' QAZI AHMED SAEED (MEMBER).---This petition under section 22-A(8)(g) of the Industrial Relations Ordinance, 1969 annexed with an application under Regulation 32(2) of the N.I.R.C. (Procedure and Functions) Regulations 1973 was filed by Col. (Retd.) Feroze Hussan in his capacity as Senior Manager (Admn.) Army Welfare Trust Cement Plant, Nizampur, impleading Zainul Abidin, Heavy Mechanic, Amer Qayyum Kayani, Sampler of the petitioner's establishment and Registrar Trade Unions, Peshawar Division N.-W.F.P. As respondents, alleging therein that Army Welfare Trust is a trust registered under the Societies Registration Act, 1860 and according to the Memorandum and .Articles of Association, its objects are primarily to provide for the welfare of the beneficiaries and their families namely the personnel who are serving or have served in the Pakistan Army including Azad Kashmir, Regular Force and Ex-Servicemen of the Pre-independence Indian Army in all ranks including civilians employees of the Armed Forces and their dependents and all its activities are focused and directed to this objective alone through Welfare and Rehabilitation Directorate of Pakistan Army. The Management of the Army Welfare Trust (hereinafter referred to as the Trust) vest in the Committee of Administration in the Welfare and Rehabilitation Directorate, Adjutant General Branch GHQ Rawalpindi and the entire funds are to be applied solely towards the promotion of the objects as set forth in the Memorandum and Articles of Association of the Army Welfare Trust.
2. It is further stated that all the original members/subscribers of the Trust were the Senior Army Officers namely Adjutant General Pakistan Army, Director Welfare and Rehabilitation Directorate GHQ, Director Pension and Accounts GHQ, Director Army Farms, DAAG and A.A.-G. Welfare and Rehabilitation, Directorate GHQ.
3. It was further alleged that the petitioner's Factory/Plant which is owned by the Army Welfare Trust is in the process of installation and in this process Chinese, Germans and French nationals are involved but as a result of intimidation and use of force by the respondents No,1 and 2, most of the foreign nationals have abandoned their job, which has left the Factory/Plant in a very serious situation.
4. It was further submitted that the petitioner's establishment namely AWT Cement Plant Nizampur is an organization which is directly connected with the incidental to the Armed Forces of Pakistan, therefore, in view of section 1(3)(a) of the Industrial Relations Ordinance, 1969, provisions of the said Ordinance are not applicable to the petitioner's establishment, accordingly the respondents Nos.1 and 2 are not entitled to form a trade union and apply for its registration. But on the contrary the respondents Nos.1 and 2 are styling themselves as President and Vice-President of a Union namely Awami Labour Union Army Welfare Trust Cement Plant, Nizampur and have submitted an application for its registration to the respondent No,3. They are also not performing their duties and are involved in persuading the workers during working hours to join a non-existence illegal trade union. They are also extending threats of injury to life and limb. Thus they have committed various acts of unfair labour practice as defined under section 16 of I.R.O., 1969. It was prayed that the respondents Nos.1 and 2 and other workers/alleged members of the said so-called union be restrained from committing unfair labour practice and respondent No,3 may also be restrained from issuing certificate of registration.
4-A. This petition along with stay application was placed before the then learned Member Mr. Muhammad Hussain Chaudhry, who after hearing Mr. Tanvir Bashir Ansari, Advocate, learned counsel for the petitioner, ordered the respondents to file their comments with the following directions:-- "In the meantime the respondents Nos.1 and 2 and other workers are restrained from committing acts of unfair labour practice, from persuading or intimidating any person to leave work and to become member of a trade union in violation of law during working hours or from taking out any procession, raising slogans and to continue any strike or go-slow and from compelling or attempt to compel the employer to accept any demand by using force or coercion. The respondent No,3 is also restrained from issuing the registration certificate to Awami Labour Union Cement Factory Nizampur."
5. The respondents Nos.1 and 2 while filing their written statement/comments to the main petition and reply to the application for grant of interim relief, have resisted and vehemently opposed the petition by raising inter alia certain legal objections regarding maintainability of the petitions. On merits the respondents Nos.1 and 2 also controverted the allegations/objections made by the petitioner. Respondent No,3 also tiled his reply to the petition.
6. It may be submitted that besides the above petition three other petitions were also filed by other parties on the same controversy. All the petitions were disposed of by the then learned Member Mr. Anwar-ul-Hassan through a single judgment passed on 2-1-1997 whereby the instant petition was allowed with the following observations:-- "In these circumstances, it is not only difficult but impossible to run smoothly such like sensitive nature project in the presence of a trade union. After my above discussion, I am scrupulously of the view that the Army Welfare Trust and its Nizampur Cement Plant Project is an establishment which is connected with and incidental to the Armed Forces of Pakistan and by virtue of section 1(3)(a) of the I.R.O., 1969 is immune of applicability of I.R.O., 1969 and the act of forming or registration of Awami Labor Union as a trade union is against the law. The Awami Labour Union Nizampur Cement Plant and Registrar of Trade Unions Peshawar Division are permanently restrained to form or register the said Awami Labour Union as a trade union."
7. Agitating against the aforesaid judgment, an appeal was filed by the respondent No,1 Mr. Zainul Abidin, General Secretary, Awami Labour Union, Army Welfare Trust, Nizampur Cement Plant (under registration with the RTU Peshawar Division) before the Full Bench of this Commission, which was dismissed by the Honourable Full Bench vide order dated 8-8-1997.
8. The respondent No,1 while agitating against the aforesaid orders dated 2-1-1997 and 8-8-1997 passed by the Single Bench and Full Bench of this Commission, has filed a Writ Petition No,40 of 1998 in the Honourable Peshawar High Court, Peshawar. The learned High Court vide order dated 18-9-2001 disposed of the said writ petition with the following observations:-- "In the light of the aforesaid discussion, we would allow this writ petition, set aside the impugned judgments and orders and direct that the application of the petitioner pending before the Registrar Trade Unions Peshawar Division shall be deemed to be pending and be processed in accordance with law in the light of the above observations."
9. Challenging the said order dated 18-9-2001, a Review Petition No,68 of 2000 was filed before the Honourable Peshawar High Court Peshawar which was allowed vide order dated 30-1-2002 with the following observations/directions:-- "All the parties agree that since the Registrar Trade Unions, will not be in a position to record the evidence for the purpose of determining the questions which were directed to be resolved while accepting the writ petition under review, it was agreed that the N.I.R.C. Be directed to resolve the controversies between the parties. Accordingly, this review petition is accepted and paragraph No,5 in the judgment under review is substituted with the following paragraph:-- ' In the light of the aforesaid discussion, we would allow this writ petition, set aside the impugned judgment and orders and remit the case to N.I.R.C. For disposing of the petition moved by the establishment under section 22-A of the I.R.O., 1969 which shall be deemed to be pending, in accordance with law and in the light of the observations made above. The N.I.R.C. Shall dispose of the petition within three months'.
' The Review Petition is thus allowed in the above terms".
10. In terms of the aforesaid order dated 30-1-2002, the learned Chairman of this Commission vide order dated 9-3-2002 has assigned the instant petition to this Bench. Notices were issued to the petitioner and the respondents, who joined the proceedings. Both the parties adduced their evidence through affidavits in evidence. On behalf of the petitioner Mr. Habib-ur-Rehman General Manager of the petitioner's establishment has filed his affidavit in evidence. He was cross- examined by the learned counsel for the respondents Nos.1 and 2. Similarly on behalf of the respondents Nos.1 and 2 three witnesses namely the respondent No,1 Mr. Zainul Abidin, Mr. Muhammad Iqbal and Imtiaz Gul have filed their affidavits in evidence and all of them were cross- examined by the learned counsel for the petitioner. It may be submitted that the respondent No,2 has not filed any affidavit in evidence. Though respondent No,3 has not filed his affidavit in evidence but he was cross-examined by the learned counsel for the petitioner and respondents Nos.1 and 2.
11. In his affidavit in evidence, Habib-ur-Rehman General Manager of the petitioner's establishment i,e, AWT Cement Factory Nizampur, has reproduced the contents of the petition and asserted that AWT is managed by a Managing Director and Board of Director with sitting Adjutant-General Pakistan Army (GHQ) as Chairman. The objects of the Trust is to provide for welfare of the beneficiaries and their families exclusively through Welfare and Rehabilitation Directorate of Army.
The funds of the Trust vest in the Welfare and Rehabilitation Directorate Adjutant-General's Branch GHQ and the entire funds of the Trust are to be applied solely towards the promotion of the objects as given in the Memorandum and Articles of the Trust.
12. The deponent has further deposed that the main aim of establishing/installation of the Nizampur Cement Plant is to meet the requirements of the defence projects of national interest as well as to meet the public requirements for their construction Projects and therefore, in view of availability of such raw material as required for manufacturing of special cement for the construction of Defence-Projects, the site of plant i,e, Village Kahi near Nizampur was selected, otherwise the Trust could have installed this Plant near LiIla, KaliarKahar or near Taxila with better marketing opportunities and lesser transportation cost, but in view of the national interest of Defence Projects this area was selected which could meet the requirements of special cement. It is further asserted that Chemical Composition of the special Cement is a trade secret which cannot be disclosed in the national interest. It is further stated that during the last two years about ten thousand tons of special cement was supplied to the Defence Services. In support of his assertion, the deponent has enclosed copies of the following documents with his affidavit:--
(1) Memorandum and Articles of Association of the Army Welfare Trust P.1.
(2) Memorandum and Article of Association of the Army Welfare Project Funds GHQ-P.2.
(3) Statement showing supplies to Defence Project for the year May 2000 to April 2001 with supply Orders P.3.
(4) Statement showing supplies to Defence Projects for the year April 2001 to March, 2002 with supply order P.4.
(5) Statement showing supplies to Defence Projects for the year November, 2001 to March, 2002 with supply order P.5.
' The deponent has further deposed that Army Welfare Trust is an establishment which is directly connected with and incidental to the Armed Forces therefore in terms of section 1(3)(a) of the I.R.O., 1969, the provision of the said Ordinance are not applicable to the establishment of the petitioner, accordingly the respondents Nos.1 and 2 neither can form a trade union nor can apply for its registration, therefore, the respondents Nos.1 and 2 and other alleged members of a body described as Awami Labour Union, AWT Cement Factory Nizampur are committing. Various acts of unfair labour practice by persuading and intimidating workers to leave their work and to become member of the said union in violation of law.
13. The witness Habib-ur-Rehman was cross-examined by the learned counsel for the respondents Nos.1 and 2. In his cross-examination he admits that Nizampur Cement is connected with and incidental to the Armed Forces and therefore, the I.R.O., 1969 is not applicable to the deponent's establishment. He denied the suggestion that Nizampur Cement is not supplying Cement to Army.
A glance at the documents annexed with the affidavit in evidence would confirm the assertion of the petitioner witness that Nizampur Cement supply cement to the Armed Forces and therefore, the said establishment is connected with and incidental to the Armed Forces.
14. On the other hand in their affidavits in evidence, the respondents witnesses namely Zainul Abidin, Imtiaz Gul and Muhammad Iqbal have denied the allegation of the petitioner and asserted the I.R.O., 1969 is very much applicable to the AWT Cement Plant Nizampur. The respondents have further asserted that they have neither raised any demand nor have made any attempt to compel the petitioner management to accept their demands. It is further asserted that allegations of the petitioner are misleading, false and incorrect and they have failed to pinpoint specifically any act of unfair labour practice. They further asserted that they are ready to give every assurance that neither the deponents nor their union/other workers shall participate in any illegal activity as they have never resorted to any such acts or omissions which may result in the Commission of unfair labour practice. In support of their assertions the deponents have annexed certain documents with their affidavits. It is further asserted that in other projects of AWT, there are registered trade unions which are also C.B.A., such as Askari Cement Wah Cantt. Wah, Army Welfare Trust Sugar Mills Badin and Kot Lakhpat Engineering Lahore. The deponents have further deposed that the petitioner establishment are not supplying any cement to the Armed Forces.
15. In his cross-examination the witness Zainul Abidin has admitted that the Factory is supplying 11 tons of Cement daily to the Army. However, he denied the suggestions that his calculations are arbitrary and wrong. He admitted the contents of letter dated 20-12-2001 (Exh.P.C.) wherein it is stated that a General Body Meeting was held at the main gate. The other witnesses namely Imtiaz Gul and Muhammad Iqbal also made similar statement in their cross-examination.
16. I have heard learned counsel Mr. Mumtaz Hussain Malik, Advocate for the petitioner and learned counsel Mr. Abdul Hafeez Amjad for the respondents Nos.1 and 2 at quite some length;
17. Learned counsel for the petitioner while justifying filing of the instant petition under section 22- A(8)(g) of I.R.O., 1969, before the Commission on the ground of unfair labour practice has contended that in terms of Memorandum and Articles of Association of the Army Welfare Trust and the certificate of its incorporation, the provision of section 1(3)(a) of I.R.O., 1969 are fully attracted and therefore, provisions of I.R.O. Are not applicable to the employees of the petitioners establishment accordingly neither any trade union can be formed nor registered under the I.R.O.
1969 but the respondents Nos.1 and 2 have illegally formed a union in violation of the provisions of section 1(3)(a) of I.R.O., 1969 and thus they have committed various acts of unfair labour practice within the meaning of section 16(2) of the said Ordinance. He further argued that the respondents Nos.1 and 2 were not performing their duties and were involved in persuading the workmen, during working hours to join the so called trade union, besides extending serious threats of injury to life and limb. Since they were committing various acts of unfair labour practice, therefore, in order to refrain them from these illegal activities, the instant petition under section 22-A(8)(g) of I.R.O., 1969 was filed.
18. Learned counsel for the petitioner has further argued that Army Welfare Trust is a Trust registered under the Societies Registration Act, 1869. According to the Memorandum and Articles of Association, its objects are primarily to provide for the welfare of the beneficiaries and their families namely those personnel who are serving or have served in the Pakistan Army including Azad Kashmir Regular Force and Ex. Servicemen of the Pre-independence Indian Army in all ranks including civilian employees of the Armed Forces and their dependents and all its activities are focused and directed to this objectives alone through Welfare and Rehabilitation Directorate of Pakistan Army. The management of the Army Welfare Trust vest in the Committee of Administration in the Welfare and Rehabilitation Directorate, Adjutant General Branch, GHQ Rawalpindi and the entire funds are to be applied solely towards the promotion of the objects as set forth in the Memorandum and Article of Association of the Trust.
19. It is further contended that all the original members/subscribers of the Trust were the Senior Army Officers namely Adjutant General Pakistan Army, Director Welfare and Rehabilitation Directorate GHQ, Director Pension and Accounts GHQ, Director Army Farms, D.A.A.-G. And A.A.-G.
Welfare aid Rehabilitation Directorate GHQ. He further contended that the main aim of establishing of the Cement Plant Nizampur is to meet the requirement of the defence projects of national interest as well as to meet the public requirement for their construction projects and therefore, in view of the availability of such raw material as required for manufacturing of special cement for the construction of defence Projects, the site of plant i,e, Village Kahi near Nizampur was selected, otherwise the Trust could have installed this plant near LiIla, Kallar Kahar or near Texila with better marketing opportunities and lesser transportation cost but in view of the national interest of Defence Projects, this area was selected which could meet the requirement of Special Cement. He further argued that Chemical Composition of the special cement is a trade secret which cannot be disclosed in the national interest, however, he contended that the special cement is exclusively produced for defence projects and is not used in ordinary project and it is on record that during the last two years about ten thousand tons of special cement was supplied to the defence services and this fact has been admitted by the respondent No,1 in his cross-examination that the Factory is supplying eleven tons of cement daily to the Army. He contended that since the AWT Cement Plant Nizampur is an establishment which is directly connected with the incidental to the Armed Forces of Pakistan, therefore, in view of section 1(3)(a) of the Industrial Relations Ordinance, 1969, provisions of the said Ordinance are not applicable to the Army Welfare Trust, accordingly the respondents Nos.1 and 2 are not entitled to form a trade union and apply for its registration to the respondent No .3. Regarding the registration of trade union in Askari Cement Wah and Badin Sugar Mills, he contended that the said projects have no connection with the petitioner project. In support of his contention he sought reliance upon the judgment of the Honourable Lahorc High Court in the case of United Builders Association versus Presiding Officer Punjab Labour Court and others (1976 PLC page 855) in which the scope of the above quoted section 1(3)(a) of the I.R.O., 1969 was dilated upon inter alia in the following terms:-- "The express provisions of the law made the Ordinance inapplicable to any service connected with or incidental to the Armed Forces of Pakistan. If the army is directly engaged on the construction of a road, of a building or is getting it constructed by employing a Contractor or Sub-contractors then it is for the time being a matter connected with and incidental to the Armed Forces of Pakistan irrespective of the nature of the construction. As long as the construction lasts and remains the responsibility of the Armed Forces irrespective of the use to which it will be put when completed the project remains connected and incidental to the Armed Forces itself. A duty undertaken by the Armed Forces to have it constructed either through its own manpower or by employing others establishes this connection. The source of the finance, the ultimate use of building are all irrelevant for determining its character while the construction is in the hand and control of the Army Authorities':
20. Learned counsel for the petitioner has contended that from the above cited case, it is evident that in order to bring an establishment within one of the categories excluded by section 1(3)(a) of I.R.O., 1969 it is not necessary that the finances or funds should come from the Armed Forces or installation should be under the direct 'control and management of Armed Forces, but what is important is, whether the person is employed inter alia in any of the Armed Forces of Pakistan or in services or installation connected with or incidental to the Armed Forces of Pakistan, therefore, keeping in view the supply of special cement to the Armed Forces for defence projects, it can be concluded that the petitioner's employees are covered by the provision of clause (a) of subsection
(3) of section 1 of the I.R.O., 1969. Learned counsel in this behalf has referred to the case of the Controller Stationery and Forms Government of Pakistan v. The Registrar of Trade Unions Sindh and others (PLD 1991 SC 353), the case of Din Muhammad alias Dona v. Manager Army Stud Farm Dipalpur District Sahiwal (1978 PLC 261) the case of Abdul Jabbar Khan v. M/s. Fauji Foundation and another (1990 PLC 580), the case of Canteen Stores Department Employees Welfare UniOn Karachi v. Canteen Stores Department and others (1983 SCMR 1101), the case of Haji Malik Aman and 3 others v. Federation of Pakistan through Secretary Ministry of Law, Justice and Parliamentary Affairs Islamabad and (1993 SCMR 1837), the case of National Radio and Telecommunication Corporation Employees and Workers Union Haripur v. Labour Appellate Tribunal N.-W.F.P. And others (1990 PLC 218) Peshawar High Court, Rchmat Gill and others v. Quetta Cantonment Board (PLD 1983 SC 133).
21. Replying to the contention of the learned counsel for the petitioner as raised above, learned counsel for the respondents has strongly opposed the arguments of the petitioner's counsel and strenuously contended that the petitioner has no cause of action and the present petition is misuse of process of law. The petitioner has not come to this Commission with clean hand and has filed this petition with mala fide, hence not entitled for any equitable relief. He further contended that the instant petition in the present form is not maintainable as during the entire proceedings, the petitioner has failed to appear in person or to authorize any other person on his behalf. The petitioner has failed to pin-point any specific act of unfair labour practice. The prayer clause of the petition is outside the ambit and scope of the power conferred upon the Commission. He further argued that the petitioner establishment is a Company registered under the Companies Ordinance, 1984 and the objects of the Trust is the welfare of the retired Army personnel and not of active army. Therefore, the petitioner's establishment being an industrial unit is not connected with the incidental to the Armed Forces of Pakistan but they are carrying on an industry just like all other private industries. He further contended that in other projects of AWT there are registered trade unions which are also C.B.As. Namely AWT Badin Sugar Mills, Askari Cement Wah etc. He further contended that the respondents Nos.1 and 2 have never committed any act of unfair labour practice. On the other hand the petitioner has terminated the services of so many workers including the service of respondent No,1 even during pendency of the petition on account of their trade union activities. He further argued that even the petitioner witness Habib-ur-Rehman has admitted in his cross-examination that in other projects of AWT namely Askari Cement Wah and Badin Sugar Mills, there are C.B.A. Unions and also the action taken against the respondent No,1 was under Order 15(3) of West Pakistan Standing Order Ordinance 1968. He further argued that the said witness has admitted in his cross-examination that:- "It is correct that Nizampur Cement is registered with the Social Security and its name is in the notification. Its issue Social Security Cards to our employees. I see the registration Certificate under the Factory Act, 1934, in respect of Nizampur Cement which is Exh.R/2."
' The basic argument of the learned counsel for the respondents Nos .1 and 2 is that the contention of the petitioner is incorrect as the petitioner witness himself admitted that all the Labour laws i,e, Factory Act, 1934 and Social Security Ordinance 1965 etc are applicable to the petitioner establishment, then how they can deny the application of I.R.O., 1969 to the establishment of the petitioner. He further contended that when the petitioner himself claim that I.R.O., 1969 is not applicable to their plant, then how they can invoke the jurisdiction of this Commission under the I.R.O., 1969. He strongly opposed contention of the petitioner that the main aim of the petitioner's Cement Plant is to meet the requirement of Defence Projects and strenuously contended that according to the Supply-order submitted by the petitioner before this Court, the petitioner Factory during the period from October 2001 to December, 2001 and January, 2002 to March, 2002, supplied 11095 MT cement out of which only 250 MT supplied to Army. A perusal of the said documents shows that the petitioner has supplied 11(T) Cement to Army. And 1282(T) to their Dealer per day.
Similarly during this period from July, 2001 to December, 2001 and January, 2002 to March, 2002 as per another list, the Petitioner Factory supplied 8.(T) cement to the Army and 937(1) to their Dealers per day. During his arguments learned counsel for the respondent has also submitted a list of 1900 Dealer appointed by the petitioner in different cities throughout the country along with a statement showing the payment of Central Excise Duty to the Federal Government and contended that if the petitioner supplied Special Cement to the Army then why they have paid the Excise Duty, because Army Supply is exempted from such Duty. He also submitted a charter of duties assigned to the offices of the Petitioner Factory and contended that the said chart is totally silent about supply of the cement to the Army. He further contended that petitioner has not mentioned the name of any Agent through whom the cement is supplied to the Army. (He also filed written arguments along with certain documents, copy, whereof handed over to the learned counsel for the petitioner).
Learned Counsel has also challenged locus standi of the petitioner's witness Mr. Habib-ur-Rehman General Manager of the Petitioner Factory and contended that the said witness was posted in January 2001, while the instant petition was filed on 18-8-1996. He is the only witness who appeared on behalf of the petitioner but without any corroborative evidence, in respect of allegation of unfair labour practice. He contended that N.I.R.C. Is a forum of limited jurisdiction which deals with the cases based on. Allegation of unfair labour practice, therefore, the case of the petitioner does not fall within the ambit of the provisions invoked by them so as to attract the jurisdiction of this Commission as this is not the case of unfair labour practice. He further contended that since the petitioner has neither impleaded the union nor the workers, therefore, the prayer clause of the petition is outside the ambit and scope of the power conferred upon the Commission. In support of his contention, he sought reliance upon the following cases:--
(1) 1992 PLC 405,
(2) PLD 1991 SC 353,
(3) 1988 SCMR 765,
(4) PLD 1993 SC 133,
(5) 1991 NLR 707,
(6) PLD 1965 SC 338,
(7) PLD 1986 SC 169,
(8) PLD 1975 SC 331,
(9) Full Bench decision in Appeal No,12(61) of 1999 (Pakistan Sport Board v. Pakistan Sports Board Employees Union).
22. I have given my anxious consideration to the submissions made by the learned counsel for the petitioner and the respondents regarding maintainability of the instant petition and applicability of section 1(3)(a) of I.R.O., 1969 to the employee of the petitioner establishment namely AWT Cement Plant Nizampur.
23. To determine the controversy involved, it appears appropriate to reproduce hereunder the word "Beneficiaries" as defined/interpreted in the Memorandum and Articles of Association of the Trust:- - 'Beneficiaries" shall mean citizens of Pakistan including FATA and citizens of Azad Kashmir who are serving or have served in the Pakistan Army including Azad Kashmir Regular Force and Ex.
Servicemen of the pre-independence Indian Army in all ranks, including ,Civilian Employees of the Armed Forces and their dependents."
' A plain reading of the above quoted definition would show that the "Benenficiary" shall be citizens of Pakistan, FATA and Azad Kashmir who are serving or have served in the Pakistan Army including Azad Kashmir Regular Forces and civilian employees of the Armed Forces and their dependents besides Ex-Servicemen of the Army. It cannot, therefore, by any stretch of imagination be said, that the object and purpose of the Army Welfare Trust and its units is not connected with or incidental to Armed Forces within the meaning of section 1(3)(a)of I.R.O., 1969. It may be pertinent to quote hereinbelow, section 1 of the I.R.O., 1969 which read as follows:-- Short title, extent application and commencement:--
(1) This Ordinance may be called the Industrial Relations Ordinance, 1969.
(2) It extends to the whole of Pakistan.
(3) It shall not apply to any person employed:--
(a) in police or any of the Defence Services of Pakistan and any services or installations connected with or incidental to the Armed Forces of Pakistan including an Ordnance Factory maintained by the Federal Government.
(b) .
(c) .
(d) .
23. The above provision of section 1(3)(a) of I.R.O., 1969 was interpreted by the Hon'ble Supreme Court of Pakistan in case of Canteen Stores Department Employees Welfare Union Karachi v. The Canteen Stores Department and others (1983 SCMR 1101), wherein it was held that:-- "After the decisions given by the Sindh High Court (Writ Petition No,332 of 1973) and the Peshawar High Court there remains no conflict in views on the subject. Besides the object of C.S.D. When it was a Government undertaking and even after it ceased to be so was-and has been not only to supply the entitled personnel with articles of standard quality of daily use, but what is more important to form the basis of an efficient Canteen Organization in peace and war for troops located anywhere in the country and operational area during the war. The aspect of the purpose of C.S.D. Clearly makes it out to be an Organization connected with Armed Forces, and hence covered by exemptions prescribed in subsection (3) of section 1 of the Industrial Relations Ordinance. It is in the context irrelevant whether it is a Government Department or a private commercial organization, because certain categories of the employees of the Government are in fact governed by Industrial Relations Ordinance while certain other private commercial organizations stand excluded from its operation as was the case of United Builders and Associates".
24. It may be further submitted that the provisions of section 1(3)(a) of I.R.O., 1969 was also examined by a Division Bench of the Hon'ble Peshawar High Court in the case of National Radio and Telecommunication Corporation Employees and Workers Union Haripur v. Labour Appellate Tribunal N.-W.F.P. And 3 others (1990 PLC 218). The relevant portion of the judgment is reproduced below:- "Regarding the applicability of section 1(3)(a) of I.R.O., in the case of the petitioner-Union, again we find that the contention of the learned counsel for the petitioner, in the light of the factual aspect referred to in the impugned judgment of the learned Labour Court, has no substance inasmuch as from the material brought on record, there is no doubt in our minds that notwithstanding the fact of registration of N.R.T.C. As private Limited Company, the Organization is certainly connected with an incidental to the Armed Forces as is evident from the constitution thereof as also the total financial and complete administrative control of Government of Pakistan through Ministries of Defence and Communications. It is also undisputed fact that the N.R.T.C. Does manufacture electronic equipment for the supply to and for the use of the Armed Forces of Pakistan."
"In this context of the matter, we have no hesitation in holding that the persons employed in, or working for the N.R.T.C. Which is installation connected with the Armed Forces of Pakistan, or even remotely connected therewith, cannot avail of the provisions of I.R.O. In matter of enforcing their rights otherwise conferred on them thereunder by way of forming or getting registered, a trade union. We are, therefore, of the firm opinion that both the learned lower forum have rightly held the de-registration of the petitioner-Union as valid in view of the provisions of I.R.O. Being inapplicable thereto under section 1(3)(a)(ibid). We drew strength, in this view of ours, from decisions in cases United Builders and Associates v. Presiding Officer, Punjab Labour Court No,1 and others 1976 PLC
855. Din Muhammad alias Dona v. Manager, Army Stud Farm Dipalpur, District Sahiwal 1978 PLC 261, Rehmat Gill and others v. Quetta Cantonment Board PLD 1983 SC 113, Wah Bofors Workers Trade Union v. Registrar Trade Unions, Rawalpindi Region Rawalpindi 1980 PLC 828 and an unreported judgment of this Court in Civil Revision No,26 of 1986 (Government of N.-W.F.P. And others v. N.R.T.C.
And others 'decided on 4-3-1986)".
25. The aforesaid decision of the Honourable Peshawar High Court was upheld by the Hon'ble Supreme Court in the case of Haji Malik Aman and 3 others v. Federation of Pakistan through Secretary Ministry of Law, Justice and Parliamentary Affairs and others (1993 SCMR 1837). The relevant portion of the judgment is reproduced below:-- "Public Order" refers to peace and security of local nature so that function of an establishment can be carried out in an orderly way. The combined effect of Article 8(3) and Article 17(1) of the Constitution is that reasonable restriction can be imposed in the interest of public order relating to an establishment having incidental relations with the Armed Forces. The formation of an association is subject to certain restrictions. The applicants are connected with the Armed Forces.
The paramount duty of the Armed Forces is to protect the country from external aggression and to save it from internal disorder (Article 245 of the Constitution). If they are permitted to form a trade union then all the provisions of the Industrial Relations Ordinance would apply. They may raise industrial dispute. They may call for strike and thus force the management to stop the production.
The smooth supply of the goods to the Armed Forces would be disrupted. Supply of equipment to the Armed Forces by the respondent should be free from impediment. If the contention of the appellants accepted, the law would also cover the Ordnance Factory maintained by the Government. The restriction imposed by section 1(3) of the Ordinance is directly connected with the public order and is not remote. There exists an immediate connection between restriction and public order. This is necessary for the maintenance of public order. The provision is neither unreasonable nor does it infringe any fundamental right of the appellants. The restriction is reasonable and not violative of Article 17(1) of the Constitution."
26. Before dilating upon the circumstances wherein a party can claim exemption from the operation of I.R.O., 1969, it would be appropriate to review ratio decidendi of the reported judgments placed for consideration in this case: I. Gamon (Pakistan) Ltd., Rawalpindi v. Muzaffar Khan and 7 others (1974 PLC 10). In this matter respondents were employees of Gamon (Pakistan) Limited. The organisation deals with construction work. It was assigned construction work of the Ordnance Depot. Labour Appellate Tribunal Punjab, held that irrespective of company being private concern for the limited purposes of construction of Ordnance Depot its employees were not regulated by provisions of I.R.O.
II. Workers Union v. Registrar Trade Union (1976 PLC 322). The construction company was assigned work by Pakistan Navy at Islamabad for construction of its residential complex. It was held by Punjab Labour Court, that workers employed by Construction Company for the implementation of said project would be deemed to perf9rm functions incidental to services rendered for Armed Forces whereby provision of I.R.O. Would be inapplicable. III. United Builders and Association v.
Presiding Officer Punjab Labour Court No,1 and others (1976 PLC 855). Petitioner Company was engaged in constructing Highway of National importance under the control of Armed Forces.
Persons employed by the contractors for implementation of said contract work were found immuned from availing benefits of I.R.O. For enforcing their rights till completion of road- construction-work controlled by the forces. IV. Din Muhammad alias Dona v. Manager, Armed Stud Farm Depalpur, District Sahiwal (1978 PLC 261) services of appellant were terminated by the employer but directed to be restored by Labour Court. On reappraisal, it was decided that purpose of Farm was to produce horses and mules for the use of Armed Forces of Pakistan and its income eventually to the utilized for rehabilitation of the servicemen, Ex-Servicemen and their familities therefore by virtue of section 1(3) provisions of I.R.O. 1969 were found inapplicable.
V. Abdul Rashid v. Muhammad Sahfi Bhatti, Manager Military Dairy Faim, Malir Cantt. Karachi (1979 PLC 148). It was found by the Sindh Labour Appellate Tribunal that Dairy Farm was connected with defence services, therefore, application of I.R.O. Was excluded and jurisdiction of Labour Court clearly barred. VI. Rahmat Gill and another v. Quetta Cantonment Board (PLD 1983 SC, 133). Action was taken against two employees of Quetta Cantonment Board; one being sweeper and other a Chowkidar. It- was held that services of said persons were of essential nature and Cantonment Authorities being attached to Armed Forces, Service of aforementioned employees were incidental to and directly concerned with Armed Forces thus excluding application of I.R.O.
VII. Canteen Stores Department Employees Welfare Union, Karachi v. Canteen Stores Department and others (1983 SCMR 1101). In this matter employees of Canteen Stores Department were found to be excluded from the ambit of Industrial Relations Ordinance by virtue of its section 1(3). It was observed that C.S.D. Employees had to provide service to Armed Forces, therefore, covered exemptions prescribed under I.R.O.
VIII.National Radio and Telecommunication Corporation Employees and Workers Union, Haripur through its General Secretary v. Labour Appellate Tribunal, N.-W.F.P. Peshawar and others (1990 PLC 218). It was held that employees were working in Company having installation connected with Armed Forces, because electronic-equipment manufactured by the said organization were being used and supplied to Armed Forces of Pakistan. Thus provisions of Industrial Relations Ordinance was not applicable to its employees. IX. The Controller Stationery and Forms Government of Pakistan v. Registrar Trade Unions, Sindh and others (PLD 1991 SC 353), in this case the employees of the Department were foUnd to be excluded from the ambit of Industrial Relations Ordinance, 1969 by virtue of section 1(3)(a) and it was observed that the Department Controller of Stationery and Forms had to provide service to the Armed Forces therefore, covered by -the exemption prescribed under I.R.O., 1969.
X. Haji Malik Aman and 3 others v. Federation of Pakistan through Secretary Ministry of Law, Justice and Parliamentary Affairs (1993 SCMR 1837). In this case it was held that employees were working in the Company having installation connected with Armed Forces because electric equipment manufactured by the said organization were being used and supplied to Armed Forces of Pakistan. Therefore, provision of I.R.O., 1969 was not applicable to its employees. XI. Pakistan Fertilizer Ltd. Mazdoor Union and 2 others v. Pakchina Fertilizer Ltd., Haripur and 3 others (Writ Petition No,259 of 1999) Peshawar High Court, Abbottabad Bench. In this case, it was held that since the respondent establishment supplies ammonia (gas) to the Wah Ordnance Factory and is connected and incidental to the Armed Forces of Pakistan thus it comes within the ambit of section 1(3)(a) of I.R.O., 1969 and hence no union can be formed.
27. In all the above quoted cases, it is apparent that functions performed by the employees of various concerns were either incidental to or directly connected with the duties/obligations related to Armed Forces. As such provision of section 1(3)(a) of I.R.O., 1969 were found to be totally applicable. In the instant case it is an admitted position that the petitioner-Company is supplying special cement to the Armed Forces for its defence projects:. This position has been even admitted by the respondent No,1 in his cross-examination. Applying the aforesaid principle to the instant case, it is quite clear that supply of special cement to the Defence-Projects makes it out the petitioner establishment to be an organization connected with Armed Forces and hence covered by the exception prescribed under section 1(3)(a) of I.R.O., 1969. I, therefore, see no reason to have a different interpretation. In this context of the matter, I have no hesitation in holding that employees of the petitioner's establishment are excluded from the application of I.R.O., 1969.##TE#
28. Though the learned counsel for the respondents attributes mala tides to the petitioners, but he failed to point out any details of mala fides against any Officer of the petitioner's management. The sole question for determination according to the documents placed on record and which are not rebutted by the respondents is whether or not the petitioner's establishment is incidental to or connected with the Armed Forces. In such view of the matter other aspects regarding maintainability of the petition raised by the respondents do not need any consideration.
29. It may be submitted that on 6-10-2002 the respondent No,1 Zainul Abidin has filed two applications i,e, one is under Order 3, rules 2, 3 and 4, C.P.C. Read with Regulation 19 of N.I.R.C.
(Procedure and Functions) Regulations, 1973 and the other one under Order 7, rule 11, C.P.C. Pages 452 to 456 of the tile). In the first application it has been claimed that after remand of the case, the petitioner who is no more in the employment had neither made a single appearance nor even otherwise has engaged any agent/representative or leader. He also failed to appear in the witness box. He prayed that the petition may be dismissed for non-prosecution and non-appearance of the petitioner. In support of his contention he placed reliance on the cases reported in (I) PLD 1965 SC 338 (II) PLD 1986 SC 69 and (III) PLD 1975 SC 331. In reply to this application, learned counsel for the petitioner's management has vehemently controverted the submission of the respondents Nos.1 and 2 and reiterated his contention as raised in the parawise comments that the petition was filed on behalf of the management of Army Welfare Trust Cement Plant Nizampur through its Senior Manager (Admn.) Col. (Rtetd.) Feroze Khan who has retired from service in the year 1997. It is also contended that in the decisions passed by the Single Bench and Full Bench of the this Commission and Honourable Division Bench Peshawar High Court, Peshawar it has already been held that this petition is filed by the establishment/management through Col (Retd.) Feroze Khan, the then Senior Manager. (Admn.) of the petitioners Factory in his official capacity with the authority of the Management. He has retired from his service in 1998. The petition is now being pursued by Habib-ur-Rehman General Manager of the plant who has the authority letter from the Management in this behalf and the same is on record of the case before the Commission. Further this objection has never been raised before the Commission or the High Court verbally or in writing at any stage. Rather in the High Court all the contesting parties agreed and jointly submitted that evidence be recorded and findings be given on the relevant issues by this Commission instead of the Registrar Trade Unions, Peshawar. It is also submitted that the counsel appearing on behalf of the petitioner is representing the establishment and is an authorized pleader of the management.
He prayed that the application being frivolous and vexatious may be rejected. Agreeing with the submissions made by the petitioner management, I have no hesitation to dismiss this application in the light of the order dated 30-1-2002 passed by the Honourable Peshawar High Court, Peshawar with the consent of all the contesting parties.
30. In his other application under Order VII, rule 11 C.P.C. It has been contended by the respondent No,1 that since registration of the respondent-Union is challenged on the ground that the provisions of I.R.O., 1969 are not applicable to the establishment of the petitioner, the instant petition is not maintainable because the union in dispute is not an industrywise trade union, therefore, this Commission has no jurisdiction to entertain this petition. It has also been contended that since there is no apprehension that unfair labour practice will be committed, the petition is therefore, liable to be dismissed. He prayed that the petition having been abated merits to be rejected.
Repelling the objection to the competency of the petition, the petitioner's management has taken legal objections that since this objection has never been raised before the Commission or the High Court verbally or in writing at any stage and also these issues stand decided by the Honourable Peshawar High Court Peshawar vide order dated 30-1-2002 with the consent of all the contesting parties, therefore, the respondents Nos.1 and 2 are estopped to move this application. In this connection he sought reliance upon the cases (1) PLD 1978 Karachi 612, (II)
1993 SCMR 1533 and (III) 1998 SCMR 1964. It is also contended on behalf of the petitioner's management that it is within the competence of this Commission to decide the issuance of applicability or non-applicability of I.R.O., 1969 to the establishment of the petitioner. It is further contended that in view of the decision of the Honourable Division Bench of the Peshawar High Court, the powers to be exercised by the respondent No,3 have been entrusted to this Commission with the consent of all the contesting parties.
31. It is next contended by the petitioner management that the petition is not abated and the controversies between the parties are ought to be decided by this Commission as directed by the Honourable Peshawar High Court Peshawar vide order dated 30-1-2002. In view of the above position, I am inclined to agree with the contention of the petitioner's management and hold that the petition has not abated and the issues involved in this petition falls within the scope of section 16 of the I.R.O., 1969. Accordingly the instant application of the respondent No,1 is rejected.
32. It may be further submitted that the case-law quoted by the learned counsel for the respondents Nos.1 and 2 "1992 PLC Page 405 titled SWE-Pak Pharmaceuticals Ltd. v. Registrar Trade Unions, Balochistan and another is of different nature wherein the petitioner's Company is manufacturing intravenous solution being life saving drugs besides its marketing throughout the country and also abroad and in case of any failure or interruption, it would not affect the functions of any section or service incidental to or connected with Armed Forces, while in the case of the petitioner-establishment, the failure in manufacturing of special cement for the defence projects would adversely affect the functions/services of the Armed Forces. Thus the petitioner's establishment namely AWT Cement Plant Nizampur is an establishment which is connected with and incidental to the Armed Forces of Pakistan.
33. As discussed above, on minute examination of the pleadings of the parties and their respective versions, I find that the petitioner succeeded in proving that the petitioner's establishment namely AWT Cement Plant Nizampur, manufacturing/supplying special cement to the Armed Forces for the defence projects and this aspect of the purposes of the petitioner-establishment clearly makes it out to be an organization connected with and incidental to the Armed Forces and hence covered by exemption prescribed in section 1(3)(a) of I.R.O., 1969. I, therefore, no hesitation in holding that the persons employed in or working for the petitioner's establishment which is an installation connected with the incidental to the Armed Forces of Pakistan are covered by the exemption of prescribed under section 1(3)(a) of 1969 and accordingly the employees of the petitioner- establishment are excluded from the application of I.R.O., 1969. Thus the act of forming and registration of Awami Labour Union Army Welfare Trust Cement Plant Nizampur is against the law and violative of I.R.O., 1969.##TE#
34. For the foregoing reasons, I am inclined to allow this petition and direct the respondents Nos.1 and 2 not to involve in the formation of any trade union in the establishment of the petitioner. The respondents Nos.1 and 2 and other workers of the petitioner's establishment are also permanently restrained from committing any act of unfair labour practice. Similarly respondent No,3 namely Registrar of Trade Unions, Peshawar Region N.-W.F.P. Is restrained from issuing registration certificate to Awami Labour Union AWT Cement Factory Nizampur. With the above observation this petition is hereby allowed. No order as to cost. File be consigned to record.