' S. ALI ASLAM JAFRI; J.---This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, has been filed by KESC Labour Union and Muhammad Akhlaq Khan who is employee of respondent No,2 working as office Superintendent and was also Chairman of the registered Trade Union namely KESC Labour Union, which was registered as an industrywise Trade Union with respondent No,3 under the Industrial Relations Ordinance (IRO) 1969, since repealed and replaced by IRO XCI of 2002 on 26-10-2002.
2. The petitioners have sought the following relief in this petition:-- "1. Declare that the Industrial Relations Ordinance (Amendment) Ordinance No,VIII of 1999, 27-5- 1999 and No,XVI of 1999 24-9-1999 are ultra viries of the Constitution and have been issued without any lawful authority and is of no legal effect. II. Declare further that in absence of legislation which may warrant the cancellation of registration of trade union, the registration of trade union is valid, legal and subsisting and does not suffer from any legal defect. The unions have legal right to apply for referendum and perform all such functions conferred on union under the I.R.O., 2002.
III. Declare that the impugned judgment dated 26-8-2003 at Annexure 'H by the respondent No,3 is without lawful authority and of no legal effect, quash the same and direct the respondent No,3 to proceed for holding the referendum as required under the Industrial Relations Ordinance without any further delay. IV. Any other relief as the circumstances may warrant and this Hon'ble Court may deem fit. V. Award cost."
3. It is the case of the petitioners that on 27-5-1999 an Ordinance was promulgated amending I.R.O.
XXIII of 1969 by adding "the Karachi Electric Supply Corporation" under Clause (i) to Sub-section (3) of Section 1 as one of such establishments to which I.R.O., 1969 shall not be made applicable. The said Ordinance was not placed before the Parliament as per requirement of Article 89 of the Constitution and consequently it lapsed. However, a new Ordinance being No,XVI of 1999 to the same effect was promulgated on 24-9-1999. Both these Ordinances were challenged by the petitioners through CP No,D-1117/1999 which was heard by a Division Bench of this Court on 15-2- 2000 along with other petitions and since fundamental rights at the relevant time were suspended in view of emergency promulgated on 14-10-1999, therefore, relief was denied in respect of the impugned Ordinances' with an observation that once temporary legislation is repealed, the same cannot be re-promulgated unless the conditions are available as ruled in the case of Collector of Customs v. New Electronic (Pvt.) Ltd. And others (PLD 1994 SC 363). Petitioners urged that conditions as envisaged in the above-cited case are not available as such the repealed Ordinances on the same subject are ultra viries to the Constitution. The petitioners further averred that under the new I.R.O. Promulgated in the year 2002,. The establishment of respondent No,2 is not excluded under the scheme of law and as such the provisions of I.R.O. Are fully applicable and registration of petitioner No,1 is legal, valid and still subsists as a trade union.
4. The petitioners further averred that petitioner No,1 applied to the Registrar of respondent No,3 for holding referendum under I.R.O. 2002 in order to determine CBA in the Establishment of KESC. The said application was objected and resisted by the employer/respondent No,2. The Member/RITU after hearing the parties before him rejected the application by holding that union was still inoperative and as such could not apply for the referendum. Case of the petitioners is that the registration of union was not cancelled under the impugned Ordinances and the same has remained intact. Since the Industrial Relations Commission as envisaged under I.R.O. Was not functioning at the relevant time as its Chairman and required number of members were not appointed, therefore, no appeal was preferred against the impugned judgment/order and as such this constitutional petition is competent and even otherwise there is no right of appeal against the order passed by respondent No,3.
5. After service of notice, respondent No,2 filed objections regarding maintainability of the petition mainly on the ground that against the order of the Single Member N.I.R.C. An appeal is provided under section 52 of I.R.O. 2002 and admittedly no such appeal was filed A by the petitioners as such the petition is liable to be dismissed on that short ground alone. In order to show that N.I.R.C. Was fully functioning and its Full Bench was hearing and deciding appeals at the relevant time, copies of the documents such as (i) Cause list of the Full Bench for 19-10-2004, (ii) Order passed by the Full Bench of the N.I.R.C. In appeal No,12(22)/2003 decided on 23-10-2003, and (iii) Copy of Gazette Notification No,1139(1)/72 dated 6-11-1972 in respect of constitution of National Industrial Relations Commission have been placed on record. This constitutional petition, according to respondent No,2 is a mere device to get out from the bar of limitation because appeal had to be filed within 30 days of the impugned order, which period expired on 26-9-2003, therefore, the petitioners have not come to the Court with clean hands. Another objection has been taken that in the scheme of I.R.O., 2002 it is only the trade union, which can be aggrieved by an order of cancellation of its registration and individual workman has no such position to be aggrieved in respect of trade union but his grievance is only limited to what has been provided under Section 9 (9) of the I.R.O.
2002.
6. Statement has been filed on behalf of Federation of Pakistan/respondent No,1 that the said respondent has been impleaded as a pro forma respondent as no relief has been claimed.
However, the amending Ordinances VIII of 1999 and XVI of 1999 have been defended and stated to be valid piece of legislation, as such cannot be deemed to be ultra vires of any Article of the Constitution.
7. We have heard Mr. Rasheed A. Razvi learned counsel for the petitioners, Mr. Faisal Arab, learned Standing counsel on behalf of respondents No,1 and 3, and Mr. Shahid Anwer Bajwa, learned counsel for the respondent No,2 at length.
8. Mr. Rasheed A. Razvi learned counsel for the petitioners has mainly argued that despite promulgation of the Ordinances impugned in this petition, the registration of the petitioner No,1/Union has remained intact, because to form a Union in an industry is a constitutional right of its employees under Article 17(1) of the Constitution of Pakistan, which cannot be snatched through a subordinate legislation in derogation and violation of the constitutional guarantees. In support of this contention, learned counsel has relied upon a number of cases including a Full Bench decision of the Hon'ble Supreme Court in the case of Civil Aviation Authority Islamabad and others v. Union of Civil Aviation Employees and another (PLD 1997 SC 781) and referred to the relevant portion dealing with the rights of employees union in Para-25 at page 818 of the said report' which reads as follows:- "An un-incorporated Union can function and for certain purposes it can be treated as a legal entity."
9. In Para-31 of the said report their Lordships have further held as under:-- "31 As regards the aforesaid constitutional petition, we hold that section 3 of Ordinance No,XV of 1978 whereby the registration of the unions functioning in the Corporation were purported to have been cancelled, is in conflict with Article 17(1) of the Constitution and, therefore, is void."
10. Our attention was also drawn to the observation made in Para. 33 of the said judgment, which reads as follows:-- "33 Before parting with the above discussion, we may again clarify that the union or unions of the employees of the Authority and the unions of the employees of the Corporation can function as unions by, virtue of Article 17(1) of the Constitution and can act as a collective bargaining agent which is inherent right in a union. But they cannot go on strike or to go slow in the absence of statutory backing."
"However, the employees of the Authority and the Corporation have the right to have their unions in view of Article 17(1) of the Constitution and the right to agitate their grievances peacefully and to negotiate with the employers for better terms of their employment. This right cannot be denied to them...."
11. Learned counsel, therefore, vehemently urged that existence of the union with certain rights cannot be disputed in view of the rule laid down by the Hon'ble apex Court in the above cited case and there being no specific provision of law in the two Ordinances cancelling the registration of the petitioners union, which even otherwise could not done being in violation of the constitutional guarantees envisaged under Article 17(1) of the Constitution, the Member/RITU, therefore, erred in law while holding that registration of the petitioners union stood cancelled, and on that wrong premise he declined to grant relief to the petitioners.
12. While attacking the impugned order, learned counsel for the petitioners argued that after promulgation of I.R.O. Of 2002 w,e,f, 29-10-2002 the petitioners union whose registration was never cancelled at any time, automatically became entitled for being governed ui,e,der the said Ordinance and to apply for certifications of CBA in the objector establishment as Sub-section (4) of Section 1 of Ordinance XCI of 2002 unlike Sub-section (3) of Section 1 of Ordinance XXIII of 1969, which stated that "if shall not apply to any person employed in various institutions as defined in Clauses (a) to Clause (i)", says that "it shall apply to all persons employed in any establishment or group of establishment or industry except those employed in (a) to (g)" and admittedly the respondent No,2 or its establishment does not find place in the said list of establishments. Indeed under proviso to Section 1, Federal Government has been empowered to suspend in the public interest by any order published in the official Gazette; the application of this Ordinance to any establishment or industry for a period specified in the order not exceeding six months at a time, but there is no such notification as well. Learned counsel, therefore, vehemently urged that Sections 6 & 24 of the General Clauses Act have no applicability to the case of the petitioners and the view taken by the learned Member/RITU is based on misconception of law.
13. Mr. Shahid Anwar Bajwa learned counsel for the respondent No,2 at the very outset pointed out that so far prayer No,1 regarding the legality and validity of the impugned Ordinances is concerned, learned counsel for the petitioner has not advanced any arguments and appears to have given- up the said prayer. We find force in this contention.
14. Learned counsel thereafter attacked the maintainability of the petition on the ground that no appeal has been filed despite remedy being available under Section 52 of I.R.O., 2002, hence the petition is liable to be dismissed on this score alone. In support of his plea he referred to a number of cases including Arif Yousuf v. Bahadur Ali Member NIRC and others (2002 PLC 79), Riaz Ahmed Malik v. Administrator. Municipal Corporation Bahawal Pur and others (2001 PLC 126), and Karachi Port Trust Labour Union v. Member NIRC 1997 PLC 470. To show that the appellate forum was available, learned counsel invited our attention to the documents placed on record by him viz. The Cause List and an order passed by the Commission. With regard to the right of petitioner No,2 to file this petition, as he was not a party before the respondent No,3, learned counsel argued that according to the well-settled principles of law as laid down in the case of H.M. Saya and Co. v.
Wazir Ali Industries Limited (PLD 1969 SC 65). Even a stranger if he is an aggrieved person can prefer an appeal against an order or judgment. Learned counsel while referring to the scope of writ/ constitutional petitions in this country with reference to Government of India Act 1935, Constitutions of 1956, 1962 and 1973, argued that a writ cannot be enforced under Article 199 of the 1973 Constitution when an alternate remedy is available. Learned counsel further argued that even if the impugned order suffers from any illegality, the grievance, if any, could be redressed in appeal, and such remedy has not been exhausted by the petitioners.
15. Mr. Faisal Arab learned Standing Counsel has also not supported the impugned order, and argued that no fresh registration is required under the new Ordinance, however, he insisted that alternate remedy by way of appeal should have been availed in the first instance.
16. We have given our due consideration to the arguments advanced by the learned counsel for the parties and perused the record made available.
17. Admittedly the petitioners did not avail the remedy provided under section 52 of I.R.O. 2002, and as such prima facie there appears to be force in the contention of the Mr. Shahid Anwer Bajwa learned counsel for the respondent No,2 that without exhausting the remedy available under a relevant provision of law, discretion to be exercised by this Court under Article 199 of the Constitution of Pakistan cannot be prayed for by an aggrieved person. Indeed, the case-lay/ cited by Mr. Bajwa lends support to his contention but the rule does not appear to be absolute. Even in the case of Karachi Port Trust Labour Union (Supra), a Division Bench of this Court while dealing with the issue has observed as under:-- "We do not wish to enter into this question because, as said time and again, relief in constitutional jurisdiction is a discretionary relief. The petitioner for seeking relief has, inter alia, to show that the petitioner would be aggrieved by the relevant order and that it is in the justness of things that the petition be entertained in the Court's constitutional jurisdiction."
18. Arguments advanced by Mr. Razvi have some force particularly with reference to the rule laid down in the case of Nagina Silk Mills, Lyallpur v. The Income Tax Officer and another (PLD 1963 SC 322), which reads as follows:-- "In the present two cases, writs of certiorari had been prayed for in the High Court for quashing the impugned orders which were alleged to suffer from lack of jurisdiction. The circumstances in which certiorari may issue to quash the orders of administrative Tribunals that are required to act judicially, fell for consideration in two recent cases decided by this Court and reported as S.A.
Haroon v. Collector of Customs, Karachi, (2) and Pakistan v. Ziauddin (3). In both cases certain orders passed by Customs authorities had been challenged by means of writ petitions in the High Court. It was laid down that the general rule undoubtedly is that it is wrong on principle to entertain petitions for writs except in very exceptional circumstances, when the law provides a remedy by appeal to another Tribunal, fully competent to award the requisite relief. At the same time. It was held that in cases of absence or excess of jurisdiction or where the impugned order suffers from illegality on the face of the record, a certiorari may be.Granted even though the right of statutory appeal has not been availed of. A certain amount of flexibility is allowed by the law in the case of a prayer for a writ of certiorari as compared with a case for a mandamus. It was further observed that if the application for certiorari is made by a party aggrieved, then it ought to be granted ex debito juztitiae and the High Court has not the general discretion which it would have, when the application is made by a member of the public, who is not personally concerned. This would specially be the case where the alternative remedy provided by the relevant statutes is not as efficacious, speedy or convenient as the one available under the writ jurisdiction of the High Court.
This principle would be found discussed in Ferris on Extraordinary Legal Remedies at petrol pump.
185-187, 1926 Edn. That relief in these cases could not have been obtained as quickly or with as such facility and convenience under the Act which provides for a series of appeals, revision and reference to the High Court on law points, on condition that the tax assessed is first paid, as by recourse to the writ jurisdiction of the High Court, can hardly be contested. It is at the same time conceded that the Income-tax Officer was required to act judicially in applying the provisions of the Act..
' Even where a particular statute takes away certiorari (and that result can only be achieved by express negative words) the English Courts have decided that certiorari may be granted where the inferior Tribunal has acted without or in excess of jurisdiction, for in such a case the Tribunal has not brought itself within the terms of the statute taking away certiorari, vide Halsbury's Laws of England, Vol. 11, Third Edn. P.130 paragraph 260."
19. Reliance can also be placed on a Full Bench judgment authored by Mr. Justice Ajmal Mian, ACJ (as his Lordship then was) in the case of Civil Aviation Authority Islamabad and others (Supra), Thus, in appropriate cases this Court is not precluded from exercising its jurisdiction and entertaining the petitions directly, even if an alternate remedy despite being available has not been availed by an aggrieved person. A similar question arose in the case of Standard Chartered v.
K.E.S.C. (PLD 2001 Kar. 344) before a Division Bench of this Court headed by the then Chief Justice Saiyed Saeed Ashhad. While referring to the rule laid down in (1) Nagina Silk Mills Lylpur (Supra), (2)
Water and Power Development Authority and another v. M.N. Steel Re-Rolling Mills and 23 others (1999 SCMR 494), (3) The Murree Brewery Co. Ltd. v. Pakistan and others (PLD 1972 SC 279); and (4)
Adamji Insurance Co. v. Pakistan and others (1993 SCMR 1798), his Lordship speaking for the Bench concluded that interference by Court in a constitutional petition was possible, if the impugned order sought to be challenged was culpable, illegal, mala fide and beyond jurisdiction irrespective of the fact that alternate statutory remedy was available to the aggrieved party.
20. A careful examination of the impugned order shows that the application of petitioner No,1 under Section 22(2) of I.R.O. 2002 for initiating proceedings for holding the referendum in the establishment of respondent No,2, resisted on behalf of the establishment of K.E.S.C. Was rejected by the learned Member/RITU while holding that Clause (i) of Section 1 of the repealed Ordinance i,e, I.R.O. 1969 unless specifically mentioned to have been so repealed, could not be deemed to have been repealed as the repeal of law is not recognized by implication unless intention of legislature to repeal is clearly apparent and that too free from all- doubts. Non-inclusion of the objector's employees in the amended Ordinance 2002 is intentional, hence the applicant trade union continues to remain excluded from the purview of the I.R.O. 2002 because any thing done, rule made or order issued under the repealed Ordinance shall be deemed to have been done or made or issued under the amended Ordinance meaning there by that exclusion clause in the repealed I.R.O, if not specifically revived in the amended I.R.O. Shall be understood to have not been revived.
Learned Member/RITU appears to have travelled in a wrong direction while declining the prayer of the petitioners by misinterpreting Sections 6 and 24 of the General Clauses Act though he has himself observed that "bare reading of the above Section of General Clauses Act would reveal that unless a different intention appears, the repeal shall not revive anything not in force or existing at the time of which the repeal take place", and on this score the learned Member/RITU inferred that since as a result of the amendments made in the year 1999 KESC as an establishment stood excluded from the operation of I.R.O., as such in the absence of a different intention, the repeal or Ordinance XXIII of 1969 shall not revive anything not in force or existing at the time when the repeal takes place. The view taken is based on misconception of law. A bare look at Ordinance XCI of 2002 would show that it has not only repealed Ordinance XXIII of 1969 as a whole but has been enacted to amend, consolidate and rationalize the law relating to formation of trade unions as well, and as such Sub-section (4) to Section 1 which reads as follows has excluded the applicability of the said Ordinance only to the persons employed in the establishment or group of establishments or industry as specified at (a) to (g) therein:- "1(4) It shall apply to all persons employed in any establishment or group of establishments or industry except those employed.
(a) in the Police or any of the Defence Services of Pakistan;
(b) in any installations or services exclusively connected with the ed Forces of Pakistan including Ministry of Defence lines of lways;
(c) by the Pakistan Security Printing Corporation or the Security Papers Limited or Pakistan Mint;
(d) in the administration of the State other than those employed as workmen by the Railways, Post Telegraph and Telephone Departments;
(e) by an establishment or institution maintained for the treatment or care of sick, infirm, destitute and mentally unfit persons excluding those run on commercial basis;
(f) by an institution established for payment of employees old-age pensions or for workers' welfare;
(g) as a member of the Watch and Ward, Security or Finance Service Staff of an oil refinery or of an establishment engaged in the production, transmission or distribution of natural gas or liquid petroleum gas or petroleum products or of a seaport or an airport: Provided that the Federal Government may suspend in the public interest, by an order published in the official Gazette; the application of this Ordinance to any establishment or industry for a period specified in the order not exceeding six months at a time."
21. Whereas a look at I.R.O. XXIII of 1969 as amended through amending Ordinances VIII of 1999 and XVI of 1999 shows that it shall not apply to any person employed in the categories mentioned therein. For ready reference Section 1(3) as duly amended is reproduced hereinafter: -- "1(3) It shall not apply to any person employed---
(a) in the Police or any of the Defence Services of Pakistan or any services or installations connected with or incidental to the Armed Forces of Pakistan, including an Ordnance Factory maintained by the Federal Government; or
(b) in the administration of the State other than those employed as workman by the Railway, Posts, Telegraph and Telephone Departments; or
(c) as a member of the Security Staff of the Pakistan International Airlines Corporation, or drawing wages in such pay group, not lower than group V in the establishment of that Corporation as the Federal Government may, in the public interest or in the interest of security of the Airlines, by notification in the official Gazette, specify in this behalf; or
(d) by the Pakistan Television Corporation or the Pakistan Broadcasting Corporation; or
(e) by the Pakistan Security Printing Corporation or the Security Papers Limited [;or]
(f) by an establishment maintained for the treatment or care of sick, infirm, destitute as mentally unfit persons [;or]
(g) as a member of the Watch and Ward, Security or Fire Service Staff of an oil refinery; or
(h) as a member of the Security or Fire Service Staff of an establishment engaged in the production, transmission or distribution of natural gas or liquid petroleum gas:
(i) by the Karachi Electric supply corporation."
22. The language used in the above referred two provisions of law when kept in juxtaposition clearly shows the intention of legislature and leaves no room for doubt to hold that while enacting Ordinance XCI of 2002 the law makers who are deemed to be aware of all existing laws at the relevant time, after repealing Ordinance XXIII of 1969, as duly amended from time to time; promulgated and made applicable the I.R.O. 2002 to all persons employed in any establishment or group of establishment or industry except those as specified in Clauses (a) to (g), where name of respondent No,2/Karachi Electric Supply Corporation does not find place. It is not the case of the respondents that in exercise of its power under proviso to section 1(4), the Federal Government has suspended, in the public interest, by an order published in the official Gazette; the application of this Ordinance to K.E.S.C.
23. Indeed, Section 6 deals with the-effect of repeal of a statute but while examining any repeal on the touch stone of Section 6 of the Act that it shall be applicable unless a different intention appears from the repealing enactment. Mr. Justice Zafar Hussain Mirza (as his Lordship then was) has examined the said effect of a repealed statute with reference to Section 6 of the Act in the case reported as Idrees Ahmed and others v. Hafiz Fida Ahmed Khan and others (PLD 1985 SC 376).
It will be beneficial to reproduce the relevant portion from the said judgment where his Lordship dealt with the matter which was 'postulated as early as 1829 by Lord Tenterden, and reads as follows:-- "The general rule as to the effect of repeal of a statute, was postulated as early as 1829 by Lords Tenterden thus; "When an Act of Parliament is repealed it must be considered (except as to 'transactions past and closed) as if it had never existed The effect of repealing a statute is to obliterate it as completely from the records of Parliament as it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced. Prosecuted and concluded whilst it was an existing law." This rule came to be statutorily recognized in section 38(2) of the Interpretation Act, 1889. In the law of our country analogous provision to that effect exists in section 6 of the General Clauses Act, 1897. The effect of repealing an Act passed after these statutes of general application is now governed by the saving provisions of these statutes. Thus by the force of clauses (C) and (e) of section 6 of the General Clauses Act, unless a different intention appears from the repealing enactment, the repeal ipso facto will not affect any right, privilege, obligations or liability acquired, accrued or incurred under any enactment so repealed; affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid; and any such investigation, legal proceedings or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing enactment had not been passed."
24. Thus, despite absence of any specific provision of repeal relating to Ordinances VIII and XVI of 1999, the intention of the legislature is clear that after repeal of Ordinance XXIII of 1969 as amended from time to time including amendments made in 1999, new I.R.O. Has been promulgated in the year 2002, in order to amend, consolidate and rationalize the law relating to formation of trade unions, regulation and improvement of relations between employers and workmen and avoidance and settlement of any differences or disputes arising between them and by no stretch of imagination of law, it could be presumed that the parent Act/Ordinance/Law though repealed, the amendments made in 1999, which in fact merged into the parent Law/Ordinance have survived in isolation. It was on this score that learned Standing Counsel also did not support the impugned order.
25. We may observe here that after having arrived at a conclusion that impugned order is based on misconception of law, we are of the considered view that despite remedy of appeal having not been exhausted, since the impugned order which is also in violation of Article 17(1) of the Constitution has come to our notice, and if allowed to remain in field on the plea that alternate remedy has not been exhausted by the petitioners refusal of relief to the petitioners would rather amount to perpetuate a wrong. Reference can be made to the view taken in PIAC v. Chairman, Punjab Labour Appellate Tribunal (PLD 1979 Lahore 415), while following Wali Muhammad and others v. Sakhi Muhammad and others (PLD 1974 SC 106).
26. For the reasons discussed above, we would set aside the impugned order and direct the Member/RITU to rehear the matter while treating petitioner No,1 as a registered trade union, and pass orders afresh on the application of petitioner No,1 while treating it as pending, without being influenced by the order passed earlier by him, within a reasonable time and preferably not beyond a period of 90 days from the receipt of this order. This petition stands disposed of in the above terms. CMA No,535/2005 is also disposed of having infructuous in view of the final disposal of this petition.