' MUHAMMAD SHABBIR JAMAL (MEMBER).--- This appeal that has been filed under section 52 of the Industrial Relations Ordinance, 2002 is directed against the impugned order, dated 4-9-2007 passed by the Honourable Chairman/RITU in case No,19(12) of 2007 whereby the entire establishment of Balochistan Engineering Works Limited has been declared under section 54 of the said Ordinance as one Collective. Bargaining Unit (CBU) for a period of four years, on an application filed by Mehnat Kash Union, Balochistan Engineering Works Limited. The impugned order has been assailed by the appellant on the ground that the applicant union that is respondent No,l. Failed to make respondents Nos.8 and 9 parties in the proceeding for determination of CBU for the entire establishment. It is contended that the appellant and respondents Nos.8 and 9 were unheard and therefore, the declaration of one CBU for the said establishment was illegal without jurisdiction and of no legal effect. It is also contended that respondent No,1 had malfidely made respondent No,7 as party but not respondents Nos.8 and 9.
The appellant has also challenged the registration of the respondent No,1 contending that it does not qualify to be registered as industry-wise trade union because it does not have membership from all the Provinces. It is contended that respondent No,1 has membership of only those workers who are employed at Hub and also it lacks representation in the office-bearers from other establishments. It is contended that the nature of work of each unit of the establishment is different from others and each has its own CBA. It is contended that there is neither any sameness of character nor it is convenient for the tribal society like that of Balochistan to have one CBU. It is further contended that the manufacturing process of Yamaha motorcycle takes place at four places at Hub and Uthal, whereas Marketing and Accounts Departments are at Karachi. It is contended that the factory administration and management in all the five factories are different from each other. It is alleged that management's support to the applicant for one CBU which was without the consent of workers is against the interest of workers and also to avoid the benefits of labour laws to workers. It has been prayed by the appellant on these grounds that the impugned order may be set aside with special cost and any other relief that deems to be fit and proper in the circumstances may also be allowed in the interest of justice.
2. The instant appeal is accompanied by an application under section 78 of the Industrial Relations Ordinance, 2002 along with affidavit praying for condoning the delay in filing the appeal in the interest of justice. Balochistan Engineering Works Limited on behalf of respondents Nos.2-6 filed an application along with counter-affidavit with the prayer to dismiss the said application to condone the delay and to dismiss the appeal as a consequence thereof. The applicant/appellant in his affidavit has stated that the respondent No,1 has concealed the fact that the appellant union is registered and is CBA. It is contended by the applicant/appellant that workers employed in the respondent-establishment are members of his union and none of the member of his union is member/office-bearer of the respondent No,l. It is further contended that the appellant had moved an application for cancellation of the registration of the respondent No,1, which was fixed for hearing on 1-11-2007 and during the course of hearing in person he came to know about the impugned order dated 4-9-2007 regarding declaration of one CBU in the entire establishment. It is further stated that he applied for the certified copy of the said order on the same day which was supplied to him on the same day. It is contended that their appeal, dated 8-11-2007 was filed after consultation with office-bearers of the union and after making other necessary arrangements including arrangement of funds for the same. It is contended that the limitation of one month time to file the appeal will, therefore, start running froth 2-11-2007 and so his appeal is within time. It is prayed that the appellant and office-bearers of appellant union will suffer irreparable loss if their application for condoning the delay is not accepted.
3. The application for condoning the delay was resisted by the respondents Nos.2-6 by filing counter-affidavit on the grounds that the affidavit under the law and the constitution of the union could be filed by the President and or the General Secretary of the appellant union and not the Finance Secretary. It is contended that the claim of Jawan Sal that on 1-11-2007 the appellant came to know about the impugned order, dated 4-9-2007 overlooked the fact that each day of delay in filing the appeal had not been explained by the said Finance Secretary who was seeking the delay to be condoned. It is further objected that the Finance Secretary has not filed any order of the Court of law including diary sheet of the Court to show his attendance/presence in NIRC on 1-11-2007. It is contended that the statement of the Finance Secretary in this regard is based on mala fide intention. It is contended that the appeal filed by the appellant is time-barred by 68 days and he has not accounted for each day of delay. The counter-affidavit so filed has denied as incorrect that respondent No,1 has obtained the order of the Honourable RITU as Bench of the Commission in league with the management of the respondent establishment. It is pointed out that the impugned order was passed on 4-11-2007 and not on 1-11-2007, therefore, limitation of one month will run from the former date and not from the later date as contended by the appellant. It is further contended that excuses of poverty and time taken beyond the given period of limitation is no ground for condoning the delay, therefore, balance of convenience is not in his favour but is in the favour of the other side. On these grounds it has been prayed in the counter-affidavit that the application for condoning the delay may be dismissed and as a consequence the instant appeal be disposed of as dismissed being time-barred.
4. The application for condoning the delay was also opposed by the respondent No,1 by filing counter-affidavit wherein it is contended that the appeal is time-barred and reasons given for condoning the delay in filing it as well as affidavit are false and incorrect and so the appeal is liable to be dismissed. Amongst other grounds it is contended that at the time of declaration of one CBU one Rahim Buksh of the Labour Union was also present whose name is appearing in the impugned order.
5. Arguments of the learned counsel for appellant, respondent No,1 and respondents Nos.2-6 were heard on 2-1-2008. One Mr. Khalid Mehmood who was present in the Court stated that he was present on behalf of respondent No,8. Mr. Zakaullah Khan Khalil, Deputy Registrar was present to assist the Court on behalf of the Honourable RITU. After hearing the arguments of the said parties it was also directed that before the announcement of the order to dispose of this appeal on 22-1- 2002 (the date which was fixed for the purpose) if the parties in the meanwhile wanted to send any written comments/arguments they could do so. While the learned counsel for respondents 2-6 had already submitted synopsis of his written arguments, the appellant, respondent No,8 and respondent No,9 also submitted written arguments in the mean time.. Respondent No,7 had already submitted no objection to the filing of the present appeal. In the meanwhile rejoinder has also been filed on behalf of the appellant to the counter-affidavit already filed by the respondent No, 1 . In the aforesaid rejoinder filed on behalf of the appellant the contents of the present appeal are stated to be true and the contents of counter-affidavit filed by respondent No 1 have been opposed while reiterating the contents of his earlier affidavit having been already filed.
6. The appellant and respondents Nos.7-9 have opposed the determination of one CBU on the common grounds by endorsing the contentions of the memo. Of appeal that is to say that the appellant is registered union and CBA in respect of respondent No,4. It was further argued that similarly respondents Nos.7, 8 and 9 respectively were registered unions and CBAs. In respect of respondents Nos.3, 2 and 5. It was further argued that all the unions were registered with the local Registrars and all were functioning as CBAs. It was further argued that there was no linkage between these unions, though they were affiliated with different federations. It was stated that each of the respondents had separate addresses. It was further stated that respondent No,6 had registered office at Karachi whereas all others i,e, appellant and other respondents had office in Balochistan. It was argued that the respondent No,1 applied for registration as industry-wise trade union which was registered with NIRC on 28-9-2007. It was contended that respondent No,1 did not have any membership in any Province and in any industry. It was further contended that its office- bearers belonged to Hub only. It was stated that the appellant had applied for cancellation of its registration. As for the appeal to be time-barred it was stated that impugned order was passed on 4-9-2007 whereas appeal was filed on 13-11-2007, according to which it was filed after 2 months and 9 days. In this regard it was contended that that appellant had the knowledge of the impugned order on 1-11-2007 at the time of hearing of their application for cancellation of the registration of the respondent No,1 which was moved by him on 9-10-2007. It was argued that limitation would start from 2-11-2007 as the matter of one CBU came to his knowledge on 1-11-2007.
It was argued that in that regard an affidavit was filed by the appellant which was on record at pages 42-43 of the case file. He drew attention to paragraph 4 of the affidavit of the appellant wherein it is contended that the orders were obtained by respondent No,1 in league with management, by concealing the facts about non-joinder of parties in the proceedings under section 54 of I.R.O., 2002. It is further contended that limitation of one month to file the appeal will start from 2-11-2007 and so his appeal is within time whereas he has filed application to condone delay as a matter of caution. It is further argued that if any inquiry was held in order to determine CBU, the same would be without the knowledge of the appellant and so was not binding on him.
The order obtained under such inquiry has, therefore, been contended as void. It is argued that for a void order there is no limitation. It was further argued that counter-affidavit was filed by respondent No,1 to which the appellant had filed rejoinder which is present on the case file. It was further contended that appellant union and unions mentioned as respondents Nos.8 and 9 in the title of the appeal were not made party in the proceeding for determination of the CBU. It was argued that on these grounds the impugned order, dated 4-9-2007 passed by the Honourable RITU/Chairman was liable to be set aside.
7. The learned counsel for respondents Nos.2 to 6 opposed the contention/arguments of the learned counsel for appellant first on the ground of limitation that is the filing of appeal is time- barred and second on merit. In so far as point regarding limitation is concerned, he reiterated his contentions given in the counter-affidavit as described above. In this regard it was argued by him that the law provides 30 days' time for filing appeal whereas the same has been filed after 68 days.
It was argued that the door of justice is closed after the appeal is filed beyond the period of limitation. In this respect he relied on the judgments reported as 1998 SCM R 1354 (at page 1357); PLD 2003 SC 628, 2000 SCM R 30 (at page 33); 2001 PLC 143 (Full Bench, NIRC) and 2001 PLC 143. It was further argued that grounds taken in the appeal are not proper grounds for condonation of delay. Even poverty has been held to be no ground for condonation of delay by the Supreme Court of Pakistan. It is further argued that the well-settled principle of law is that the party who knocks at the door of the Court is expected to be diligent as held in PLD 2001 SC 49 (at page 53). It was also argued that in case the appeal was filed beyond the period of limitation, it was liable to be dismissed as held by the Supreme Court of Pakistan in 2007 PLC 64, 2007 Tribunal Decision 27 (Supreme Court), 2003 SCM R 1346 and as also has been held by the Karachi High Court in 2004 PLC 155, PLC 1979 (Karachi) 692 and PLD 1976 Kar.
200. It was argued that the well-settled law was that each day's delay is to be explained as held by Supreme Court of Pakistan in 2003 SCMR 30 at page 33, 2003 SCM R 604 and 2002 SCM R 1903.
8. The learned counsel for the respondents Nos.2 to 6 has further argued that the appeal is not maintainable because the appellant did not apply to RITU before whom the original proceedings were pending to be impleaded as a party to the same. It has been argued that it is, therefore, not open belatedly for the present appellant to file the appeal before the Full Bench of NIRC without being party to the original proceedings before the RITU as a Bench of NIRC. In this regard he has relied on the judgment reported as 1970 SCM R 681 and SBLR 2004 Sindh 975. It has been further argued that the well-settled principal of law is that appeal is a continuation of lower Court proceedings. It is contended that the powers available to the Bench of the Commission are equally available to the Full Bench of the Commission. It is argued that if the appellant for any reason has not been heard by the learned RITU acting as a Bench of the Commission, there is nothing to prevent the Full Bench of the NIRC before whom all including appellant are now appearing to argue the case on the ground that no CBU be certified and declared by the Full Bench of the NIRC. It is further argued that the powers of the Full Bench of Court are akin to the power of lower Court, against which appeal has been filed has been held to be available before the appellate forum in the judgment 1964 PLC 593 (Division Bench, Karachi High Court).
9. The other aspect of the matter to which the learned counsel for respondents. Nos.2 to 6 has drawn attention i,e, merit of the case is the amalgamation of Die Casters Ltd., Alpha Engineering Works Ltd., and Gears Hobbings Ltd. Into Balochistan Engineering Works Ltd., which has been approved by the High Court of Sindh in J.M.A. No,20 of 2002. A copy in this regard has been placed on the file. It is argued that one profit and loss account and one balance-sheet is going to be prepared for all the earlier units. It is stated that the company has its Head Office at Karachi and as a consequence thereafter all these separate units now constitute one establishment within the meaning of section 2(xi) of I.R.O., 2002 i,e, the definition of the term "establishment". It is argued that the appellant union claimed to be registered in one of the four units now amalgamated. It is argued that in para.1 of their appeal before this Court, die union has claimed that it is registered in respect of establishment of Balochistan Engineering Works Ltd. DCL, at Plot No,C-116 to C-125, HITE, District Hub, Lasbela. It is further argued that in other words the union is claiming to be registered in one of the 4 units, all now amalgamated to constitute one establishment. It is stated that the appellant is thus, registered only in a part of the newly defined establishment in terms of section 2(xi) of I.R.O., 2002. It is argued that even otherwise now the appellant union will have to change its constitution not only in the context of new definition of term "establishment" but also in the context of the Amalgamation/Merger Order of the High Court. It is further argued that this order of the learned RITU, dated 4-9-2007 can even be extended by the Honourable Full Bench in appeal in continuation of the lower Court proceedings, and be extended to all the unions including appellant union to amend its constitution both in the light of the new law. Reliance in this connection is placed on 2007 PLC 279 at page 285 which is the decision of Mr. Justice (Rtd.) Tanveer Ahmed Khan, in his capacity as Chairman NIRC.
10. It is argued that in view of the facts and grounds so discussed the plea taken by the appellant union that it was not heard by the learned RITU before passing any order stands mitigated by hearing the learned counsel on behalf of the appellant by the Full Bench of the NIRC. It is further argued that the Court is entitled to amend relief according to the situation in the larger interest of justice and to avoid multiplicity of proceedings and shorten litigation. It is stated that if the appeal is accepted and the matter is remanded back to the learned RITU, then one of the two aggrieved parties will appeal again before this Honourable Full Bench and thus, instead of shortening the litigation, the litigation will be prolonged. It is further argued that in appeal the Full Bench acts as a Bench of the Commission as appeal is continuation of lower Courts proceedings and power of the lower Court are vested in the Appellate Forum. It is stated that keeping in view the case-law as discussed above for one CBU, the order of the learned RITU/Chairman certifying one CBU is justified.
It is argued that if the appellant so desires to comply with the direction of the learned RITU, it should amend its constitution and extend its status to be registered with NIRC.
11. The learned counsel for the respondent No,1 Malik Muhammad Rafique has supported the arguments and contentions of the learned counsel for the respondents Nos.2 to 6. It was argued that all the four units before amalgamation by the order of Sindh High Court were separate entities.
It was argued that they should have come to the Commission for declaration of separate CBUs which they have not done. It was further argued that none of the CBA in these units was determined by way of referendum. It was argued that determination of CBU is quo extensive with the amalgamation of all the four units. It is contended that separate CBAs. Of these units as a result of amalgamation and determination of one CBU have become non-existence and, therefore, ceased to exist. It was argued that the instant appeal having no force of law was liable to be dismissed.
12. Mr. Zakaullah Khan Khalil, Deputy Registrar, NIRC who was required to assist the Court has stated that the office record shows that one Rahim Bukhsh had applied on 31-3-2007 for registration of fresh union as industry-wise union in the name and style of Balochistan Engineering Works Employees Union. He has further stated that the same however, subsequently, on 28-6-2007 had withdrawn the application for its registration. It is also stated that the said application for withdrawal which is on record has been signed by Dur Muhammad as Ex-President and Rahim Buksh an ex-General Secretary of the said union on the ground that its entire membership has merged into Balochistan Engineering Works Mehnatkash Union which is respondent No,1 in this case. The learned Deputy Registrar has also stated that it is on the record that members of all the four units had joined together to form the above named union as evident from the minutes dated 8-6-2007 of the general body of the said union, the application for registration of which was later on withdrawn. The learned Deputy Registrar further clarified that it was done on the ground that the entire membership of the said union was subsequently joined the respondent No,1 in the present appeal. The learned D.D.(R) has stated that right from the beginning it was fully in the knowledge of the appellant that respondent No,1 had been registered as industry-wise union.
13. We have carefully heard the arguments of the parties and gone through the contents of the case file as well as all the documents placed on record. We in the first instance want to dispose of the point relating to limitation. Section 78 of the Industrial Relation Ordinance, 2002 under which the application for condoning the delay has been filed reads as follows:-- "Section 78 Limitation. The provision of section 5 of the Limitation Act 1908, shall apply in computing the period within which an application is to be made, or any other thing is to be done, under this Ordinance."
' Section 5 of Limitation Act, 1908 is reproduced below:-- ' Section 5. Extension of period in certain cases.--- .Any appeal or application or a revision or a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.
' Explanation. The fact that the appellant or applicant was misled by any order, practice or judgment or the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this section."
' The present appeal which was filed under section 52 of I.R.O., 2002 on 13-11-2007 against the impugned order, dated 4-9-2007 according to law must have been filed within 30 days i.e by 4-10- 2007, but the same was filed beyond that date. Prima facie the delay seems to be of 41 days. In this view of the matter the appeal seems to be time-barred. But the appellant has stated that the main reason of delay is that they did not have the knowledge of the impugned order in time. It was contended by them they had the knowledge on 1-11-2007 during proceedings before RITU in a petition filed by them for cancellation of the registration of respondent No,1 (in this appeal). It is however, also pleaded by the appellant that while determining one CBU for the entire establishment they as well as respondents Nos.7, 8 and 9 were not heard and made a party in the proceeding for determination of CBU. The record as well as the order, dated 4-9-2007 that has been impugned of also shows that the appellant and others as mentioned above were neither made a parties nor were heard. We became, therefore, inclined to hear the aggrieved parties in this matter in the interest of justice. Moreover, we feel that the delay so caused could be due to apparent controversy and litigation between the appellant union and the union which is respondent No,1 in this appeal. We in exercise of power under section 5 of the Limitation Act as reproduced above entertain this appeal and so the point regarding limitation is disposed of accordingly.
14. In so far as the real matter regarding determination of one CBU is concerned we would like to refer to sections 2(xi) and 54 of I.R.O., 2002. The said sections are reproduced below:-- ' Section 2(xi). Definition of Establishment.--- Establishment means any office, firm factory, society, undertaking, company, shop, premises or enterprise which employs workmen 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 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."
' Section 54. Determination, etc. Of collective bargaining unit.---(1) Where the Commission, on an application made in this behalf, by a trade union of workmen or a federation of such trade unions, or on a reference made by Federal Government, after holding such inquiry as it deems fit, is satisfied that for safe guarding the interest of the establishments belonging to some employer and the same industry, in relation to collective bargaining, it is necessary, just and feasible to determine one or more collective bargaining units of establishments, it may having regard to the distribution of workers existing boundaries of the components of such establishment or group of establishments, facilities of communication, general convenience, sameness or similarity of economic activity, and other cognate factors.
(a) determine and certify one or more collective bargaining units in such establishment or group of establishments;
(b) specify the modifications which, in consequence of the decision under this section, shall take effect in regard to the registration of the trade unions and federations of trade unions affected by among such unions and federations, nomination or election of Shop Stewards, and workers representatives of participation in the management of the factories, if any, affected by such decision;
(c) specify the date or dates from and the period for which, all or any of such changes shall take, effect: ' Provided that the date so specified shall not be a date falling within the period of three years specified in subsection (11) of section 20 in its application to a collective bargaining agent certified in respect of any establishment or establishments: ' Provided further that, after the receipt of a reference for determination of a collective bargaining unit, the Commission may stop or prohibit the proceedings to determine collective bargaining agent under section 20 for any establishment or group of establishments which is likely to be affected by a decision made under this section;
(d) take such measures or issue such directions to the Registrar as may be necessary to give effect to such modifications; and
(e) determine and certify a collective bargaining agent for each such unit in accordance with section 20, insofar as applicable and with necessary modifications, if such a unit relates to more than one Province, or direct the Registrar to take such action, if such a unit relates to only one Province.
(2) Where the Commission issues any directions to the Registrar under this section, the Registrar shall comply with them within such period as the Commission may from time to time determine.
(3) After the certification of a collective bargaining unit, no trade union shall be registered in respect of that unit except for the whole of such unit and no certification or proceedings for determination of collective bargaining agent under section 20 shall take place for a part of a collective bargaining unit or a group of collective bargaining units.
(4) An order of the Commission under this section shall have effect notwithstanding anything to the contrary contained in this Ordinance.
' From the above provisions it appears that the RITU while determining one or more CBU(s) in an establishment or group of establishments will look into the distribution of workers existing boundaries of the components of such establishment or group of establishments, facilities of communication, general convenience, sameness or similarity of economic activity and other cognate factors. In the present case amalgamation of companies namely, respondents Nos.2, 3, 4 and 5 into Balochistan Engineering Works Limited which is respondent No,6 (which was backed by the Board of Directors and approved by the Honourable High Court of Sindh in J.Misc. No,20 of 2002) was planned to meet the following purposes:--
(I) Streamlining of functions and elimination of overlapping or duplication of services and operations;
(II) reduction in overheads and working expenses;
(III) increase in efficiency by reason of unified control;
(IV) upon the amalgamation of the companies, credit arrangements would be streamlined and multiple arrangements for obtaining loans and credit facilities can be avoided for better utilization of loan and credit facilities available;
(V) the administrative costs of separate companies will be considerably reduced with single Board of Directors; and
(VI) There will be one Annual General Meeting and one register of share-holders.
' This amalgamation of separate companies in other words has led to unification of business resulting in sameness of character and harmonious approach. Establishment of one company as an employer of the entire establishment with common balance-sheet and profit and loss accounts is co-extensive with the new definition of "establishment" in the existing law i,e, I.R.O., 2002. As soon as an industry-wise union came into existence, it according to our understanding has done a wise thing that it applied for the declaration of one CBU whereby the entire establishment will have one CBA. In other words it will help uniform improvement of employment conditions of workers and irresistible coherent rise in their standard of living. It would thus, be beneficial in uniting workforce of the entire establishment thereby overcoming irritants and inter unions' rivalries. Since business has been unified there will be more concentration of the company on better conditions of work of employees as administrative expenditure will be minimized. It has rightly been observed by the Honourable Chairman/RITU in the impugned order that declaration of one CBU for the whole establishment would enhance the strength of workers, scattered in five units and as a result their labour problems would be solved at the plant level by the same Head Office. The impugned order of the Honourable Chairman/RITU is well-reasoned and in full conformity of the present scheme of law insofar as declaration of one CBU is concerned.
15. We however, observe from the record and pleadings that respondents Nos.8 and 9 were neither made parties in proceedings before the Honourable Chairman/RITU and nor they were heard in connection with the determination of one CBU. The respondent No,7 does appear in the title of the petition before the Honourable Chairman and subsequently, in the body of the impugned order at serial No,6 of paragraph 1 thereof. The address of the respondent No,7 in this appeal and in the impugned order does vary. In the present appeal the respondent No,7 has however, given objection to the filing of said appeal as evident from the record. In this way we have provided full opportunities to all these respondents to be heard and there replies are on the record of this file.
We agree with the contention of the learned counsel for respondents Nos.2 to 6 that the order of the learned RITU can even be extended by the Full Bench in appeal in continuation of lower Court proceedings and be extended to all the unions including appellant to amend their constitutions.
We, therefore, hold that all the respondents who were stated to have not been heard have been heard by us and consequently they are left with no cause of action in this connection.
16. For reasons given above we uphold the impugned order, dated 4-9-2007 whereby one CBU has been declared for the entire establishment of Messrs Balochistan Engineering Works Limited for a period of four years. In addition the appellant union is included in the CBU of the said establishment. We, however, allow the appellant union or any other union, which is affected by the impugned order, to amend its constitution within two months, failing which the same will cease to exist. The appeal is disposed of accordingly.