This petition by Agricultural Engineering Staff and Workers' Union, Multan Division functioning in the Agricultural Engineering Department of Multan Division and Malik Muhammad Ramzan, the President of the above union has been moved in the following circumstances.
The petitioner Union was registered by the Registrar of Trade Unions, Multan on 23-9-1993 vide certificate of registration Annex-B. It is alleged in the petition that there are other trade unions in the respondent establishment and one of them is the Zari Engineering Employees' Union Multan Division, which has the advantage of the patronage of the respondent establishment. It appears that the registration of petitioner No.1 was opposed by the Zari Engineering Employees' Union as well as by the establishment. The Zari Engineering Employees' Union filed a civil suit, which was dismissed on 14-9-1993 by the learned Civil Judge. Another petition was moved by the same union before the Punjab Labour Court No.9, Multan and the learned Presiding Officer, dismissed the petition on 17-11-1993 holding that the petition moved by the Zari Engineering Employees' Union was incompetent and further observed that the act of registration lies within the sole domain of the Registrar of Trade Unions and another trade union had no locus stand to raise any objection at the time of registration. The administration on their part addressed a lengthy letter on 17-10-1993 to the Registrar objecting to the registration of the petitioner-Union on a number of grounds vide Annex- C. The Registrar summarised the objections raised in the above letter as under: --
(1) That the Agricultural Engineering is a Government Department and the employees employed therein are civil servants for which reason the provisions of Industrial Relations Ordinance, 1969 are not applicable.
(2) That the employees of the Agricultural Engineering, Multan Division, Multan are employed in the administration of the State and for that reason they are not workman within the meaning of the Industrial Relations Ordinance, 1969.
(3) That the members of the Staff and Workers' Union is hit by the proviso to section 3(a) ibid for the reason that before joining the new union they had not severed their connections with the previous union of which they were members.
2. The Registrar replied to these objections vide letter dated 19-10-1993 copy Annex. `D' and observed that the Agricultural Engineering Department had not been excluded from the application of the provisions of Industrial Relations Ordinance, 1969 under subsection (3) of section 1 of the above Ordinance. He referred to certain judgments of the Supreme Court in this connection, which according to him had set the controversy at the rest. The Registrar also observed that the objections raised by the department against the registration of the staff and Workers' Union appeared to be discriminatory because it had not raised any objections against the trade unions already functioning in the establishment. According to him this discrimination was an act of unfair labour practice on the part of the employer. As to the objection that the members of the staff and Workers' Union were suffering from dual membership it was pointed out that the detailed inquiries were held by the Registrar and no member had been found having dual membership and before becoming members of the Staff and Workers' Union all members had resigned from the old union.
The Registrar pointed out that at that time the matter was sub judice before the Punjab Labour Court No.9 and further comments on this subject should be avoided.
3. The establishment was, however, not satisfied with this state of affairs and issued notice of misconduct dated 21-10-1993 (Annex `F) to fourteen members of the union stating therein that according to the list of members with the Directorate the above fourteen persons were members of All Pakistan Clerks Association and they cannot hold the dual membership of the Union as also of All Pakistan Clerks Association at one and the same time. It was further stated that persons named in the notice being civil servant could not become members of the Workers union in violation of rule 28 of the Government Servants (Conduct) Rules, 1964 and the act of joining the union amounted to misconduct. They were called upon to explain their position within three days in this respect, and to show cause why disciplinary proceedings on account of misconduct may not be initiated against them. The Secretary-General of the union replied to this letter on 24-10-1993 vide copy Annex. `G' stating that the letter of explanation verged on unfair labour practice on the part of the employer within the meanings of section 15 of the Industrial Relations Ordinance, 1969. It was further stated that in the interest of better labour management relations, the establishment should not indulge in matters, which relate exclusively to the workers. The administration, however, was not satisfied with this reply and they issued another notice of misconduct on similar lines on 1-11-1993 (Annex. `H') to nine other persons including Malik Muhammad Ramzan petitioner No.2 before me.
4. The petitioners thereafter, approached this Commission alleging that the establishment's attitude towards the petitioner No.1 that is Agricultural Engineering Staff and Workers' Union was hostile and it was pointed out that the trade unions composed of same categories of workers were functioning in the establishment and respondent had raised no objection to their functioning. It was alleged that the members of the petitioner union i.e. Agricultural Engineering Staff and Workers' Union, Multan Division were low paid employees of the Agricultural Engineering Division, Multan working as Blacksmith, Mechanics, Helpers, Assistants, Drivers, Daftries, Malis, Stenographers, Assistants, (sic), Painters, Store-keepers and were performing only manual and technical duties with no administrative, supervisory and managerial powers.
5. In the written statement filed by the respondents an objection was taken to the maintainability of this petition on the ground that members of the petitioner union were availing of all fringe benefits provided under the scheme of revised basic pay scales of 1991 which was not applicable to the employees governed by the IRO, 1969 and the members of the petitioner No.1 i.e. Agricultural Engineering Staff and Workers' Union thus ceased to be governed by the Industrial Relations Ordinance, 1969. It was further stated that the definition of civil servant in the Civil Servants Act of 1974 the workers or workmen were excluded from the category of civil servants and, therefore, provisions of the Industrial Relations Ordinance, 1969 were not applicable to the members of the Staff and Workers' Union who were all civil servants. An objection was also taken on the ground that Agricultural Engineering Department was a part of the Agriculture Department and the functions connected with the affairs of Agriculture did not fall within the definition of industry: Another preliminary objection was taken that the majority of the members of the petitioner union were members of All Pakistan Clerks Association and Agricultural Engineering Clerks Association and this dual membership was against Rule 28 of the Government Servants (Conduct) Rules, 1964 which enjoined that membership of an Association formed by civil servants shall be confined to a distinct class of Government servants and shall be open to all Government servants of that class only and such an Association shall not be in any way connected with or affiliated to any Association which does not satisfy this condition. The petitioner, according to the written statement, on this ground had no locus standi to file the present petition. On merits it was admitted that the staff and Workers' Union Multan Division had been registered by the Registrar of Trade Unions, Multan but it was averred that the members of the Staff and Workers' Union already held membership of All Pakistan Clerks Association and Agricultural Engineering Clerks Association and on this ground they were disentitled to form a trade union of workmen. It was stated that the jurisdiction of this Commission was erroneously invoked. Reference in this connection was made to a judgment passed by the Labour Court No. 8, Bahawalpur, which had observed that appeal of a junior clerk in Government service against his dismissal would lie to the Punjab Service Tribunal and not before the Labour Court. It was admitted that a letter was written by the administration to the Registrar on 17-10-1993 and the objection was repeated that the members of petitioner No. 1 being civil servants were governed by Punjab Civil Servants Act and could not join a Workers' Union. The litigation between the Zari Engineering Employee Union, Multan and the present petitioner No. 1 was admitted. It was stated that the petitioner had obtained its registration from the Registrar concealment of facts and that the answering respondent had full right to know the legal position about the registration of the union. The allegation of patronisation to other unions was denied but no explanation was provided ire the written statement as to how and under what circumstances the other unions continued to function without objection.
6. The learned counsel for the petitioners submitted that there were three trade unions already functioning in this establishment. One was the Zari Engineering Employees' Union functioning as CBA in Multan, the other was Staff Union and the third was Labour Union functioning in the Sahiwal Region as CBA. He submitted that these three unions are permitted to function and although they are composed of persons of the same categories, no objection was raised to their functioning. On the other hand the Labour Union in Sahiwal was functioning as CBA and the respondents were dealing with it in its capacity as Collective Bargaining Agent. He on this ground submitted that the issuance of charge-sheet to the members of petitioner No. 1 was an act of discrimination as described in section 15 of the Industrial Relations Ordinance, 1969. The learned counsel also submitted that the registration of the union was a conclusive proof under section 8 of the IRO, 1969 and a conclusive legal fact cannot be disturbed by the collateral move of disciplinary action on the basis of dual membership. It was also pointed out by the learned counsel that under section 10 of the IRO, 1969 it is only the Registrar who can ask for cancellation of the registration of the union on certain grounds. The learned counsel stated that the department had vide Annex. `C' conveyed its objections to the Registrar against the registration of petitioner No. 1 but the latter repelled these objections. The learned counsel pointed out that the matter of registration after investigation was the conclusive evidence of the registration of the union and membership of its members could not be questioned except in the way prescribed by the Statute.
7. The learned counsel for the respondent stressed the point that the members of the petitioner No. 1 are civil servants and as such are excluded from the category of workers and workmen. The learned counsel also stressed the point that the members of the petitioner No. 1 were also members of the All Pakistan Clerks Association and this dual membership ran counter to rule 28 of the Government Servants (Conduct) Rules, 1964. The learned' counsel further submitted that the charge-sheets served on the members of petitioner No. 1 were issued under departmental rules and they could challenge the same before the Punjab Service Tribunal and this Commission had no jurisdiction to entertain the present petition.
8. The law confers conclusiveness on the registration of a trade union under section 9 of the Industrial Relations Ordinance, 1969 and under section 10 of the same Ordinance it is only the Registrar who under certain circumstances can approach the Labour Court for cancellation of the registration of a trade union. The employer or any other union or private party has no right to move the Labour Court for deregistration of a trade union. The establishment in this case invoked rule 28 of Government Servants (Conduct) Rules, 1964, which says that the Government servants of a particular category may form an association but they will remain exclusively the members of the same Association. The charge framed by the establishment against certain members of the petitioner union is that they have dual membership of All Pakistan Clerks Association and the Staff Union. The IRO was enacted in 1969 and section 3 granted freedom of association to the workers to form trade unions or join associations of their own choice without previous authorisation. The law was further made more effective by introduction of sections 15 and 16 declaring any restraint or pressure on this freedom punishable as an unfair labour practice. Therefore, the personnel of Agricultural Engineering which fall within the definition of workers and workmen are free under the Constitution and under the relevant law to form a trade union or to join trade union of their own choice notwithstanding the conditions laid down in Rule 28 of Government Servants (Conduct)
Rules, 1964. It is not open to the respondents to defeat the legislative intent which confers conclusiveness on the registration of the petitioner No. 1 as a trade union to resort to a rule of conduct which was framed five years before the Industrial Relations Ordinance, came into being. In my view reference to rule 28 of the Government Servants (Conduct) Rules, 1964 is inapt, inappropriate and irrelevant. In any case it runs counter to the legislative intent and to that extent should be considered to have become repugnant, obsolete and redundant. It may also be pointed out that according to the letter of the Registrar dated 19-10-1993 the objection against the members of the Staff and Workers' Union petitioner No. 1 that it was suffering from dual membership was not correct and the detailed inquiries had been held in the matter and no member was found having dual membership because all such members had resigned from the membership of the previous union before becoming members of the Staff and Workers' Union. It may be mentioned that proviso to clause (a) of section 3 of the Industrial Relations Ordinance, 1969 places a ban on dual membership and says that no worker shall be entitled to be a member of more than one trade union at any one time. It may be stated that all Pakistan Clerks Association whose membership is attributed to certain members of the petitioner trade union is not a registered trade union under the IRO but may be an Association registered under the Societies Act.
In any case the Registrar did not find that the charge of dual membership was correct.
9. The preliminary objection on the effect that the members of the petitioner-union are availing of fringe benefits provided under the scheme of revised Basic Pay Scales 1991 and in view of that, they cannot claim their status as a worker has no force. It is true that in this scheme it is stated at page 5 that this scheme of revised Basic Pay Scales does not apply to persons governed by the Industrial Relations Ordinance, 1969 but that exclusion has to be interpreted in the context of the scheme and in any case it cannot override the statutory provisions of law according to which the workers of certain category are free to establish and form trade unions. The scheme being a fiscal instrument is to be interpreted strictly and it only means shat this scheme shall not apply to persons who are governed by the Industrial Relations Ordinance, 1969 and whose emoluments have been determined either by settlement or by and Award. The fact that the members of the petitioners' union are deriving benefits from this scheme shall not change their legal status as a worker.
10. The second objection to the membership of the persons concerned mentioned in Annex. F and Annex. H, dated 21-10-1993 and 1-11-1993 respectively is that in their capacity as civil servants they could not become members of a workers' union. This controversy was resolved long ago by the Supreme Court in the Project Director, Karkhana Alaat-e-Zari, Bahawalpur v. The Presiding Officer, Punjab Labour Court and others PLD 1989 SC 152. It may be pointed out that the case decided by this judgment related to the employees of Zari Engineering Karkhana and the objection raised before their Lordships was that the persons belonging to the Agricultural Engineering which after dissolution of the Cooperative Industrial Board was being run by an Administrator appointed by the Government, were public servants and were functioning in the administration of the State and, therefore, were excluded from the purview of the IRO, 1969. The Supreme Court repelled this contention and observed at page 155 of the report: "This contention on the part of the learned counsel for the appellants does not appeal to reason because the word `Administration of State' means persons employed by the State in connection with the activities of the State, in exercise of its political powers, including the action of, legislative, judicial and executive wings. According to this definition, `public servant' would come within the category of persons employed in the Administration of the State but that would not include present respondents employed in the Cooperative Industrial Establishment run by the Administrator who is appointed by the State. The said respondents are working in the Karkhana in the capacity of helpers, fitters, turners, blacksmiths, drill operators, store-keepers, Supervisors, Draftsmen and Foremen. Most of them are skilled workers and it cannot be said that they are employed in the administration of State but they are workers or `workmen' within the meanings of labour laws."
11. It may also be stated that the Circuit Bench of the Lahore High Court at Bahawalpur against whose judgment the precedent case was brought before the Supreme Court had held as would appear from the quotation of the judgment at page 154 of the above report that the Cooperative Karkhana Alaat-e-Zari was nothing but an industry or industrial establishment within the meaning of Industrial Relations Ordinance, 1969 and West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and consequently the workmen of this concern i.e. Cooperative Karkhana Alaat-e---Zari were workers working in an industry or commercial establishment and were entitled to avail the protections afforded and remedies available under the labour laws. The fording that the Karkhana Alaat-e-Zari was an industry does not appear to have been questioned before the Supreme Court and the verdict of the High Court on this aspect of the case stands unassailed.
12. In Sindh Road Transport Corporation and 2 others v. Staff Union and 2 others 1975 PLC 361, the late Mr. Brohi, the learned counsel for the Corporation, argued before the Sindh High Court that the Sindh Road Transport Corporation which had been set up under 'section 70 of West Pakistan Motor Vehicles Ordinance of 1965 was controlled by the Provincial Government and its Chairman and Directors were the creatures of the Provincial Government and the Government was empowered to make rules and prescribe the powers and functions of the Corporation. On this ground it was urged that the Corporation was deemed to be performing its statutory functions of operating Road Transport Services on behalf of the Provincial Government and all its employees should be considered as employed for the administration of the State. The High Court did not accept this argument and observed that if the legislature had intended to exclude every Government servant from the benefit of the provisions of IRO, it could have made its intention clear by saying so. It was pointed out that the exceptions in respect of the persons employed in Police Department, Defence Service and others had been clearly indicated in subsection (3) of section 1 of the Industrial Relations Ordinance, 1969. The High Court came to the conclusion: --- "that the employees of the Corporation, though the Corporation may be performing functions as an agent of or on behalf of the Provincial Government and its employees are public servants, are not persons employed in the administration of the State' and hence are not excluded from the application of or the benefits provided under the Ordinance."
13. The same view was taken in Mechanical Engineers and others v. Andrew John and others in PLD 1973 Karachi 503. The respondents were the employees of the Department of Public Works, Sindh and had approached the Labour Court for change of their designation from Fitter to Mistri Mechanical. It was held that persons unconnected with the actual performance of administrative or executive duties of the State and engaged in manual or menial work cannot be considered as persons employed in the administration of State and were not outside the purview of the Industrial Relations Ordinance, 1969. I may also refer to the judgment of the Supreme Court in Civil Appeal No.695/88 entitled Tahir Muhammad v. The Director of National Savings, Multan Region delivered on 11-11-1991 in which it was held: -- "All employees of the Government including those of attached departments are not ipso facto employed in the administration of the State' in terms of section 3(b) of the IRO."
14. It was alleged in para. 1 of the petition that the members of the petitioner No. l were performing only manual, clerical and technical duties with no administrative, supervisory or managerial functions to perform. This statement of facts as to the nature of duties of the members of the petitioner No, l has not been denied by the respondents. It has been established that the persons of the same category are members of three trade unions, which are already functioning in this establishment. I, therefore, hold that the members of the petitioner No.1 fall within the definition of workers and workmen as given in clause (xxviii) of section 2 of the Industrial Relations Ordinance, 1969 and the petitioner No.1 has been legally registered by the Registrar of Trade Unions, Multan.
15. It has already been pointed out in the earlier part of this order that the High Court held in case of Project Director, Karkhana Alaat-e-Zari, Bahawalpur v. The (residing Officer, Punjab Labour Court and others reported in PLD 1989 Supreme Court at page 152 that the Cooperative Karkhana Alaat- e-Zari was an industry and its workers were entitled to avail of the protection afforded and remedies available under the Labour laws. This finding of the High Court that Karkhana Alaat-e- Zari is an industry does not appear to have been questioned before the Supreme Court and remained in--tact. The argument that the members of the petitioner No.1 and petitioner No.2 being civil servants could not claim the status of workers or workmen is, therefore, rejected.
16. As to the notice issued to certain office-bearers of the petitioner No.1 vide Annexs. F and H, it has been pointed out that three trade unions comprising of the employees of 'he same category are already functioning in this establishment and there does not appear to be any legal or valid reason to exclude the members of petitioner No.1 from the purview of the Industrial Relations Ordinance, 1969. The notices issued to the office-bearers or members of the petitioner trade union are, therefore, discriminatory and the action of the respondents in this respect verges on unfair labour practice. I feel that the impugned notices were issued with an ulterior motive to overawe the members of the Union and to deter them from exercising their right to the union of their own choice. It is clearly an attempt to introduce a condition in the contract of employment of the members of the petitioner union seeking to restrain the right of the members of the union to join the trade union of their choice. The act is also discriminatory within the meaning of clause (c) of subsection (1) of section 15 of the IRO, 1969 in regard to the members of the union of the petitioner No.1 as against the members of the three other trade unions, which are already functioning in the establishment.
17. I find that the notices issued to the members of the petitioner No.1 vide Annexures `F' and `H' are tainted with mala fides and verge on unfair labour practice. I, therefore, quash these charge- sheets and hold that the registration of petitioner No.1 cannot be questioned except under the provisions of section .10 of the Industrial Relations Ordinance, 1969.