MRS. SYEDA TAHIRA SAFDAR, CJ.----The issue for determination arc similar , thus to avoid any conflict in the findings both the petitions are intended to be decided through this common order .
2. The Constitutional Petition No.669 of 2013, filed by Noor-ud-Din Bugti, with the status President, Balochistan Public Health Engineering Labour Union (Labour Union) and petitioner No.2 the Labour Union through its Secretary General Fateh Muhammad, to question order of the Labour Appellate Tribunal dated 5th September 2013, whereby the petitioner No.1 was declared disqualified to act as President of the Labour Union. It was case of the petitioners that respondent No. 1 while claiming his status as of General Secretary of the Balochistan Public Health Engineering Workers Union (Workers Union), filed a case before the Labour Court to question registration of the Labour Union and prayed for its cancellation. That they (the petitioners) on the other hand also approached the same forum to question the registration of the Workers Union with a request for its"cancellation. That these cases were before the Labour Court, and were decided vide common judgment dated 30th April, 2013. That the Registrar Trade Union (the Registrar), present respondent No.2, was directed to conduct referendum as required by section 24(2) of the Balochistan Industrial Relati on Act, 2010 (Act, 2010), between both the trade unions, and to submit report. An appeal was preferred before the Labour Appellate Tribunal by the petitioners, who vide order dated 5th September 2013 partly accepted the appeal. It was with the modification that the office bearers of the Worker Union were declared disqualified to become office bearers of the newly formed Union. Besides that the petitioner No. 1 was also disqualified to be President of the Labour Union.
3. A number of grounds were agitated and it was prayed that: "this Hon'ble Court may pass a (-) order in favour of the petitioners and against the respondents thereby the orders dated 5.9.2013 passed by learned Labor Appellate Tribunal Baluchistan / respondent No. 4 may please be modified/ declare as illegal to the extent of disqualification of petitioner No. 1 as President of Baluchistan Public Health Engineering Labour Union, made in access of authority , as such, the petitioner may kindly be declared as eligible and qualified person to become the President Balochistan Public Health Engineering Labour Union in the interest of justice."
4. The Constitutional Petition No. 400 of 2015, filed by the petitioner Muhammad Umar Baloch, who claimed himself to be the President of the Balochistan Public Health Engineering Workers Union (Workers Union), also questioned the judgment of the Labour Appellate Tribunal dated 5th September 2013. It was with the prayer: "that this Honorable Court may be pleased to set aside the modification/ directions passed to the extent of petitioner/ (President) Mohammad Umer (at serial No. 1 in the list) of office beare rs of Balochistan Public Health Engineering Workers Union) for substituting in the judgment dated 5.9.2013 passed by the Labour Appellate Tribunal and the petitioner may kindly be allowed to hold office of the union and be allowed to participate in referendum which will be conducted by the Registrar , in the interest of law and justice."
5. it was case of the petitioner in C.P. No. 400 of 2015 that previously Noor-ud-D in Bugti (petitioner No. 1 of C.P.
No. 966 of 2013) filed an application for cancellation of registration of old Union i.e. Public Health Engineering Employees Union (Employees Union), the matter went upto this court and vide order dated 20th June 2012 the petition was disposed of with the direction to conduct election. Pursuant thereto the Registrar de-registered the old union, consequent thereto the petitioners of both the petitions not only formed new unions, but also got them registered. That registration of new unions resulted in filing of applications before the Labour Court for cancellation of the registration of the Unions newly formed. That the Labour Court was with the decision to hold referendum, but in appeal the Tribunal in concurrence thereto further directed for substitution of four office bearers, for the reason that they remained office bearers of de-registered Union. The latter portion of the decision was the matter in issue in present petitions.
6. The record transpired that the parties were previously before the Labour Court, and the matter reached upto this Court, while the order to hold election was upheld by this Court also. The second round of litigation started when the petitioners of both the petitions approached the Labour Court, and sought cancellation of Labour Unions of either party . The request was not allowed in the terms; rather the direction was for holding of referendum to resolve the issue. The Labour Appellate Tribunal though upheld the decision to the extent of holding of referendum, but disqualified the office bearers, for the reason they hold the office of the old union which had already been de- registered. This was the main grievance resulted in filing of the instant petitions. The petitions though filed for determination of status of the Trade Unions both registered by the relevant authority , thus claimed to have legal status. Though the prayer in both the petitions restricted about declaration of their (petitioner No. 1 in both the cases) lawful status to hold the office Presidents of the Unions and to participate in referendum. The direction for referendum was given to resolve the issue that which one of such Trade Union would be the Collective Bargaining Agent for the Establishment as required by Section 24 of the Act, 2010.
7. These petitions were pending from last many years, for one reason or the other, while during course of final hearing it was observed that the persons who filed the petitions claimed themselves to be the office bearers of the Union, but were in employment of the Public Health Engineering Department, Government of Balochistan. They claimed to have formed the Unions for welfare of employees of the Department. As soon the fact evident the learned counsel for the parties were asked to address whether the men in government service fall within the purview of worker or workman, and whether the Labour laws extended in their cases? The learned counsel representing the petitioners were of the views that the employees who were the members of the Unions though employees of the Department, but serving in lower grade, and the subject unions were legally formed for their welfare, duly registered by the Registrar Trade Union Balochistan. On basis thereof the petitioners claimed to have legal status to represent the men in service, and as duly registered the Unions gained the status of Collective Bargaining Agent (CBA), thus could legally agitate the grievance of such employees, and for the purpose rightly approached the forums available under the Labour Laws. It was further contended that a Department of the Government of Balochistan squarely covered by the term "Establishment " as defined in the Balochistan Industrial Relations Act, 2010.
8. The learned Additional Advocate Gener al was of the view that the men in Govern ment service are not allowed to form a union, for the reason they neither fall within the ambit of worker or workman, rather fall within the category of civil servants as defined in Section 2(1)(b) Civil Servant Act, 1974 (Act, 1974). It was further contended that a government department in no way comes within the purview of Establishment, defined in the Balochistan Industrial Relations Act, 2010.
9. In the cases in hand the petitioners while claiming their status as of office bearers of some Labour Unions, questioned legality of the Unions formed by either of the parties. The Unions with the names "Balochistan Public Health Engineering Labour Union" (Labour Union, and "Balochistan Public Health Engineering Workers Union"
(Workers Union) both were registered by the Registrar Trade Union, Balochistan and still the registration subsisted with the respective office. While it was also a fact that the persons who formed such unions and were members thereof, were in Government Service, thus with the status of Government Servants. The term government servant defined by Rule 3(1)(b) of the Balochistan Government Servants (Conduct) Rules, 1979 (Rules, 1979). As per the same the "government servant means a person to whom these Rules apply". While Rule 2 of the Rules, 1979 stated the extent of application of the Rules. It reads as under: "2. Extent of application .-These rules shall apply to all person, whether on duty or on leave, within or without Balochistan, serving in connection with the affairs of the Province of Balochistan, including the employees of the Provincial Government deputed to serve with a Statutory Corporation or with a non-Government employer , but excluding:-
(a) member of an All-Pakistan Service serving in connection with the affairs of the Province;
(b) holders of such posts in connection with the affairs of the Province of Baluchistan, as the Provincial Government may , by a notification in the official Gazette, specify in this behalf. "
10. Despite the facts that the petitioners and other members of the Unions were in employment of the Public Health Engineering Department, and performed their duties on the posts though lower in grade, with no power to hire or fire, but this fact in no way could bring them within the ambit of worker or workman as defined by Section 2 clause
(dd) the Balochistan Industrial Relations Act 2010. The terms defined as under: "(dd) "worker" and "workman" mean person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment express or implied, and, for the purpose of any proceedings under this Act in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off, or removal has led to that dispute but does not include any person who is employed mainly in managerial or administrative capacity ."
11. The learned counsel for the petitioners were of the view that the term Establish ment as used in Act, 2010 also included a Government Department, thus the Laws meant for Labours (worker or workman) have application on the employees working in such Departments. For better understanding reproduction of the term Establishment as defined by Section 2(i) Act, 2010 would be beneficial. It reads as under:
(i) "establishment" means any office, firm, factory , society , undertaking, company , shop, premises or enterprise, which employs workmen directly or throu gh a contractor for the purpose of carrying on any business or industry and includes all its departments and branches, whether situated in the same place or in different places and except in section 30 includes a collective bargaining unit, ff any constituted by any establishment or group of establishments.
12. The term Establishment in Act, 2010 though referred to some office, and also all its departments, but these terms as used in no way could be extended to include a Department running the affairs of Government, Federal or Provincial. Rather from plain reading of the definition it spelt out any office, firm or etc, which employs workers for the purpose of carrying on any business or industry , having no nexus with Government Department.
13. The term Employer also defined by Section (2)(h) of the Act, 2010. Though it includes an establishment run by or under the authority of any Department of the Provincial Government, but it is with an explanation reproduction will be beneficial:
(h) "employer" in relation to an establishment, means any person or body of persons, whether incorporated or not, who or which employees workmen in the establishment under a contract of employment and includes-
(i) ......................
(ii) ......................
(iii) in relation to an establishment run by or under the authority of any departmen t of the Provincial Government, the authority appointment in this behalf or , where no authority is so appointment, the Head of the department; (iv)...................
Explanation .--For the purpose of distinction from the category of "workers" or "workmen", officers and employees of a department of the Provincial Government or local authority who belong to the superior , managerial, secretarial, directorial, supervisory or agency staff and who have been notified for this purpose in the official Gazette shall be deemed to fall within the category of "employers" ; and
(v) ..................
The above quoted provisions clarified that the persons who are serving in connection with the affairs of Province, or even the employees of the Provincial Government deputed to serve with a statutory corporation or with a non Government employer are Government Servants, in no way fall within the ambit of worker or workman. As such the Balochistan Industrial Relations Act, 2010 have no application on them. This piece of legislation i.e. Act, 2010 was promulgated for the purpose: Whereas, it is expedient to consolidated and rationalize the law relating to formation of trade unions, regulation of relations between employers and workman and the avoidance and settlement of any differences or disputes arising between them or matters connect therewith and ancillary thereto.
14. All these provisions if read co-jointly the employees serving in the Public Health Engineering Department with no stretch of imagination fall within the purview of worker or workman, and the laws meant for workers and workmen including the Act, 2010 have application on them. The petitioners and the persons, to whom they were representing, surely were in government employment, thus they might be the Civil Servants or Government Servant. Section 2(1)(b) the Balochistan Civil Servants Act, 1974, defined civil servant as under: "2(1) (b) "civil servant" means a person who is a member of a civil service of the Province of Balochistan or who holds a civil post in connection with the af fairs of the Province, but does not include---
(i) a person who is on deputation to the Province of Balochistan from the Federatio n or from any Province or other authority , or
(ii) a person who is employed on contract, or on work charged basis, or who is paid from contingencies; or
(iii) a person who is a 'worker' or 'workman' as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act, 1923 (VIII of 1923);
15. It clarified application of the Act, 1974 on the persons in government service apart from grade in which they are serving. As far forming of a trade union, and freedom of Association was concerned, a right provided by Section 3 of the Act, 2010, only restricted to worker or workman not available to the persons who are government servants.
The Section reads as under: "3. Trade unions and freedom of association.--- Subject to the provisions of this Act and notwithstanding any other law for the time being in force, -
(a) Workers, without distinction whatsoever , shall have the right to establish and, subject to the rules of the organization concerned, to join associations of their own choice without previous authorization: Provided that no worker shall be entitled to be a member of more than one trade union at any one time and on joining another trade union the earlier membership shall automatically stand cancelled;
(b) employers, without distinction whatso ever, shall have the right to establish and subject only to the rules of the organization concerned, to join other associations of their own choice without previous authorization;
(c) every trade union and employers association shall frame its own constitution and rules to elect its representatives in full freedom to organize its administration and activities and to formulate its programmes; and
(d) workers' and employers' organizations shall have the right to establish and join federations and confederations and any such organization, federation or confederation shall have the right to affiliate with other organizations and confederations of workers' and employers' organizations.- The Act, 2010 deals with registration of Trade Unions and employees association and also the Authority who exercise power for registration of such Unions and also attended the issues if applied for its cancellation.
16. The employees in Government Service only permitted to form Welfare Assoc iation within the parameters as allowed by the Balochistan Government Servants (Conduct) Rules, 1979. Rule 30 of the Rules, 1979 would be relevant, it reads as under: "30. Membership of Service Associations - No Government servant shall be a mem ber, representative or officer of any association representing or purporting to represent Government servants or any class of Government servant unless such association satisfied the following conditions, namely:-
(a) Membership of the association and its office bearers shall be confined to a distinct class of Government servants and shall be open to all Government servants of that class.
(b) The association shall not be in any way connected with, or affiliated to, any association which does not, or any federation of associations which do not satisfy condition (a) above.
(c) The associations shall not be in any way connected with any political party or organization, or engage in any political activity .
(d) The association shall not:--
(i) issue or maintain any periodical publication except in accordance with any general or special order of Government, and
(ii) except with the previous sanction of Government, publish any representation on behalf of its members, whether in the press or otherwise.
(e) The association shall not, in respect of any election to a legislative, body , or to a local authority or body , whether in Pakistan or elsewhere-
(i) Pay, or contribute towards, any expenses incurred in connection with his candidature by a candidate for such election;
(ii) by any means support the candidature of any person for such election; or
(iii) undertake or assist in the registration of electors, or the selection of a candidate for such election.
(r) The association shall not:--
(i) Maintain, or contribute towards the maintenance of any member of a legislative body , or any member of a local authority or body , whether in Pakistan or elsewhere, or
(ii) Pay, or contribute towards, the expenses of any trade union which has constituted a fund under section 16 of the T rade Unions Act, 1926 (XVI of 1926); Provided that this sub-clause will not apply to Unions of the non-Gazetted staff on Pakistan Railways for which separate rules already exist on the subject."
17. This Rule determine the scope within which an association could be made, and its membership could be obtained. It is for a limited purpose, and have to work within specified limits.
18. In view it has been determined that the employees in Government service are beyond the scope of laws specifically framed for workers and workmen. Thus no trade union either with the name of "Public Health Engineering Labour Union" or "Public Health Engineering Workers Union" could have been formed by the employees in Government Service, nor existence of these Unions could validated only due to the facts that they were registered by the Registrar Trade Unions or certificate of Registration had been issued in their names. It is highly unfortunate that the Registrar Trade Union in complete negation of law registered the unions formed by the government servants, thus acted illegally . It was ignored that a Government Department in no way could be treated as an Establishment, nor the employees in government service could be treated as workers or workmen. The negligence on part of the Registrar Trade Unions evident from registration of questioned Unions and many other .
19. In view of the above discussion witho ut going into merit of the cases the judgment of the Labour Court dated 30th April 2013 and judgment of the Labour Appellate Tribunal dated 5th September 2013 are held to be of no legal effect, thus not sustainable. Both the judgments are set aside. The grievance applications filed by the petitioners of both the cases also stand dismissed for want of jurisdiction.
20. Before parting with the judgment it will be appropriate to direct that a copy of this judgment be sent to the Chief Secretary , Government of Balochistan, and also to the Secretaries of all the Government Departments with the directions to take all possible steps to get cancel the registration of the trade unions not only of the Public Health Engineering Labour Union and Public Health Engineering Workers Union, but also all the other trade unions formed by any group of employees in the government service unless satisfied the condition of Rule 30 of the Balochistan Government Servant (Conduct) Rules, 1979. It is also for the Registrar Trade Union Balochistan not only to remain conscious, but observe all legal formalities while entertaining any application filed for the purpose of registration of a trade union. The status of the persons who applied for the registration must be determined before entertaining an application filed under Section 4 of the Act, 2010. In addition it will be the Chief Secretary Government of Balochistan, the Principal Officer of the Provincial Government, to take all positive steps for cancellation of all such trade unions formed by the government servants without adopting the legal course, without any further loss of time.
The illegal practice on part of Government Servants have to be discontinued and in future might not be repeated.
The steps taken be with intimation to this of fice for perusal in Chamber .
The petitions are disposed of with the above directions.