MRS. FAHMEEDA QADEER, MEMBER. ----By this order I will dispose of stay application filed by the petitioners and the application filed by the respondents for dismissal of the petition as the petitioners Nos.62 and 63 have not signed the petition.
2. Heard the counsels for the both parties and perused the case record.
3. In nut shell, case of the petitioners is that they are continuously working since long within the establishment of the respondent No.1 on permanent basis from the date of joining given in the main petition at Serial Nos.1 to 67.
They have claimed directly to involve in the affairs of the respondents company as they are used in production, manufacturing, machine operator , packer , cleaning, A.C. chiller operator and machines maintenance and repair of machines which are the job connected with the manufacturing process as defined under Section 2(g) of the Factories Act, 1934. The land, building, machines, raw material finished goods, etc. are property owned, managed, controlled by the company (Respondent No.1) through its occupier/managers. The hire and fire authority including settlement of wages and benefits of the workers also rest with the company and the so called contractors were engaged for their personal gain. The work of the petitioners was supervised, .controlled and looked after by the incharge of the concerned department Supervisor or by the head of the department as mentioned earlier the requisition were given by the Supervisor or head of the department for workers from the petitioners as they are irresponsible for their department therefore all the petitioners are workers and are the employees of the respondent No.1. They also claim that in the factory premises of the respondents they using raw material and machinery of the respondent No.1 and were getting salaries and advance from it leave has also been granted to them by their I.R Manager as well as their work was supervised by the Officer of the respondent No.1 and their presence at the factory gate was also marked by the security staff posted there therefore they all are employees of the respondent No.1 but not the respondent No.2 who is given only on papers for financial benefits and privileges for respondent No.1 . The respondent No.1 issued them 1.D cards of the company and also get examined them through the Doctor so also their subscription was deducted but the respondent No.1 have unathorizedly in order to pressurize them restrained their I.R Manager to deduct the subscription from their salaries in order to force them to leave the job. The petitioner therefore prayed to the Commission to restrain the respondent No.1 and their connected person from .taking any adverse action against them and terminate, dismissing and transferring from their job and they be declared as permanent workers of the respondent No.1 on the basis of their long association with them on the post on which they are working for , the last 3 to 15 years.
4. Counsel for the respondents has strongly opposed the submission of the petitioners side contending that there is no relationship of employment among them and the petitioners are not employees of their company but they are employees of the contractor therefore their case is depends upon surmises and they have not come with clean hands before this Commission. He has further submitted that the union for which they are claiming to be members that is register by the Registrar Trade Union Sindh and is also a CBA of the respondent company . In this context he submitted annexure "A" contending that in view of it, it is clear that it is trade union which is not a registered trade union under IRA, 2012 because it is not register with the Commission therefore the application is not maintainable.
Beside this, the petition is not maintainable because the petitioners Nos.62 and 63 have not signed the petition, who are General Secretary and President of the union therefore the petition is also liable to be dismissed.
5. I have heard the arguments of both the counsels at length and perused the case record which reveals that the petitioners' counsel filed annexure "P" with the instant petition that is regarding change of office bearers of the union dated 15.05.2018 which clearly reveals that the said trade union has been registered by the Registrar Trade Union Sindh hence it comes within the provincial jurisdiction. The petitioners counsel has submitted I.D cards and employment cards of these petitioners which reveal that they are employees of the Contractor Suhail Brothers Engineering (SBE), therefore the question of deduction of union subscription does not arise at all. Petitioners counsel has not filed any letter or docume nt in order to show regarding deduction of subscription of the petitioners from their wages, their claim that the respondent No.1 pressurizing them or threatening the petitioners, do not find any support from any document therefore the petitioners claim that they are employees of the respondent No.1 is legally not maintainable in fact they are employees of the contractor since long as appeared from these I.D cards, some petitioners are working with contrac tor Bhittai Enterprises and rest of them are with contractor SBE. As I have hold in above that petitioners registered by RTU Sindh vide annexure "P" therefore citation relied upon by the petitioners' counsel are not relevant whereas Annexures P/1 to P/19, are concern ed in this regard it is clear that petitioner have not filed any registration certificate that their union is registered with RTU, NIRC Commission, Islamabad, so that neither they can claim themselves employees of trans-provincial establishment nor of respondent No. 1.
6. It is an established position that the union is not registered with the RTU, NIRC Commission Islamabad in this regard reliance is placed 2014 PLC 351 in which it has been hold by the Honorable Justice Qazi Faez Isa, CJ and Muhammad Kamran Mulakhail in which the Honorable authority has hold that "since we have determined that the Industrial Relations Act, 2012 was properly enacted by Parliament and is not ultra' vires the constitution, therefore, the Industrial Relations Ordinance, 2002 (mentioned in section 43 of the NADRA Ordinance), which was succeeded by the Industrial Relations Act, 2012, cannot be categorized as being unconstitutional, NADRA was setup pursuant to a Federal law, i.e. the National Database Registration Authority Ordinance, 2000 and its reach is throughout Pakistan. NADRA also has offices throughout the country therefore, it would come within the domain of the Inter-province Clause. Inter-provincial (termed as 'trans-provincial') and 'establishment' are respectively defined in clauses (xxxii) and (x) of the National industrial Relations Act, 2012 (reproduced herein above). Therefore trade unions in respect of NADRA cannot be registered by the Registrar Trade Unions Balochistan under the Balochistan Industrial Relations Act, 2010. The NADRA Employee's Union Balochistan was registered on 25th July 2010, whereas the Industrial Relations Act, 2012 was enacted on 14th March, 2012 and as such on the day when the trade union was registered the Industria l Relations Act, 2012 was in the field. Article 143 of the Constitution provides that Parliament can make laws in respect of the whole of Pakistan and Article 142 stipulates that Parliament shall have exclusive power to make laws with respect to any matter within the Federal Legislative List.
The industrial Relations Act, 2012 which also provides for the registration of trade unions in respect of inter- provincial establishments was validly made, therefore, a trade union in respect of NADRA could not be registered by the Registrar Trade Unions Balochistan under the Balochistan Industrial Relations Act, 2010. Article 143 of the Constitution further provides that a Federal law will prevail over a provincial law, whether enacted before or after a provincial law .
7. In view of above discussion it is crystal clear that petitioners union is registered by district registrar Siudh and the legal remedy available to them for registration is under Section 34 of Sindh IRA, 2013 which they have not availed, in this context arguments of learned counsel for respondents that petitioner can approach through CBA but not individually have wait so also the petition has not been signed by the General Secretary and President of the +Union thus it is clear that being a provincial union they cannot invoke the jurisdiction of NIRC, or enter there as admittedly being provincial union it is registered with the provincial registrar and it has to knock the door of provincial labour court under Section 34 of Sindh IRA, 2013 for claiming rights if any .
8. Thereby I dismissed the stay application as they have not come with clean hand s earlier stay is hereby vacated in alternate, the application for dismissal of petition in respect of petitioners Nos. 62 and 63 deletion of names is allowed and the main petition is hereby dismissed. No order as to costs. File be consigned to record room after its due completion.