This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 basically calls in question the order dated 21-1-1996 passed by the to learned Members of National Industrial Relations Commission in the purported exercise of Full Bench of said Commission, whereby the order dated 16-1-1996 passed by a Single Member of National Industrial Relations Commission was suspended with the further prayer that with the promulgation of Ordinance (CXV of 1995) and consequent incorporation of Pakistan Telecommunication Company Ltd., thereby repealing Pakistan Telecommunication Corporation Act, 1995, the registration of trade unions functioning under the said Corporation had lost their legal entity thereby reflecting on the legal entity of respondent No. 7 in the manner that the same had also ceased to be the C.B.A. And that being so, the appeal filed by the said respondent against the order dated 16-1-1996 before the Full Bench of National Industrial Relations Commission could not be entertained by a to Members Bench of the said Commission alongwith the direction in the nature of mandamus that the National Industrial Relations Commissions be directed to promote creation of new trade unions with the' added direction that the same be registered with the respective establishments created under Ordinance CXV of 1995.
2. This case has a checkered history of its own inasmuch the petitioner and respondent No. 7 being Staff Unions of erstwhile Pakistan Telephone and Telegraph Department and Pakistan Telecommunication Corporation have been contesting elections to become C.B.A. And were alternatively registered as such with the then establishments.
3. The relevant background of the present dispute is to the effect that the petitioner union was elected as C.B.A. In the year 1988 and continued to at as such till 1995, when respondent No. 7 having won the referendum became the C.B.A. And was registered as such with the existing establishment. It is stated that the result of said referendum was also challenged which is subject- matter of Writ Petition No. 1468 of 1995 presently pending before the Rawalpindi Bench of this Court but that is apart, it was on 27-11-1995 that Ordinance CXV of 1995 was promulgated whereby the Pakistan Telecommunication Corporation was disbanded and five different legal entities were created to manage and control the affairs of the original corporation including Pakistan Telecommunication Company Ltd. Section 34 of the Ordinance CXV of 1995 relates to the inception and birth of said company which in its terms states that the company shall be established as soon as after the commencement of the Ordinance, which shall be limited by shares and be incorporated under the Companies Ordinance, 1984 with the principal object of the provisions of domestic and international telecommunication and related services consistent with the provision of the said Ordinance. It also provided that initially all the shares of the Company shall be issued and held by the President of Islamic Republic of Pakistan with the rider that the same may be transferred to the private investors or general public as and when thought appropriate. Section 35 of the same Act provided for the vesting of rights, property and liabilities of the Corporation, the specifics whereof, for the purpose of the present petition, are to the effect that the property, rights and liabilities of the previous corporations shall become the property, rights and liabilities of the respective entities. Simultaneously section 36 of the said Ordinance, took care of terms and conditions of services of employees who were to be absorbed in the newly formed company. In order that the disbandment of the erstwhile Corporation and incorporation of new company could be simultaneous, it was provided in section 59(2) of the Ordinance that the Pakistan Telecommunication Corporation Act, 1991 shall stand repealed on and from the effective date for the company. The term effective date was in turn defined in sub-clause (f) of section 2 of the same Ordinance, which meant the date on which the property, rights and liabilities of Corporation were vested in the company under section 35. Reverting back to various clauses of section 35 it would be seen that the sub-clause (2) thereof provided as to which of the employees of the Corporation shall be transferred to the company who would become employees thereof, In any case, the said company was incorporated on 31-12-1995 and simultaneously the orders were also passed by the Federal Government thereby vesting a specific part of property of the erstwhile establishment in the company as also transferring the specified employees of the Pakistan Telecommunication Corporation to the said company. Reference to this behalf can be made to S.R.O. No. 115(1)/96 which appeared in the Gazette of Pakistan (Extraordinary) of 11-2-1996. It was by virtue of clause
(12) of the above said S.R.O. That the P.T.C. Without being wound up stood dissolved and ceased to exist with effect from 1-2-1996.
4. The matter having reached the stage afore noted, the petitioner filed an application before respondent No. 1, thereby maintaining that with the repeal of Pakistan Telecommunication Corporation Act, 1991 and consequent upon the dissolution of Pakistan Telecommunication Corporation with effect from 1-2-1996, the unions as well as the C.B.A. i.e. Respondent No. 7 registered as such with the erstwhile establishment had also ceased to exist or come to an end as the case may be, therefore, new union be allowed to be formed and registered with the newly created company. The petition was contested between the parties arrayed as such including respondent No.7 and was heard by a Single Member of the N.I.R.C. The said application was ultimately accepted by the Single Member vide his order dated 16-1-1996 whereby it was declared that the old unions and the C.B.A. Had ceased to exist with the cessation of P.R.T.C. And directed that the new trade union be formed and registered and then a C.B.A. Be elected in all the legal entities created by the Ordinance.
5. The respondent being aggrieved of the above said order filed an appeal before the Full Bench of N.I.R.C. As provided by section 22-D of Industrial Relations Ordinance, 1969. A Bench comprising of to Members of N.I.R.C. In the purported exercise of Full Bench of the said Commission proceeded to entertain the appeal and at the same the suspended the operation of the order dated 16-1-1996.
Admittedly the appeal was fixed and heard on many dates yet no order was passed and at a stage when the Chairman of the Commission had proceeded on leave, the petitioner filed the present Constitutional petition thereby challenging the legality of the suspending order passed by the Bench comprising of to Members of the Commission on the ground that the suspending order is wholly without jurisdiction as the appeal was required to be heard by a Full Bench and a Full Bench could not be said to have been constituted unless three Members of the Commission had assembled in the first instance. The relief aforesaid was claimed as if ancillary to the main relief i.e. The prayer that with the cessation of P.R.T.C. The union registered therewith had also ceased and so was the case with the C.B.A., therefore, the direction that the new unions be allowed to be formed and registered with each of the Companies or entities formed under Ordinance CXV of 1995 where after the C.B.A. Be elected. The petition was vehemently contested by respondent No.7 who filed a detailed written statement alongwith numerous documents.
6. At the hearing, the learned counsel for the respondent raised a preliminary objection that the petition was incompetent as according to him the same could not be maintained by the petitioner.
As the objection was unfolded, it led to various contentions i.e. That the petition was not maintainable; it could not be maintained by the petitioner union through the Joint General Secretary much less on behalf of the Joint General Secretary; himself the petitioners had no locus standi to maintain the same and lastly that the petitioners could not be said to be "aggrieved person" within the meaning of the words used in Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. It was maintained that it is not discernible from the petition itself as to whether the petitioner union is registered or not and that in any case the petition could not be filed by the petitioner union through Joint Secretary much less in his personal name. Reference in this behalf was made to Annexure ' R.9' with the written statement which is a letter addressed by Deputy Registrar to the Secretary-General of the petitioner thereby intimating him the names and designations of the various office --bearers of the said union to contend that the name of the petitioner No.2 is described at Serial No. 19 and there does not exist any averments as to why the President, Senior Vice-President, Secretary-General and Deputy Secretary-General did not come forward to sue in the name of the petitioner union. The precise submission was to the effect that the Petition No.2 is not acting on behalf of the office-bearer of the union or the general body thereof and at best this coin be described to be exploitation of the name of the union. It was also submitted that no resolution of the union is forthcoming on the record so as to establish that the present action had the sanction of the general body of t1fe union. It was then submitted that since it was not shown that any election revere held by the said union after 1992, the petitioner No.2 could not claim himself to be the Joint General Secretary of the said union because as per the law as also constitution of the union, the maximum tenure of the office-bearers is to years. Another limb of the same argument was to the effect that the, petitioner No.2 ceased to be the Joint Secretary by efflux of the as is envisaged under Article 7(j) of the constitution of the union. The end result of the above said argument was to the effect that the union could not maintain the petition through petitioner No.2 i.e. Muhammad Shafique nor the: said petitioner No.2 could maintain the petition in his personal capacity as such. In the same scenario, another colour was added by submitting that the petitioner union filed an application on 2-6-1996 for registration of a fresh union wherein a sworn affidavit of Muhammad Shafique was attached thereby stating that none of the members of the applicant union i.e member of any other Trade Union. It was submitted that the petitioner NcD.2 having not remained a member of the present union on and from 4-3-19496, the present writ petition filed on 16-5-1996 was utterly incompetent. Section 3 of the I.R.O was also referred to submit that no worker was entitled to be a member of more than one union. Winding up the argument as to the competence of this petition, it was asserted that even if it be assumed that the petitioner had the locus standi to file the petition, the same was not competent because it had not been filed by a duly authorised person as according to the learned counsel for the respondent the petitioner union was a body corporate and it could only sue through a duly authorised person.
Alternatively it was submitted that in any case the petitioner had not remained the member of the petitioner union as according to his own showing the union had ceased to exist with the cessation of P.R.T.C.
7. The learned counsel for the petitioner on the other hand, maintained that the "expression aggrieved person" as used in Article 199 of the Constitution of Islamic Republic of Pakistan should not be literally' interpreted nor should be given a restricted meaning so as to non-suit the persons who seek redress of their grievance by invoking Constitutional jurisdiction of this Court: It was submitted that if a person stands to lose or gain by exercise of power vested in public officers or functionaries, he is to be treated as an aggrieved person and that this right of a person is a lot wider in its connotation than the ordinary conception of the expression i.e. Aggrieved person.
Reliance was placed on the Montgomery Flour and General Mills Ltd., Montgomery v. The Director, Food Purchases, West Pakistan etc. (PLD 1957 Lahore 914), Inayat Bibi etc. v. Assistant Settlement Commissioner and Chief Settlement Commissioner (PLD 1978 Lah. 252), Muhammad Ismail and others v. The State (PLD 1969 SC 241) and Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416). Much emphasise was laid on the discussion recorded at pages 492 and 493 of the judgment in the case i.e. Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416) supra.
8. The above said objection was debated on many dates during the course whereof, the learned counsel appearing on both the sides grilled the facts with precision and referred to law with flair but I am of the view that, the matter did not need so much of stress for the simple reason that the present writ petition has arisen out of adversarial proceedings. In the contested matters beginning with the basic Court or the Court or Tribunal of first instance, it is almost a right of a party to come to this Court where no other efficacious or alternative remedy is available. The factual aspect of the matter would reveal that it was on the application of the petitioners union that a decision was reached by a learned Single Member of the N.I.R.C. Which was challenged by the contesting union i.e. Respondent No.7 by having recourse to the provision of appeal as provided in section 22-D of the I.R.O. The decision reached in favour of the petitioner was suspended by a to Members Bench of N.I.R.C., though temporarily, i.e. Till the decision of the appeal, yet it affected the rights created and secured in favour of the petitioners by way of order of the learned Single Member of N.I.R.C. It is not disputed that the said Single Member had the jurisdiction to entertain and decide the application of the kind as filed by the petitioners nor the further fact that the said decision could be challenged before the Full Bench N.I.R.C. By way of an appeal as provided under the Statute. As a matter of fact the appeal by respondent No.7 was entertained by a to Members Bench of the Commission and the order impugned therein was suspended, resultantly, the effect of the order passed by the Single Member of the Bench was effaced, though temporarily, therefore, it would be quite anomalous to hold that the petitioner could not be deemed to have been aggrieved by the order passed by a Bench, which according to the petitioner was not properly constituted as envisaged by the law. Needless to add that it would tantamount to shutting the door of justice in the fact of the aggrieved person, who had initially moved the Tribunal /Commission under a relevant provision of law and had also remained successful while the said success of the petitioner was clouded by a suspending order passed by a Bench comprising of to Members of the Commission.
As far the objection that petitioner No.2 is not shown to have been authorised to file the present petition, therefore, the same is not competent, suffice it to say, that this objection does not appear to have taken during the hearing before the learned Single Member of the Commission, therefore, it would to late in the day to entertain such an objection particularly, when the same involved factual inquiry which is not possible to be undertaken in the exercise of Constitutional jurisdiction of this Court. Again it would not be proper at this stage to non-suit the petitioners on the ground that the petition is not competently filed when the case has already passed to stales and that to with fluctuating success i.e. One in. Favour of the petitioners and the other in favour of respondent No. 7, for, if the present petition is to be dismissed on this ground, the petitioners would be rendered remediless against the order whereby the original order passed in his favour had been suspended, therefore, it is enough for the present that the petitioners were parties before the Tribunal below and an order adverse to their right/interest has been passed by the Appellate Bench comprising of to Members in the purported exercise of Full Bench of the Commission. Needless to add that in the recent years this practice has also evolved that in the cases where appeal or revision is- provided, the matter has been taken to this Court in its Constitutional jurisdiction and this Court has interfered where a jurisdictional defect is found in the order or the law had not been followed or if the judgment impugned therein is found to be perverse or without jurisdiction. Interference has also been made if the matter decided by a Court or Tribunal of competent jurisdiction suffered from misreading or non-reading of the record.
In any case, the question debated at the bar by both the learned counsel could be relevant in a case of a person approaching this Court directly thereby invoking Constitutional jurisdiction of this Court but even in the cases of such a nature, it has now been well-settled that even a semblance of a right is enough to maintain a Constitutional petition while in the instant case it has arisen out of adversarial proceedings pending before the A Commission and the question of competence as also that of the constitution and jurisdiction of a Bench of that Commission is also involved. In the circumstances, the objection of the learned counsel for the respondent is found to be misconceived, therefore, repelled.
9. Coming to the merits of the case, it would be noted that the question as to cessation of P.R.T C.' and the avowed result thereof that the union and the C B.A. Had also simultaneously ceased to exist and that the ancillary question that the relevant authorities be directed to allow formation and registration of new unions for each of the employers and entities created by Ordinance CXV, 1995 may not detain me any longer for the particular reason that if I proceed to decide the same, it would tantamount to pre--empting and usurping the jurisdiction of a Tribunal/Commission of exclusive jurisdiction. The question as to whether the to Members of the Commission could entertain the appeal and pass an order thereby suspending the operation of the order impugned in the appeal, however, needs to be attended to. It was argued by the learned counsel for the petitioner that the appeal against the order determining and certifying a collective bargain unit is mandated to be disposed of by the Full Bench of the Commission as provided in sub-clause (2) of section 22-D of the Industrial Relations Ordinance, 1979. In amplification of the argument referred to above it was submitted that a Full Bench has been defined to mean a Bench which shall consist of not less than three members of the Commission as is evident from sub-clause (a) of clause (2) of section 22-B of the Ordinance ibid. In order to understand the total intelligence of the arguments raised by the learned counsel for the petitioners, it would be appropriate to refer to the respective provisions in detail, which are as follows:-- Section 22-B: Benches of the Commission, etc.--(1) The Chairman of the Commission shall exercise general superintendence over its affairs.
(2) For the efficient performance of the functions of the Commission, the Chairman shall constitute--
(a) a Full Bench of the Commission which shall consist of not less than three members of the Commission; and
(b) as many other Benches of the Commission consisting of one or more members of the Commission as he may deem fit.
(3) The Benches shall,--
(a) in relation to cases based on allegations of unfair labour practices brought before the Commission for (trial of offences, or) enforcement of, or for redress of individual grievances in respect of any right guaranteed or secured to any employer or worker by or under any law or any award or settlement, perform such functions and exercise such powers as are performed and exercised by 2 ** Labour Court (*);and (b)in relation to industry-wise trade unions, federations of such trade unions, federations at the national level and cases referred to the Commission, perform such functions and exercise such powers as are performed and exercised by a Registrar, a Labour Court or a Tribunal in relation to trade unions and Federations of trade unions within a province. And; for this purpose, any reference in this Ordinance to a . "Registrar", 4 * * * * * "Labour Court", or, as the case may be, "Tribunal" shall be deemed to be a reference to the appropriate Bench of the Commission to which such functions are assigned: Provided that, in the performance of those functions and in the exercise of those powers, the Benches 'shall, unless otherwise provided in this Ordinance, follow the procedure laid down in the regulations to be made under section 22-F.
(4)If any member of the Commission is absent from, or is otherwise unable to attend any sitting of the Commission or of a Bench consisting of more than one member of which he is a member, the proceedings of the Commission or Bench may continue, and the decision or award may be given or judgment or sentence may be passed in the absence of such member and no at, proceedings, decision, or award of the Commission or Bench shall be invalid or be called in question merely on the ground of such absence or of the existence of vacancy in or any defect in the constitution of the Commission or Bench.
(5)If the members of a Bench differ in opinion as to the decision to be given on any point--- (a)the point shall be decided according to the opinion of the majority, if there is a majority; and (b)if the members are equally divided, they shall state the point on which they differ and the case shall be referred by them to the Chairman for hearing on such point by one or more of the other members of the Commission, and such point shall be decided according to the opinion of the majority of the members of the Commission who have heard the case, including those who first heard it: Provided that if, upon any matter requiring the decision of a Bench which includes the Chairman of the Commission as one of its members, there is a difference of opinion among its members and the members so constituting the Bench are equally divided, the opinion of the Chairman shall prevail and the decision of the Bench shall be expressed in terms of the views of the Chairman.
(6) Any order or decision made, award given, sentence passed, power exercised, functions performed or proceedings taken by any Bench or the Commission in accordance with this Ordinance and the order constituting the Bench shall be deemed to be the order or decision made, award given, sentence passed, power exercised, function performed or proceedings taken, as the case may be, by the Commission.
Explanation.---In this section the expression 'the Chairman of the Commission' includes such member of the Commission (to be known as senior Member) as the Chairman may nominate to perform the functions, and exercise the powers, of the Chairman during his absence. "
10. A bare perusal of the above-noted section of Industrial Relations Ordinance, 1979 would show that in the definition clause i.e. Sub-clause (a) of clause (2) of section 22-B, Full Bench of the Commission has been defined to be a Bench of not less than three Members of the Commission. If this clause is read in conjunction with sub-clause (4) of section 22-B and sub-clause (2) of section 22-D, the logical interpretation that would follow would be that such an appeal could only be entertained, heard and disposed of by a Full Bench of three Members and the only variation suggested by subsection (4) is to the effect that once the Full Bench is constituted by the three Members of the Commission as required under section 22-D, the hearing of the appeal would not be stopped or hampered because of some Members becoming unavailable at a subsequent the or for the reasons that he is unable to attend any sitting of the Commission or of a Bench consisting of more than one Member for the proceedings may continue and the decision or award may be given or judgment or sentence may be passed in the absence of such Member and no at, proceedings, decision or award of a Commission or Bench shall be invalid or be called in question merely on the ground of such absence or of the existence of vacancy or any defect in the constitution of Commission or Bench. The word "continue" as used in sub-clause (4) of section 22-B of Industrial Relations Ordinance is of great significance as it contemplates that a Full Bench in its inception shall be constituted by three Members and the proceedings of a case required to be heard by a Full Bench, if continued for number of days, would not be stopped or hampered because of non-availability of any of the Members at a subsequent stage of the. The argument of the ' learned counsel for the respondents that the word "disposed of" as used in sub-clause (2) of section 22-D providing for appeal against an order determining, and certifying a collective bargaining unit means and contemplates that Full Bench is required to be constituted only at the the of final hearing of appeal acid that the interim matters (as is the present case) could be disposed of by a Bench of even to Members is absolutely devoid of any merit. A plain reading of section 22-D on the other hand indicates to the contrary inasmuch as it is mandated therein that a Full Bench of the Commission shall consist of not less than three members of the Commission and the variation or the departure therefrom is suggested in sub---clause (4) of section 22-B of the said Ordinance whereby it is provided that the subsequent non-availability of any member would not affect the constitution of the original Bench which must be of three Members in its inception as indicated above. This departure is provided in the Act to meet the future contingencies and that to in a case where the proceedings of an appeal or argument therein continued for quite some period. The allied question that the order passed by a Bench comprising of to Members of the Commission is liable to be struck down as the same is wholly without jurisdiction is also well- founded. It is now an accepted principle of law that even interim orders, if found to be wholly without jurisdiction would be struck down by this Court in the exercise of its Constitutional jurisdiction as the same is required for the proper functioning of the Tribunals created by Statute.
Such Tribunals are required to at within the framework of the' statute and in the event of their exceeding the jurisdiction as conferred by the Statute, the corrective process of this Court would be available so that the functionaries or the Tribunals created and working under a Statute may not become despot in their own sphere. It would also be advantageous to refer to Article 175(2) of the Constitution of the Islamic Republic of Pakistan,-1973, which in fact is an inhibiting provision thereby mandating that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. The wisdom behind the above said Article is so obvious that the Courts or Tribunals created under the Constitution or a Statute are required to exercise only the jurisdiction which is conferred on them by the Constitution or the law or any Statute and that to, in the mode and manner prescribed by the Constitution or the law as the case may be. Seen in the context of a forenoted provision of the Constitution of the Islamic Republic of Pakistan, 1973, the conclusion is irresistible that the appeal of the nature filed by respondent No. 7 could only be entertained by a Full Bench of the Commission, which is ordained to be constituted by three members of the Commission. The variation suggested in sub-clause (4) of section 22-B of the Industrial Relations Ordinance, 1969, speaks of a stage p subsequent to the original formation of the Bench which must be constituted by the three Members. The interpretation of Article 175(2) of the Constitution of Islamic Republic of Pakistan, 1973, had remained subject-- matter of various judgments but has been lately considered in the case of Mirza Zafar Ali and 4 others v. Member (Revenue), Board of Revenue, Punjab and 2 others (1990 CLC 1772). It was ruled therein:-- "The days of Royal decrees have gone now. The functionaries of the State are to function strictly in accordance with law. No Court or authority is entitled to exercise powers not vested in it. "
The dictum a forenoted apart from being applicable in regard to the jurisdiction conferred on a functionary, Tribunal or Court is also applicable to the mode and manner in which the same is to be exercised. Obviously the to members of the Commission did not constitute a Full Bench, therefore, they could not entertain the appeal filed by respondent No. 7 much less passed the suspending order dated 16-1-1996 and as such the said order is found to be without jurisdiction, hence the same is struck down.
11. For the reasons a forenoted this writ petition is allowed to the extent' of limited question decided therein with the result that the order dated 21-1-1996 passed by a Bench comprising of to Members of the Commission in the appeal filed by respondent No. 7 is declared to be without lawful authority and of no legal effect. The result is that the appeal filed by respondent No. 7 shall be deemed to be pending before the Commission which shall now be heard by a Full Bench of the Commission as ordained in the Act as also indicated above and disposed of in accordance with law. Since a question of interpretation was involved in this petition, therefore, there shall be no order as to costs.