1997 PLP 771 (PLC)

(14) an employer is required to comply with a request by an independent trade union to permit his premises to be used to give union members a convenient opportunity of voting in certain ballots." Note to para. 563. "Collective Bargaining" means negotiations relating to or connected with one or more the following matters specified in the Trade Union and Labour Relations Act, 1974, section 29(1). (1) terms and conditions of employment, or the physical conditions in which any workers are required to work; (2) engagement or non‑engagement, or termination or suspension of employment, or the duties of employment, of one or more workers; (3) allocation of work or the duties of employment as between workers or groups of workers; (4) matters of discipline; (5) the membership or non‑membership of a trade union on the part of worker; (6) facilities for officials of trade unions; and (7) machinery for negotiation or consultation and other procedures, relating to any of the foregoing matters, including the recognition by employers or employers' associations of the right of a trade union to represent workers in any such negotiation or consultation or in the carrying out of such procedures. "

12. The right of members of Labour Organisation/office‑bearers of Unions to engage in trade activities on the premises of the employer and his right to receive remuneration for such time was/is examined by Harvey in celebrated work ' Industrial Relations and Employment Law' in following words:‑‑ "The right is a right to claim time‑off work (during working hours) for specified purposes (section 58(1), but there is no statutory right to be paid during absence though there may be a right to pay under the contract of employment). The right is available to a member of an independent trade union which is recognised by the employer for employees of that description or has been recommended for recognition by ACAS (section 58(1) and (2). For the definitions, see para. (465) agive (476). The amount of time of to which the employee is entitled is, as before, what is reasonable in the circumstances, and ACAS will issue a code of Practice to help determine what is reasonable (sections 6(2) and 58(3) and (4)). (477). The purposes for which the employee may claim time‑off are loosely defined. Obviously he cannot claim time off to take part in a strike or other industrial action (whether the "industrial action" is strictly industrial or not; that is, whether or not it is in contemplation or furtherance of a trade dispute: Section 58(2)). Apart from that section 58(2) says the employee is entitled to time off to take part in any activity of his union or any activity in which he represents his union. Activities of his union would include attending normal meetings and voting in union elections. (But some unions have been known to held a meeting at a critical time or for an undue length of time as form of industrial action). Representatives activities would cover joint committees, conference and other such things. The employee must be an 'official' representative in the sense that he must have been nominated a representative by the union: he cannot merely assume for himself the mental of representative and so, claim 'time‑off' (478).

13. The aforesaid concepts were examined by J.G. Riddal in his Treatise "Law of Industrial Relations" in following terms: "To obtain all these advantages, then it is necessary for a trade union to show that it is 'independent'‑‑ The idea of an 'independent' trade union was introduced by the 1974 Act in order to avoid a defect that had been found might exist in the working of one part of the 1971 Act. The latter Act contained provisions which, as we saw in Chapter 9, enabled a trade union to require an employer to recognise and to negotiate with it. Once a union has been recognised as the 'sole bargaining agent' in relation to an employer then it was an 'unfair industrial practice' for another union to seek to disturb the arrangement. In order to avoid being compelled to recognise and negotiate with a union with which it would prefer to have no dealings, it could in some circumstances be possible for an employer, if not to establish, to assist in or at least to raise no objection to, the formation of an association which ostensibly had the, purpose of representing the interests of the employers' workers but which was in practice not sufficiently independent of the employers' influence to ‑act effective as a genuine trade union. For example, if the supposed union had its stationery printed by or at the expense of the employer; if its office was oil the employer's premises; if the union s correspondence was stamped by the employer's franking machinery if the President, Secretary and Treasurer were all middle rank management staff, all eager for promotion and keen to retain the approval of the Managing Director, then the union might well be found to be one that did not pursue the most aggressive of negotiating policies. A union of this kind could come within the definition of trade union under the 1971 Act, but it would clearly in no sense be independent. And if such a union was recognised by the employer as the sole bargaining agent under the 1971 Act, with the result that no other (genuine) trade union could obtain negotiating rights, the intention of the Act would be frustrated. To avoid such possible abuse, the 1974 Act introduced the requirement that to secure advantages conferred on trade unions by t tic Act a union must be 'independent'. The 1974 Act defines an independent trade union as one which

(a) is not under the domination or control of am employer or group of employers or of one or more employers' associations; and (b) is not liable to interference by an employer or any such group or association/arising out of the provision of financial or material support or by other means whatsoever tending towards such control. Responsibility for deciding whether a union complies with these two requirements rests with the Certification Officer. If this official finds that a union is independent he is required to grant the union a certificate to this effect. Only a trade union that is listed may apply for a certificate of independence. On receipt of an application for a certificate the certification officer is required to take into account any relevant information (i.e. whether supporting or opposing the application) submitted to him. Appeal from the refusal of a certificate lies (on fact or on law) to the Employment Appeal Tribunal. No appeal lies (i.e. from an objector from the grant of certificate)." The same author further says: "2.19. Organisation and structure.‑‑It is necessary to examine these both as they are out in the Union's rule book and as they work in practice. The main requirement is that the union should be organised in it way which enables the members to play a full part in the decision‑making‑ process and excludes am, form of employer involvement or influence in the union's internal affairs. Particular attention is paid to whether employers or senior employees, especially those at or immediately below board level, are eligible to belong to the union and, if so, whether there are suitable restrictions on the part which they play in its affairs. 2.20. Finance. While it is exception to find evidence of a direct monetary subsidy from employer sources a union with weak finances and inadequate reserves is obviously more likely to be vulnerable to employer interference than one whose financial position is strong Particular attention is therefore paid to such questions as the main sources of the union's income whether this matches its expenditure the level of its subscription rate and the state of its reserves. 2.21. Employer provided facilities. These may take the form of premises time‑off and office or other service which the union receives from employer source In the case of single company union the normal practice is to cost these items in order to get a rough idea of the extent of the union's reliance on them in financial terms But it is not Lust a question of finance It is necessary to look too at the administrative convenience of having facilities provided b the employer, even if they are paid for and how easy or difficult the union would find it to cope on its own if they were withdrawn. The treater the union's reliance on such facilities the more vulnerable it must be to employer interference. 2.22. The provision of facilities is, of course common practice among good employers, but in the context of the independence its significance may very according to circumstances. A distinction car properly be drawn between a broadly based union, which could continue to function even if an employer withdrew facilities of its branches, and a single company union which might well find difficult or even impossible to carry on at all if such action were taken by the firm which employs its entire membership. "

14. At this stage feel it advantageous to refer to a decision of House of Lords reported as the Post Office v. Union of Post Office Workers and another (1974) 1 All E.R. 229) it says: "(3)'It is a fact of industrial life that rivalry exists between unions and that this may affect good industrial relations. It does not appear to us strange that Parliament should have left to the discretion of the individual employer to what extent (if at all) trade union activities should take place on his premises. Moreover, a purpose of the 1971 Act is the promotion of orderly industrial relations. In some cases an employer may consider that the provision of facilities will enhance good industrial relations. In another case he may feel that the provision of facilities for unions, or for unions not recognised for bargaining purposes, may attract to the place of birth rivalries which may have an abrasive effect on good industrial relations. We do not know what motive have prompted the post office to exclude TSA activities in this case and we have considered it beyond of our functions as a Court of law to inquire. The right of an employer to reach his own decision in this particular field is not in our judgment, restricted by the Act. No doubt the employer will take that decision, which, after careful consideration he deems best will promote good relations with work‑force as a whole. (4) There are practical difficulties in construing para (c) in the way that the complainant wish. Any trade union activities at the place of work belonging to employer inevitably distinguishes the right of the employer in respect of that place of work Where is line to be drawn? Is there any difference in principle between an obligation to permit a canteen to be used for collecting subscriptions and obligation to permit it to be used for Union meetings, given that in, each case the catering and rest facilities of other workers are not disturbed? When is a union member to be allowed to make use of his employer's premises for union activities? By statutory definition, the activities must take place out side working hours. Is a trade union member entitled as of right to make use of the premises at any time when they happen to be oven or only at the time when the member in question is on the premises in anticipation of starting a spell of duty or at the conclusion of a spell of duty? What period of pre‑work or cost‑work time is permitted to trade union member for this encroachment on private right, if the member is not to be allowed access at all time when the office factory or premises are oven for business? It seems to us difficult to suppose that Parliament intended trade union member to be entitled as of right to use the employer premises for the conduct of trade union activities out of working hours without saving how and when they may so used. In our opinion such construction of section 5 would result in a chaotic situation and would open up an endless vista of litigation throughout the country. They do not appear to have had their attention directed to the importance of the provision of subsection (5) of section 5 and 1 must deal with this matter before returning their reasons. Section 5(1)(a) gives to every worker, as between himself and his employer the right" to be a member of such trade union as he may choose" and section 5(1)(c) gives to every member of trade union,, the right' at any appropriate time, to take part in the activities of trade union'. It appears to me that the definition of appropriate time in subsection (5) makes it quite clear that as well as including time when the worker is not on his employer's premises 'appropriate time' also include period when the worker is and is entitled to be on his employer's premises The definition include all times outside the worker's working hours and 'working hours' is defined as meaning time when tin according to his contract with his employer he is required to be at work I do not think that it was or cart be disputed that ' at work' means actually at work and does not include period when in accordance with his contract of employment the worker is on his employer's premises but not actually working. It is common knowledge of Parliament was very well aware that every day there are periods when a worker is on his employer's premises but is not expected or required to be actually working. He arrives at his employer's premises sometime before he starts work. He leaves some time after his day's work is done. And I should think that in almost all cases he is not expected to work non‑stop: There are recognised breaks for meals and perhaps other purposes during which he does and is expected to remain at his employer's premises. " In accordance with his contract' does not I think means in accordance with some formal condition, but rather in accordance with what the employer recognised to be customary. It cannot matter whether provision for dinner and other breaks in working time is written into his contract or is merely a recognised concession So, in my judgment the Act entitles a worker who is a member of trade union to take part in the activities of his union while he is on his employer's premises but is not actually working. I cannot see any reasonable alternative construction of subsection (5) and none was put forward in argument. So there is no room for speculation about the probable intention of Parliament or for the introduction of more general consideration which would be relevant if it were a question of choosing between two reasonably possible constructions of the subsection. But it would be very unsatisfactory if other wider consideration pointed to a different result. In my view they do not. In this I am unable to agree, with the industrial Court. Their first reason is that there is a presumption against any intention to interfere with right of property owners. That may be so in general but this Act is of a very unusual character. Acts of Parliament generally follow the method of common law in creating clearly defined rights which enure equally to the main who is weak and the man who is powerful, to the man who is unreasonable and man who is reasonable. But the Industrial Relations Act, 1971 is of very different character. It creates rights as in section 5, but breaches these rights are not torts‑ they are only unfair industrial practices. A person alleging an unfair industrial practice cannot bring an action: he can only make a complaint to an Industrial Tribunal. The majority of the members of an Industrial Tribunal are not lawyers. The Tribunal does not give a remedy as of right. Under section 106 it may if it consider that it would be just and equitable to do so make an order determining the complainant's rights or award compensation to him give both remedities. This, in my judgment, shows that the Act must be construed in a broad and reasonable way so that legal technicalities shall not prevail against industrial relations and common sense. An unreasonable employer who tried to insist on his strict legal right will get no comfort from the Act. Normally an occureer has a right to refuse to engage an employee unless he agrees to refrain from doing things on or off his property to which the occupier object however, unreasonable his objections may be. The view of the Industrial Court that the Act only prevent him for the future from objecting to his employee taking part in trade union activities off his property but leaves him free to be unreasonable as he likes in preventing trade union activities on his property. That seems to me to be so contrary to the whole spirit of this Act that I would only adopt such a construction if none other were reasonably possible. I agree with the second reason given by the Industrial Court. This part of section 5 would be far from meaningless if‑it only prevented the employer from objecting to an employee taking part in trade union activities off his premises. A very modest degree of the knowledge of industrial affairs in the past is enough to make one aware that this was fairly common at one time and one can assume some survival of that attitude. But the fact that an enactment has some effect if narrowly construed is a weak argument against a wider construction if other considerations point to the wider construction. The Court's third reason appears to assume that all employees will act reasonably or at least that Parliament thought it best not to interfere with those who did not. I have no doubt that the great majority of the employer do act reasonably, but so they did before the Act was passed But I am not at all surprised to find that the Parliament decided to limit the power of small minority who did not conform to ordinary reasonable practice. How far that power has been limited, I must consider later. The Court's fourth reason is the fact that practical difficulties will arise if this new right is purshed too far. That is very, likely but I think that it looses sight of the general purposes of the Act to prevent people from doing things 'as of right' and to refuse a remedy to those who try to insist on a right to behave unreasonably. The Act brings in Industrial Tribunal who are well‑fitted for this task. The Court for sees and endless vista of litigation.' I do not think that complaints to Tribunals are intended to be dealt with as litigation in the ordinary sense and I have no doubt that these Tribunals will evolve or be given sensible guidelines which when generally known will prevent any flood of complaints. Section 5(i)(c) gives to members of trade union right to take part in the activities of their union. Normally 'the activities' will means all the activities. But some union activities are of a such character that it would not be physically possible to carry them on without the assistance of the employer in providing facilities or otherwise. The Act contains no provision requiring the employer to give assistance to enable his workers to carry on their trade union activities on his premises and I see nothing to require us to infer any such provision. But again this must be applied reasonably. It is one thing to ask an employer to incur expense or submit to substantial inconvenience That the worker may not do But it is a different matter to use facilities which are normally available to employer's workers or to ask him to submit trifling inconvenience Men carrying an activities of their union on their employers premises must do so in a manner which does not cause substantial inconvenience either to their employer or to fellow workers they are not members of their trade union and employers must tolerate minor infringements of their strict legal rights which do them no real harm In my view the Industrial Tribunals are‑well‑fitted to deal with disputes about matters of that kind. Up to this point I have been dealing with the position of ordinary members of trade union. But Mr. Crouch is an Officer of a Union. Does this fact give him further right? I think that it does. section 5(i)(c) contains the words "(including any activities as ..... an official of the trade union)". I think that this entitles him to carry on activities of kind normally carried on by trade union officer of his grade. The point is of importance because we were informed that Mr. Crouch has duties with regard to member of the TSA in a telephone exchanges So I think that he must be entitles to visit these exchanges outside the working hours of himself and the members of his unions whom he wishes to see. But again he can only do that in so far as it imposes no real inconvenience in the Post Office. In addition to relying on section 5(1)(c) Mr. Crouch also relies on section 5(2)(b). The Post Office allows the members and officers of the UPW numerous facilities some of which go beyond anything covered by section 5(1)(c) They are not bound to allow any of these facilities because the UPW is not a‑registered trade union but that makes no difference to disagreement Mr. Crouch says that if the Post Office choose to allow facilities to the UPW the must allow comparable facilities to him because if they do not the are discriminating against him " (The underlining (s mine).

15. The rules, deducible from the foregoing discussions, are‑‑ (i) that Industrial Relations Ordinance, 1969 is a special law; that it is designed to promote healthy and orderly industrial environment; I that it embodies the right of workman to form their association and embodies the principle of fair bargaining between two conflicting classes namely employer and workmen; (ii) that it provides comprehensive inbuilt machinery for registration of trade organisation, determination of bargaining agent/Labour Organisation and so confers upon such registered organisation the attributes of legal personality. It ordains that a union, so registered/must be independent, autonomous, responsible arid law abiding. A workman has a right to join an association of his choice and is vested with the right to engage in Union activities. So is the right of employer. Shortly, a registered trade union must be free from extraneous influences and should not normally rely upon the assistance provided by the employer; it should vigorously pursue the cause of its members and not its office‑bearers; office‑bearer has a right to engage in union activities at premises of employer during working hours or beyond working hours subject to reasonable restrictions and subject to reasonable time. The office‑bearer of a union is entitled to claim remuneration for time‑off/engaging in activities of union. However, he cannot claim time‑off for taking part in strike or illegal activities. He is entitled to time‑off to take part in the activities of union in which he acts as its representative. These activities may include participation in normal meetings and voting in elections. The question is as to what are reasonable restrictions and what is reasonable time. No hard and fast rule can be laid down to answer these questions. These are to be negotiated by employing mechanism embodied in the I.R.O. (iii) The right of forming labour organisation, whether corporated or incorporated, is the fundamental right of the workers in consonance with the mandatory requirements of Article 17 of the Constitution. Furthermore the right of free bargaining is also fundamental right of workers. (See decision of the Hon'ble Supreme Court of Pakistan rendered in C.A. No. 635 of 1994 and Constitution Petition No. 24 of 1993).

16. Concept of collective bargaining is heart of Labour Laws. It is fruit of ceaseless labour struggle and is effective guarantee of industrial peace. It contributes stability which is essential to industrial relations. Collective bargaining in the words of an American Judge is: "it is well‑established that the function of collective bargaining agreements is to contribute stability, so essential to sound industrial relations. Contractually stabilised industrial relations, enable employers because of fixed labour costs, to engage in second long range production planning and employees, because of fixed wage, seniority, promotion and grievance provisions, to anticipate secure employment tenure. Hence, when an employer and a labour organisation have through the processes of collective bargaining negotiated an agreement containing the terms and conditions of employment for a definite period of time, their total rights and obligations emanating from the employer‑employee relationship should remain fixed for the time ...... That a collective bargaining agreement stabilises all rights and conditions of employment is consonant with the generally accepted concept of the nature of such an agreement. The basic terms and conditions of employment existing at the time the collective bargaining agreement is executed, and which are not specifically altered by, or mentioned in, the agreement, are part of the status quo which the parties by implication, consider as being adopted as an essential element of the agreement. This view is termed 'reasonable and logical' and its sidespread endorsement as sound industrial relations practice makes it a general rule followed in the arbitration of disputes arising during the terms of a contract. The reasonableness of the approach is apparent upon an understanding of collective bargaining techniques. Many items are not mentioned in a collective bargaining agreement either because of concessions at the bargaining table or because one of the parties may have considered it propitious to forego raising on subject in the hope of securing a more advantageous deal on another."

17. The stage is, now, set to examine the core issue. The challenge to vires of section 27‑B of Ordinance, 1962 stems from Article 17 of the Constitution. This Article is almost similar to Article 19 of Indian Constitution. Article 17 of the Constitution reads as under:‑‑ "17. (1) Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality. (2) Every citizen, not being in the service of Pakistan shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration refer the matter to the Supreme Court whose decision on such reference shall be final."

18. I am now inclined to refer to certain pertinent cases from Indian and Pakistani jurisdiction. I will first notice three cases from Indian jurisdiction, namely: (i) All India Bank Employees Association v. The National Industrial Tribunal (Bank Disputes) Bombay and others (AIR 1962 SC 171). In this case the vires of section 34‑A of Banking Companies Act/enacted on 26‑8‑1960 as an amendment to the parent Act (Act X of 1949) was challenged being violative of Article 29 of Indian Constitution. This act enacted that no banking company can be compelled in any proceeding under the said Act, to produce or to give inspection of any of its books of account or other documents or furnish or disclose any statement or information when the banking company claims that such document is of confidential nature. The Union challenged the above provision by saying that the workmen were entitled to be placed on a different position from the share‑holders; that it will impair the right of freedom of association and impair the right of collective bargaining. This challenge was repelled by the Supreme Court holding that Article 19 of the Indian Constitution extends to the formation of association and so far its activities are concerned or as regards the steps which the Union might take to achieve this purpose, these are subject to such laws that might be framed by the Legislature; that such laws cannot be tested by reference to criteria embodied in clause (4) of Article 19 ibid. It was further held that right guaranteed by sub‑clause (c) of clause (1) of Article 19 ibid does not carry with it a concomitant right that the Unions formed for protecting the interest of labour shall achieve the purpose for which they are brought into existence. (ii) M/s. Raghuber Dayal Jai Parkash v. Union of India (AIR 1962 SC 263). In this case vires of section 6 of the Forward Contracts (Regulation) Act, 1952, was challenged on the ground that it requires association to apply to Government for recognition and so this provision was violative of Article 19 of the Indian Constitution. The Supreme Court held that in order to avoid gambling and forward contract the above restrictions were enacted and the same were not violative of right of forming association ordained in Constitution. (iii) O.K. Gosh v. EX Joseph (AIR 1963 SC 812). In this case the vires of Rules 4‑A, 4‑B of Central Government Employees Conduct Rules were examined on the touchstone of Article 19(1)(c) of the Indian Constitution. It was held that right to form association and Union was subject to reasonable restriction of law by virtue of clause (4); that the restriction embodied in challenged provision were in the interest of public order and so they were not violative of the Constitution.

19. The above Indian cases were commented upon by Basu in his celebrated commentary on the Indian Constitution (6th Edn.) Vol. C, and it was opined by him that:‑‑ "Collective bargaining is the object with which a trade union of association is formed by workmen or employees, just as an association may be formed with a religious, cultural or educational object, by persons belonging to different groups inspired with religious, cultural or educational interests of ideas. In such cases, to say that the right to achieve that object is not included in the freedom of association guaranteed by clause (c) would be render hollow and unmeaning the fundamental right guaranteed thereby. In other words the right to achieve the objects of such associations may be curtailed or controlled only if such object is prejudicial to public order or public morals or the sovereignty or integrity of India. It would in short, be a contravention of the freedom guaranteed by sub‑clause (c) to so legislate that an association formed for a religious object cannot pursue that object even though it is not pre judicial to the grounds mentioned in clause (4). Similarly illegitimate would be for the State to so legislate that the trade union cannot collectively represent the employees in their negotiations with the employer, whether private or public, even though such object, as such, is not prejudicial to the collective interests safeguarded by clause (4). In the case of strike, however, other considerations come in. Strike is a step resorted to by a trade union to strengthen or support collective bargaining. Such a step can undoubtedly be restricted by the State not only in the interests of public order or morality, but on the grounds permissible under clause (6), if the strike is resorted to as against a business establishment in this case the exercise of the right of collective bargaining has a direct impact on the freedom of business of another person.''

20. The ratio, in above‑named three cases and Basu's opinion came up for consideration before this Court in Union of C.A.E. v. Civil Aviation Authority (PLD 1993 Lah. 306). In this case the vires of section 23 of Pakistan Civil Aviation Authority Ordinance (XXX of 1982) and Regulations 6.22 and 6.26 service regulations were assailed being contrary to Article 17 of the Constitution. My brother Malik Muhammad Qayyum, J, after examining the question and after examining the pertinent applicable precedents from India and Pakistan jurisdiction, concluded that the view taken by the Supreme Court of India was not correct and that the view expounded by Basu was sound. On this conclusion the learned Judge accepted the petition and declared that impugned provisions were contrary to Article 17 of the Constitution and that the members of Unions were entitled to form their association within the terms of Article 17 of the Constitution. Feeling aggrieved, the Civil Aviation Authority, Islamabad filed Civil Appeal No. 635 of 1994 and a Constitution Petition No. 24 of' 1993 was filed under Article 184 of the Constitution. These appeals and petitions were dismissed by the august Supreme Court and decision rendered by my brother Malik Muhammad Qayyum, J was upheld. His Lordship Ajmal Mian, Acting Chief Justice, while speaking for the Bench, said; that the view proposed by Basu in his commentary on Indian Constitution (6th Edn.) Vol. C, quoted above, was correct. The learned Judge further said that the right to free bargaining was a basic and fundamental right of a Labour Union. His Lordship was inclined to approve the view taken in National Labour Relations Board v. Jones and Laughingly Steel Corporation (1937) 301 U.S. 1). It was held therein that right of employee to organise and select their representative and bargaining with the employer through such representative was a fundamental right. This rule was enunciated by the Supreme Court in following words:‑‑ "It may be pointed out that there are certain rights which are inhere to a trade union on account of its formation which inter alia includes the right to act as a collective bargaining agent. However, we may point out that the right of strike or the right to go slow are not rights which can be spelt out from Article 17(1) of the Constitution. Such rights can be founded on statutory provisions like I.R.O. In the case of O.K. Ghosh and another (supra), the Indian Supreme Court has held that portion of Rule 4‑A of the Central Civil Services (Conduct) Rules (1955), which prohibited strike, was valid and was not violative of Article 19 of the Indian Constitution. The effect of non‑application of the provisions of I.R.O. to the Authority, the Corporation and their employees would be that the latter would have no statutory right to go on a strike or to go slow. Similarly, the Authority and the Corporation will have no right to lock out."

21. From the above discussion it thus clearly follows that Article 17 of the Constitution embodies the most important right of forming associations. This right, however, is not unfettered and is subject to reasonable restrictions imposed by law in the interest of sovereignty/integrity of Pakistan, public order and morality. This right, so, is subject to reasonable restriction. Further it is settled: (i) That the Constitution is a living document; that it reflects the ideological aspiration of the people and is made through their will; that it deals with the governance of the State; that it lays down the framework of the distribution of the powers and subjects between the Federation and federating units. That it delimits the power of various limbs of State, i.e. Legislature, executive and judiciary. Being a permanent document it is to be considered liberally and with wide and comprehensive connotation designed to meet the exigencies of the State and changing conditions of socio‑religio and economical dynamic of the State. It is to be given purposive, organic construction; each and every provision of the Constitution is to be construed in such a manner that it is not rendered surplusage. If there is any conflict between the two provisions, the same are to be interpreted on the basis of theory of reconciling them. (ii)

(iii)

(iv) The constitutionality of Statute/law is presumed till it is displaced by showing of some irrefutable circumstances. (See Aisha Spinning Mills Ltd. v. Federation of Pakistan (1995 PTD 493). Guided by the above rules now I herein proceed to examine the challenged provisions i.e. section 27‑B of Ordinance, 1962. As already noted this provision was inserted in Ordinance, 1962 by section 8 of Baking Companies (Amendment) Act, (XIV of 1997) By this provision the members of trade union or office‑bearers of Trade Union of banking companies were prohibited to use any bank facilities including cars and telephones for promoting activities of their Trade Unions or to carry weapons into bank premises unless so authorised by the employer or carrying Trade Union activities during office hours or to subject bank officers to physical harassment or abuse. The Trade Union of banking Companies were prohibited from electing any office‑bearer who was not an employee of the said Bank. The crux of petitioner's case is that the use of employer's facilities i.e. using of bank cars, telephones and right of election of stranger as office‑bearer of the union are the part and parcel of Trade Union activities and without these facilities the members of bank's/labour organisations cannot organize themselves and' so cannot initiate the process of collective bargaining. It is furthermore the case of the petitioner that the use of bank premises for Trade Union activities is sine qua non for union activities. I am afraid I am not able to subscribe to the case of the petitioner in totality to use of facility of cars and telephones which were never the facilities of tile office bearers of the Union. These employer given facilities do not pertain to terms' and conditions of employment of workers. These were never demanded by the labour in era of industrial revolution or thereafter. The history of labour movement does not furnish any instance of such facilities given by the employer to the employees. The use of these facilities by public at large had grown with the march of technological development. These have assumed the shape of almost luxuries. As already noted, that registered Trade Union must be wholly independent autonomous and should be self‑reliant. Its financial' strength must come from its constituents i.e. members. The I.R.O. provides satisfactory mechanism for building finance of union. Employer is mandated to deduct the subscription charges of Union from the salary of its members and to pay it to the registered union/which is a bargaining agent. The I.R.O. also provides a mechanism for audit of Union's accounts. Attributes of legal personality have been conferred upon a registered trade Union. Necessary mechanism for bargaining is provided in the I.R.O. From the above, it can be' safely said that a registered Trade Union/bargaining agent is totally autonomous, independent and dignified institution which does not rely upon facilities provided by the employer. On this analysis I am inclined to agree with the view pre-pounded by J.G. Riddal in his Treatise "Law of Industrial Relations" reproduced in paragraph 13 of this judgment. The relevant portions have been underlined by me. Paras. 2.20 and 2.21 which are at page 25 of this judgment need repetition:‑‑ "2.20. Finance.‑‑While it is exception to find evidence of a direct monetary subsidy from employer sources, a union with weak finances and inadequate, reserves is obviously more likely to be vulnerable to employer interference than one whose financial position is strong. Particular attention is therefore paid to such questions as the main sources of the union's income, whether this matches its expenditure, the level of its subscription rate and the state of its reserves. 2.21. Employer provided facilities.‑‑These may take the form of premises, time‑off and office or other service which the union receives from employer source. In the case of single company union the normal practice is to cost these items in order to get a rough idea of the extent of the union's reliance on them in financial terms. But it is not just a question of finance. It is necessary to look too at the administrative convenience of having facilities provided by the employer, even ‑if they are paid for, and how easy or difficult the union would find it to cope on its own if they were withdrawn. The treater the union's reliance on such facilities the more vulnerable it must be to employer interference. " Seen on the basis of above touchstone I am clear in my mind that use of bank facilities like cars, telephones, arid bank premises, as permanent office of union, are not part and parcel of industrial dispute and so these cannot be claimed as basic right under Article 17 of the Constitution. The Supreme Court in C.A. No. 635/94 and Constitution Petition No. 24 of 1993 held the right of Strike, right to call off work, right to go down slow in work, were not fundamental rights under Article 17 of the Constitution but were rights guaranteed under I.R.O. and so they can be taken away by the appropriate legislation by the Parliament. Applying this principle to the facts and circumstances of the case in hand I am left with no doubt that the challenged provision to the above extent, does not suffer from any Constitutional transgression and cannot be declared as invalid.

22. Now the only point, surviving for examination, is as to whether the denial of facility of bank premises to members of union or office‑bearers of union for engaging in trade union activities, is unlawful, unreasonable and violative of Article

17. This question is free from difficulty. As already noted, various treaties on law of labour relations are of view that it is a right of members of union and office‑bearers of union to have conduct their activities on employers premises subject to condition of reasonable restriction and reasonable time; that the members of union and office‑bearers of union are entitled to receive remuneration from employer for time consumed in such activities. Again the time of such activities and the remuneration is to be determined within the sphere of reasonableness by employer and employees. If they failed to agree as to what is reasonable time/hour/period for such activities and what should be reasonable remuneration, this question can be resolved by the institutions created under Labour Laws i.e. I.R.O. This question was also elaborately examined by the House of Lords in decision, reported as the Post Office v. Union of Post Office and others, supra. The ratio of the above case is that employers/workers are entitled to engage in trade activities on employer's premises subject to 'appropriate time' and 'reasonable remuneration'. It is in line with the rule of orderly industrial atmosphere. These activities are so, in my opinion, the foundation of collective bargaining. Conversely if the workers are restrained from engaging in trade activities at employer's premises and they are not allowed to remuneration for time so spent in these activities the unionism will come to an end and the machinery provided in I.R.O. for avoiding any settlement of dispute between employer and employees, will be jeopardized. In the final analysis, this will impair the right of free bargaining of employees. Seen from this spectrum I am very clear in my mind that this restriction is neither reasonable nor has any nexus with the sovereignty or integrity of Pakistan or with public order or morality. This restriction so manifestly is repugnant to right of freedom of association as guaranteed under Article 17(1) of the Constitution of Pakistan (1973) and so section 27‑B of Ordinance, 1962, to that extent cannot be mustered.

23. As regards the restriction with regard to coming to bank premises with arms is concerned, this was not challenged and so there is no necessity to dilate upon it.

24. As a result of above discussion, this Constitution petition partly succeeds. The restriction embodied in section 27‑B with regard to use of Bank premises by employees or Trade Union is declared to be without any lawful authority and it shall be of no lawful consequence upon the right of the member of union and office‑bearers of Union to use bank premises for their trade activities subject to restriction of reasonableness as discussed above. The writ petition to the extent of remaining restrictions is dismissed and section 27‑B ibid, to that extent, is held to be intra vires.

25. While parting with this judgment, I feel immense pain to observe that micro/ macro‑economic conditions of our cherished State are at lowest ebb. It is agreed by all that our nation is in a debt‑trap; that the state had to pay interest in lieu of these debts in excess of what is being spent on Defence of the Country. It appears that with the march of time we have forgotten the lesson of simplicity and austerity as ordained by the Holy Prophet (Peace be upon him) Irrespective of this economic condition, we find luxurious cars like Pajeros, Land Cruiser, Merceds, like Toyota Lexus‑running on our roads. Not only the office‑bearers of union were provided these luxuries but from record it appears that senior executives of the banks are using these luxuries without any sense of remorse or shame. On this juncture we are reminded of decision of the late Prime Minister Muhammad Khan Junejo, who mandated that those who are at helm of affairs; that the senior Government Officials/Officers and all others should not use these luxurious cars and should switch over small cars. This is the appropriate time that we should resurrect that decision and put it into practice in every walk of life. The record of the case shows that the high executives of the banks are being given facilities disproportionate to economic compulsion of this country. It is proper time that the State Bank should address his attention to this aspect of the national economic and create balance between various sections on the principle of distributive justice embodied in Islam. A.A./M‑423/L Order accordingly.