This order shall dispose of the preliminary legal objections raised by the respondents Nos.1 and 2 regarding maintainability of the petition moved by the National Bank of Pakistan Employees Union, Malakand Division (Mardan Division) Regional Office, Mardan through its General Secretary for determination of CBUs for the workmen employed in the establishments of National Bank of Pakistan in the Province of N.-W.F.P. Under section 22-EE of the I.R.O., 1969. The petitioner-union has initially impleaded the National Bank of Pakistan as respondent No,1 and National Bank of Pakistan Employees Union (Regd.) N.-W.F.P., Peshawar Cantt through its Secretary General as respondent No,2. However, during the proceedings Registrar Trade Unions, Punjab, N.-W.F.P., Sindh, Balochistan, Federal Territory Islamabad and RITU, NIRC were also impleaded as respondents Nos.3, 4, 5, 6, 7 and 8, vide order dated 28-11-2002.
2. Case of the petitioner-union as set out in the petition is that the petitioner-union is a trade union of workers as defined under section 2(xxvi) of I.R.O., 1969 and also registered with the Registrar of Trade Unions, Malakand Division, Swat for the newlyestablished Mardan Division of National Bank of Pakistan (Hereinafter called as NBP). It is further contended that since the Regional Office of the Bank in the Province of N.-W.F.P. Is no longer in existence as the Bank had re-structured its administrative units, thus there is a need to determine fresh Collective Bargaining Units in the establishments of National Bank of Pakistan. It was further contended that the Bank has decided to revise, re-organize and delayering the Field Structure, with reporting lines vide Circulars No,11 'of 2002, dated 13-5-2002 and No,19 of 2002, dated 26-7-2002. In terms of the aforesaid Circulars four new Regional Business Chief Offices of the Bank have been created in the Province of N.-W.F.P.
(1) Mardan Region.
(2) Peshawar Region.
(3) Abbottabad Region.
(4) D.I. Khan Region.
' It is prayed that keeping in view the aforementioned administrative set-up of NBP, the classes of workmen employed under the aforesaid four newly-created "Regional Business Chiefs" of the NBP in the Province of N.-W.F.P. Maybe declared and certified as under:--
(i) Mardan Regional Units, for the workers employed in the Mardan Region of National Bank of Pakistan.
(ii) Peshawar Regional Unit, for the workers employed in Peshawar Region of National Bank of Pakistan.
(iii) Abbottabad Regional Unit, for the workers employed in Abbottabad Region of National Bank of Pakistan.
(iv) D.I. Khan Regional Unit, for the workers employed in D.I. Khan Region of National Bank of Pakistan.
3. Respondent No,1 namely National Bank of Pakistan, while filing the written statement/reply has resisted and vehemently opposed the petition by raising inter alia certain preliminary legal objections regarding maintainability of the petition. It is strenuously contended that the instant petition is not maintainable on the facts as well as on law as the petitioner has not come with clean hands and has concealed material facts by making mis-representation hence the petitioner is not entitled for any relief. It is further contended that the petitioner has no locus standi to file the instant petition/application as the petitioner is not a registered trade union and got a registration certificate by illegal way and a Petition No,19(3) of 2002 against the registration of the petitioner- union is also pending adjudication before this Bench. Thus this Commission has no jurisdiction to entertain this petition. On merits the respondent No,1 also controverted the contention of the petitioner and contended that there is no need of determination of new CBUs in the establishment of NBP. It was prayed, that since the petitioner has no locus standi, therefore, the petition be dismissed.
4. The respondent No,2 namely NBP Employees Union (Regd.) N.-W.F.P. Peshawar, while filing their written statement/reply has strongly opposed the contention of the petitioner by raising inter alia certain preliminary legal objections about maintainability of the petition. It is contended that the petitioner has no locus standi to move this application, because the petitioner is not a registered trade union and it is an illegal body. It is further contended that a petition under section 22-EE (3) bearing No,19(3) of 2002 is already pending before this Bench for setting aside the Registration of the petitioner-union being violative of the provisions of section 22-EE (3) of I.R.O., 1969. The present petition has been brought with a view to delay disposal of the said case. Thus this Bench has no jurisdiction to entertain this petition. It is further contended that the petitioner cannot move an application under section 22-EE of I.R.O., especially when its status is already subjudice before the Commission. On merits the respondent No,2 also controverted the assertion of the petitioner.
5. Arguments were heard on preliminary legal objection raised by the respondents Nos.1 and 2 regarding maintainability of the petition. While arguing his case, Malik Meharban Labour Representative appearing on behalf of respondent No,2 has contended that the petitioner-union is an illegal registered trade union because its registration is violative of the provision of section 22EE(3) of the I.R.O., 1969 and a petition filed by the respondent No,2 against the registration of the petitioner-union is already pending adjudication before this Bench and thus in terms of section 10, C.P.C., the instant petition is not maintainable. In his arguments, he further urged that the petitioner-union has been registered in violation of the orders dated 20-8-1976, 12-5-1983 and 7=3- 1992 passed by the Commission in cases No,2(8)75, 19(1)/82 and 19(4)/90 under section 22-EE of the I.R.O., 1969 through which all zones located in N.-W.F.P. Under the administrative - control of the Provincial Chief of National Bank of Pakistan were declared/determined as one CBU. It is further contended that the petitioner-union has been registered for a part of the CBU as such its registration is violative of the aforesaid orders determining five CBUs in NBP and thus contravene the provisions of section 22EE(3) of the I.R.O., 1969, hence the petitioner-union has no locus standi to move the instant petition.
6. Replying to the assertion of the representative of the respondent No,2, learned counsel for the petitioner has strenuously contended that contention of the representative of the respondent No,2 is incorrect and without any substance. He further contended that arguments have already been heard in petition No,19(3) of 2002 filed by the respondent No,2 in which it has been prayed that registration of the petitioner-union be cancelled. In this connection he further submitted that even if the registration of the union is cancelled, the petitioner-union would retain the character of an un-registered trade union as defined under section 2(xxvi) of I.R.O., '1969. He contended that formation of a trade union is a fundamental right guaranteed to every citizen as envisaged under Article 17(1) of the Constitution of Islamic Republic of Pakistan, 1973 which reads as under:-- "17. Freedom of Association.---(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".
' He further contended that right of the workers to form and join a trade union and to bargain through representative of their own choice and to engage in concerted activities for the purpose of collective bargaining or other mutual aid, is a fundamental right. However, this right is subject to such laws framed from time to time. He further contended that the words "subject to reasonable restrictions used in clause (1) of Article 17 of the Constitution of Islamic Republic of Pakistan does not admit and permit total denial of right to form unions. The said provision of the Constitution protects the right of every citizen to form an association or a union, hence the I.R.O., 1969 provides an exhaustive mechanism for the formation, registration and operation of the union. Section 3 of the Ordinance provides that:-- "Workers without distinction whatsoever shall have the right to establish, subject only to the rules of the organisation concerned, to joint association of their own choosing without previous authorisation".
' He further contended that the said Ordinance also lays down the procedure for functioning of the union, registration of such trade union and to raise industrial dispute etc. It also provides protection of service conditions etc. To the officers and members of the trade unions for participation in the promotion, formation or activities of a trade union etc. He further contended that even section 8-A of the said Ordinance provides protection to the officers of an un-registered trade union during pendency of the application for its registration. Thus it is crystal clear that the I.R.O., 1969 recognise the status of even an un-registered trade union and thus the reason that the term "trade union" has been used in section 22EE(1) instead of the term of registered trade union. By referring to the provisions of section 22EE(1) of the I.R.O., 1969, learned counsel for the petitioner has urged that a perusal of the provisions of the said section would make it clear that even an unregistered trade union of workmen can move an application for determination of CBU, thus,. It is not necessary that the applicant-union should be a registered trade union because under section 2(xxvi) trade union means any combination of workmen or employees formed primarily for the purpose of regulating the relations between workmen and employers. While section 2(xxi) define that registered trade unions means a trade union registered under the I.R.O., 1969. As a necessary corollary of the aforesaid submission he contended that even an un-registered trade union can move application under section 22EE of I.R.O., 1969. Thus the objections of the respondents Nos.1 and 2 regarding competency of the petitioner and maintainability of the petition having no substance are liable to be rejected.
7. In his arguments learned counsel for the respondent No,1 has pointed out that under section 14(1) of the I.R.O., 1969 only a registered trade union is a body corporate by the name under which it is registered can sue or be sued by the said name, thus an un-registered trade union cannot move an application under section 22EE of I.R.O., 1969. He further contended that once a trade union cease to the a registered trade union as a consequence of action under section 10 of I.R.O., it can neither remain a body corporate by the name in which it was registered nor can it sue or be sued by the said name and this principle will also be applicable with all its force to an un-registered trade union. Support for this proposition was sought to be drawn from the judgment of the Honourable Peshawar High Court reported as 1990 PLC 218. Replying to the contention of the counsel for the respondent No,1, learned counsel for the petitioner contended that under section 22EE(1), the term "trade union" has been used and not the "registered trade union", therefore, contention of the counsel for the respondent No,1 is without any substance. He contended that under sections 8A and 15 of I.R.O., 1969, protection has been given to an unregistered trade union and the same provision is even exists in the I.R.O., 2002, as such not only office-bearers of an un- registered trade union have been given a right to protect themselves but also to protect their members by invoking the provision of section 8-A and section 15 of the I.R.O., 1969. He further contended that there are also some other provisions which can be invoked by members of an un- registered trade union. In order to better appreciate and examine the aforenoted contentions of the parties regarding the competency of the instant petition, it would be useful to reproduce below the provision of section 2(xxvi) and section 22EE(1) of 1.R.O., 1969:-- 2(xxvi) "trade union" means and combination of workmen or employers formed primarily for the purpose of regulating the relations between workmen and employers, or workmen and workmen or employers and employers ------------------------------------ and includes a federation of two or more trade unions".
22EE(1) Where the Commission, on an application made in this behalf, by a trade union of workmenor a federation of such trade unions, or on a reference made by the Federal Government, after holding such inquiry as it deems fit, is satisfied that for safeguarding the interest of the workmen employed in an establishment or group of establishment belonging to the same employer and the same industry, in relation to collective bargaining, it is necessary, just and feasible to determine one or more collective bargaining units of such workmen in such establishment or group, it may having regard to the distribution of workers, existing boundaries of the components of such establishment or group, facilities of communication, general convenience, sameness or similarity of economic activity and other cognate factors.
8. I have given my anxious consideration to the submission made by the learned counsel for the petitioner and - respondent No,1 and the representative of the respondent No,2. On minute examination of the pleadings of the parties and their respective versions, I find that the admitted fact is that the petitioner trade union was registered in violation of the order dated 20-8-1976, 12-5- 1983 and 7-3-1992 passed in Petitions Nos.2(8)/75, 19(1)/92 and 19(4)/90 which contravene the provisions of section 22EE(3) of I.R.O., 1969, but its registration has not yet been cancelled, therefore, keeping in view the provisions of section 22EE(1) I.R.O., 1969, even if registration of the petitioner- union is cancelled, the said union shall be competent to move application for determination of CBU, I, therefore, feel no hesitation in holding that even if 'registration of the petitioner-union is cancelled, the petitioner-union being an un-registered trade union shall be competent to move the instant application/petition.
9. Upshot of the above discussion is that I find no merit in the preliminary objections raised by the respondents Nos.1 and 2 to the competency of the petition which are hereby rejected and, it is held that the instant petition has been competently filed under section 22EE I.R.O., 1969.. The petition shall now come up on 23-1-2003 for filing of comments by the respondents Nos.5 and 7 and for further proceedings.