2024 PLP 18 (PLC)

MIANGUL HASSAN AURANGZEB, J.

Through the instant intra Court appeal the appellant, Federal Revenue Alliance Employees' Union, impugns the order dated 01.12.2015 passed by the learned Judge-in-Chambers allowing Writ Petition No.4004/2010 filed by the respondent, Federal Board of Revenue ("F.B.R."), against the order dated 01.04.2010 passed by the Chairman, National Industrial Relations Commission ("N.I.R.C.") allowing the appellant's application for the registration as a trade union under Regulation 8(1) of the N.I.R.C. (Procedure and Functions) Regulations, 1973 ("the 1973 Regulations").

2. The members of the appellant / union are employees of the F.B.R. Some of the members came within the meaning of "workers" and "workmen" as defined in Section 2(xxxiii) of the Industrial Relations Act, 2012 ("I.R.A., 2012") whereas others did not.

3. On 01.11.2008, the appellant submitted an application under Regulation 8(1) of the 1973 Regulations for registration as a trade union. At the time of the submission of the said application, the law governing the registration of the trade union was the Industrial Relations Act, 2008 ("I.R.A., 2008").

4. Apparently, the F.B.R. had filed objections to the appellant's said application. The Chairman, N.I.R.C.'s order dated 01.04.2010 shows that the primary objection taken on behalf of the F.B.R. was that since the members of the appellant / union were civil servants as defined in Section 2 of the Civil Servants Act, 1973 ("the 1973 Act") and were employed in the service of Pakistan, they were barred from forming a trade union in terms of Section 1(3)(b) of the I.R.A., 2008 which provides that the provisions of the said Act shall not apply to any person employed "in the administration of the State other than those employed as workmen by the Railway and Pakistan Post."

5. The Chairman, N.I.R.C., vide order dated 01.04.2010, allowed the appellant / union's said application and issued directions for its registration as a trade union. The said order dated 01.04.2010 was challenged in an appeal before the Full Bench, N.I.R.C. by the F.B.R. Vide order dated 11.08.2010, the said appeal was dismissed as not maintainable. The F.B.R. challenged the Chairman, N.I.R.C.'s said order in Writ Petition No.4004/2010 before this Court. Vide judgment dated 01.12.2015, the said writ petition was allowed primarily on the ground that the members of the appellant / union were civil servants engaged in the administration of the State and therefore could not form a trade union. The said judgment has been assailed by the appellant / union in the instant appeal.

6. Learned counsel for the appellant, after narrating the facts leading to the filing of the instant appeal, submitted that on account of the provisions of the Federal Board of Revenue Act, 2007, the F.B.R. is an autonomous body; that the Chairman, N.I.R.C. had excluded from the appellant / union's membership all those members who did not come within the meaning of worker or workman; that employees of several statutory bodies including the Workers Welfare Board and WAPDA have been permitted to form trade unions even though they are deemed to be civil servants; that it is the fundamental right of the workers and workmen employed in the F.B.R. to form unions in terms of Article 17 of the Constitution; that there is no provision in the I.R.A., 2008 and I.R.A., 2012 that specifically bars workers and workmen employed in statutory bodies to form trade unions; and that the members of the appellant / union are not engaged in the administration of the State so as to preclude them from forming a trade union. Learned counsel for the appellant prayed for the appeal to be allowed and for the impugned judgment dated 01.12.2015 to be set-aside.

7. On the other hand, learned counsel for the F.B.R. submitted that the order dated 10.03.2015 passed by the Hon'ble Supreme Court in Civil Petition No.2242/2014 clearly shows that employees of the F.B.R. are civil servants and can approach the Service Tribunal for the redressal of their grievances pertaining to the terms and conditions of their service; that all employees of the F.B.R. are engaged in the administration of the State and therefore cannot insist on the trade union formed by them to be registered under the provisions of the I.R.A., 2012; and that the F.B.R. does not come within the meaning of "establishment" or "industry" and therefore its employees cannot form a trade union. Learned counsel for the F.B.R. prayed for the instant appeal to be dismissed.

8. We have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant appeal have been set out in sufficient detail in paragraphs 2 to 5 above and need not be recapitulated.

9. The F.B.R. could not have filed an appeal against the order dated 01.04.2010 passed by the Chairman, N.I.R.C. before the Full Bench, N.I.R.C. Section 12 of the I.R.A., 2012 confers a right of appeal against an order passed by the Registrar Trade Unions ("R.T.U.") only to a trade union, its members or an officer of the trade union. It does not confer such a right of an appeal on the employer. The law did not confer a right of an appeal, revision or review on the employer against the order dated 01.04.2010 passed by the Chairman, N.I.R.C. Even Section 14 of the I.R.A., 2008 confers a right of appeal on a trade union aggrieved by an order for the cancellation of the registration of a trade union. It confers no such right on the employer. It is for this reason that we hold that the instant intra Court appeal is maintainable.

10. At the time when the appellant / union submitted an application for its registration, the I.R.A., 2008 was in vogue. Section 1(3)(b) of the said Act provided that it shall apply to all persons employed in any establishment or industry, but shall not apply to any person employed in the administration of the State other than those employed as workmen by the Railway and Pakistan Post. Perusal of the said provision shows that the provisions of the I.R.A., 2008 were applicable to persons employed as workmen by the Railway and Pakistan Post but not to the persons employed in the administration of the State.

11. After the Chairman, N.I.R.C. passed the order dated 01.04.2010 for the registration of the appellant / union and during the pendency of Writ Petition No.4004/2010, the I.R.A., 2012 was enacted. Section 1(3)(b) of the I.R.A., 2012 is different in terms to Section 1(3)(b) of the I.R.A., 2008. Section 1(3)(b) of the I.R.A., 2012 makes the provisions of the said Act inapplicable to any person employed in the administration of the State other than those employed as workmen. For the purposes of clarity and comparison, Sections 1(3)(b) of the I.R.A., 2008 and 2012 are reproduced herein below:- "I.R.A., 2008 in the administration of the State other than those employed as workmen by the Railway and Pakistan Post." I.R.A., 2012 in the administration of the State other than those employed as workmen."

12. Literally interpreted, Section 1(3)(b) of the I.R.A., 2012 does not make the provisions of the said Act inapplicable to persons employed as workmen even though they may be employed in the administration of the State. The words "other than those employed as workmen" in Section 1(3)(b) of the I.R.A., 2012 saves such category of persons employed in the administration of the State from the inapplicability of the said Act. Therefore, it is safe to hold that the provisions of the I.R.A., 2012 are applicable to the workmen employed by the F.B.R. In holding so, reliance is placed on the judgment in the case of Divisional Superintendent, Quetta Postal Division v. Muhammad Ibrahim (2022 SCMR 292) wherein the Hon'ble Supreme Court, after reproducing Section 1(3) of the I.R.A., 2012, held as follows:- "

11. From the perusal of above provision, it is clear that the Industrial Relations Act, 2012 is applicable to all persons employed in any 'establishment' or 'industry', in the Islamabad Capital Territory or any trans-provincial authority carrying on business 'in more than one province' but shall not apply to any person inter alia employed in the administration of the State, other than those employed as 'workmen'. Prior to Industrial Relations Act, 2012, Section 1(3)(b) of the Industrial Relations Ordinance, 2008, provided that it shall not apply to any person employed "in the administration of the State other than those employed as workmen by the Railway and Pakistan Post". In section 1(3)(b) of the Industrial Relations Act, 2012, the words "by the Railway and Pakistan Post" have been deleted, therefore, now all the persons in the administration of the State employed as workmen have been made subject to Industrial Relations Act, 2012, instead of only workmen of Railway and Pakistan Post. ... "

13. The contention of the learned counsel for the F.B.R. that since the members of the appellant / union are civil servants, they cannot be permitted to be members of a union which could be registered under the provisions of the I.R.A., 2012, is not tenable since a "civil servant" as defined in Section 2(b) of the Civil Servants Act, 1973 does not include a person who is either a "worker" or "workman" as defined in the Factories Act, 1934 and the Workers Compensation Act, 1923. Strictly speaking, the workers or workmen employed by the F.B.R. do not come within the meaning of "worker" or "workman" as defined in the said statutes but even so persons employed in the F.B.R. (assuming that they are employed in the administration of the State) would not ipso facto exclude them from the applicability of the I.R.A., 2012. The word "workmen" employed in Section 1(3)(b) of the I.R.A., 2012 would be relatable to the definition of the word "workman" in Section 2(xxxiii) of the I.R.A., 2012. The F.B.R. cannot be termed as an "industry" but is an "establishment" where workmen are employed.

14. Additionally, Section 2(xxxiii) of the I.R.A., 2012 excludes from the definition of "worker" and "workman" a person falling within the definition of employer. The word "employer" is defined in Section 2(ix) of the I.R.A., 2012 and the said definition includes "officers and employees of a department of the Federal Government who belong to the superior, managerial, secretarial, directorial, supervisory or agency staff and who have been notified for this purpose in the official Gazette." Therefore, any of the appellant / union's members who fall within the meaning of the word "employer" as defined in the said Section cannot be a part of the trade union.

15. Since the members of the appellant / union come within the meaning of persons employed in the administration of the State but were not employed as workmen by the Railway or Pakistan Post, we are of the view that the provisions of the I.R.A., 2008 are not applicable to them and therefore we hold that the impugned judgment dated 01.12.2015 does not suffer from any legal infirmity. Consequently, the instant appeal is dismissed.

16. Before parting with this judgment, it ought to be mentioned that the order dated 01.04.2010 was passed by the Chairman, N.I.R.C. when I.R.A., 2008 was in vogue. Since the development regarding the enactment of the I.R.A., 2012 took place while Writ Petition No.4004/2010 was pending and since the impugned judgment dated 01.12.2015 was passed bearing in mind the provisions of the I.R.A., 2008, we hold that there is nothing preventing the appellant / union from applying to the R.T.U. afresh for registration as a trade union under the provisions of the I.R.A., 2012, which may be decided on its own merits. MQ/74/Isl. Appeal dismissed.