MUHAMMAD FAISAL KAMAL ALAM, J. Through this Constitutional Petition, the Petitioner, which is a Corporate entity and is engaged in the commercial activity; has called in question the order dated 14.01.2015 (the impugned order) passed by Respondent No. 1 (The Registrar of Trade Unions), whereby, programme of the referendum through secret ballot was given for determining the Collective Bargaining Agent in terms of Sindh Industrial Relations Act, 2013 (SIRA) (Annexure "A" at Page-31 of the Court file).
The Petitioner has further challenged the Certificate dated 22.01.2015, issued by Respondent No.1 (The Registrar of Trade Unions) in favour of Respondent No.2 (TNB Liberty Power Plant Workers Union), which is available as Annexure "F" of Page-43 of the Court file), certifying the latter as Collective Bargaining Agent (CBA) for the employees/workmen of the Petitioner Establishment. In the Petition, following relief has been claimed:- "It is therefore, most humbly and respectfully prayed, that this Hon'ble Court may be graciously be pleased and in the interest of justice and law, to set-aside and cancel the impugned order dated 14.01.2014 of the Respondent No.1 and also cancel the certificate of CBA issued to the Respondent No.2 by the Respondent No.1, as the matter pertains to National Industrial Relations Commission, because the Petitioner's establishment and / or may be pleased to grant any other relief as may be deem fit in the circumstances of the case.
Orders prayed accordingly."
3. The thrust or arguments from the Petitioner's side is that the entire exercise conducted by the Official Respondent No.1 from registering the Respondent No.2 as Trade Unions, subsequently, announcing the Election Schedule and finally awarding the CBA Certification, is a colorable exercise of powers and besides tainted with mala fide. As per the learned counsel for the Petitioner, since the Petitioner is a Trans-Provincial Establishment, having its registered Office at Islamabad and manufacturing unit at Ghotki in the Province of Sindh, the above mentioned statute-S1RA does not apply to the establishment of Petitioner, but the labour and workmen affairs is to be governed by the Federal statute, viz. Industrial Relations Act, 2012 (IRA).
4. The other live of arguments advanced by Mr. Sardar Sultan Jahangir Khan, the learned Advocate for the Petitioner is that even the exercise of holding CBA Elections is violative of STRA and in this regard he has specifically referred to Sections 6, 24 (2) and (8), inter alia in support of his arguments that the list of Voters was not properly verified as required under the law. It was further contended that the Respondent No.1 while announcing the Referendum Schedule by his impugned order of 14.01.2015 has entertained an application filed by Respondent No.2 on 25.10.2010, that is, five years back, which shows that discretion vested in the authority, that is, Respondent No.1, has been grossly misused. As per the Petitioner's stance, the present Respondent No.3 (TNB Liberty Power Employees Union) is the actual CBA and as an evidence the Petitioner counsel has filed a Statement dated 08.11.2016, where under, the Registration as well as CBA Certificate in favour of present Respondent No.3 (TNB Liberty Power Employees Union) are appended, which were issued by NIRC (National Industrial Relations Commission), Islamabad under IRA, 2012.
5. In support of his arguments, the Petitioner's counsel has relied upon a full Bench Judgment of this Court; 2015 Pakistan Labour Cases Page-1 (KESC and others Versus NIRC and others) and 2014 Pakistan Labour Cases Page-203, handed down by the Hon'ble Supreme Court in the case of Pakistan Telecommunication Company Ltd v. Member NIRC and others; both cited decisions hereinafter be referred to as KESC and PTCL cases respectively.
6. The above submissions of Petitioner are rebutted Mr. Ali Abbas Memon; the learned State Counsel representing the Respondent No. 1.
7. To a query, the learned State Counsel replied that the impugned order dated 14.01.2015 announcing the Polling Schedule on the basis of earlier application of 25.10.2010 preferred by Respondent No.2, was passed on account of the fact that in the intervening period parties were entangled in litigation and Elections were not held within time. The learned State Counsel Mr. Ali Abbas Memon, argued in support of the impugned orders, which according to him, falls within the domain and jurisdiction of Respondent No.1 and is a result of a lawful exercise of authority by the latter. The State Counsel has relied upon a reported Judgment of Hon'ble Supreme Court (PLC 1998 (Labour) Page-500).
8. Syed Sardar Hussain Shah, the learned counsel for Respondent No.2 has strenuously argued that the instant Petition merits dismissal at the outset because the Petitioner has invoked the jurisdiction of this Court with unclean hands by suppressing the material facts. He has referred to the decision earlier handed down by this Court in Constitutional Petition No.S-33 of 2011, filed by the present Petitioner against, inter alia, the present Respondents Nos.1 and 2. To augment his arguments that this very fact has been consciously concealed by the Petitioner because it goes against them, a copy of the decision in aforementioned Constitutional Petition has also been placed on record by Respondent No.2. It is further contended that principle of res judicata in view of above facts is also attracted in the present case. As per learned counsel for the Respondent No.2, the present Petition is not maintainable as the adequate and alternate remedy is available in terms of Section 26 of SIRA to the Petitioner was not availed within the prescribed time. It was further contended that failure to file appeal by present Petitioner as envisaged in Section 26 of SIRA, cannot be eclipsed by filing the instant proceedings..
9. I have taken into account the submissions of learned counsel for the parties and with their able assistance perused the record of the case. On behalf of Respondent No.2 Synopsis was also filed on 21.12.2016, wherein, following case law have been mentioned.
(i) 2014 SCMR Page-535.
[Thatta Cement Company Employees Union v. Registrar of Trade Unions and others)
(ii) 1998 PLC Page-500 [Essa Cement Industries Workers Union v. Registrar of Trade Unions and others)
(iii) 1997 PLC Page-746 (M/s. Hakisons Chemical Industries (Pvt.) Ltd Karachi v. Registrar of Trade Unions Karachi and others).
10. To resolve the questions involved in this Petition, in my considered view, firstly it is to be determined on the basis of record that whether the Petitioner is a Trans-Provincial entity or not, and secondly what is the legal effect of the decision dated 02.05.2014 handed down by the learned Single Bench of this Court in Constitution Petition No.S-33 of 2011, on which both contesting Respondents have placed much reliance.
11. From the pleadings and Synopsis of the parties, it is an undisputed fact that the registered office of Petitioner is situated at Islamabad, whereas, its power generation plant / Unit is at Mirpur Mathelo, District Ghotki, Sindh in the Province of Sindh.
12. The learned counsel for Respondent No.2 has vehemently argued that had the branches of Petitioner existed in other Provinces, only then the Petitioner could have taken the advantage of Trans-Provincial Concept as defined in the afore referred IRA and not otherwise, but since the registered office of Petitioner is at Islamabad, which is a Federal territory, thus the status of Trans- Provincial entity is not applicable to the Petitioner. As per the submission of Respondents, the aforementioned SIRA is fully applicable to the case of Petitioner, inter alia, as its power plant is located at Mirpur Mathelo, Ghotki, Sindh and is registered under the Factories Act, 1934. As an evidence the Certificate has been annexed as Annexure C/4 with the Counter Affidavit of Respondent No.2.
13. The concept of Trans-Provincial is mentioned in the above referred Federal Statute-IRA, 2012 and has been expounded in the aforementioned reported decisions of KESC (the full Bench decision of this Corrtt) and PTCL, the decision given by the Hon'ble apex Court.
14. To properly appreciate the concept of Trans-Provincial Establishment, it is also necessary to reproduce herein below the definition of establishment as contained in SIRA; Section 2 (ix) in juxta position to the definition of Trans-Provincial as mentioned in IRA (ibid).
(ix) "establishment" mean.; any office, firm, factory, society, undertaking, company, shop, premises or enterprise in the Province of Sindh, 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 the same place or in different places having a common balance sheet and except in section 25 includes a collective bargaining unit, if any, constituted in any establishment or group of establishment; Section 2 (xxxii) of IRA "trans provincial" means any establishment, group of establishments, industry, having its branches in more than one province.
15. The above definition of 'establishment' as contained in the Provincial Statute-SIRA, shows that it relates and confines to Province of Sindh only, whereas, the definition of Trans-Provincial as mentioned in IRA takes into its ambit any establishment or industry having its branches in more than one Province.
16. The above mentioned "definition of establishment" as contained in SIRA, makes it abundantly clear that it is a Sindh Province Specific, that is to say, it relates to an entity which has its Office, factory, industrial undertaking, so on and so forth, within the territorial boundaries of Sindh Province.
17. Conversely, the preamble of Federal Statute-IRA, 2012 in an unambiguous terms mentions that the said statute is applicable, inter alia to Islamabad Capital Territory, whereas, subsections (2) and (3) of Section 1 of the said IRA further reinforces the fact that the statute extends to the whole of Pakistan and applies to all those persons employed in any establishment or industry, which is situated in Islamabad Capital Territory or carrying on business in one more than one Province.
18. Similarly, it has been held in the full Bench Judgment handed down in KESC case; Paragraph-29, that the 'establishments', which are operating at Provincial level only, to them SIRA will apply. Same is the view of Hon'ble Supreme Court in the aforementioned PTCL case, wherein, the following dictum has been laid down: "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 though 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 overriding and super imposing effects over the Provincial Labour Court for resolving industrial dispute including unfair Labour practice, etc. related to the employer, having its 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 tinder the provision of Article 143 of the Constitution of Pakistan, 1973, laws enacted by Parliament have been given overriding and super imposing effects over the laws enacted by a Provincial Assembly of any of the Provinces 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 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."
(underlining is to add emphasis).
19. Thus, in view of the above discussion, the stance of contesting Respondents and particularly of Respondent No.2, that Petitioner is not a Trans-Provincial entity, is meritless and misconceived in nature. Registration Certificate even issued under the Factories Act, 1934, can at best be taken as a compliance of a legal requirement, but, the same cannot change the status of Petitioner from a trans-provincial establishment/entity to a Provincial one, particularly, in view of the afore referred reported decision of Hon'ble Supreme Court, which provides a direct answer to the arguments of Respondents.
20. Adverting to the next assertion of Respondents Nos.1 and 2 that this Court has already decided the present issues in the aforesaid Constitutional Petition No. S-33 of 2011, loses its value, in view of the above treatment of issues at hand. Secondly, after perusal of decision given in the said Constitutional Petition No.S-33 of 2011, it becomes quite clear that admittedly the said decision was with regard to the Registration of Respondent No.2 by present Respondent No.1, which the Petitioner is not challenging in the present Petition and therefore, the said decision of 02.05.2014 (in the above C.P. No.S-33 of 2011), does not adversely affect the merits of present case, as the present grievance li of Petitioner is that after promulgation of IRA, 2012 and SIRA, 2013, the jurisdiction of Respondent No.1 ceases to exist, whereas, the Registrar as mentioned in Federal Statute-IRA, 2012 will have jurisdiction in the matter and the Registrar appointed under Section 4 of IRA can only determine the CBA in terms of, inter alia, Section 19 of IRA, 2012, which has been done and a Certificate is already enclosed with the afore referred Statement dated 08.11.2016 of Petitioner counsel. I may further say but with due deference, that the decision given in above Constitutional Petition No.S-33 of 2011, in view of the two cited cases of KESC and PTCL, even otherwise, cannot apply as stare decisis. But at the same time it is also noted with concern that the present Petitioner should have mentioned the entire facts of earlier litigation in their present Constitutional Petition, which the Petitioner has failed to do. The legal and factual position in view of above two reported Judgments; 2015 Pakistan Labour Cases Page-1 (KESC and others v. NIRC and others) and 2014 Pakistan Labour Cases Page-203, handed down by the Hon'ble Supreme Court in the case of Pakistan Telecommunication Company Ltd. v. Member NIRC and others, on the issues involved in the present case, are so clear and binding, that the non-disclosure of fact about earlier litigation cannot entail adverse consequences for the Petitioner, which otherwise would have.
21. The decision cited by Respondents and mentioned hereinabove do not support their arguments nor relate to the issues involved in the present Petition. The case of Essa Cement and that of Hakeem Sons Chemical Industries (Supra), primarily relates to registration of Trade Union by the concerned authority, therefore, they are not applicable to the facts of present case.
22. The Respondent No.1 cannot justify its impugned action of holding Poll for determination of CBA on a five years old application of Respondent No.2. This factual aspect is already mentioned herein above. Secondly, the present Respondent No.1 does not have jurisdiction to determine the CBA for the Petitioner establishment, as SIRA is not applicable. Consequently, Polls / Referendum held under the above impugned order dated 14.01.2015, is hereby annulled and Certificate dated 22.01.2015 (Annexure to the Petition), in Form 7-A issued by Respondent No.1 and certifying the Respondent No.2 as a Collective Bargaining Agent are set-aside, being issued without lawful authority and are held to be void ab initio.
23. Thus the mala fide, unreasonableness and the illegality per se on the part of official Respondents is ex facie present in instant Petition, therefore, Section 26 of SIRA will not operate as a Bar against filing of present petition.
24. The conclusion of the above discussion is that Industrial Relations Act, 2012, which is a Federal statute, is applicable to the case of petitioner entity, and not SIRA-Sindh Industrial Relations Act, 2013 Articles 141 and 143 of our Constitution (of 1973) and Section 87 of IRA (2012) further endorse the above view the latter provision pertains to the overriding effect of IRA on other laws.
25. In view of 'the above discussion, the present Constitutional Petition is accepted.
26. However; Parties are left to bear their own costs.