AJMAL MIAN, ACTG. C.J.---By this common judgment, we intent to dispose of the aforesaid civil appeal and the Constitution petition, as both of them involve common questions of law.
2. The brief facts are as under:-- Civil Appeal No. 635 of 1994 It seems that the Civil Aviation Department was controlled by one of the departments of the Federal Government prior to the enforcement of Pakistan Civil Aviation Authority Ordinance (XXX of 1982), hereinafter referred to as the Ordinance. It appears that the employees of the Civil Aviation Department got a union registered on 16-9-1969. After the enforcement of The Industrial Relations Ordinance, 1969, hereinafter referred to as the I.R.O., the employees again got the union re- registered on 7-9-1980., The Government of Pakistan through Director, Civil Aviation, Karachi, made efforts to get the union de-registered by invoking the jurisdiction of the Labour Courts without any success. Then, it filed Constitution Petition No. 1012 of 1973, which was dismissed in default on 14-10- 1975.
3. Upon the enforcement of the Ordinance with effect from 4-12-1982, the Civil Aviation Authority (i.e. Appellant No. l), hereinafter referred to as the Authority, was created as a corporate body. The Authority, pursuant toy the power conferred on it under Section 27 of the Ordinance, inter alia framed Regulations Nos.6.22 and 6.26 providing as under:-- Regulation No.6.22: "6.22: No employee of C.A.A. Shall commence, continue, instigate or incite others to take part in or expand or supply money, or otherwise in furtherance or support of an illegal strike or a go-slow.
EXPLANATION In this clause, go-slow, means any orgainsed, deliberate and purposeful slowing down of normal output or the deterioration of normal quality of work.
Regulation No. 6.26: "6.26: No C.A.A. Employee shall be a member, representative or officer of any association representing or purporting to represent C.A.A. Employees or any class C.A.A. Employees unless formation of such association has been permitted by the Director-General and satisfy the following conditions, namely:
(a) Membership of association and its office-bearers shall not be confined to a distinct class of C.A.A. Employees and shall be open to all C.A.A. Employees of that class.
(b) The Association shall not, in any way, be connected with, or affiliated to any association which does not, satisfy condition (a).
(c) The association shall not, in any way, be connected with any political party or organization, or engage in any political activity.
(d) The association shall not:
(i) issue or maintain any periodical except in accordance with any general or special order of the C.A.A.;
(ii) except with the previous sanction of the C.A.A., publish any representation on behalf of its members, whether in the person 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 of any person for such election;
(ii) by any means support the candidature of any person for such election; or (i.e) undertake or assist in the registration of election, or the selection of candidate for such election.
(f) 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;
(ii) pay, or contribute towards the expenses of any trade union which has constituted a fund under section 16 of the Trade Union Act, 1926 (Act XVI of 1926)."
4. Respondent No. l (i.e. Union of Civil Aviation Employees A.T.C. Building, Lahore Airport, Lahore through its Chairman, Maqsood Ahmad son of Hakam Ali) and respondent No.2 (i.e. Maqsood Ahmad son of Hakam Ali, Member of the above Union) filed Writ Petition No.4790 of 1991, averring therein that after the enforcement of the Ordinance and framing of he Regulations, petitioner No.1banned the union activities inasmuch as respondent No. 1 was not allowed to function. They further averred that the above provisions of the Ordinance and the Regulations were violative of article 17 of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution, which guarantees the formation of unions. The aforesaid petition was resisted by the petitioners and inter alia it gas pleaded that Article 17 of Constitution confers right to form unions subject to reasonable restrictions imposed by law and' that the above provision of the Ordinance and the Regulations are reasonable restrictions and, therefore, there was no violation of Article 17 of the Constitution.
5. The learned Judge in Chambers after hearing the arguments of the learned counsel for the parties by the impugned judgment allowed the above petition as under:- "43. It flows from the above, that the employees of the Civil Aviation Authority have a right to form a trade union and the restrictions placed upon by Regulations 6.22 and 6.26 are ultra vires of Article 17 of Constitution. It is further held that this association has a right to function as such but that right can be regulated in accordance with law by the respondents."
6. Thereupon, inter alia the Authority and the Federation of Pakistan filed a petition for leave to appeal against the aforementioned judgment, which was granted to consider, whether the learned Judge in Chambers was justified in granting the above quoted relief to the respondents keeping in view the judgment of this Court in the case of Haji Malik Aman and 3 others v. Federation through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and another (1993 SCMR 1837).
Constitution Petition No 24 of 1993
7. The above Constitution petition has been filed by the employees of the Pakistan Television Corporation i.e. Respondent No. 1 hereinafter referred to as the Corporation, under Article 184(3) of the Constitution directly in this Court, in which besides arraying the Corporation, they impleaded Pakistan through the Secretary, Ministry of Law and Parliamentary Affairs, Government of Pakistan, as respondent No. 2. It has been averred that the petitioners are bona fide workers employed in the Corporation. They were office-bearers and members of various unions which existed in the Corporation at the of promulgation of Ordinance No. XV of 1978 i.e. The Industrial Relations (Amendment) Ordinance, 1978, Gazetted on 18-4-1978, whereby subsection (3) of section 1 of the I.R.O. Was Amended and the 4: - employees of the Corporation were taken out of the purview of the I.R.O. It `' is also the case of the petitioners that the formation of the workers' unions in the Corporation took place at various stages as under:-
(i) Television Centre. Lahore.
The Union was registered under the West Pakistan Trade Union Ordinance, 1968, in 1969.
(ii) Television Centre. Karachi This Union was registered under the West Pakistan Trade Union Ordinance, 1968, in 1969.
(i.e) Pakistan Television Headquarters Office This Union was registered under the West Pakistan Trade Union Ordinance, 1968, in 1969.
(iv) Rawalpindi-Islamabad Television Centre/Central Sales Office, Karachi.
This Union was registered in 1978 under the West Pakistan Trade Union Ordinance, 1968.
(v) Television Centre Peshawar/Quetta.
The said Union was registered in 1975."
8. It has been averred that the aforesaid trade unions later on, at various centres also formed Federation of Pakistan Television Workers' Union in 1970. It has been further averred that all the above trade unions along with the Federation continued to safeguard the rights and interests of the workers under the I.R.O. And various settlements were arrived at between the management and the respective collective bargaining agents from the to the, according to which the terms and conditions of service were regulated. The last settlement was arrived at in July, 1976, for a period of to years, which was to remain in force until April, 1978.
It seems that while amending subsection (3) of section 1 of the I.R.O. By Ordinance (XV of 1978), the employees of the Corporation were not only excluded from the purview of the I.R:O. But registration of and certificate of registration issued to all the registered trade unions functioning in the Corporation and the Pakistan Broadcasting Corporation were cancelled by virtue of section 3 thereof. In the above factual background, the petitioners filed aforementioned Constitution petition in this Court for the following reliefs:- "In the circumstances, therefore, it is humbly prayed that the honourable Supreme Court be pleased to declare that the at of the respondents in promulgating the- Industrial Relations (Amendment) Ordinance, 1978 (Ordinance XV of 1978) and placing a total restriction upon the employees of the Pakistan Television Corporation to form Trade Union and undertake trade union activities, as being ultra vires of the Constitution of the Islamic Republic of Pakistan, 1973 in violation of the International Labour Convention and Recommendations particularly, Convention Nos.87 of 1948 and 98 of 1949 and that there is no lawful authority in the respondents to prevent and obstruct the petitioners from being restored to the erstwhile status of trade union and Collective Bargaining Agent and other incidental activities for the trade union. It is further prayed that it be also declared that the petitioners are entitled to pursue their trade union activities under the I.R.O. Any other relief being appropriate in the peculiar circumstances of the case like revival of their registration certificates may also be granted."
The petitioners have raised inter alia the following to questions in the aforesaid Constitution petition:---
(a) Whether the provisions of the Industrial Relations (Amendment) Ordinance, 1978 (Ordinance NO.XV of 1978) taking away the fundamental right of the petitioners and other employees of the Pakistan Television Corporation to form a trade union for pursuing their trade union activities under 'the I.R.O. Are not repugnant to Article 17(1) of the Constitution of the Islamic Republic of Pakistan, 1973?
(b) Whether the cancellation of the Registration of the Pakistan Television Corporation Employees Union in pursuance of the provisions of the Industrial Relations (Amendment) Ordinance, 1978, is not violative of the Fundamental Right to form a union guaranteed by Article 17(1) of the Constitution?
The aforementioned Constitution Petition was tagged with the petition for leave, from which the above civil appeal has arisen. Since this Court had granted leave in the aforesaid petition for leave the above Constitution petition was also admitted for regular hearing.
9. In support of the above appeal Mr. K.M.A. Samdani, learned Sr. Advocate Supreme Court appearing for the appellants, has vehemently contended that in view of the judgment in the case of Haji Malik Aman and 3 others (1993 SCMR 1837), the learned Judge in Chambers was not justified in granting the above quoted relief in the aforesaid writ petition. According to him, the aforementioned appeal involves the question, whether by permitting the employees of the Authority to form a trade union would not be prejudicial to--
(a) integrity of Pakistan; and
(b) public order; keeping in view that the Authority is closely linked with the defence of Pakistan. His further submission was that above Regulations Nos. 6.22 and 6.26 are reasonable restrictions in terms of clause (1) of Article 17 of the Constitution and, therefore, no exception can be taken to the same.
On the other hand, Dr. A. Basit, learned Advocate Supreme Court appearing for respondent No. l in the above appeal, has strongly argued that the judgment under appeal is in consonance with law inasmuch as it is in accord with Article 17 of the Constitution. His further submission is that section 23, which excludes the application of the provisions of I.R.O., is violative of Article 17 of the Constitution. He formulated the following legal submissions:-
(i) that every citizen has the right to form a union distinct from an association under Article 17 of the Constitution.
(ii) that the word "union" has a definite connotation and it carries with it inter alia the right to at as a collective bargaining agent.
(i.e) that the fundamental right contained in clause (1) of Article 17 of the Constitution is not absolute but subject to reasonable restrictions.
(iv) that the restriction under Article 17 for the Constitution is subject to judicial review on the touchstone of reasonableness and specified objects.
(v) that reasonable restrictions in terms of Article 17 of the Constitution can be placed through a statute or rules having a statutory force and not through regulation, which have no statutory force.
(vi) that the I.R.O. Sets up a system through which the above fundamental right to form unions is to be exercised, the law which excludes the application of I.R.O., is liable to be judicially reviewed.
As regards the judgment of this Court in the case of Haji Malik Aman and 3 others (1993 SCMR 1837), he has candidly submitted that it is difficult to distinguish the above case and it is high the that this Court should review the correctness of the aforesaid judgment.
The thrust of the arguments of Mr. Abid Hassan Minto, learned Senior Advocate Supreme Court appearing for the petitioners in the aforesaid Constitution Petition, was that the amendments made by Ordinance (XV of 1978) excluding the employees of the Corporation from the purview of the I.R.O. And cancelling the registration of the unions which were operating without providing an alternate legal framework for allowing the petitioners union to function in terms of Article 17 of the Constitution is violative of the latter provision and, therefore, are liable to be struck down.
Whereas Sh. Riazul Haq, learned Advocate Supreme Court appearing for the Corporation, has submitted that the above Constitution Petition is not maintainable as the petitioners have approached this Court directly without invoking the jurisdiction of the High Court under Article 199 of the Constitution; secondly, the amendments were made in 1978, whereas the Constitution petition was filed in 1995 and thus the same suffers from laches and on that account is liable to be dismissed. On merits, his submission is that no violation of Article 17 of the Constitution is involved.
Mr.Tariq Mehmood, learned Deputy Attorney-General, who has appeared for the Federation, has contended that Article 17 of the Constitution is applicable to all the citizens of Pakistan and not particularly to the employees and that the exclusion of the application of I.R.O. To the Corporation has not violated, in any way, the above Article.
10. Before dealing with the main contentions of the learned counsels for the parties, it may be pertinent to refer to Article 8 of the Constitution, which is the first Article in Chapter 1 relating to Fundamental Rights. Clauses (2) thereof envisages that the State shall not make any law which takes away or abridges the rights so conferred and any law made contravention of this clause shall, to the extent of such contravention, be void. Whereas clauses (3) thereof provides that the above Article shall not apply to ---
(a) any law relating to members of the Armed Forces, or of the police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them; or
(b) any of the -
(i) laws specified in the First Schedule as in force immediately before the commencing day or as amended by any of the laws specified in that Schedule;
(ii) other laws specified in Part I of the First Schedule.
11. At this juncture, it may be pertinent to reproduce clauses (1) and (2) of Article 17 of the Constitution and section 1(13) of the I.R.O., which read as under:--- Clauses (1) and (2) of Article 17: " 17. (1) Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality.
(2) Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.
"
Section 1(3) of the I R O.
"1.(1)........................................
(2)....................................
(3) It shall not apply to any person employed---
(a) in the Police or any of the Defence Services of Pakistan or any services or installations connected with or incidental to the Armed Forces of Pakistan including an Ordnance Factory maintained by the Federal Government; or
(b) in the administration of the State other than those employed as workmen by the Railway, Posts, Telegraph and Telephone Department; or .
(c) as a member of the Security Staff of the Pakistan International Airlines Corporation, or drawing wages in such pay group, not lower than group V, in the establishment of that Corporation as the Federal Government may, in the Public interest or in the interest of security of the Airlines, by notification in the official Gazette, specify in this behalf; or
(d) by the Pakistan Television Corporation or the Pakistan Broadcasting Corporation; or
(e) by the Pakistan Security Printing Corporation or the Security Papers Limited; or
(f) by an establishment maintained for the treatment or care of sick infirm, destitute as mentally unfit persons; or
(g) as a member of the Watch and Ward, Security or Fire Service Staff of an oil refinery; or
(h) as a member of the Security or Fire Service Staff of an establishment engaged in the production, transmission or distribution of natural gas or liquid petroleum gas."
A perusal of clause (1) of Article 17 of the Constitution indicates that it confers on every citizen the right to form associations or unions, but this right is subject to reasonable restrictions imposed by law in the interest of sovereignty or integrity op Pakistan, public order or morality.
Whereas clause (2) of the said Article confers on every citizen, not being in the Service of Pakistan, the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of to items specified therein, namely,
(a) the interest of the sovereignty; or
(b) integrity of Pakistan.
It also provides the mechanism whereby any political party, which has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, can be prevented from functioning by making a declaration to that effect and making reference in respect thereof within 15 days of such declaration to this Court.
It may be mentioned that subsection (1) of section 1 of the I.R.O, gives the name of the Ordinance, whereas subsection (2) thereof provides that it extends to whole of Pakistan. It may further be mentioned that above quoted subsection (3) excludes the application of the provisions of I.R.O. To the persons employed by the establishment/institutions mentioned in above-- quoted sub- clauses (a) to (h) which inter alia include the Police or any of the Defence Services of Pakistan or installations connected with or incidental to the Armed Forces of Pakistan including an Ordnance Factory maintained by the Federal Government. It also inter alia includes Pakistan Television Corporation under sub-clause (d).
12. It will not be out of context at this juncture to mention that the object of promulgation of the I.R.O.
Was to amend and consolidate the laws relating to the formation of the trade unions, the regulation of relations between the employers and workmen and the avoidance and settlement of any differences or disputes arising between them as is evident from the Preamble to the same. The I.R.O. Provides a comprehensive machinery for the above objectives. Sections 5 to 14 thereof deal with the registration of a trade union I and allied matters; whereas sections 17 to 23-F inter alia deal with the collective bargaining agents. Sections 24 to 52 the same provide for joint consultation, conciliations and mediations and the procedure for getting industrial dispute resolved; whereas sections 53 to 64 cater for penalties and procedures. Sections 65 to 67 provide for miscellaneous matters including repeal and savings.
It may further to observed that section 67 of the I.R.O. Repeals the statutes mentioned in subsection
(1) thereof and saved the trade unions existing immediately before the commencement of the Ordinance and all the acts, notifications, orders etc. It may be advantageous to reproduce above section 67, which reads as under:- "67. Repeal and savings.---(1) The following laws are hereby repealed, namely:
(a) The East Pakistan Trade Unions Act, 1965 (E.P. Act V of 1965);
(b) The East Pakistan Labour Disputes Act, 1965 (E.P. Act VI);
(c) The West Pakistan Industrial Disputes Ordinance 1968 (W.P. Ordinance IV of 1968); and
(d) The West Pakistan Trade Unions Ordinance, 1968 (W.P. Ordinance V of 1968).
(2) Notwithstanding the repeal of any law by subsection (1), and without prejudice to the provisions of section 24 of the General Clauses Act, 1897 (X of 1897):
(a) every trade union existing immediately before the commencement of this Ordinance, which was registered under any such law shall be deemed to be registered under this Ordinance and its Constitution shall continue in force until altered or rescinded; and
(b) anything done, rules made, notification or order issued, officer appointed, Court constituted, notice given, proceedings commenced or other actions taken under any law shall be deemed to have been done, made, issued, appointed, constituted, given, commenced or taken, as the case may be, under the corresponding provision of this Ordinance."
A perusal of the above-quoted section 67 indicated that, besides repealing statutes mentioned in clauses (a) to (c) of subsection (1), it also repealed West Pakistan Trade Union Ordinance, 1968, which was the relevant statute under which trade unions were used to be registered prior to the enforcement of the I.R.O. It may further be noticed that subsection (2) of the above section saved every trade union existing immediately before the commencement of the Ordinance, which was registered under any such law until altered or rescinded. It also saved anything done, rules made, notification or order issued, officer appointed, court constituted, notice given, proceedings commenced or other actions taken under any law. It is provided that the same shall be deemed to have been done, made, issued, appointed, constituted, given, commenced or taken, as the case may be, under the corresponding provision of the Ordinance.
13. It may be mentioned that prior to the enforcement of the I.R.O., West Pakistan Trade Unions Ordinance, 1968, which was inter alia repealed by subsection (1) of section 67, provided elaborate procedure for the registration of trade unions in sections 5 to 14 of the said Ordinance. It further provided the mechanism for registration of Federations. It also provided the rights and liabilities of the trade unions including the right to be recognised by an employer in terms of section 38 thereof.
The above Ordinance has repealed the earlier statute on the subject, namely, The Trade Unions Act, 1926, which also provided on the above subjects including the right to be recognised by an employer under section 28-B.
It may be pointed out that the effect of the exclusion of application of the provisions of I.R.O. To the employees of the establishment mentioned in clauses (a) to (h) of subsection (3) of section 1 thereof, which includes the Corporation (i.e. Pakistan Television Corporation), is that there is no statute in the field corresponding to I.R.O. Under which the employees of the establishments mentioned therein can formulate and operate a union or to press into service the mechanism provided in the I.R.O. For regulating relations, between employers and workers and for avoidance and settlement of differences disputes. It may further be observed that section 23 of the Ordinance by providing that I.R.O. Shall not apply to or in relation to the Authority or any person in the service of the Authority, purports to achieve the above objective.
14. It will not be out of context to point out that section 3 of the Ordinance (XV of 1978) purported to cancel the registration of all trade unions/Federations which were in existence inter alia in the Corporation, whereas there is no parallel provision in the Ordinance in respect of the unions which were operating at the the of promulgation of the Ordinance. On the contrary, clause (a) of subsection (2) of section 67 of the Ordinance saved the existing unions.
The questions which require consideration are, namely, (i) whether the denial to the employees of the Authority and the Corporation to have recourse to the provisions of the I.R.O. Can be considered as a reasonable restriction in terms of clause (1) of Article 17 of the Constitution; if not, what is the course open? And (ii) whether in the absence of any alternate statutory provisions for regulating the registration and working of the unions, the employees of the Authority and the Corporation can exercise their right under Article 17(1) of the Constitution?
15. It will not be out of context at this stage to refer some case law of the Pakistani and Indian jurisdictions which have direct bearing on the above questions. We first intend to refer to the judgments of this Court.
(i) Rehmat Gill and another v. Quetta Cantonment Board (PLD 1983 SC 133); in which a Chowkidar working in the Cantonment Board at Quetta was dismissed from service on the ground of misconduct. He filed a petition under section 25-A of the I.R.O., to which a preliminary objection was raised by the Cantonment Board to the effect that the employees of the Cantonment Boards were excluded from the purview of the I.R.O. Because of section 1(3) thereof.
The above objection was rejected by the Labour Court as well as by the Labour Appellate Tribunal.
Thereupon, the Cantonment Board, Quetta, invoked the Constitutional jurisdiction of the High Court of Balochisan by filing to writ petitions, which were upheld. The High Court came to the conclusion that the nature of statutory duties of the Cantonment Boards was such that they were discharging their functions clearly to connection with the Armed Forces. The matter was brought before this Court with the leave in the form of the to appeals, which were dismissed for the following reason:- "The contention of the appellants is that Cantonment Board is not are installation or establishment nor services connected with Armed Forces and service therein cannot, for that reason qualify for exemption. It is true that the Cantonment Board is not an installation but it is difficult to accept that it is not concerned with service,, connected with defence. The management and administration of the Cantonments vests in the Cantonment Boards. The Cantonments themselves being the quarters of he Armed Forces, their management and upkeep is necessarily a service which is directly concerned with the Armed Forces, and only incidentally with civilian population residing in Cantonments. The employees of the Cantonment Board arc, therefore, excluded from the application of Industrial Relations Ordinance. The impugned judgment of the High Court correctly decides the legal question involved in the constitutional petitions. We find no merit in the appeals which are dismissed with no order as to costs."
(ii) Canteen Stores Department Employees Welfare Union, Karachi v. Canteen Stores Department and others (1983 SCMR 1101); In the above case this Court granted leave upon the petitions filed by the Canteen Stores Department Employees Unions, Punjab and Serhad, to examine, as to whether the view taken by the Lahore High Court in its judgment dated 9-3-1977 that the employment in Canteen Stores Department is a service connected with the Defence or with the Armed Forces and hence excluded under section 1(3) of the I.R.O. From the purview of the I.R.O. Was correct and not at variance with the view taken by the other High Courts. The above appeals were dismissed by concluding as under:- "After the decisions given by the Sind High Court (Writ Petition No. 332 of 1973) and the Peshawar High Court there is no conflict in views on the subject. Besides the object of C.S.D. When it was a Government undertaking and even after it ceased to be so was and has been not only to supply the entitled personnel with articles of standard quality of daily use, but what is more important to "form the basis of an efficient Canteen Organization in peace and war for troops located everywhere in the country and operational areas during the war." This aspect of the purpose of C.S.D. Clearly makes it out to be an Organization connected with Armed Forces, and hence covered by exemptions prescribed in subsection (3) of section 1 of the Industrial Relations Ordinance. It is in the context irrelevant whether it is a Government department or a private commercial organization, because certain categories of the employees of the Government are in fact governed by Industrial Relations Ordinance while certain other private commercial organizations stand excluded from its operation as was the case of United Builders and Associates."
(i.e) The Controller, Stationery and Forms, Government of Pakistan v. The Registrar, Trade Unions, Sind and others (PLD 1991 SC 353); in which the facts were that respondent No.2 i.e. The Union of the employees of Stationery and Forms, Government of Pakistan, was granted by the Registrar, Trade Unions, a certificate certifying it as a collective bargaining agent under section 22 of the I.R.O. On or about '13-10-1983. The Controller, Stationery and Forms, Government of Pakistan, filed a Constitution petition in the High Court of Sind at Karachi for seeking a declaration that the I.R.O was not applicable to the appellant The appellant also sought a direction against respondent No.2 i.e. The Registration of Trade Unions, to the effect that he should proceed with the cancellation of registration of the Union under section 10 of the I.R.O. The above Constitution petition was resisted by the union respondent No.2 inasmuch as a counter-affidavit was filed, in which it was averred that it was a registered trade union since 1973. It was further averred that the union sought an award from the Labour Court after serving a charter of demands and complying with the other procedural requirements, but the same was declined by the Labour Court on 4-C-1974 on the ground that the appellant was administered by the Central Government and, therefore, was exempted from the application of the provisions of the I.R.O. It was also asserted that appeal before the Labour Appellate Tribunal also failed. After that they approached the High Court through a Constitution petition, which was allowed by a Division Bench of the High Court of Sind on 11-3-1980 by holding as follows:- "The workmen employed in the respondent Press being mere clogs in the vast and expanding machinery of the State, with no administrative functions much less any directional or policy control, cannot, therefore, be said to be employed in the administration of the State within the meaning of expression occurring in the aforesaid subsection (3) of section 1 of the I. R. O."
Consequently, the aforementioned Constitution petition was dismissed. After that, an appeal with the leave of this Court was filed, which was allowed by a Bench comprising Naimuddin and Ajmal Mian, JJ., and the judgment was authored by one of us (Ajmal Mian, J.). After reviewing the case- law, the following conclusion was recorded:- "8. From the above-cited cases, it is evident that in order to bring an employee within one of the categories excluded by subsection (3) of section 1 of the I. R.O. It is not necessary that the finance or the funds should come from the Government or installation should be under the control and management of a Government department and not under the management and control of a corporate body, but what is important is, whether the person is employed inter alia in any of the Armed Forces of Pakistan or in services or installation connected with or incidental to the Armed Forces of Pakistan or in the administration of the State. Keeping in view the functions of the appellant which not only supplies the printing materials to the various organisations relating to the Armed Forces listed at pages 43 and 44 of the paper book, but also caters for the requirements of all other Government departments and other State organs/functionaries, and which are used inter alia for facilitating communications between the various Armed Forces establishments and other Government functionaries and without which no Government department can function, can be concluded that the appellant's employees are covered by clauses (a) and (b) of subsection (3) of section 1 of the I.R.O It may be pertinent to point out that in the aforesaid clause (b) of subsection
(3) the persons employed as workmen by the Railway, Posts, Telegraph and Telephone Departments, have been excluded from the expression ' in the administration of the State' for the purpose of application of the provisions of the I.R.O. It can, therefore, be concluded that the law-- makers wanted to exclude the workmen of the departments specified in clause (b) and not other workmen who may be employed in the administration of the State."
(iv) Haji Malik Aman and 3 others v. Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and another (1993 SCMR 1837); Through the above report, to Constitution petitions were disposed of. In one of the above petitions, the petitioners were employed in the National Radio and Telecommunication Corporation, which was established under the Companies Act, 1913. The petitioners formed a trade union and got it registered under the provisions of the I.R.O. The respondent Corporation applied to the Labour Court for cancellation of registration of the aforesaid union on the ground that the same was excluded under section 1(3)(a) of the 1.R.0. The Labour Court, Peshawar, by an order dated 19-2- 1984 concluded that the respondent Corporation was covered by the aforementioned provision as it was an installation connected with or incidental to the Armed Forces of Pakistan. Consequently, the registration of the union was cancelled. Their appeal before the Labour Appellate Tribunal as well as their Constitution petition before the High Court failed. Their petition for leave to appeal before this Court against the judgment of the High Court was dismissed on the ground of limitation.
After that, they filed a petition under Article 184(3) of the Constitution for enforcement of their fundamental right which was the subject matter of the above report. Whereas the other Constitution petition was directly filed in this Court under Article 184(3) of the Constitution by the office-bearers of a trade union called Cantonment Board Sanitation Class IV Staff Union, Wah Cantonment, upon refusal of the Registrar of the Trade Unions to register it as a trade union. The aforesaid to petition were heard together by a Bench comprising five Judges, namely, Shafiur Rahman, Abdul Qadeer Chaudhry, Saleem Akhtar, Saiduzzaman Siddiqui and Wali Muhammad Khan, JJ. The judgment was authored by Abdul Qadeer Chaudhry, J.
After referring the case law of Pakistani and Indian jurisdictions, the above petitions were dismissed for the following reasons:--- 'Public order' refers to peace and security of local nature so that function of an establishment can be carried out in an orderly way. The combined effect of Article 8(3) and Article 17(1) of the Constitution is that reasonable restriction can be imposed in the interest of public order relating to an establishment having incidental relations with the Armed Forces. The formation of an association is subject to certain restrictions. The appellants are connected with the Armed Forces.
The paramount duty of the Armed Forces is to protect the country from external aggression and to save it from internal disorder (Article 245 of the Constitution). If they are permitted to form Trade Union then all the provisions of the Industrial Relations Ordinance would apply. They may raise industrial dispute. They may call for strike and thus force the management to stop the production.
The smooth supply of goods to the Armed Forces would be disrupted. Supply of equipments to the Armed Forces by the respondent should be free from impediment. If the contention of the appellants is accepted, the law would also cover the Ordnance Factory maintained by the Government. The restriction imposed by section 1(3) of the Ordinance is directly connected with the public order and is not remote. There exists an immediate connection between restriction and public order. This is necessary for the maintenance of public order. The provision is neither unreasonable nor does it infringe any fundamental right of the appellants. The restriction is reasonable and not violative of Article 17(l) of the Constitution."
16. We may now refer to the three cases of Indian Jurisdiction.
(i) All India Bank Employees' Association v. The National Industrial Tribunal (Bank Disputes), Bombay, and others (AIR 1962 SC 171); in which the question involved was, whether section 34-A of the Banking Companies Act (1949), which was enacted on 26-8-1960 as an amendment to the patent Act (Act .X of 1949), which provided against compelling a banking company in any proceeding under the said Act or in any appeal or other proceeding arising therefrom or connected therewith to produce or to give inspection of any of its books of account or other documents or furnish or disclose any statement or information when the banking company claims that such document, statement or information is of a confidential nature, the matter was brought by the unions of the workmen of the banking companies mentioned in the report for challenging the above provision. Their contention was that the workmen were entitled to be placed on a different position from the share-holders because of the bearing of the aforesaid undisclosed items on the determination of quantum of their wages etc. And on their condition of work having financial implication. In the body of the judgment, after referring to the decision of the Supreme Court of the United States in which it was held that right of employees to self-organization, to form, join and assist labour organizations and to bargain collectively through representatives of their own choice and to engage in concerted activities for the purpose of collective bargaining or other mutual aid, is a fundamental right, The Indian Supreme Court observed as follows:- "We do not consider the inference sought to be drawn well-founded. What the learned Judges of the Supreme Court were referring to as a fundamental right was not with reference to a fundamental right as recognized or guaranteed by the Constitution, but in the sense of a right of the unions which enacted law recognized or respected, and as other decisions of the United States'
Supreme Court show, was subject to regulation by the legislature. We have, therefore, reached the conclusion that the right guaranteed by sub-clause (c) of clause (1) of Article 19 does not carry with it a concomitant right that the unions formed for protecting the interests of labour shall achieve the purpose for which they were brought into existence, such that any interference to such achievement by the law of the land would be unconstitutional unless the same could be justified - as in the interests of public order or morality. In our opinion, the right guaranteed under sub-clause
(c) of clause (1) of Article 19 extends to the formation of an association and in so far as the activities of the association are concerned or as regards the steps which the union might take to achieve the purpose of its creation, they are subject to such law as might be framed and that the validity of such laws is not to be tested by reference to the criteria to be found in clause (4) of Article 19 of the Constitution."
(ii) M/s. Raghubar Dayal Jai Parksah and others v. The Union of India and another (AIR 1962 SC 263); In the above report six petitions were filed directly in the Indian Supreme Court under Article 32 of the Indian Constitution, whereby the constitutionality of certain provisions of the Forward Contracts (Regulation) Act, 1952, and the Notification issued under section 15 thereof, was assailed. In that context it was urged that sections 5, 6 and 10 of the above Act were violative of sub-clauses (c) of clause (1) of Article 19, which confers fundamental right to all citizens to form associations or unions subject to clause (4) of the above Article, which provides that noting in sub-- clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes or prevents the State from making any law by imposing, in the interest of public order or morality, reasonable restrictions on the exercise of the right conferred by the said clause. In that context, the following observations were made:- "(12).We consider this argument is without force. In the first place, the restriction imposed by section 6 of the Act is for the purpose of recognition and no association is compelled to apply to the Government for recognition under that Act. An application for the recognition of the association for the purpose of functioning under the enactment is a voluntary Act on the part of the association and if the statute imposes conditions subject to which alone recognition could be accorded or continued, it is a little difficult to see how the freedom to form the association is affected unless, of course, that freedom implies or involves a guaranteed right to recognition also. Could it be contended that there is a right in the association guaranteed by the Constitution to obtain recognition? It was not disputed before us that forward trading might sometimes assume undesirable forms and become akin to gambling which might have deleterious consequences on lawful trade and on the general public by causing violent fluctuations in prices. It would follow that the control of forward trading is a legitimate subject of legislative interference and regulation and we might add that this was not disputed before us. The manner in which this regulation is effected and the machinery employed for achieving it are matters of legislative policy which could be determined only by taking into account the organization of the market, the manner of trading and other relevant factors. The impugned enactment in its chapter III proceeds on the basis that organisations of tradesmen might be entrusted with the task of regulating these transactions, so that while legitimate trade would be furthered, the evil consequences of undesirable speculation might to avoided. It was, therefore, necessary that the instrument chosen should be subject to control so as effectively to further the policy of the scheme of regulation and that is the ratio underlying the provisions in section 6 of the Act and those which follow it in Chapter III. In this connection it is necessary to add that the restrictions which are impugned as unconstitutional are imposed only on 'recognised' associations. Parliament could well have chosen to effect the regulation directly through an official agency instead of through the medium of a voluntary association. In such an event, neither the traders nor their associations could complain of any violation of the law. The mere fact therefore, that Parliament chose to utilise the machinery of voluntary trades associations for the purpose of enforcing regulatory control could not invalidate the provision of laws which are designed to ensure effective control over the mechanism of forward trading."
(i.e) O.K. Ghosh and another v. EX Joseph, (AIR 1963 SC 812); In the above case the facts were that the respondent, EX Joseph, was in the service of the Government of India in the Audit and Accounts Department at Bombay. He was the Secretary of the Civil Accounts Association which consisted of non-gazetted staff of the Accountant-- General's Office. The said Association was affiliated to the All India Non---Gazetted Audit and Accounts Association. The latter Association had been recognised by the Government of India in December, 1956. In May, 1959, the Government withdrew recognition of the said Association. It seems that in spite of the above withdrawal of the recognition of the said Association, the respondent continued to be its Secretary-General and refused to dissociate himself from the activities of the said Association, though called upon to do so. As a result of his activities, on or about 3-6-1960, he was served with a charge-sheet for having deliberately committed breach of Rule 4-B of the Central Civil Service (Conduct) Rules, 1955, hereinafter referred to as the Rules. An enquiry was conducted against him, in which it was concluded that the respondent was guilty of misconduct. He was served with a show cause notice to show, as to why he should not be removed from service. It appears that he was also served with a memo on 25-7-1060 intimating to him that it was proposed to hold an enquiry against him for having deliberately contravened the provisions of Rule 4-A of the Rules in so far as he participated actively in various demonstrations organised in connection with the strike of the Central Government employees and took active part in the preparations of the said strike. The respondent filed a writ petition assailing Rules 4-B and 4-A on the ground that the same contravened fundamental rights continued in Article 19(1)(a), (b), (c) and (g), which was resisted by the Union of India and it was pleaded that the same were valid. A Division Bench of the Bombay High Court on 18-1-1961 rejected the petition and held that Rule 4-A was a valid.The matter was brought before the Indian Supreme Court, which held that the portion of the above rule which prohibited strike was valid, but the portion of the same which prohibited demonstration was invalid.
As regards Rule 4-B (which compelled a Government servant to withdraw his membership of the Service Association of Government Servants as soon as the recognition accorded to the said association was withdrawn), it was held that it was violative of Article 19 of the Indian Constitution.
It may be instructive to reproduce the relevant discussion on-the above controversy, which reads as under:- "(8) The question about the validity of Rule 4-A has been the subject --matter of a recent decision of this Court in Kameshwar Prashad v. State of Bihar, AIR 1962 SC 1166. At the hearing of the said appeal, the appellants and the respondent had intervened and were heard by the Court. In that case, this Court has held that Rule 4-A in the form in which it now stands prohibiting any form of demonstration is violative of the Government Servants' rights under Article 19(I)(a) and (b) and should, therefore, be struck down. In striking down the rule in this limited way, this Court made it clear that in so far as the said rule prohibits a strike, it cannot be stuck down for the reason that there is no fundamental right to resort to a strike. In other words, if the rule was invalid against a Government servant on the ground that he had resorted to any form of strike specified by Rule 4-A, the Government servant would not be able to contend that the rule was invalid we must hold that the High Court was in error in coming to the conclusion that Rule 4-A was valid as a whole.
(9) That takes us to the question about the validity of Rule 4-B. The High Court has held that the impugned rule contravenes the fundamental right guaranteed to the respondent by Article 19(1)
(c). The respondent alongwith other Central Government servants is entitled to form associations or unions and in so far as this right is prejudicially controlled and adversely affected by the impugned rule, the said rule is invalid. The learned Solicitor-General contends that in deciding the question about the validity of the rule, we will have to take into account the provision of clause (4) in Article 19. This clause provides that Article 19(1)(c)' will not affect the operation of any existing law in so far as it imposes, in the interests of public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause. The argument is that the impugned rule does nothing more than imposing a reasonable restriction on the exercise of the right which is alleged to have been contravened and, therefore, the provision of the rule is saved by clause (4).
(l0)This argument raises the problem of construction of clause (4). Can it be said that the rule imposes a reasonable restriction in the interests of public order? There can be no doubt that Government servants can be subjected to rules which are intended to maintain discipline amongst their ranks and to lead to an efficient discharge of their duties. Discipline among Government employees and their efficiency may, in a sense, be said to be related to public order. But in considering the scope of clause (4), it has to be borne in mind that the rule must be in the interests of public order and must amount to a reasonable restriction. The words 'public order occur even in clause (2), which refer, inter alia, to security of the State and public order. There can be no doubt that the said words must have the same meaning in both clauses (2) and (4). So far as clause (2) is concerned, security of the State having been expressly and specifically provided for, public order cannot include the security of State though in its widest sense it may be capable of including the said concept. Therefore, in clause (2). Public order is virtually synonymous with public peace, safety and tranquility. The denotation of the said words cannot be any wider in clause (4). That is one consideration which it is necessary to bear in mind when clause (4) refers to the restriction imposed to the interests of public order, it is necessary to enquire as to what is the effect of the words ' in the interests of'. This clause again cannot be interpreted to mean that even the connection between the restriction and the public order is remote and indirect, the restriction can be said to be in the interest of public order. A restriction can be said 'to be to the interest of public order only if the connection between the restriction arid the public order is proximate and direct.
Indirect or far-fetched or unreal connection between the restriction and public order would not fall within the purview of the expression ' in the interests of public order'. This interpretation is strengthened by other requirement of clause (4) that, by itself, the restriction ought to be reasonable. It would be difficult to hold that a restriction which does not directly relate to public order can be said to be reasonable on the ground that its connection with public order is remote or far--fetched. That is another consideration which is relevant. Therefore, reading the to requirements of clause (4), it follows that the impugned restriction can be said to satisfy the test of clause (4) only if its connection with public order is shown to be rationally proximate and direct.
That is the view taken by this Court in Superintendent. Central Prison, Fatehgarh v. Dr. Ram Manohar Lohia, AIR 1960 SC 633, In the words of Patanjali Sastri, J, in Rex v. Basudev, 1949 FCR 657`at p. 661: (AIR 1950 FC 67 at p. 69) "the connection contemplated between the restriction and public order must be real and proximate, nor far-fetched or problematical.
It is in the light of this legal position that the validity of the impugned rule must be determined."
17. A perusal of the judgments of this Court in the cases of Rehmat Gill (PLD 1983 SC 133), canteen Stores Department Employees Welfare Union (1983 SCMR 1101) and the Controller, Stationery and Forms, Government of Pakistan (PLD 1991 SC 353), indicates that the question in issue was, whether the installations or establishments which were the subject-matters of the above reports (i.e. Cantonment Board, Canteen Stores Department and the office of the Stationery and Forms, Government of Pakistan), were connected with or incidental to the Armed Forces of Pakistan or connected with the administration of the State within the ambit of clauses (a) and (b) of subsection (3) of section 1 of the I.R.O. In order to exclude the application of the provisions thereof to their employees. The above question was answered by this Court in the affirmative. In the above reports, the import of Article 17(1) of the Constitution was not examined and discussed and, therefore, they have no direct bearing. However, in the fourth ease viz. Haji Malik Amin (1993 SCMR 1837), which related to the employees of the National Radio and Telecommunication Corporation and the Cantonment Board Sanitation Class IV Staff Union, Article 8(3) and Article'17(1) of the Constitution were considered and it was held that exclusion of the employees of the above Corporation (which used to supply goods to the Armed Forces) and the employees of the Cantonment by virtue of section 1(3) was a reasonable restriction directly connected with public order in terms of Article 17(1) of the Constitution and, therefore, was not violative of the same.
However, it may be pointed out that in the above case, the question, whether the right to form unions subject to reasonable restrictions referred to in Article 17(1) admits/permits total denial of the right to form a union and whether a union can be formed and function under above Article without reference to the provisions of the I.R.O. Were not considered. In our view, the words "subject to reasonable restrictions" employed in clause (1) of Article 17 of the Constitution do not admit and permit total denial of right as held by this Court in case of Jibendara Kishore Achharyya Chowdhury and 58 others (supra), referred to hereinabove in para. 27. In this view of the matter, the above report can be distinguished from the case in hand.
Adverting to the above three cases of the Supreme Court of India, it may be stated that in the case of All India Employees' Association (AIR 1962 SC 171), inter alia it was held that the right guaranteed under sub---clause (c) of clause (1) of Article 19 of the Indian Constitution extends to the formation of an association and in so far as the activities of the association are concerned or as regards the steps which the union might take to achieve the purpose of its creation, they are subject to such laws as might be framed and that the validity of such laws is not to be tested by reference to the criteria to be found in clause (4) of Article 19 of the Constitution. It was also held that "the right guaranteed by sub-clause (c) of clause (1) of Article 19 does not carry with it a concomitant right that the unions formed for protecting the interests of labour shall achieve the purpose for which they were brought into existence".
In the case of Raghubar Dayal Jai Parkash and others (AIR 1962 SC 263), the Indian Supreme Court while considering the question of vires inter alia of section 6 of the Forward Contracts (Regulation)
Act, 1952, which required an association to apply to the Government for the recognition, held that in order to avoid gambling in forward contracts, the above restriction was not violative of the right in the association guaranteed in the Constitution.
In the third case viz. O.K. Ghosh and another (AIR 1963 SC 812), .The Indian Supreme Court while examining the vires of Rules 4-A and 4-B of the Central Civil Services (Conduct) Rules, 1955, held that the embargo on the right to strike was not violative of Article 19(1) (c) of the Constitution and that the right to form association and unions under the above Article is subject to reasonable restrictions by law by virtue of clause (4) thereof. It was further held that a restriction could be said to be in the interest of public order only if the connection between the restriction and public order is proximate and direct and not remote or indirect.
The above first to Indian reports seemingly give the impression that therein it has been held that the right to form associations and unions does not imply any-right to operate. Basu in his celebrated commentary on the Indian Constitution (Sixth Edition), Volume C while dealing with the above first case, namely, all India Bank Employees' Association, has highlighted that the object of a trade union is to engage in collective bargaining as under:- "Collective bargaining is the object with which a trade union or association is formed by workmen or employees, just as an association may be formed with a religious, cultural or educational object, by persons belonging to different groups inspired with religious, cultural or educational interests of ideas-. In such cases, to say that the right to achieve that object is not included in the freedom of association guaranteed by clause (c) would be render hollow and unmeaning the fundamental right guaranteed thereby. In other words, the right to achieve the objects of such associations may be curtailed or controlled only if such object is prejudicial to public order or public morals or the sovereignty or integrity of India. It would, in short, be a contravention of the freedom guaranteed by sub-clause (c) to so legislate that an association formed for a religious object cannot pursue that object even though it is not prejudicial to the grounds mentioned in clause (4). Similarly illegitimate would be for the State to so legislate that the trade union cannot collectively represent the employees in their negotiations with the employer, whether private or public, even though such object, as such, is not prejudicial to the collective interests safeguarded by clause (4).
In the case of strike, however, other considerations come in. Strike is a step resorted to by a trade union to strengthen or support collective bargaining. Such a step can undoubtedly be restricted by the State not only in the interests of public order or morality, but on the grounds permissible under clause (6), if the strike is resorted to as against a business establishment in this case the exercise of the right of collective bargaining has a direct impact on the freedom of business of another person. "
The quoted extract from the above treatise is in line with the view, which we are inclined to take.
18. It will not be out of context to mention that, besides the exclusion of the employees of the various establishment specified in clauses (a) to (h) of subsection (3) of section 1 of the I.R.O.
Quoted hereinabove in para. 11, the employees who do not fall within the definition of the "workers" and "workmen" given in clause (xxviii) of section 2 of the I.R.O. Have also been excluded from the purview thereof. The said clause (xxviii) expressly excludes any person-
(a) who is employed mainly in a managerial or administrative capacity, or
(b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature.
In this view of the matter, the exclusion of the application of I.R.O. To the employees of the Authority and the Corporation by the Legislature and not by an executive order does not suffer from any Constitutional legal/ infirmity. The same cannot be held to be violative of Article 17(1) of the Constitution, particularly keeping in view the above background that all the employees of all the establishment are not covered by the provisions of I. R. O.
19. Mr. Abid Hassan Minto's submission that, in order to make Article 17(1) of the Constitution meaningful for the purpose of formation of the unions and their operation, it is incumbent for the Legislature to provide a legal framework either in the form of I.R.O. Or any other alternate statute, seems to be correct. We have already pointed out hereinabove that the I.R.O. Provides an exhaustive mechanism for the formation, registration and operation of the unions. It also provides the procedure, as to how a collective bargaining agent on behalf of workers is to be elected and in what manner a charter of demands can be raised by the employees, how it is to be negotiated and in case of failure to arrive at an amicable settlement between the employer and the employees, what coercive steps the employees can take. It also caters for the hierarchy for resolving the industrial disputes.
We may again point out effect of exclusion of the application of provisions of the I.R.O. To the Authority and the Pakistan Television Corporation is that there is no other statute available under which the employees of either of above to establishments can get their unions registered or can agitate their grievance through an orderly mechanism. Mr.Abid Hassan Minto has referred to the following three judgments of this Court. He has heavily relied upon the following passage from the opinion of Muhammad Haleem, C.J. From the celebrated judgment of this Court in the case of Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416), in which this Court while dealing with Article 17(2) of the Constitution with reference to sections 3(1), 3-A, 3-B, 3-C and 6 of the Political Parties Act, 1962 (III of 1962), which provided certain restrictions/requirements for operating a political party:-- "Reading Article 17(2) of the Constitution as a whole it not only guarantees the right to form or be a member of a political party but also to operate as a political party. As earlier held, the words "right to form" is not only confined to its formation but to its function as a political party. The political party, according to its texture, of being an aggregate of citizens composing the party can exercise the other rights guaranteed under the Constitution like an individual citizen. Again the forming of a political party necessarily implies the carrying on of all its activities as otherwise the formation itself would be of no consequence. In other words the functioning is implicit in the formation of the party.
(See the opinions of B.Z. Kaikaus, J., and Cornelius, C.J., in Abul A'la Maudoodi's case). This being so, the Political Parties Act not being a higher law than the Fundamental Right itself, cannot override or prevail over or be superimposed to make the right operational. The functioning is also explicit from the limitation itself which makes prejudicial activities against sovereignty and integrity of Pakistan actionable. This being so, I fail to comprehend as to how the Political Parties Act which not being a higher law than the Fundamental Right itself can override or prevail upon or be superimposed to make the right operational. "
The above principle was reiterated and extended in the case of Mrs. Benazir Bhutto v. Federation of Pakistan and another (PUD 1988 SC 66), in which it was held that the provisions of section 21 of the Representation of the People Act, 1976, as amended by Ordinance (VIII of 1985), failing to recognize the existence and participation of political patties in the process of election particularly in the matter of allocation of symbols, is void to that extent being violative of Article 17(2) of the Constitution.
It may further be observed that Article 17(2) of the Constitution was again considered in the case of Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473), in which the scope of Article 17(2) of the Constitution was further extended by holding that to form or be a member of a political party conferred under Article 17(2) comprises the right of that political party not only to form a political party, contest election under its banner but also, after successfully contesting the election the right to form Government. (Please see the opinion of Dr. Nasim Hasan Shah, C.J. At page 559 of the above report).
20. However, we may point out that the right to form a political party or be a member of a political party or the right to contest election under one banner of the political party and to form a Government if it obtains majority in the National Assembly arising out of Article 17(2) of the Constitution are to be exercised within the framework of the relevant Articles of the Constitution and the relevant laws. In this view of the matter, Article 17(1) of the Constitution cannot be effectively invoked for the purpose of formation and operation of a union in the absence of the application of the provisions of I.R.O. Or any alternate statute.
21. The question, therefore, arises, as to whether in the absence of availability of the provisions of the I.R.O. Or any alternate statute, can a union be formed and can it be operated. In this regard, it may be pertinent to point out that the history of the labour movement indicates that originally craft guilds were formed in Europe in the Fourteenth century. The skilled workers in the guilds or journeymen developed association involving a ritual, a fee structure and various benefits such as burial funds. They engaged in religious ceremonies and fraternal activities. They also encouraged high a standard of workmanship and public conduct. The industrial union first appeared in the late nineteenth century, wherever machinery and mechanical power replaced handicraft skills and natural energy in the production and in the distributive process. A labour union is traditionally defined as an organization of such men and women for economic ends. The scope of the activities of the union was gradually extended. The concept of unions did not remain confined to the labour class but unions were formed by the persons belonging to other professions.
22. The trade associations for the purpose of collective bargaining were considered useful for maintaining industrial peace and were accordingly legalised in United Kingdom by the Trade Unions Act, 1871; whereas the right of employees to organise themselves for the purpose of dealing with an employer was recognised in U.S.A. As early as in 1932. In 1936 the National Labour Relations Act was passed conferring upon the employees the right to form labour organizations to bargain collectively through representatives. In 1937, the United States Supreme Court in the case of National Labour Relations Board v. Jones (1937) 310 U.S. 1) held that the right of the employees to organise and select their representatives and to bargain with the employers through such representatives, was a fundamental right. 1n India, as pointed out hereinabove, the first statute on the subject was Trade Unions Act, 1962. Sections 17 and 18 thereof immunized a registered trade union from civil or criminal liability for any at done in furtherance of a trade dispute. Any trade union could get itself registered under the Act and a trade union was defined in clause (n) of Section 2 of the said Act as under:-- "(n) 'Trade Union' means any combination, whether temporary or permanent, formed primarily for the purpose of regulating the relations between workmen and employers or workmen and workmen, or between employers and employers, or for imposing restrictive conditions on the conduct of any trade or business, and includes any federation of to or more Trade Unions:"
The labour movement/trade unionism got impetus after the formation of International Labour Organisation (I.L.O.) in 1919 at Versailles. The object of the I.L.O. Was to promote decent living standard, satisfactory conditions of work and pay and adequate employment opportunities, creation of international labour standards, the provision of technical cooperation services and research and publication on social and labour matters. I.L.O. Is a representative organisation, which represents employees, employers and the States. At present there are about 173 countries which are members of the I.L.O. And signatories to its various covenants. The General Conference of the I.L.O. Which met at Philadelphia on 10-5-1994 adopted a declaration which inter alia provides that "labour is not a commodity, freedom of expression and association are essential to sustain progress" and that the effective recognition of the right of the collective bargaining, the cooperation of management and labour results in the continuous improvement of productive efficiency.
Besides the above, there are a number of other International Conventions and Recommendations, particularly Conventions Nos. 87 of 1948 and 98 of 1948 for re-enforcement of the trade unions activities. In this regard, reference may be made to the Social Summit held in Copenhagen in 1995 which listed the following as basic workers' rights: "The prohibition of forced labour and child labour, freedom of association and the right to organize and bargain collectively, equal remuneration for men and women of equal value, and non-- discrimination in employment."
The above principles were affirmed by the heads of States and Governments of virtually all countries around world.
It may be pointed out that there are certain rights which are inhere in a trade union on account of its formation which inter alia includes the right to at as a collective bargaining agent. However, we may point out that the right of strike or the right to go slow are not rights which can be spelt out K from Article 17(1) of the constitution. Such rights can be founded on statutory provisions like I.R.O. In the case of O.K. Ghosh and another (AIR 1963 SC 812), the Indian Supreme Court has held that portion of Rule 4-A of the Central Civil Services (Conduct) Rules, (1955), which prohibited strike, was valid and was not violative of Article 19 of the Indian Constitution. The effect of non-application of the provisions of I.R.O to the Authority, the Corporation and their employees would be that the latter would have no statutory right to go on a strike or to go slow. Similarly, the Authority and the corporation will have no right to lock-out.
23. It may be stated that the term "Union" has been defined in the Black's Law Dictionary, Fifth Edition at page 1374; in the book titled "Words and Phrases", Permanent Edition, Vol. 42 page 300; and in the American Jurisprudence, pages 108 and 109, as under:- Black's Law Dictionary "Union. An organization of workers, formed for the purpose of negotiating with employers on matters of wages, seniority, working conditions and the like."
"Words and Phrases"
"Union"
A 'trade union' or 'labour organization' is a combination of workmen usually, but not necessarily, of the same trade or of several allied trades, for the purpose of securing by united action, the most favourable conditions as regard wages, hours of labour, etc., for its members. Keith Theatre v.
Vachon, 187 A. 692, 694, 134 Me. 392. "
American Jurisprudence "46. What is a labour union.
Broadly speaking, a labour union is an organization of employees, and its classified purpose - furthering the interest of the workers with respect to higher wages, improved labour conditions, bettering the hours of labour, etc. Is recognized by law. A labour union' has been defined as a combination of workmen for the purpose of securing by united action favorable conditions as regards wages, hours, and terms of employment, or as any association of workers which exists for the purpose, in whole or in part, of bargaining on behalf of workers with employers about the terms or conditions of employment. A "trade union" or 'labour organization' has been similarly defined as a combination of workmen usually, but not necessarily, of the same trade or of several allied trades, for the purpose of securing by united action the most favorable conditions as regards wages, hours of labour, etc., for its members.
Since labour unions are organized primarily for the purpose of bargaining with management in the matters of wages, hours of employment, working conditions, and the like, a professional organization such as a bar association, which does not represent its members in these matters and bargains with no one, is obviously not a labour union."
A perusal of the above-quoted definitions description of the terms "Union" indicates that it is an organization of employees furthering the interest of workers with respect to higher wages, improved labour conditions, bettering the hours of labour. In other word, it is a combination of workmen for the purpose of securing by united action favorable conditions as regards wages, hours and terms of employment by bargaining on behalf of the workers with employers.
24. It may be pointed out that a labour union can either be a corporate body or an unincorporated body as highlighted in the American Jurisprudence, Vol. 48 at page 109; and in the treatise titled "Outlines of Industrial Law, Fourth Edition, by Mansfield Cooper and J.C. Wood at page 390; the relevant portions of the same read as follows:- Extract from the American Jurisprudence: "47. Form and character of labour unions. ---Generally labour unions are voluntary unincorporated associations, although in some instances they may be incorporated.
While at common law a labour union which is an unincorporated association is not a legal entity, and therefore, unlike a corporation, has no separate existence apart from its membership, nevertheless, even though it is an unincorporated association, a labour union is for many purposes given the rights and subjected to the obligations of a legal entity, and its existence in fact, and for some purposes in law, is as perpetual as that of any corporation, not being dependent upon the life of any member.
The modern labour union is no longer comparable to a voluntary fraternal order or partnership, but is sui generis and approximates a corporation in its methods of operation and powers."
Passage from the book "Outlines Of Industrial Law: "Trade unions may be registered or unregistered. Any union actually in existence and not merely contemplated and having lawful purposes may, provided it has at least seven members, become registered. Before granting registration the Registrar must be satisfied that the chief objects of the union are statutory objects. The effect of registration is to make the union a distinct legal entity. ' I think,' said Lord Brampton in Taff Vale Railway Co. v. Amalgamated Society of Railway Servants (1901) A.C. 426 at p.442), that a legal entity was created under the Trade Union Act, 1871 by the registration of the societyin the manner prescribed, and that the legal entity so created, though not perhaps in the strict sense a corporation, is nevertheless a newly created corporate body created by statute, distinct from the unincorporated trade union---..
This view of the position was emphasized by a majority of the judges in Bonsor v. Musicians Union (1956) A.C. 104; (1955) 3 All E. R. 518). LORD KEITH of AVONHOLME after discussing the characteristics of a registered trade union went on to say: 'These are important attributes or characteristics which, in my opinion, differentiate it from other voluntary associations and may entitle it to be called a legal entity, while at the same the remaining an unincorporated association of individuals. As an association its membership is constantly changing, but as a registered union, it has a permanent identity and represents its members at any moment of the. It would not be wrong, I think, to call it a legal entity.'
25. A perusal of the above-quoted extracts form the above treatises indicate that an unincorporated union can function and for certain purposes, it can be treated as a legal entity.
However, it may be stated that since strictly speaking an unincorporated body is not a legal entity for all intents and purposes, it is doubtful, whether it can enter into a binding contract on behalf of its members with its employer. On the other hand, a corporated/registered union is a legal entity, and thus it can enter into a binding contract with an employer. Any change in the membership will not affect its legal status.
Since there is no requirement under Article 17(1) of the Constitution that an association or a union is to be registered, strictly speaking, there can be a union without any registration but it cannot effectively function unless it is registered and a legal framework is provided within which it can operate as P a collective bargaining agent for its members. The operation of a union is sine qua non for exercising the fundamental rights guaranteed under Article 17(1) of the Constitution.
26. Adverting to the Facts of the cases in hand, it may be observed that it is an admitted position that the union was functioning in the establishment of the Authority prior to the enforcement of the Ordinance. The effect of the enactment of section 23 in the Ordinance as pointed out hereinabove is that the provisions of the I.R.O. Are no longer applicable to the Authority and to its employees. The above exclusion of application of the provisions of I.R.O. Is not violative of Article 17(1) of the Constitution as pointed out hereinabove. However, it does not follow from it that the registration of the union stood cancelled upon the enforcement of the Ordinance in the absence of any express provision. Whereas in the case of the Corporation, a number of unions were functioning and so also the Federations but section 3 of Ordinance (XV of 1978) provided that "Notwithstanding anything contained in the Industrial Relations Ordinance, 1969 (XXIII of 1969), the registration of, and the certificates of registration issued to all registered Trade Unions in all establishments of the Pakistan Television Corporation and the Pakistan Broadcasting Corporation shall stand cancelled." The purported effect of the above section is that the certificates of registration issued to all registered trade unions in the establishments inter alia of the Corporation stood cancelled in our view, the aforesaid provision is violative of Article 17(1) of the Constitution as a right of a citizen to form a union and to operate it in accordance with law subject to reasonable restrictions is rendered nugatory and meaningless as without having a corporate status of a union, its members cannot effectively exercise the above fundamental right conferred on them under Article 17(1) of the Constitution.
27. We may at this stage point out that clause (1) of Article 17 of the Constitution makes the right of every citizen to form an association or a union subject to any reasonable, restrictions imposed by law as pointed out hereinabove in the interest of--
(i) sovereignty; or
(ii) integrity of Pakistan; or (i.e) public order; or
(iv) morality.
The question arises, as to whether the words "reasonable restrictions" imply total prohibition of the formation of an association or a union and their operation or do they mean the exercise of the above right subject to the conditions which may constitute reasonable restrictions for the aforesaid four purposes specified therein, namely, sovereignty, integrity of Pakistan, public order and morality. The words "restrict" and "restriction" have been defined in the following dictionaries as under:-
(i) Black's Law Dictionary, Fifth Edition, page 1182: "Restrict". To restrain within bounds; to limit; to confine. See also Restraint." "Restriction". A limitation, often imposed in a deed or lease respecting the use to which the property may be put. See e.g. Restrictive covenant."
(ii) Law Lexicon Cum Digest, Vol. 11 page 1313: 'Restrict': A person, though not prohibited, is restricted from using something, if he is permitted to use it to a certain extent or subject to certain conditions, but otherwise obliged not to use it:"
Restriction': Partial prohibition. Section 307(2) Ind. Such Act. Includes total prohibition: Gotiram v.
Sonabai 1970 Born.
73. Restrictions in public interest: See Public Interest."
(i.e) Legal Thesaurus by William C. Burton page 152: "Restrict", verb Restrict, bar, bind, bound bridle, cage, censor, chain, check, circumscribe, circumscriber, cloister, coercer, confine, constrain, control, coop, cramp, curb, debar, define, delimit, delimitate, demarcate, diminish, disallow, enchain, encumber, entrammel, exclude, fetter, forbid, frustrate, hamper, handcuff handicap, hedge in, hem in, hobble, hold back. Immure, inhibit, interdict, keep within limits, limit, localize, manacle, modify, muzzle, narrow, obstruct, pen, pin down, pinion, preclude, prevent, prohibit, prescribe, put under restraint, qualify, reduce, repress, restrain, restring, secure, shackle, shut out, specialise, stifle, stop, suppress, taboo, tether, tie up, trammel, veto, wall in Associated Concepts: restricted allotment, restricted assets."
"Restriction", noun angustiae, bonds, boundary, bounds, check, circumscription, condition, confinement, constraint, constriction, containment, curb, demarcation, distinction, finis, impediment, interdiction, limitation, modus, obligation, prohibition, qualification, regulation, reservation, restraint."
Whereas "Words and Phrases", Vol. 37-A defines the above words inter alia as under:- "The primary meaning of the word 'restrict' is to limit. Cobb v. Burress, 209 S.W. 2d 694, 697, 213 Ark.
298.
To 'restrict' is to restrain within bounds; to limit; to confine, and does not mean to destroy or prohibit. Dart v. City of Gulport, 113 So. 441, 444, 147 Miss. 534.
A perusal of the above quoted definitions of the words "restrict" and "restriction" indicates that the predominant meanings of the said words do not admit total prohibition. They connote the imposition of limitations or the bounds within which one can at. It is, therefore, evident that under clause (1) of Article 17 of the Constitution, there cannot be total prohibition but the right can be regulated/restricted by law if any of the above four ingredients is present. In this behalf reference may be made to the judgment of this Court in the case of Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan and Secretary, Finance and Revenue (Revenue)
Department, Government of East Pakistan (PLD 1957 SC (Pak.) 9), wherein this Court while considering the question of vires of certain provisions of the East Bengal State Acquisition and Tenancy Act, 1950, made the following observations with reference to Article 18 of the late Constitution of 1956 which are in line with the view we are inclined to take:-- Muhammad Munir, C.J.
"There can be no doubt that these drastic provisions of the Act strike religious institutions at their very root, and the question is whether, that being the effect of the provisions, they constitute an infringement of the fundamental right guaranteed by Article 18 of the Constitution? In the High Court, Mr. Brohi's bold and categorical assertion that the rights referred to in Article 18 are 'Subject to law' and may, therefore, by taken away by the law, succeeded. That assertion has been repeated before us, but I have not the slightest hesitation in rejecting it. The very conception of a fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law, and it is not only technically inartistic but a fraud on the citizens for the makers of a Constitution to say that a right is fundamental but that it may be taken away by the law."
28. It may be mentioned that the Regulations framed by the Authority under section 27 of the Ordinance do not have statutory force as candidly conceded by Mr. K.M.A. Samdani, learned counsel for the Authority. This concession is based inter alia on the judgment of a Division Bench of the High Court of Sind in the case of Muhammad Iqbal Chaudhry, etc. v. Civil Aviation Authority, etc. ( 1995 PLC (C.S.) 421), in which it has been held that Regulation 27 framed by the Authority under section 27 of the Ordinance. Has no statutory force. Reliance was placed on the judgments of this Court in the case of The Principal, Cadet College, Kohat v. Muhammad Shoaib Qureshi (PLD 1984 SC 170), in the case of Anwar Hussain v. Agricultural Development Bank of Pakistan (PLD 1984 SC 194).
The view taken by this Court in the above reports was reiterated in the case of Raziuddin v.
Chairman, Pakistan International Airlines Corporation and 2 other (PLD 1992 SC 531) and in the case of Mrs. Anisa Rehman v. P.I.A.C. And another (1994 SCMR 2232).
29. In this view of the matter, above Regulations Nos. 6.22 and 6.26 cannot be considered as reasonable restrictions by law in terms of Article 17(1) of the Constitution. Even otherwise, Regulation 6.26 makes the right to be a member of an association or a union subject to the permission of the Director-General of the Authority, which is violative of Article 17(1) of the Constitution as has been rightly held by the learned Judge in Chambers. The same view was found favour with the Indian Supreme Court in the case of O.K. Ghosh and another (AIR 1963 SC 827). Additionally, the above condition to obtain permissions as no nexus with the four items, namely, sovereignty, or integrity of Pakistan, or public order, or morality, mentioned in Article 17(1) of the Constitution.
30. The learned Judge in chambers in his judgment under appeal has not held that the provisions of the I.R.O. Are still applicable notwithstanding section 23 of the Ordinance. What he has held is, that a union can function and operate independently from the provisions of the I.R.O., which view we are inclined to take. In this view of the matter, the above appeal has no merits. The same is dismissed, with no order as to costs.
31. As regards the aforesaid Constitution petition, we hold that section 3 of Ordinance No.XV of 1978 whereby the registration of the unions functioning in the Corporation were purported to have been cancelled, is in conflict with Article 17(1) of the Constitution and, therefore, is void.
32. We may also state that Sh. Riazul Haq's above legal objections as to the maintainability of the aforementioned Constitution petition, namely, that the employees of the Corporation have not invoked the constitutional jurisdiction of the High Court under Article 199 of the Constitution before approaching this Court and that the Constitution petition suffers from laches, are not tenable. We have entertained the above Constitution petition under Article 184(3) of the Constitution directly as the requirements of the above Article are complied with, namely that a question of public importance with reference to the enforcement of any of the fundamental rights is involved. It cannot be denied that the question, as to whether a union can function independently of the provisions of the I.R.O. On the basis of Article 17(1) of the Constitution is a question of public importance involving enforcement of fundamental right.
As regards laches, it will suffice to observe that the petitioners have recurring cause of action as their right guaranteed under Article 17(1) of the Constitution has been continuously denied, and thus the question of laches is not involved.
33. Before parting with the above discussion, we may again clarify that the union or unions of the employees of the Authority and the unions of the employees of the Corporation can function as unions by virtue of Article 17(1) of the Constitution and can at as a collective bargaining agent which is inherent right in a union. But they cannot go on strike or to go slow in the absence of statutory backing.
We may observe that it will be in the interest of the employees as well as of the Authority and the Corporation that a legal framework, alternate to the provisions of I.R.O., be provided in order to regulate the relations between the employers and the employees on equitable basis and such legal framework may prohibit the right of strike or to go slow as there is sufficient material on record to indicate that the Authority and the Pakistan Air Force Act in collaboration with each other on various matters. Such restrictions will be covered by more than one of the four items mentioned in clause (1) of Article 17 of the Constitution, on account of which reasonable restrictions can be imposed particularly integrity of Pakistan or public order. The same parity of reasoning is applicable to the Corporation. Without having a modern electric media, no State can be run effectively. Television has become part of daily life of the people. It besides imparting national and international informations provide entertainment to the public. It will not be in the interest of orderly running of the airports and television centres to have the right of strike or to go slow. However, the employees of the Authority and the Corporation have the right to have their unions in view of Article 17(1) of the Constitution and the right to agitate their grievances peacefully and to negotiate with the employers for better terms of their employment. This right cannot be denied to them.
We may point out that in the case of the Authority, the Federal Government can provide reasonable restrictions for the functioning of unions by framing statutory rules under section 26 of the Ordinance. But since the Corporation has been registered under the Companies Ordinance, no statutory rules for the above purpose can be framed on the above subject. Till the the a parallel legal framework to the I.R.O. Is provided, the Authority and the Corporation with the agreement of the unions can follow the procedure provided in the I.R.O. As to the elections of the office bearers of the unions and the collective bargaining agents, though the provisions of the I.R.O. Are no longer applicable as stated hereinabove. This line of action will not be violative of any law. It will not be out of context to observe that it has been repeatedly held by the superior Courts that the provisions of Civil Procedure Code as a whole are not applicable to the proceedings under the Rent Laws and to Constitutional petitions before the High Court. Notwithstanding the above settled legal proposition, recourse is frequently made by the Courts to some of the provisions of the C.P.C. In the absence of any provision in the special law.
34. The up shot of the above discussion is that the above appeal and the Constitution petition are disposed of in the aforesaid terms. However, there will be no order as to costs.