADRA Ordinance, 2000 is under consideration, so basically the Union has not been registered in contravention of Sindh Industrial Relations Act, 2013 rather in terms of Section 43 of NADRA Ordinance, 2000, the Industrial Relations Laws are not applicable in relation to the authority or any person in the service of the Authority and once the provisions of Industrial Relations Laws are inapplicable, therefore, the question of registration of the respondent No.2 as Trade Union or C.B.A. does not arise, no matter, any application for cancellation of Trade Union registration is filed or not in the Labour Court, but law will take its own course.

14. As a result of above discussion, we hold that the respondent No.1 issued the certificate of registration and C.B.A. certificate to the respondent No.2 without lawful authority. Consequently, both certificates are set-aside. The petition is disposed of accordingly along with pending application. ZC/N-8/Sindh Petition accepted.