SYED MANSOOR ALI SHAH, J. - Petitioner has primarily laid challenge to the internal elections of Union of Civil Aviation Employees ("UCAE") held on 05.03.2010 on the basis of order dated 16.12.2009 passed by Chairman/RITU of the National Industrial Relations Commission, Islamabad as well as its subsequent Order dated 29.07.2010 which is also impugned in this petition whereby office of NIRC was directed to issue certificate to the Winning Group in the said elections and as per judgment of this Court announced in W.P. No. 755/2010 on 28.07.2010 directed to takeover the affairs of the UCAE w.e.f 06.09.2010.
2. Brief facts of the case are that one Muhammad Ayaz Butt, who then was the Secretary General of UCAE, moved an application on 02.09.2009 (Case No. 13 (128)/2009) praying for fresh internal elections of UCAE under the supervision of NIRC. Immediately thereafter on 19.11.2009 another application (Case No. 13 (140)/2009) was moved by one Ch. Sanaullah Zia, who was then the Chairman of UCAE. Through the said application, Ch. Sanaullah Zia prayed that approval be granted to the acting charge office bearers of the union including the present petitioner, Muhammad Ashraf, as Secretary Finance, who were appointed after the No Confidence Motion held on 16th 17th March, 2009.
3. Both the applications came up for hearing before the Chairman/RITU, NIRC on 16.12.2009. The application filed by Muhammad Ayaz Butt was allowed and fresh internal elections of UCAE were directed to be held under the supervision of NIRC as it was held that under Section 6(1)(j) of Industrial Relations Act, 2006 the period of office bearers of Union is two years instead of three years. As far as the second application of Ch. Sanaullah Zia was concerned, it was declared to have become infructuous in the wake of the fresh elections having been ordered. Therefore, the new group of office bearers of UCAE headed by Ch. Sanaullah Zia including the present petitioner as Secretary Finance was never approved by NIRC.
4. Ch. Sanaullah Zia preferred an appeal before the Full Bench of NIRC against the order of the Chairman, NIRC dated 16.12.2009, which was dismissed vide order dated 20.02.2010. Both the orders were assailed in W.P. No. 755/2010 and W.P. No. 1563/2010 by Ch. Sanaullah Zia before the Rawalpindi Bench of this Court. Both the petitions were dismissed on the same day. However, the main order was passed in W.P. No. 755/2010 on 16.6.2010 (announced on 28.07.2010). The operative part of the said order is as under:--- "I am fortified in my view that the elections of .The Union held on 5.3.2010 should not be upset but should be recognized as valid to let the newly elected office-bearers take over the management of the Union. However, such office-bearers should be inducted in the management of the Union with effect from 6.9.2010 when the term of the present incumbents expires".... And the writ petition was dismissed."
5. Against the said order, Ch. Sanaullah Zia preferred ICA No. 200/2010 which was also dismissed vide order 17.08.2010. Against the same, CPLA No. 1754/2010 has been filed by Ch. Sanaullah Zia which is pending adjudication before the august Supreme Court of Pakistan.
6. In the meanwhile, the pending application of Muhammad Ayaz Butt, on which the direction for holding fresh internal elections was given came up for hearing before the NIRC. The Chairman, MAC relying on the order passed in W.P. No. 755/2010, dated 16.06.2010 (announced on 28.07.2010) directed the office to issue certificate of the Winning Group and directed them to takeover the office by 6 of September, 2010 vide order dated 29.07.2010. The said order of the Chairman, NIRC, which is also impugned in this writ petition, was challenged in W.P. No. 3595/2010 before the.
Rawalpindi Bench of this Court once again by Ch. Sanaullah Zia. This petition, however, was dismissed for non -prosecution on 02.09.2010.
7. The present petition has been filed by Muhammad Ashraf, who was a member of the acting charge office bearers under the leadership of Ch. Sanaullah Zia and was never recognized by NIRC.
This petition once again impugns orders dated 16.12.2009, as well as, 29.07.2010 passed by Chairman/RITU of NIRC -directing that fresh elections be held of UCAE and thereafter issuing a certificate to the Winning Group and approving the new office bearers.
8. Counsel for the petitioner contended that the impugned order dated 29.7.2010 is a nullity in the eyes of law as Industrial Relations Act, 2008 ("IRA 2008") stood repealed on 30.4.2010 under Section 87(2)(d) of IRA, 2008 and hence there was no NIRC on the date of the impugned order. He further contended that the said order could not have saved under the Punjab Industrial Relations Ordinance, 2010 as the said Ordinance was promulgated on 30.6.2010 while the impugned order was passed on 29.9.2010. Lastly counsel for the petitioner contended that the impugned order could also not be saved under the new law as it pertains to Industry wise Trade Union which cannot be saved by provincial legislation and, therefore, the fact is that the said order does not exist.
Counsel relying on the recent judgment of the august Supreme Court of Pakistan passed in C.P. No. 24 of 2011 titled Air League of PIAC Employees through its President Muhammad Usmari Khan v.
Federation of Pakistan M/O Labour and Manpower Division,. Islamabad, etc. Submitted that with the repeal of IRA, 2008 (the "temporary law or sunset law") i.e. All the proceedings taken thereunder shall cease to exist and, therefore, with the repeal of the said law the elections also stand washed away thereby reviving the position prior to the elections.
9. Counsel for the respondents submitted that the elections have been upheld by the decision of the Lahore High Court dated 16.06.2010 (announced on 28.07.2010) passed in Writ Petition No. 755/2010 and, therefore, even if the impugned order dated 29.07.2010 was a nullity in the eyes of law the elections stood saved. He further contended that the elections took place prior to the repeal of IRA, 2008, thus under Section 79 of the Punjab Industrial Relations Ordinance, 2010 the said elections stood saved. It is further contended that there is no requirement under the law to get the approval of the NIRC after the elections. In any case the impugned order was passed in continuation of the application submitted by the respondents whereby elections were directed to be held and it was while disposing of the said application that NIRC recorded that the results of the elections are approved.
10. Arguments heard. Record perused.
11. The petitioner has principally challenged the internal elections of UCAE held on 05.03.2010, under the impugned order of the NIRC dated 16.12.2009. The said elections were duly sanctified and approved by this Court vide order dated 16.06.2010 (announced on 28.07.2010) passed in W.P. No. 755/2010. Subsequently; the Chairman NIRC vide impugned order dated 29.07.2010 accepted the results of the election and directed that a certificate be issued to the Winning Group and in the light of this Court's order dated 16.06.2010 directed the new office bearers to take charge of the Union w.e.f. 06.09.2010.
12. Impugned order dated 16.12.2009 passed by the Chairman NIRC ordering that internal elections of UCAE be held under the supervision of NIRC, as well as, internal elections held on 05.03.2010 have already been approved by this Court vide judgment dated 16.06.2010. Petition against the same is pending before the august Supreme Court of Pakistan in CPLA No. 1754/2010. I have no reason to differ from the view taken by this Court in judgment dated 16.06.2010 (announced on 28.07.2010) passed in Writ Petition No. 755/2010 and, therefore, to the extent of orders dated 16.12.2009 and the elections held on 05.03.2010, instant petition is dismissed.
13. Now coming to the part of the proceedings whereby the Chairman NIRC vide impugned order dated 29.07.201.0 accepted the results of the elections. The judgment of apex Court passed in Constitution Petition No. 24/2011 leaves this question open in the following terms:.- "27. Now turning towards the submission of the learned amicus curiae on the vires of Provincial Labour Laws on the ground that there are many Institutions/Corporations which have their branches all over the country and there were countrywide Trade Unions but now Trade Union can only be registered under the legislation of a specific province. It is to be noted that instant proceedings have been initiated under Article 184(3) of the Constitution with a limited purpose of having a declaration that IRA, 2008 on the basis of Eighteenth Constitutional Amendment stood protected and continued till 30th June, 2011, therefore, the vires of the same cannot be considered in such proceedings. However, as stated earlier Article 144(1) of the Constitution has provided mechanism far making central legislation in respect of matters not covered in the Federal Legislative List."
But provides a way forward in the following manner:- "In. The light of above case-law, it is clear that during the interregnum period w.e.f. 30.04.2010, when .No Industrial Relations Law. Was holding the field, the workers had remedy under the ordinary laws prevailing at that time, because in absence of a special law, the ordinary/general laws come, forward to fill in the vacuum."
14. The submission of learned counsel for the petitioner appears to be correct to the extent that the repeal of IRA, 2008 and the promulgation of the Punjab Industrial Relations Act, 2010, as well as, promulgation of other Provincial Industrial Relations Laws cannot save or protect orders for proceedings pertaining to Industrial Wide Trade Union and, therefore, order of the Chairman NIRC dated 29.07.2010 is a nullity in the eye of law.
15. Be that as it may, even if the argument of the learned counsel for the petitioner is accepted and impugned order dated 29.07.2010 is considered to be a nullity due to repeal of IRA, 2008, it does not change the ,complexion of the case or upset the outcome of the internal elections of UCAE dated 05.03.2010 or the validity of impugned order dated 16.12.2009 passed by the Chairman, NIRC as both of them stand approved by an earlier judgment of this Court mentioned above against which CPLA No. 1754/2010 is pending before the august Supreme Court of Pakistan. Hence no useful purpose will be served in deliberating upon this question, besides the fate of the pending proceedings before the apex Court will automatically determine the fate of the said order.
16. Disposed of in the above terms. .