Messrs Daewoo Corporation preferred the present revision petition on 2-4-1995, bringing under challenge the soundness of the judgment delivered on 27-3-1995 by the learned Punjab Labour Court No. 6, Rawalpindi, having accepted the appeal filed before it by respondent No. 1, under section 8(3), Industrial Relations Ordinance, 1969, with a prayer for registration of the Awami Labour Union, claimed to have been formed by the workers, employed by the Corporation, and having issued a direction to the Registrar, Trade Unions, Punjab, Lahore about registration of the union and issuance of certificate of registration within the shortest possible the.
2. Narration of the history of the litigation will be of advantage. The Union had made an application to the Registrar for its registration on as back as 21-12-1992. The Registrar kept the matter pending, although he was required to dispose it of within 15 days, as envisaged by section 8(1). A telegraphic notice was addressed to the Registrar in that behalf by the union on 12-1-1993. The Registrar raised certain objections; and his letter dated 13-1-1993 was received by the union on 16-1-1993. A meeting of the General Body of the Union was convened on 27-1-1993 and the aforesaid objections were placed before it and are stated to have been removed. Request for registration was repeated through an application made on 30-1-1993. The Registrar did not at; and an appeal under section 8(3) was filed in the Labour Court on 13-2-1993. The same was allowed by the Labour Court on 2-3- 1993. Meanwhile, however, the Registrar, vide order dated 20-2-1993, had turned down the request.
The Registrar filed a revision petition (No. 79 of 1993), challenging the Labour Court's order dated 2- 3-1993, before this Tribunal; and by an order rendered on 6-11-1994, my learned predecessor remanded the case to the Labour Court for re-decision, as the President of the Union had himself expressed the desire to additionally assail the Registrar's order dated 20-2-1993 as well. The file was received by the Labour Court at Rawalpindi on 6-12-1994. The Corporation submitted an application under Order 1, Rule 10, C.P.C. For its impleadment as a party to the proceedings on 10-1- 1995. The request was acceded to, as both the Unions, as also the Registrar, did not raise any objection. Memorandum of appeal in amended form was filed and it was decided within a short span of 2-1/2 months on 27-3-1995. As already said, prayer of the union for its registration was granted and the Registrar's order dated 20-2-1993 rejecting such request was set aside. The Corporation came up in revision to this Court on 2-4-1995. Status quo was ordered to be maintained by my learned predecessor on 3-4-1995, when the revision petition was entertained. It was admitted to regular hearing by a subsequent order passed on 6-6-1995.
3. Arguments were concluded by Mian Abdul Rashid, Advocate, learned counsel for the Corporation, as also Mr. Farooq Zaman Quraishi, Advocate, learned counsel for the union, when the Corporation engaged a new counsel, Dr. Abdul Basit, Advocate, who on 14-1-1996, submitted an.
Application under section 36(2), Industrial Relation- Ordinance, 1969, read with Order VI, Rule 17, C.P.C. For amendment of the revision petition. The application was formally but not seriously opposed by the respondents, having submitted replies on 22-1-1996, By an order dated 4-2-1996, the aforesaid application dated 14-1-1996 was allowed. The same is available separately on record.
Memorandum of revision petition in amended form was submitted on 8-2-1996. Learned counsel for respondent No.1, by filing his reply on 14-2-1996, took exception to the manner, in which the revision petition had been amended, as the same, according to him, amounted to seeking further amendments in the petition, in addition to those incorporated in the earlier application dated 16-1- 1996. To resolve the apparent conflict, learned counsel for the parties were asked to address the Court. Respondent No.1 Union's counsel as also respondent No.2 Registrar's representative then gave up the objections, in a bid to restrict the unnecessary controversy and with a view to ensure expeditious disposal of the main matter, stating that the proceedings before the Registrar had got stranded over a pretty long period, by virtue of the stay order granted by-this Tribunal on 3-4-1995, and the very object of the formation of the trade union and its registration was going to be defeated.
4. Learned counsel for the parties then addressed their arguments at length and they also tendered the same in writing. Corporation's counsel did it on 8-4-1996 and the Union's counsel on 11-4-1996.1 would be referring to the same, in dealing with the rival contentions and in arriving at a conclusion of my own.
5. It would be of interest to note that initially the Registrar had raised certain objections against the status of the Labour Union and the tenability or justification of the Union's request for registration and such objection had been made known to the Union, through letter addressed on 13-2-1993, as already said. The Registrar had proceeded to reject the unions' application on 20-2-1993, by giving certain reasons, which have been enumerated in para. No.3 of the revision petition dated 2-4-1995.
The main objection was that although union was a combination of workmen and non-workmen, services of some of them had already been terminated on 21st and 22nd of December, 1992, and one Bashir Ahmad storekeeper, had also been removed from service on 25-1-1993, and registration of such a body claiming to be a trade union would be against the provisions of section 7(2)(a), Industrial Relations Ordinance, 1969. Number of such office-bearers, who were outsiders, also exceeded 25%, as seven out of thirteen were not in the employment of the organization and the requisite request would run against the import and intention of section 7(1)(d). These, amongst other aspects of the case, it was urged, would warrant a factual inquiry by the Registrar, with a view to ascertain, if the individuals, claiming to be members of the trade union or its office-bearers, in actual practice, fulfilled the essential conditions prescribed by law. This was a question of fact, which could be established by evidence alone, according to the learned counsel for the Corporation. Learned counsel for the Union maintains that such question had not been raised before the Labour Court and no request for leading evidence had been made. Actually, it is submitted, section 8(3), I.R.O. Does not require the Labour Court to record any evidence, while dealing with a case for registration of a trade union; and, in any case, this Tribunal has not to undertake such an exercise. It is also urged that the Labour Court has already taken care of such a situation, by directing the Registrar to undertake necessary scrutiny in that behalf. Learned counsel for the Corporation contends that it is indeed an odd order, as the scrutiny, in question, has to precede and not synchronize with or succeed the at of registration of the union, for doing which the Registrar has been bound down. The direction is paradoxical and is a contradiction in terms.
Almost an administrative order has been rendered by the learned Presiding Officer of the Labour Court, requiring the Registrar to go ahead with the registration of the union, and ostensibly it has been given a pseudo --judicial cloak or cover. A question is posed as to what scrutiny remains to be made by the Registrar, when he has been directed to register the union almost immediately.
This Tribunal, however, can also pass such directions for furtherance 9f ends of justice and for strict compliance with the statutory provisions, as may be necessary; and the Registrar is being made aware of the desire and direction of this Court to comply with the orders of the Labour Court about registration of the union, only after undertaking the requisite scrutiny. The learned counsel for the Corporation points out that out of about eighteen thousand employees of the Corporation, only thirty-four were members of the Union, and even one person, out of them, is no longer a member of the Union and says, this is his 'punch-point'. Registration of the union, not indeed entitled to it, would not only be in contravention of the provisions of the Industrial Relations Ordinance, 1969' it will also infringe the domestic constitution of the union itself.
6. Next objection raised by the learned counsel for the Corporations is that application before the Registrar had been made and appeal before the Labour Court had been filed by a person having no locus standi to do so. Abdul Rashid, who describes himself as the President of the Awami Labour Union, could, at best, be treated as a claimant to an elected office of the trade union, which has not yet been registered. Only a trade union, it is urged, is entitled to file an appeal, in terms of section 8(3), I.R.O., as is spelt out by the provisions of section 8(3), in juxta position to those of section 8(5) and (7). Learned counsel has placed reliance on certain reported and unreported rulings rendered by the Supreme Court, the High Court and the Labour Tribunals in that behalf. This objection has, however, been repelled by the learned counsel for the Union by submitting that a Union is a Body corporate, which can sue and be sued, but so long as it is not registered and is represented by its office-bearers, one of them, on behalf of the Union, can certainly approach a Court of law. It will make little difference, if the Union comes through an office-bearer, or the latter, acting for the body, brings an action, and it will be trying to be to technical, if on such a flimsy or fallacious ground the union is made to suffer a technical knock-out and justice is denied to the working class, in ultimate analysis. The learned counsel has, at page 2 of his written arguments, endeavoured to distinguish the 'authorities', cited by the learned counsel for the Corporation, on the point, and I am personally of the view that the appeal before the Labour Court did not really suffer from any fatal defect, particularly when the Corporation's counsel has almost conceded to the claim of the employee s-- cum-workmen to form a union and function without registration even (page 2-i.e). PLD 1993 Lahore 306 (at page 324) lays down that members of a trade union, one or more, may sue or be sued. A trade union is an entity not separable from its members.
7. Registrar, it has vociferously been maintained by the learned counsel for the corporation, is a statutory functionary, whose discretion in the matter has substantially been curtailed by the Labour Court, in imposing fetters upon him and in binding him with a mandate for registration of the union, come what may. Learned counsel for the Union has referred to section 8, Industrial Relations Ordinance, 1969, under which a Labour Court is fully empowered to issue necessary directions to the Registrar, while excluding the employer altogether from such an exercise. The learned counsel has, however, conceded that this Tribunal can always direct the Registrar to proceed along the lines suggested by it, for ensuring compliance with the statutory provisions (page 3, para. 3).
Registrar's powers have not been pre-empted; he has only been reminded of his obligations and made to realise his role.
8. Under Article 6 of the Constitution of the trade union, which was purported to have been approved by the General Body on 18-12-1992, and under which elections also were held, on the same day, the office-bearers elected on 18-12-1992 would cease to hold office on 17-12-1994, according to the learned counsel for the Corporation. Fresh elections have admittedly not been held afterwards, and any body claiming to be an office-bearer would not, as such, be competent to file an appeal in the Labour Court. The appeal under section 8(3), it is urged, must be taken to be incompetent and the judgment rendered by the Labour Court to be a nullity in the eye of law.
Learned counsel for the labour union, however, maintains that without registration of the union, it was not incumbent upon it to adhere to the schedule of elections, as provided in its own constitution, and in particular, the petitioner could not raise an objection in that behalf, having himself been responsible for the delay, by reason of the stay order having been issued by this Tribunal, at his instance on 3-4-1995, and earlier on account of -the protracted litigation stretching over a period exceeding to years. It is submitted that the Corporation cannot be allowed the premium of its own wrong and the workmen cannot be denied justice, on the sole ground of their union having not held the elections as per schedule. The stand-point of the learned counsel for the Union is not devoid of force.
9. In so far as the Corporation's objection about the lack of territorial jurisdiction of the Labour Court at Rawalpindi is concerned, I do not think, it would be valid, now that much of water has flown under the bridge. The Union has its office at Rawalpindi, where it also came in to existence. An application for registration of the Union addressed to the Registrar emanated from Rawalpindi and rejection thereof was also conveyed to the Union at Rawalpindi, and thus cause of action, at least in part, accrued to the aggrieved party at the same place. This Tribunal had remanded the case for re-trial to the same Court (vide decision dated 6-11-1994), from which fact it would follow that the Labour Court at Rawalpindi was considered not to be in-competent. The previous decision dated 2-3-1993 had been announced by the same Court, which was seized of the matter right from the beginning, and actually no objection about want of territorial jurisdiction of the Labour Court at Rawalpindi was initially raised there. The learned counsel for the Corporation has pointed out that the Registrar himself had raised air objection about absence of territorial jurisdiction of the Labour Court in the revision petition filed before this Tribunal. Road building activity is not confined to any particular place, but continues shifting from place to place, and labourers, are employed at different places, even though the Corporation has its Head Office at Sheikhupura. Keeping in view this aspect of the activity, a Labour Court at the Provincial Headquarter, Lahore, should have been approached in the matter, according to the learned counsel, who, however, did not insist much on the objection. I do not find anything wrong with the competence of the Labour Court, that has twice dealt with the matter. ,
10. Five persons shown as serving employees of the Corporation, in the list submitted by respondent No. 1, as appellant before the Labour Court, it is urged, are not entitled to be treated as office-bearers of the trade union, their services having already been terminated. Here it may be noted that the N.I.R.C. Had issued a stay order on 28-12-1992 (Annexure 'C'), and although the same stood vacated, with the dismissal of the petition, by reason of its non-prosecution on 10-11-1994, the petition was revived on 20-3-1996, at the instance of the Union, and is stated to be pending still.
Learned counsel for the Union maintains that the stated event must be taken to be of no legal effect, as termination orders against certain employees were passed by the Corporation, on becoming aware of the move made for registration of the Union, and it was an unauthorized at, viewed on considerations of equity, justice and fair play, the employees having been ousted from service during pendency of the case in Court, without any show-- cause notice or inquiry; and this is all the more reason for not refusing recognition of rights of the working class, whose interests must duly be safe--guarded and the employer's acts of vengeance directed against the employees must be taken serious notice of.
11. Muhammad Abdul Rasheed son of Said Muhammad and Muhammad Aslam Adil son of Fazal Din claim to be Union's President and General Secretary respectively. These to are most important offices and are occupied by outsiders, who, according to the learned counsel for the Corporation, are professional trade unionists and seem to have played pivotal role in the at of formation of the union and they are now in the fore-front for registration of the union, but the object allegedly is unholy and motivated, as they want to make use of the body for furtherance of their selfish ends, by black-mailing and exploiting, pressurizing and intimidating the employers. According to the learned counsel, these persons always keep an eye on such concerns and do not miss a chance for their infiltration into the rank and file of the association of the employees and even the establishment. Submission is that formation of a trade union is certainly the right of every worker, guaranteed under Article 17 of the Constitution of the Pakistan, but it is an entitlement and not an obligation. Majority of the workmen here, it is stated, are not in favour of formation of a union and they must not be forced to agree or surrender to the desire and demand of schemers like Rasheed and Adil. The learned counsel has cast aspersions on the bona fides and has questioned the competence of these to persons in the matter; but he forgets that the law permits association of outsiders with such an exercise and they cannot be characterized as aliens, enjoying no status for and having no concern with the at of formation of the union. Main emphasis of the discourse of the learned counsel for the Corporation is about non---applicability of the Labour Laws of the country to the concern. What he maintains may be summed-up as follows: It is a foreign concern and the task entrusted to it is with regard to a specific project. It has not been registered in the manner, a business concern or company or firm of the country is notified. It is engaged in activity of road- construction and is completing a gigantic project of national importance. Operations being carried out by it are outside the para-meters of a home project. The way it is dealt with in this country will have impact on international audience, and the shabby treatment meted out to it will certainly disillusion those from across the borders interested in investment in Pakistan, for which the Prime Minister is striving so hard, perpetually proclaiming, "we want trade and not aid, we will welcome foreign investors in the fields of trade and industry, we will provide them all facilities". The treatment this Korean concern gets at our hands will have international repercussions and will verily assume global dimensions. The Daewoo Corporation has come here under a treaty and its status is to be adjudged in the light of the treaty and the nature of the job it is performing. Thus its functioning would be governed by the treaty and not the general laws, especially the Labour Laws of the country. The concern is doing no trade or business here; the project cannot be called an industry, attracting applicability of the Labour Laws. Learned counsel for the Union urges, on the contrary, that a calling or an undertaking or a project such, as that of Daewoo Corporation, will be covered by the definition of industry as occurring in section 2(xiv) of the Industrial Relations Ordinance, 1969.
Road construction does not fall outside the ambit of the term; and even if a foreign company is engaged in such an activity, in our home-land, we are not to deny justice to our own countrymen.
12. The concern had applied to the Government of Pakistan for application of the provisions of the Essential Services Maintenance Act and the interim Government headed by Mr. Moeen Quraishi and granted the same for a year but the same was not got extended afterwards. No move had ever been made for exemption from the applicability of the Labour Laws; and it, therefore, cannot be contended that the Labour Laws are not applicable. Even if the establishment of the concern formulates certain rules and regulations of its own, or succeeds in prevailing upon the Federal Government to enact laws and frame rules, extending to the Corporation special amenities or securing for it a privileged position, it will not be recognized by Courts of law. Recently an illustrious pronouncement has come from an Honourable Judge of the Lahore High Court, and the same has been reported as PLD 1993 Lahore 306 (Union of Civil Aviation Employees, Lahore and another v.
Civil Aviation Authority Islamabad and others). Right of association and of obtaining social and economic justice is guaranteed by the Constitution, and it is the responsibility of the State to ensure equitable adjustment of rights between the employer and the employee, and such rights must be jealously safe-guarded and be given full effect to. Article 17 of the Constitution enshrines in itself one of the most valuable fundamental rights contained in the Constitution Establishments and Authorities may regulate the process of enforcement of such rights, but they cannot deny, stifle, hoodwink or side-track the same. Article 17 is not confined only to formation of an association but also extends to and guarantees the continuance of such association, and if the employer only allows formation of union but does not permit the workers to at freely, such constraints and fetters would be illegal being violative of the freedoms guaranteed by the Constitution. Functioning is implicit in the formation of a union. Any restriction imposed on the activity of a trade union will be ultra vires of the Constitution and will be liable to be struck down. Objectives and activities of an association may be curtailed or controlled only if the same are prejudicial to public order, morals of the society and sovereignty or integrity of the State. Notwithstanding exclusion of provisions of the Industrial Relations Ordinance, respecting employees of a particular concern, they have a right to form a union, which is entitled to work and function as such, and activities of which cannot be restricted, except on the grounds mentioned in Article 17 of the Constitution. Primary purpose of organizing a labour union is to protect its members and to secure for them a fair and just remunerations for their labour and favourable conditions under which they have to perform their duties. Employees of a concern have an inherent right to form a trade union and the rights which inhere in such a body, by virtue of its formation, cannot be taken away or restricted. If, therefore, the Corporation in this is aiming at depriving its employees of their constitutional right to get together for promotion of their collective cause, while recognizing their right to do so on paper, such an attempt would render exercise of their valuable rights by the labour class as illusory or nugatory, which course would be violative of Article 17 of the Constitution.
13. While conceding to the union its right to exist and function, the Corporation has still tried to restrict and resist it practically, by maintaining that the Motorway Project is coming to a close within a couple of months, and if any additional work is entrusted to the Corporation, there will be a new contract, which will cover specified field, for certain period and workers will then have a right to form a union and apply for its registration afresh. No practical purpose would be served by formation of a union or by its registration at this juncture. Learned counsel for the union has, however, opposed this argument, by contending that the period of project has no bearing on the entitlement of the employees and why should the employer worry on that score. For whatever period the project is not completed, and the Daewoo Corporation is actively engaged in it, its employees will assert themselves through their union, since they have a statutory entitlement to do so; and I would endorse the assertion of the learned counsel, representing respondent No. 1, in that behalf.
14. The employer, it has vehemently been argued by the learned counsel for the union, does not figure any where, and formation of union, followed by its registration, is an exercise confined to the workers and the Registrar of the Trade Unions. It has been held by the High Courts that the Registrar is bound to issue a certificate of registration to a trade union, once all the requirements have been fulfilled, and an employer has no right of hearing at that stage, although he may emerge afterwards and may make a move to the Registrar for cancellation of the registration of a trade union. The issue will remain restricted between the trade union and the Registrar. In the process for registration of a trade union, management's entitlement to join proceedings has not expressly been provided, although for the purpose of verification of strength of workers, their classes and categories and other ancillary matters, the Registrar may require management's association with the exercise, but the proprietor of a concern, the employer or the management cannot question legality of the exercise undertaken for registration of a trade union. NLR 1995 Labour 71 (Baluchistan High Court), 1994 PLC 177 (Karachi High Court), and 1994 PLC 323 (Lahore High Court) are the authorities which may be quoted in this regard.
15. Learned counsel for respondent No. 1, has also questioned competence of the revision petition, by canvassing that a revision petition has a limited scope, and in exercise of its revisional jurisdiction, a higher Court can only interfere, if the impugned order has been rendered by the Court below by exercising jurisdiction not vested in it, or has refused to at in spite of having jurisdiction in the matter, or the order on the face of it is invalid. The learned Labour Court, however, has surely acted within the four corners of its jurisdiction and has passed a perfectly lawful order, while the Corporation in fact has acted in the matter beyond and without competence, as alluded to above. It could not call in question the incidence of registration of the union and could not agitate it before this Tribunal, although the Registrar could do it. He, however, is willing to register the union, although initially he was not; and that would indeed clinch the issue leaving the employer in the void.
16. There is no escape from the conclusion that it has been constant endeavour of the Corporation, in keeping with its tradition, known the work over, not to allow regular formation of a trade union, within its fold, as also its registration, as to evade formidable legal consequences, which would flow from such development, with corresponding accrual of monetary benefits of colossal proportions to the labour class, in the form of bonus, over-the emoluments, house rent, medical charges, conveyance facility, scholarships for children, compensation on sustaining injuries or suffering death, gratuity, pension (on superannuation), insurance, old-age benefits, etc. The Corporation is stated to have persistently been declining to incur all such fiscal liabilities of outrageous dimensions. That is very woeful indeed. By registration of the union, the members, and all employees in general, will be able to enforce their entitlement to these monetary benefits of enormous magnitude.
17. The result of the above discussion is that the revision petition is treated to be un-proceedable and it is also found to be devoid of merit, and is hereby dismissed, although with no order as to costs.