1. An application was given on 10th of December, 2002 by WAPDA through its Director (Labour and Welfare) which was diaries on 16-12-2002 vide Dy. No,2022 of 2002, for clarification regarding the number of office-bearers of an industry wise trade unions in view of Industrial Relations Ordinance, 2002, hereinafter referred to as the Ordinance.
2. ' It is inter alia argued that according to Ordinance, the definitionof 'Establishment' has materially been changed, as such under Regulation No,13 of N.I.R.C. (Procedure and Functions) Regulations, 1973 the number of office-bearers shall be maintained in accordance with the present dispensation.
3. ' The written comments have been filed by Pakistan Wapda Hydro Electric Central Labour Union as well as Pakistan Wapda Employees Piagham. Union, both of which are registered with the N.I.R.C. As industry wise trade unions. Both of them have controverted the plea raised by Wapda, stating that their internal constitution was framed and approved under I.R.O., 1969, since repealed. By virtue of section 80 of the Ordinance every trade union and its constitution existing immediately before the commencement of the Ordinance, which was registered under the repealed Ordinance deemed to be registered under the present Ordinance and its constitution would continue enforce until altered or rescinded. The applicability of the present dispensation has been strongly objected. It is also argued that the present application was not maintainable, as the Director (Labour and Welfare) has got no authority under the law to initiate the same.
4. ' I have considered the contention and have gone through the documents appendedwith this petition. Water and Power Development Authority (WAPDA) was establishment under section 3 (2) of The Pakistan Water and Power Development Authority Act (XXXI of 1958) hereinafter referred to as the Act. According to subsection (2) of section 3 of the Act, it is ,a body corporate and is entitled to acquire and hold property. It has got perpetual succession. It can sue and be sued in its name.
5. Section20 of the Act authorizes it to delegate its functions by general or special order to the Chairman, a Member or Officer of the Authority and to its official. The Authority through its Resolution No,527 dated 29-7-1986 delegated its powers of filing and defending suits and other proceedings etc. To different officials inclusive of Directors of the Regions/Circles/Directorates working under the Authority. Apart from this Order XXIX, rule 1 of C.P.C. Also authorizes any director or other principal offices of a Corporation to sign and verify any pleadings on behalf of the Corporation. Similarly reference be also made to rule 14 of Order XI, which authorizes even an agent to verify the pleadings in the manner provided therein.
6. ' This being the position the argument of the opposite side that the Director (Labour and Welfare) has got no authority to submit this application is without any force. Further more it is the consistent policy, of the Courts that the technicalities should not come in the way of dispensation of justice.
7. Reliance in this respect is placed upon PLD 2002 SC 1100 United Bank Limited v. Pakistan Industrial Credit andInvestment Corporation Ltd., and another, wherein in it was held as under: "The guarantor in this case particularly the bank cannot avoid its liability on all these technicalities.
8. Reference in this regard is made to Manager, Jammu and Kashmir, State Property in Pakistan v.
9. Khuda Yar and another (PLD 1975 SC 678) where the learned Judges of this Court stated that mere technicalities unless offering insurmountable hurdle should not be allowed to defeat the ends of justice. They reiterated the earlier observations made by learned Judge, Kaikaus, J., in Imtiaz Ahmed v. Ghulam Ali (PLD 1963 SC 382) which are as under: "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on ground of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defect. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that, gives to every person what is his.: ' The other plea of the learned Counsel that the registration of the trade union and its constitution has since been saved under section 80 of the Ordinance, as such the present application is devoid of any force. In this respect I, being the Registrar of Industry wise Trade Unions has to see and satisfy that industry-wise trade unions registered with the Commission are functioning in accordance with law and are not contravening any provision of the Ordinance. To resolve this controversy reference to section 12 of the Ordinance is relevant which has provided the procedure whereby a registration of a trade union can be cancelled. Section 12 (1) of the Ordinance is as under:- "(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 unions has--
(i) contravened or has been registered in contravention of, any of the provisions of this Ordinance or the rules made thereunder;
(ii) contravened any of the provisions of its constitution: or
(iii) made in its constitution any provision which is inconsistent with this Ordinance or the rules made thereunder."
10. ' It is now to be seen whether the two unions namely Pakistan Wapda Hydro Electric Central Labour Union and Pakistan Wapda Employees Piagham Union are functioning in accordance with the provisions of the Ordinance in keeping the number of office-bearers of their respective unions.
11. Regulation 13 of the NIRC (Procedure and Functions) Regulations, 1973 which provides limit of number of office-bearers is as under: "13. Limit of members of the executive.---The maximum number of members of the executive of an industry-wise trade union shall be as specified below:-- where the number of workers employed in the establishments of the industry is- {{TABLE}}
(1) not more than Number 50 5 100 8 200 10 300 12 400 14 500 16 600 18 1,000 20 5,000 25
(2) 10,000 or more 50 {{TABLE}} ' Provided that, in addition to the members whose number is specified in the above table, there shall be one member of the executive from amongst the workers employed in every establishment of the industry."
12. ' In the proviso it is clearly mentioned that there shall be one member of the executive from amongst the workers employed in every establishment.
13. ' The definition of establishment under repealed I.R.O., 1969 was given in section 2(ix) which was as under: "establishment" means any office, firm, industrial unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying on any industry and, except in section 22-EE, includes a collective bargaining unit, if any, constituted under that section in any establishment or group of establishment."
14. ' Under the aforementioned definition of the term 'establishment' in WAPDA the offices of SDOs, ROs, XENs, SEs, C.Ex.Os etc. Were also covered under it.
15. ' Now WAPDA has got following 9 Distribution, One NTDC and 4 Generation Companies which are registered under section 32 of the Companies Ordinance, 1984, They are as under. a. Distribution Companies. {{TABLE}}
(1) LESCO
(2) FESCO
(3) GEPCO
(4) IESCO
(5) PESCO
(6) TESCO
(7) MEPCO
(8) HESCO
(9) QESCO b. NTDC
(1) National Transmission and Despatch Company c. Generation Companies
(1) GENCO-1 TPS Jamshoro
(2) GENCO-II TPS Guddu
(3) GENCO-III TPS Mzaffargarh
(4) GENCO-IV, FBC Larkana {{TABLE}} ' All the aforementioned Companies have been registered under section 32of the Companies Ordinance, 1984, These Companies have got their own independent common balance sheet and profit and loss account.
16. In this view of the matter according to proviso of Regulation 13 of the N.I.R.C. (Procedure and Functions) Regulations, 1973 there would be only one member each in the executive from amongst employees of the different Companies. This would certainly streamline the functioning of the establishment on a proper foundation. It is true that section 80 of the Ordinance has accorded protection to the constitution of the union. The term of section 80 is reproduced: "(a) every trade union existing immediately before the commencement of this Ordinance, which was registered under the repealed Ordinance shall be deemed to be registered under this Ordinance and its constitution shall in force until altered or rescinded.
17. ' However, this aforementioned definition of establishment has been materially changed through I.R.O, 2002 in subsection 2 (xi), which is as under: "establishment" means any office, firm, factory, society, undertaking, company, shop, premises or enterprise which employs workman directly or through a contractor for the purpose of carrying on any business or industry and includes all its departments and branches, whether situated in the same place or in different places having a common balance sheet and profit and loss account and, except in section 54, includes a collective bargaining unit, if any, constituted under that section in any establishment."
18. ' Through new dispensation as stated in the preceding paragraphs the definition of establishment has materially been changed and the aforementioned companies have been created in WAPDA under the Companies Ordinance, 1984. They have got themselves registered with the Joint Registrar of Companies and are independent entities having their own balance sheet and profit/loss account. In the present scenario these companies, which are establishments in itself, would be having representation of one member each in the union in accordance with the proviso 13 N.I.R.C. (Procedure and Functions) Regulations, 1973. Both the unions in WAPDA by no stretch of imagination can maintain their constitution violating the provisions of the Ordinance.
19. ' Resultantly it is clarified that there would be office-bearers of the executives in accordance with the Regulation 13 of N.I.R.C(Procedure and Functions) Regulations, 1973 and' each such company would be having only one member representing its establishment in the union.
20. ' The present application is disposed of in the above terms.