SHAMS MEHMOOD MIRZA, J.--- Since the issues involved in this writ petition as well as Writ Petition No.32931 of 2015 titled "Haider Traders v. Registrar of Unions etc." and Writ Petition No.31928 of 2015 titled "M/s Best Traders and another v. Registrar of Trader Unions etc." are similar in nature, they have been taken up together and common order is being passed. The essential question requiring determination by this Court is the forum and the law for registration of a union in case of trans- provincial Establishment.
2. The facts out of which this writ petition arises is that Unilever Pakistan Foods Limited, the petitioner, claims to be a trans-provincial Establishment within the meaning of section 2(x) read with section 2(xxxii) of Industrial Relation Act, 2012 (IRA, 2012). On 01.03.2014, the office bearers of a proposed trade union filed Petition No.41/2014 under section 10 of Punjab Industrial Relations Act, 2010 (PIRA, 2010) before the Punjab Labor Court No.2. In the said petition, it was inter alia prayed that the office bearers and members of the proposed union may not be transferred, dismissed etc during pendency of registration of the proposed trade union. This was followed by filing of an application for registration of the trade union on 07.03.2014 in the name of Workers Welfare Union Haider, Best Traders before the Registrar Trade Unions, District Kasur, Respondent No.1 (Provincial Registrar). On 24.03.2014, the Provincial Registrar rejected the application as the number of members required for registration of a trade union was deficient. On 29.03.2014, another application was presented before the Provincial Registrar for registration of Ittehad Workers Union, Unilever Pakistan Foods/Respondent No.2. The Provincial Registrar called for an inquiry, the report whereof was submitted by the inquiry officer, Kasur on 07.05.2014. The Provincial Registrar on 13.05.2014 registered Respondent No.2 as a trade union. In June 2014, the petitioner filed a petition before the Provincial Registrar for cancellation of Respondent No.2 as a trade union in terms of section 12 of PIRA, 2010. The cancellation of respondent No.2 was sought, amongst others, on the ground that the Provincial Registrar had no jurisdiction to register trade unions pertaining to the Petitioner. Similar petitions were also filed by the Respondents Nos.4 and 5. As the matter was not being resolved by the Provincial Registrar, respondents Nos.4 and 5 filed Writ Petition No.20770/2014 Haider Traders v. Ishtiaq Ahmed, RTU etc. and Writ Petition No.20768/2014 Best Traders v. Ishtiaq Ahmed, RTU etc. before this Court seeking directions to the Provincial Registrar to decide their applications. This Court disposed of the said petitions on 18.07.2014 with directions to the Provincial Registrar to decide the said applications filed by respondents Nos.4 and 5 in accordance with law.
On 17.08.2015, only the petition of Respondent No.4 was decided by the Provincial Registrar whereby he upheld the registration of Respondent No.2. Through this writ petition, the petitioner has challenged order dated 13.05.2014 for registration of respondent No.2 as also order dated 17.08.2015 of upholding the registration thereof passed by the Provincial Registrar.
3.Pursuant to the notices issued by this Court, the concerned parties filed their parawise comments. Respondent No.2 adopted the parawise comments filed by the Provincial Registrar. Mr. Khalid Mahmood Wattoo, Advocate representing respondent No.2 and Mr. Asmat Kamal representing Shaheen Workers Union and Employees Union, which was allowed to be impleaded as respondent No.6, filed their written submissions as also Mr. Taffazul Rizvi, the counsel for the petitioner.
4.The petitioner's counsel made the following submissions. a.National Industrial Relations Commission (NIRC) is the sole authority with the power to register trade unions and industry-wise trade unions pertaining to the Trans-Provincial. Establishments and to make regulations in respect thereof [section 2(xxxii), section 54 and section 66 of IRA, 2012].
While referring to section 87 of IRA, 2012, it was stated that the provisions of IRA, 2012 had the overriding effect notwithstanding anything to the contrary contained in any other law in force. b.The nature of dispute does not confer jurisdiction on the relevant forum rather it is the status of the employer which is the determining factor. Since the petitioner is a trans-provincial Establishment, the Provincial Registrar had no jurisdiction to register respondent No.2 as a union as the jurisdiction rested with NIRC. Reliance in this regard was placed on a judgment reported as Pakistan Telecommunication Company Limited v. Member NIRC and others 2014 SCMR 535. c.Impugned order dated 13.05.2014 for registration of Respondent No.2 and order dated 17.08.2015 for upholding the registration by the Provincial Registrar are coram non-judice, void ab-initio, ultra vires, as they violate the law and while passing the said orders, the Provincial Registrar exceeded his jurisdiction which is confined to the Province of Punjab only. Reliance in this regard was placed on a judgment reported as KESC and others v. N.I.R.C. and others PLD 2014 Sindh 553. d.Inquiry Report dated 07.05.2014 submitted to the Provincial Registrar wrongly stated that the members of respondent No.2 were the employees of the. Petitioner. The true fact is that the members of the respondent No.2 are the employees of independent third party contractors i.e. Respondents Nos.3 and 4, which fact stood admitted in the Petition No.41/2014 filed before the Punjab Labor Court. Later, the same members of respondent No.2 approached NIRC for regularization of their employments in the Petitioner Establishment and back benefits through a Grievance Petition. Reliance was placed on a judgment reported as Farid Ahmad v. Pakistan Burmah-Shell Ltd. and others 1987 SCMR 1463 and on Mehmood Hussain and another v. Presiding Officer, Punjab Labour Court and others 2012 SCMR 1539. e. By relying on judgment reported as Muhammad Amin Qamar v. The Bank of Punjab and others 2013 PLC 291, it was stated that exceeded his jurisdiction in granting registration to respondent No. 1.
5. In rebuttal, it was argued by the learned counsel for respondent No.2 that the petitioner was in fact not a trans-provincial establishment and that perhaps some evidence will have to be recorded by the Labour court for determination of this issue. It was also contended that the "factory" of the petitioner situated at Phool Nagar, District Kasur is an "Establishment" in itself having physical existence restricted to its precincts in district Kasur in terms of section 2 (i) of the Factories Act, 1934.. Expanding on this theme, it was stated that by virtue of Rule 3 and Rule 95(1) of Punjab Factories Rules, 1978, submission of the Notice of Occupation on Form A and Certificate of Stability on Form K is mandatory for the Occupier. It was further stated that by virtue of the operation of the law applicable on a "Factory", its geographical boundaries cannot be extended at other places except within its precincts as the Inspector of Factories has to verify implementation of law specially Health and Safety Standards and as such the status of a Factory is different from the other terms used in section 2 (x) of IRA, 2012 such as Office, Firm, Society Undertaking, Company Shop or Enterprise. It was also submitted that in a pure legal perspective, there could be no branch of a Factory for the purpose of considering it as a trans-provincial Establishment in terms of 2(xxxii) of IRA, 2012. It was also the case of respondent No.2 that ILO Conventions 87 and 98 were ratified by the State of Pakistan which gives a right to the workers at factory level to establish a union of workmen and to negotiate through collective bargaining with the Employer. The legislative competency of the Federal Government is also dependent on these Conventions in view of the entry at serial No.32 of Federal Legislative list. Any interpretation of IRA, 2012 to curtail the right of workers at factory level to establish a union and exercise the right of collective bargain shall be against the settled principles of interpretation. Under section 54(b) of IRA, 2010, NIRC has no jurisdiction to register a union at factory level, because the premises of a factory is not extendable by virtue of the restrictions imposed in the Factories Act, 1934. Mr. Asmat Kamal, Advocate, for respondent No.6 citing various provisions of the Factories Act, 1934 also stated that the office or any place where manufacturing process is not carried on is not part of the Factory and as such its employees are not workmen. The factory of Unilever Pakistan Foods Limited situated at Phool Nagar, District Kasur falls in the definition of "Factory" and except for the said factory there is no other factory of the petitioner manufacturing the food products anywhere in Pakistan. While referring to the definition of "Establishment", he stated that the petitioner has no other factory in Pakistan where food products are manufactured and, therefore, it could safely be inferred that it is not a trans-provincial establishment. It was also his case that no trade Union belonging to Unilever Pakistan Foods Limited has ever been registered with the NIRC as all the unions are situated in factory which in its own right is an establishment.
6. Before proceeding further in the matter, it would be useful to reproduce the definition of "Establishment" as provided by section 2(x) of IRA, 2012.
"Establishment" means office, firm, factory, society, undertaking, company, shop or enterprise, which erhploys workmen directly or through contractor for the purpose of carrying on any business or industry and includes all its departments and branches in the Islamabad Capital Territory or falling in more than one province, whether situated in the same place or in different places and except in section 62 includes a collective bargain unit, if any constituted by any establishment by any establishment or group of establishments: Similarly, section 2 (xxxii) of IRA, 2012 defines "trans-provincial" as follows: "trans-provincial" means any establishment, group of establishments, industry, having its branches in more than one province The Act has separately defined "Establishment" and "trans-provincial". According to section 2(x) of IRA, 2012, a number of entities come within the definition of "Establishment". If such entities have branches in more than one province, they shall be called trans-provincial Establishment. It is apparent that any company employing workmen for the purpose of carrying on any business or industry and having its departments and branches in more than one province comes within the definition of "trans-provincial". Admittedly, the petitioner is a company incorporated under the Companies Ordinance, 1984 and, therefore, its status as such shall be taken into consideration for the purpose of determining whether it is a trans-provincial Establishment. The Annual Report for the year 2015 of the petitioner company prepared by its auditors clearly shows that its registered office is situated at Avari Plaza, Fatima Jinnah Road, Karachi. The petitioner having a factory at Phool Nagar, Kasur and various other offices in the Province of Sindh is thus clearly a trans- provincial Establishment. Although the status of the petitioner as trans-provincial Establishment was impugned, it is clear that the challenge had no merit. The Provincial Registrar did not deny such status in his parawise comments, which parawise comments were adopted by respondent No.2 as is apparent from order dated 22.10.2015.
7.The narrow focus of the learned counsel for respondents Nos.2 and 6 on the term "factory" as used in section 2(x) of the IRA, 2012 and their reliance on the provisions of Factories Act, 1934 for ascribing meaning thereto is not valid. Section 2 (x) of IRA, 2012 contains a string of terms constituting "Establishment". While construing the definition of "Establishment" in the context of the present case, however, the most apt term to consider from section 2 (x) of IRA, 2012 is "company" and not "factory" as the petitioner is a body corporate. It is furthermore clear that the expression "factory" and indeed all the other terms mentioned in section 2 (x) of IRA, 2012 have been used in their generic sense. It is a settled principle of statutory interpretation that a word or a phrase in an enactment must always be construed in the light of the surrounding text and that words, particularly general words, cannot be read in isolation as their colour and content are derived from the context of the enactment. There is no indication that the term "factory" in IRA, 2012 was borrowed from the Factories Act, 1934 and had any nexus with the meaning attributed to it under said Act.
8.According to Bennion on Statutory Interpretation Sixth Edition, the context of a statute, in addition to the other provisions of the Act, lies in the legislative history of that Act, the provisions of other Acts in pari materia and all facts constituting or concerning the subject matter of the Act. The overall context of the Act provides the colour and background to the words used, and thus helps the Court to arrive at the meaning intended by the Parliament. It is, therefore, necessary to give a brief legislative background to the promulgation of IRA, 2012. Prior to 2010, the concurrent legislative list of the Constitution controlled all the matters pertaining to labour disputes, trade unions etc and all labour laws were thus promulgated by the Federation. After the introduction of the Eighteenth Amendment in the Constitution on 26.10.2010, apart from others, the concurrent legislative list was abolished. Resultantly, Article 142 was amended by giving to the Parliament the exclusive power to promulgate laws with respect to matters mentioned in the federal legislative list and the Provincial legislatures were granted the powers to make laws with respect to any matter not enumerated therein. In addition thereto, Article 270 AA was inserted in the Constitution for saving the existing laws etc. As the process of devolution of the matters enumerated in the abolished concurrent legislative list to the provinces was directed to be completed by 20.06.2011, the provincial assembly of the Province of Punjab enacted PIRA, 2010 on 09.12.2010. Similar enactments were also promulgated by other provinces. However, as the provincial laws could not deal with the issues of labour disputes and trade unions in establishments having presence in more than one provinces and those establishments which were located in Islamabad Capital territory, a need was felt for the promulgation of a federal law covering these aspects. The Parliament, therefore, enacted IRA, 2012.
The preamble of IRA, 2012 is significant and also sheds light on the legislative intention. It states: An Act to consolidate and rationalize the law relating to formation of trade unions, and improvement of relations between employers and workmen in the Islamabad Capital Territory and in trans-provincial establishments and industry.
Consistent with the preamble, section 54 of the IRA, 2012, amongst others, states the functions of NIRC"to register trade unions and industry-wise trade unions of an establishment or group of establishments in Islamabad Capital Territory and trans provincial and federations of such trade unions." The reading of the provisions of Factories Act, 1934, on the other hand, shows that it is concerning the regulation of labour in factories. There is, therefore, no parallel, between IRA, 2012 and Factories Act, 1934 as each enactment has its own specific scope, object and distinctive features. The provisions of Factories Act, 1934 do not control and cannot regulate the registration of unions in a trans-provincial Establishment which is carried out in terms of section 54 of IRA, 2012.
The term "factory" has been defined in Factories Act, 1934 but not so in IRA, 2012. It is settled law that even if the definition of a word or expression is somewhat similar in two different statutes, the objects to be achieved by the enactments may be different. The term "Factory" and all the incidents attached thereto under the Factories Act, 1934 has no relation to the term "factory" appearing in section 2 (x) of the IRA, 2012. This Court is, therefore, not prepared to construe the expression "factory" in IRA, 2012 with reference to the Factories Act, 1934.
9. The practice to interpret the meaning of words of a statute by importing the definition of similar words used in a different statute is not valid. It is by now well settled principle that the words and the terms used in a statute have to be interpreted in the context of that particular statute. In a judgment reported as Mukhtar Hussain Shah v. Saba lmtiaz PLD 2011 SC 260, the Hon'ble Supreme Court established the following principle of interpretation of statute which is quite relevant to and apposite in the context of the present case.
A definition thus appearing in one Act cannot be used to interpret the same word appearing in another Act, until it is specifically so referred and borrowed with a clear command of law. Because, the context, the purpose, the object and the requirements of every statute may vary from other; the definition of a word from one statute can not be safely imported to another, which if so resorted to without ascertaining the clear intention of the legislation by following the rules of interpretation, just as a matter of routine and course, it shall not only be hazardous, rather may distort and frustrate the object of the law and violate the legislative intent which is absolutely impressible in law.
In Kohinoor Elastics (Pvt.) Limited v. Commissioner of Central Excise 2005 (7) SCC 528, the Indian Supreme Court had to deal with the meaning of the word "brand name" and "trade name" used in a Notification issued under Central Excise Act. The issue in the case was whether the afore-noted expressions could be interpreted with reference to Trade Marks Act. The Indian Supreme Court held that the context in which those terms had been used in the Trade Marks Act was not relevant for the purpose of interpreting their usage in the Notification issued under the Central Excise Act. It was held that the context of both the enactments being different, it was not permissible to import the meaning ascribed to certain terms in another Act for interpretation of those terms in the Central Excise Act.
10. Both PIRA, 2010 and IRA, 2012 have received considerable judicial scrutiny in a fairly small amount of time since these enactments were promulgated. The two judgments that will be cited below interpreted and laid down law that have settled a number of issues including the ones raised in these writ petitions. In Pakistan Telecommunication's case, the Hon'ble Supreme Court had the occasion to dilate upon the two enactments and their scope. After reviewing the provisions of both PIRA, 2010 and IRA, 2012, it was held thus
12. After combined reading of the scheme of new labour laws, both Provincial and Federal, it may be concluded without any fear of rebuttal that two parallel forums have been created, one on a provincial basis whereas latter is federal level forum, called NIRC. Both these forums are having jurisdiction to deal with industrial disputes and unfair labour practice and other allied matters either attributable to the employer or the workers/ workmen, however, the Federal Law has drawn a clear demarcation line of jurisdiction of these two different forums, i.e. Labour Courts in the Provinces and the other NIRC at the Federal Level. It is not the nature of dispute, particularly, unfair labour practice, which confers jurisdiction on one or the other forum but it is the status of the employer or the group of employers, which would determine the jurisdiction of .the Provincial Labour Court and that of the NIRC. To be more clear on the point we have no hesitation to hold that once it is established through any means that the employer or group of employers has an establishment, group of establishments, industry, having its branches in more than one Provinces, then the jurisdiction of the NIRC would be exclusive in nature and of overriding and super imposing effects over the Provincial Labour Court for resolving industrial dispute including unfair labour practice, etc. related to the employers, having it establishment or branches or industrial units in more than one Province and re-course has to be made by the aggrieved party to the NIRC and not to the Provincial Labour Court.
13. Even otherwise under the provision of Article 143 of the Constitution of Pakistan, 1973, laws enacted by the Parliament have been given overriding and superimposing effects over the laws enacted by a Provincial Assembly of any of the Province and in case of any clash or repugnancy between the two, the laws enacted by the Parliament shall prevail. Thus, on the touchstone of the provision of Article 143 of the Constitution, the Act of Parliament has been placed on the high pedestal and any Provincial Law enacted by the Provincial Assembly shall give way to the Federal Law, enacted by the Parliament, if the former is inconsistent or repugnant to the latter. Therefore, it is held that the provision of Act X of 2012 (the IRA, 2012) has overriding effect on all Provincial Labour Laws. Judged from this angle, we are of the firm view that in the present case, the learned Judge in Chamber of the Lahore High Court. Lahore while drawing the impugned judgment dated 26-11-2012 could not properly comprehend the intents and objects of the above provisions of law, rather misconstrued and misinterpreted the same, resulting into miscarriage of justice, the impugned judgment being not sustainable in the eye of law is liable to be set at naught. (emphasis supplied)
11. The issue of the wires of IRA, 2012 was deferred in the afore-mentioned judgment by the Hon'ble Supreme Court but it soon cropped up before this Court. A learned Division Bench of this Court in ICA No.53 of 2013 titled PTV Employees Ittehad Union Punjab v. Federation of Pakistan had the opportunity to delve in the matter. After tracing the history of Labour laws and a number of judgments on the subject, the vires of IRA, 2012 was upheld. While doing so, the determinations made by the learned Division Bench of this Court were as follows: (i)IRA, 2012 is applicable only to establishments located in Islamabad Capital Territory and Trans-Provincial Establishments and undertakings which have presence, factories and offices etc in more than one Province.
(ii)The law has been promulgated to provide a mechanism for enforcement of a fundamental right i.e. freedom of association as enshrined in Article 17 of the Constitution to workers working in establishments operating in the Islamabad Capital Territory and in trans-provincial establishments and industry.
(iii)It is designed to provide a uniform and unified legal system and mechanism for enforcement of ILO Convention Nos.87 and 98 throughout the country.
(iv)The law is aimed at providing a legal framework relating to formation of trade unions, federation of trade unions, determining collective bargaining agents, regulation of relations between employers and workers of establishments in the Islamabad Capital Territory and in trans-provincial establishments and industry considering that such mechanism would not be available under provincial laws which have reach and applicability only within the territorial limits of each province.
(v)F. the aforenoted purpose, Chapter 8 of the IRA, 2012 pi ovhies for constitution of a National Industrial Relation Commission (NIRC). It has the mandate to adjudicate and determine industrial disputes in Islamabad Capital Territory and <u>relating to workmen of trans-provincial establishments, to register trade unions and industry wise trade unions and federations of such trade unions, to</u> determine collective bargaining agents amongst trade unions and industry wise trade unions, to deal with cases of unfair labour practices etc. NIRC also advises the Federal Government on matters involving trade unions and industry wise trade unions in Islamabad Capital Territory and at a trans-provincial level in respect of education of workers in the essentials of trade unionism. This includes education in respect of their rights and obligations and to secure the provision of facilities required therefor and to apportion costs between Government, trade unions and federations of such trade unions and employers in such manner as may be considered equitable.The NIRC has exclusive jurisdiction in the aforesaid matters over establishments and group of establishments situated in Islamabad Capital Territory and trans-provincial establishments. (Emphasis supplied)
12.The dicta laid down in the afore-mentioned judgments leaves no room for doubt that the formation of trade unions of the workers of a trans-provincial Establishment and the matters incidental thereto are regulated by IRA, 2012. The petitioner being a trans-provincial Establishment is accordingly governed by IRA, 2012 and the unions operating in its various factories, offices and departments shall have to be registered with NIRC. It may be stated that in view of the importance of the issue, NIRC also got itself represented through its law officer and filed a specific report in the light of order dated 22.06.2016 passed by this Court requiring NIRC to answer the query as to whether respondent No.2 being a union located in one factory of the petitioner can be registered with NIRC or not. NIRC in the additional report by relying upon the judgment Pakistan Telecommunication Company Limited v. Member NIRC and others 2014 SCMR 535 made it clear that it was the status of the petitioner which would determine the question of registration of respondent No.2 with NIRC.
13.In the present case there is no dispute that respondent No.2 has a right to register itself as a trade union. This right of respondent No.2 is not even disputed by the petitioner. The case of the petitioner is simply that the Provincial Registrar exceeded his jurisdiction in registering respondent No.2 as the trade union under the provisions of PIRA, 2010 whereas the petitioner being a trans- provincial Establishment, the jurisdiction vested with NIRC under IRA, 2012. This stance of the petitioner is supported both by NIRC and Federal Government.
14.It was also asserted that the members of respondent No.2 were not the employees of the petitioner but were in fact the employees of respondents Nos.4 and 5 who were the independent contractors, the implication being that such members had no right to get themselves registered as a trade union. This contention has no force in view of the clearly worded definition of "Worker" and "Workman" contained in section 2(xxxiii) of IRA, 2012. Similarly, the fact that other workers unions operating in the factory/offices/departments of the petitioner were registered with the Provincial Registrar hardly provides any lawful justification for the grant of similar status to respondent No.2.
15.This Court has already come to the conclusion that petitioner is indeed a trans-provincial Establishment based on the annual report 2015 brought on the record by the petitioner.
Respondent No.2 also did not seriously object to the said status of the petitioner. Having established that the petitioner enjoyed trans-provincial status, the controversy regarding the law which governs the registration of the trade union of a trans-provincial Establishment does not pose a serious problem as it is covered by the ratio of the afore-mentioned two judgments according to which the nature of dispute does not confer jurisdiction on the relevant forum rather it is the status of the employer which is the determining factor and that NIRC is the sole authority with the power to register trade unions and industry-wise trade unions pertaining to the trans-provincial Establishments. The Provincial Registrar/respondent No.1 indeed misconstrued the provisions of Factories Act, 1934 in registering respondent No.2 whereas it had no authority under the law to do so. Order dated 17.08.2015 passed by the Provincial Registrar/respondent E No.1 is, therefore, liable to be set aside.
16.In the result, this writ petition succeeds and orders dated 13.05.2014 and 17.08.2015 are set aside being without lawful authority and of no legal effect.