Miangul Hassan Aurangzeb, J.--Through the instant intra Court appeal the appellant, Pakistan Telecommunication Company Limited ("P.T.C.L."), impugns the judgment dated 17.05.2016 passed by the learned Judge-in-Chambers whereby Writ Petition No. 2684/2012 filed by Respondents No. 1 to 4 (which are all registered trade unions in the establishment of P.T.C.L.) was partly allowed.
Through the said writ petition, Respondents No. 1 to 4 had sought a number of reliefs including a direction to P.T.C.L. to grant the workmen serving in P.T.C.L. the benefit of (i) revision in basic pay scale in the same way as allowed by the Federal Government to government servants through Office Memorandum ("O.M.") No. F.1(5)Imp/2011-419, dated 04.07.2011, (ii) ad-hoc relief allowance at the rate of 20% of the basic pay as granted by the Federal Government to civil servants through O.M. No. F. No. 1(3)Imp/2012, dated 02.07.2012, (iii) benefit under the Benazir Employees Stock Option Scheme in P.T.C.L as announced by the Federal Government, (iv) to treat all workmen in P.T.C.L. at par with civil servants working in government departments by granting them periodical salary increments, and (v) to apply the Voluntary Separation Scheme-2012 ("VSS-2012") to all workmen in P.T.C.L.
2. The learned Judge-in-Chambers declined to declare the VSS-2012 as illegal on the ground that the same was a past and closed transaction.
3. Learned counsel for the appellant submitted that the writ petition filed by trade unions to espouse the cause of their members was not maintainable; that there was nothing preventing the members of the trade unions from filing petitions regarding their individual grievances; that the rights asserted by the trade unions in Writ Petition No. 2684/2012 were the individual rights of workmen and not the rights of the trade unions; that a trade union in the establishment of P.T.C.L. had filed Writ Petition No. 2973-P/2012 before the Hon'ble Peshawar High Court seeking similar relief as was sought by the trade unions in Writ Petition No. 2684/2012 filed before this Court; that the Hon'ble Peshawar High Court, vide judgment dated 29.11.2017 had dismissed the said writ petition; that the Superior Courts have held time and again that a writ petition to espouse the cause of workman cannot be filed by a trade union; and that recently vide judgment dated 02.11.2021 passed by this Court in I.C.A. No. 82/2020, it had been held inter alia that those employees of the erstwhile Telephone and Telegraph Department who fall within the definition of worker or workman provided under the Workmen's Compensation Act, 1923, cannot seek to obtain service benefits by filing a writ petition under Article 199 of the Constitution. Learned counsel for the appellant sought the appeal to be allowed and the impugned judgment dated 17.05.2016 to be set-aside.
4. On the other hand, learned counsel for the respondents/trade unions submitted that there is no legal bar on a trade union from espousing the cause of its members by filing a petition under Article 199 of the Constitution; that there was no Collective Bargaining Agent ("CBA") notified in the establishment of P.T.C.L. when the writ petition was filed; that under Section 21 of the Industrial Relations Act, 2012 ("I.R.A."), where a CBA has not been certified, any act or function which is required to be performed by a CBA can be performed by a registered trade union; that under Section 20(1)(b), a CBA is authorized to represent all or any of the workmen in any matter or judicial proceedings under the I.R.A.; and that proceedings under Article 199 of the Constitution are judicial proceedings in which a trade union could represent its members. Learned counsel for the respondents/trade unions prayed for the appeal to be dismissed.
5. I have heard the contentions of the learned counsel for the appellant on the maintainability of the writ petition that was allowed vide the impugned judgment dated 17.05.2016 and have also heard the arguments of the learned counsel for the respondents/trade unions.
6. Learned counsel for the contesting parties were in unison on their submission that this Court ought to, in the first instance, decide the question whether the writ petition filed by the trade unions is maintainable.
7. All the petitioners in Writ Petition No. 2684/2012 were trade unions in the establishment of P.T.C.L.
The relief that was sought in the writ petition is referred to in paragraph 1 above. The prayer clause of the writ petition shows that none of the reliefs sought were for the enforcement of any of the legal rights of the trade unions but those of its members.
8. Section 33(1) of the I.R.A. entitles a worker to bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement to the notice of his employer in writing "either himself or through his shop steward or collective bargaining agent" within 90 days of the date on which the cause for such grievance arises. As is apparent from the bare perusal of Section 33(1) ibid, a CBA can espouse the cause of a worker by submitting a grievance notice to the employer. Similarly a grievance petition under Section 33(4) of the I.R.A. against a decision of the employer can be filed before the N.I.R.C. by the CBA when a dissatisfied worker takes the matter to the CBA. For the purposes of clarity, Section 33(4) of the I.R.A. is reproduced herein below: "(4) If the employer fails to communicate a decision within the period specified in sub-section (2) or, as the case may be sub-section (3), or if the worker is dissatisfied with such decision, the worker or the shop steward may take the matter to his collective bargaining agent or to the Commission or as the case may be the collective bargaining agent may take the matter to the Commission and where the matter is taken to the Commission, it shall give a decision within seven days from the date of the matter being brought before it as if such matter were an industrial dispute: Provided that a worker who desires to so take the matter to the Commission shall do so within a period of sixty days from the date of the communication of the employer or, as the case may be, from the expiry of the pen ad mentioned in sub-section (2), or sub-section (3), as the case may be."
(Emphasis added)
9. In the case of K.P.M. Employees Union vs. Karachi Pipe Mills Ltd. (1992 SCMR 36), the Hon'ble Supreme Court held as follows: "17. In case of an individual grievance of a worker in respect of predetermined rights an application is to be made under Section 25-A of the Ordinance. The procedure laid down in the provision has to be complied with before moving the Labour Court. The CBA has also been authorised to move the Labour Court in case of individual grievance if the worker has brought his grievance to the notice of his employer through his collective bargaining agent. Where the law has empowered the CBA to move an application to the Labour Court it has specifically stated so in the law itself A construction of the law has to be made which is reasonable and is in consonance with the spirit of law. A foreign element cannot be brought into simply to make it more convenient to litigants."
10. Section 20 of the I.R.A. provides for the functions that the CBA can perform. Section 20(1)(b) entitles a CBA to represent all or any of the workmen in any matter or judicial proceedings under the I.R.A. Unlike Section 33(1) and (4) of the I.R.A., Section 20(1)(b) only entitles the CBA to "represent" workmen in any matter or judicial proceedings under the I.R.A. Although the said provision entitles the CBA to represent workmen, it does not authorize the CBA to file or institute legal proceedings or to take a matter on behalf of workmen before any forum. Furthermore, under the said provision, the CBA has been entitled to represent workmen in any matter or judicial proceedings under the I.R.A.
The term "under this Act" employed in the said provision has reference only to the I.R.A. and no other statute. Therefore, even if it is presumed that the said provision entitles the CBA to file or institute judicial proceedings, such proceedings can only be under the provisions of the I.R.A. The petition filed by the respondents/trade unions was under Article 199 of the Constitution. The proceedings before this Court in the said petition were most certainly not proceedings under the I.R.A. Therefore, we are of the view that Section 20(1)(b) of the I.RA. does not entitle a CBA to file or institute a petition under Article 199 of the Constitution in its own name for the benefit of its members/workmen. In the case of Karachi Pipe Mills Ltd. vs. Sindh Labour Appellate Tribunal (1984 PLC 1359), the Division Bench of the Hon'ble High Court of Sindh, while interpreting Section 22(12)(b) of the Industrial Relations Ordinance, 1969 (which entitles a CBA to represent all or any of the workmen in any proceedings), held as follows: "There is no doubt that the Collective Bargaining Agency under Section 22(12)(b) of the Ordinance has a right to represent all or any workman in any proceeding and in fact Section 25-A(4) of the Ordinance itself also give right to the Collective Bargaining Agency to take the grievance of a worker to Labour Court but the scope of proceeding under Sections 25-A and 34 of the Ordinance are quite different. They have also different implications. Therefore, merely because the Collective Bargaining Agent has a right to represent all or any workman would not give it a right to take matters covered under Section 25-A of the Ordinance to the Labour Court under Section 34 of the Ordinance for then the provisions or limitation provided in Section 25-A of the Ordinance would also disappear for under Section 34 of the Ordinance no such conditions or limitations are provided."
(Emphasis added)
11. Learned counsel for the respondents/trade unions placed heavy reliance on Section 21 of the I.R.A. in furtherance of his submission that a registered trade union can perform any act or function which is required to be performed under the provisions of the I.R.A. by a CBA where it has not been notified. He submitted that since the CBA had not been notified at the time when the writ petition was filed, the respondents/trade unions were well within their rights to have filed the writ petition.
This argument is of no benefit to the respondents/trade unions since we have already held that a CBA could not file or institute a writ petition in order to espouse the cause of workmen by relying on Section 20(1)(b) of the I.R.A. A trade union cannot take advantage of Section 21 of the I.R.A. in order to perform an act or function in absence of a CBA which Section 20 does not confer on it to perform.
12. Even if the rights of the workers which the respondents/trade unions were seeking to enforce by filing a writ petition were to be treated as the collective rights of their members/ workers, Section 60 of the I.R.A. gives the CBA the right to apply to the N.I.R.C. for the enforcement of any right guaranteed or secured to the workers collectively by or under any law, award, settlement, or decision. In the presence of such an alternative remedy provided by the law, a CBA cannot file a writ petition for the enforcement of a right guaranteed or secured to workers under any law, award, settlement, or decision. A fortiori, a trade union, in the absence of a certified CBA, can also not file a writ petition to enforce a right guaranteed or secured to workers under any law, award, settlement, or decision.
13. The existence of a legal right is the foundation of a writ of mandamus and the petitioner has to be an aggrieved person. The petitioner, in order to obtain relief by way of a writ of mandamus, must satisfy the Court that he had a legal right to compel the performance of a duty and the person against whom the right was sought was under a legal obligation to perform the duty. A person cannot be said to be an aggrieved person unless he has a right in the performance of a statutory duty by a person performing functions in respect of any such right. Only an aggrieved person can file a writ other than a writ of habeas corpus and quo warranto.
14. In the case before us, the respondents/trade unions (which were the writ petitioners) were not seeking the enforcement of their own legal rights but those of their members. This is apparent from the prayer sought in the writ petition filed by the respondents/trade unions. Therefore, the respondents/trade unions could not be termed as aggrieved persons having the right. file a writ petition to espouse the cause of their members. It is no longer res Integra that a trade union or an association cannot espouse the cause of its members by filing a writ petition in its own name.
Reference in this regard may be made to the following case law:-
(i) In the case of Democratic Workers Unions CBA vs. State Bank of Pakistan (2002 PLC (C.S.)
614), a trade union, which had been certified as the CBA in the establishment of the State Bank of Pakistan ("SBP"), had challenged the appointment of employees in the SBP. Furthermore, a direction was sought to the SBP to frame a recruitment policy prior to making fresh appointments. The petitioner in the said case had also sought a direction for appointments to be made on the basis of the regional and provincial quota fixed by the Federal Government. The Division Bench of the Hon'ble High Court of Sindh dismissed the said petition with the observation that "the 'petitioner being the Collective Bargaining Agent could claim locus standi to invoke the jurisdiction of this Court under Article 199 of the Constitution for the alleged violation of the legal or fundamental rights of its members."
(ii) In the case of Muntizma Committee vs. Director, Katchi Abadies, Sindh (PLD 1992 Karachi 54), a writ petition was filed by Muntizma Committee seeking a direction not to disturb the petitioners in their peaceful use of a plot situated in Goth Abbas Town, Karachi. The Hon'ble High Court of Sindh dismissed the said petition as incompetent by holding as follows: " .... The Petitioners No. 1 are registered under the Societies Registration Act. Petitioners Nos. 2, 3 and 4 are residents of Abbas Town, Karachi. Article 199 of the Constitution confers very wide powers on a High Court for enforcement of rights. Article 199 provides for remedy for the infringement of a fundamental or legal right of a person. The condition precedent to the granting of any relief under Article 199 depends on existence of a fundamental or legal right of a person and the infringement of such a right which is the foundation of an application under Article 199 is a personal and individual right. The legal right may be a statutory right or a right recognized by the law. A person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty to perform relating to that right........
In the instant case, the persons who will be affected by the allotment of the land comprised in 3- 1/2 acres are the residents occupying the same or inhabitants of Abbas Town. Secondly 3-1/2 acres land was not reserved for playground, Eidgah, hospital, maternity home and school for the residents of the Town but surely not the Petitioner No. 1. The Petitioner No. 1 has no legal right and therefore there is no question of the infringement of a legal right. The Petitioner No. 1 has no interest in 3-1/2 acres land and is not, therefore, an aggrieved person."
(iii) In the case of Pakistan Diploma Engineering Federation (Regd.) Lahore vs. Federation of Pakistan (1987 CLC 2154), a body registered under the Societies Registration Act, 1860, had filed a writ petition in a representative capacity on behalf of its members who had a grievance against the respondents concerning the terms and conditions of their service. A preliminary objection was raised to the maintainability of the petition on the ground that the petitioner did not come within the ambit of the expression "aggrieved party." The Hon'ble Mr. Justice Falak Sher (as he then was), speaking for the Hon'ble Lahore High Court, upheld the said objection by holding as follows: "In the context of things; I am of the view that the petitioner is not an aggrieved person within the meanings of the expression deployed in the Constitution. The grievance if any is concerning the terms and conditions of service of its members and not that of the petitioner. Since it has not suffered the alleged wrong, therefore, it has no locus standi to file this petition."
(iv) In the case of Pakistan Steel Re-Rolling Mills Association vs. Province of West Pakistan (1964 PLC 121), a writ petition was filed by an association challenging a notification issued by the Governor of West Pakistan declaring that the minimum rate of wages as recommended by the Minimum Wages Board be the minimum rate of wages for all kinds of workers, skilled and unskilled in the Steel Re-Rolling Mills in West Pakistan. A preliminary objection was raised to the maintainability of the writ petition on the ground that the Pakistan Steel Re-Rolling Mills Association could not be termed as an "aggrieved party" as envisaged by Article 98 of the Constitution of Pakistan, 1962 and therefore the writ petition was not competent. The Hon'ble High Court, after referring to a number of judicial precedents, dealt with the said objection in paragraph 8 of the said report which is reproduced herein below:- "8. No authority was cited before us by the learned counsel for the petitioners contending for the opposite view, but it was argued by them that the petitioner-association was a party aggrieved within the meaning of Article 98 of the Constitution for various reasons. It was said that the association is an "aggrieved party" because it enjoys a consultative status for operating the Ordinance, and that the grievance made in the petition is that in the process of setting up of the Minimum Wages Board and the recommendations made by the Board, there has been a departure from the provisions of the Ordinance. An added strength was given to this contention by the fact that there was no other association representing the Steel Mills Owners and that the petitioner-association was a registered boy under the Trade Organization Ordinance of 1961. We consider that none of these considerations confers on the association the character of an "aggrieved party" within the meaning of Article 98 of the constitution, as the grievance complained of must in its effect entail a directly injury to the petitioner to make it an aggrieved party, and the injury to the petitioner to make it an aggrieved party, and the injury has to be co- related to the relief sought in the petition to avoid that injury. In writ jurisdiction, reliefs claimed have to be construed and granted in terms of the prayers made in the petition See Pakistan v. Ali Afzal (2) and the Courts are not called upon merely to decide metaphysical questions of law without reference to the relief which is sought in the petition. In the present case, the petition under Article 98, according to the subject heading, is directed against the respondent for an order to withdraw and cancel and treat as of no valid effect the minimum rates of wages recommended by the West Pakistan Minimum Wages Board, as published in West Pakistan Gazette dated the 15th of march 1963 under Section 6(1) of the Ordinance and at the end the same prayer is repeated that the Court on being of the opinion that the respondent had acted in excess of its authority conferred on it by law may be pleased to issue an order directing the cancellation of the aforesaid Notification. It is obvious that the notification in question, laying down the minimum wages for the workers in the Schedule appended to it does not at all affect the interest of the petitioner association as such to make it an "aggrieved party" for the purpose of making a writ petition. The Association does not have to pay the wages to workers and it cannot make a grievance of that fact--that the wages have not been legally fixed. It is the individual members. i.e., the owners of the different Steel Re-Rolling Mills that have to foot the bill of the increased wages, as ordained in the notification, and it is they who are individually in various degrees affected by the notification. In this situation, respectfully agreeing with. the view expressed in the authorities noted above, we are constrained to hold that this petition is not competent, as the petitioner-association by itself, apart from its individual members, is not at all directly affected with the practical outcome of the impugned notification. The view that we have formed on this point is sufficient to disposes of the petition on the preliminary objection, dispensing with the need to go into the merits, but since the merits of the petition were also argued before us by the learned counsel and as the question raised might give rise to a number of petitions by the individual members of the association and we understand that one such petition by an individual member has already been filed which is pending for admission, we would like to express our opinion on the merits as well."
Law to the said effect has also been laid down in the cases of Mutual Funds Association vs. Federation of Pakistan (2010 PLC 306) and Haji Mojakkir Ali vs. Regional Transport Authority, Sylhet (PLD 1967 Dacca 6).
15. In view of the above, the ground taken by the appellant/ P.T.C.L. regarding the incompetence of the writ petition filed by the respondents/trade unions succeeds. Consequently, the instant appeal is allowed. the impugned judgment dated 17.05.2016 is set-aside; Writ: Petition No. 2684/2012 filed by the respondents/trade unions is dismissed as not maintainable. The dismissal of the said writ petition shall not debar the aggrieved workers in the establishment of P.T.C.L. from taking their grievances in accordance with the law before the appropriate forum. There shall be no order as to costs.