GULZAR AHMED, J.--- The petitioner has impugned in this petition the order dated 8.7.2003 passed by the respondent No. 1 by which the registration of the petitioner as Industry-wise trade union in the establishment of the respondent No. 2 i.e. The State Bank of Pakistan was cancelled. The facts of the matter are that the petitioner was a Trade Union of Workmen of the respondent No. 2 and was registered with the National Industrial Relations Commission (referred to as Commission) as an industry-wise trade union and was Collective Bargaining Agent of the workmen employed in the establishment of the respondent No. 2. The establishment of respondent No. 2 was declared as Collective Bargaining Unit (CBU). On 1.1.2002 the SBP Banking Services Corporation Ordinance, 2001 (hereinafter referred to as the Ordinance, 2001) was promulgated by which SBP Banking Services Corporation (hereinafter referred to as the Bank) was established as a subsidiary of the respondent No. 2 for transfer to the Bank part of the undertaking and certain employees of the respondent No. 2. Pursuant to the provisions of the Ordinance, 2001, the respondent No. 2 issued a transfer order by which inter alia the operational functions and activities of the State Bank and its field offices located in Pakistan as mentioned in the transfer order were vested in and transferred to the Bank and the employees of State Bank specified in the transfer order were transferred to and became employment of the Bank with all their existing employment benefits. As a result of such transfer, the respondent No. 2 ceased to have workmen except those stationed at Karachi. The respondent No. 2 made an application to the respondent No. 1 for cancellation of registration of the petitioner as an industry-wise Trade Union in the establishment of the respondent No. 2. This application of the respondent No. 2 was contested by the petitioner. The respondent No. 1 recorded evidence of the parties and after hearing the respective parties passed the impugned order by which the respondent No. 2 application was allowed and the registration of the petitioner as an industry-wise Trade Union in the establishment of the respondent No. 2 was cancelled which order is impugned in this petition.
2. Mr. Ch. Rasheed Ahmed, learned counsel appearing for the petitioner has contended that the cancellation of the petitioner as an industry-wise trade union in the establishment of the respondent No. 2 was not in accordance with law firstly that the respondent No. 1 had no jurisdiction to do so and secondly the conditions prescribed for cancellation were not satisfied. He further contended that in actual fact there is no division of Establishment of the respondent No. 2 as the Bank in substance is a department of the respondent No. 2 and there was no occasion to cancel the petitioner's registration as an industry-wise Trade Union. He has further stated that the establishment of respondent No. 2 was declared by the Commission as a Collective Bargaining Unit and such declaration is still in the field. He also stated that the respondent No. 1 as a subordinate judicial official was not competent to pass short order and to give reasons separately.
Learned counsel further stated that although against the impugned order the petitioner has filed appeal before the Full Bench of the Commission but such is not an adequate remedy. Learned counsel also stated that the petitioner has filed a Constitutional petition in the Hon'ble Supreme Court of Pakistan in the Hon'ble Supreme Court of Pakistan in which vires of the Ordinance, 2001 has been. Challenged. He has relied upon the case of Government of The Punjab through Collector, Faisalabad and another v. Hudabia Textiles Mills, Faisalabad through Chairman (NLR 2001 Kar. 114) the case of Town Committee, Gakhar Mandi v. Authority under the Payment of Wages Act, Gujranwala (2002 PSCC 810) and the case of Haji Rais Ahmed v. Aslam (1991 CLC 602). On the other hand, Mr. Khalid 'Anwar, learned counsel appearing for respondent No. 2 at the outset has stated that the respondent No. 1 has given detail reasons in support of his short order which the petitioner has suppressed. He gave copy of, such reasons during the course of hearing. Learned counsel further stated that as the vires of the Ordinance, 2001 has been challenged by the petitioner in the Hon'ble Supreme Court of Pakistan therefore, this Court will not be justified to examine the vires of Ordinance, 2001. He also took objection that as the petitioner has availed the remedy o appeal provided by law, this petition is not maintainable. Learned counsel further argued that the Bank established under the Ordinance, 2001 is a separate juristic entity and is a separate establishment and separate employer from that of the respondent No. 2. The respondent No. 2 has no workmen beyond Karachi and therefore the petitioner has lost the character of industry-wise Trade Union and thus has ceased to exist. Learned counsel further argued that the respondent No. 1 was possessed of jurisdiction to cancel registration of the petitioner and the impugned order is in accordance with law. He further states' that the workers of the Bank have already formed trade union which has applied for registration and the petitioner, if so advised may follow suit. Learned counsel has relied upon the case of Pak American Fertilizer Ltd., Mianwali v. Amir Abdullah Khan (1984 CLC 2170) and the case of Salomon v. Salomon (1897) A.C.
22. Mr. Shahid Anwar Bajwa, learned counsel appearing the Intervenor namely the Bank has referred to the provisions of Section 54 of 1.R.O., 2002 and stated that the employees of respondent No. 2 and that of the Bank does not belong to the same employer and that the Bank is a separate establishment within the meaning of Section 2(xiii) of the I.R.O., 2002.
3. We have considered the arguments of the learned counsel and have gone through the record.
4. It is noted that the proceedings for cancellation of registration of the petitioner before the respondent No. 1 was commenced under the provisions of the Industrial Relations Ordinance, 1969 (IRO, 1969). On 26.10.2002, Industrial Relations Ordinance, 2002 (IRO, 2002) was promulgated and by virtue of sub-section (3) of Section 1 it came into force at once. By sub-section (1) of Section 80, IRO 1969 was repealed. Clause (b) of sub-section (2) of Section 80 inter a/ia lays down that without prejudice to the provisions of Sections 6 and 24 of General Clause Act, 1887 proceedings commenced shall be deemed to have been commenced under the corresponding provision of this Ordinance.
None of the counsel appearing for the parties have made submissions that by repeal of IRO, 1969 any of their rights, privileges, obligations or liabilities acquired under it were affected nor any of the counsel of the parties have pressed for determination of the matter on the basis of the repealed IRO, 1969. Rather during the course of hearing learned counsel have freely read the relevant provisions of IRO, 1969 as well as of IRO, 2002. Besides it is found the respondent No. 1 has also considered the matter in the impugned order on the basis of IRO, 2002 and the petitioner in his memo. Of petition has only referred to the, provisions of IRO, 2002. Therefore, we propose to deal with the matter on the basis of IRO, 2002 which is the law in force.
5. Learned counsel for the petitioner has assailed the impugned order on the ground that the respondent No. 1 had no jurisdiction to cancel the registration of the petitioner as an industry-wise trade union in the establishment of the respondent No. 2. In this regard he has referred to the provisions of Section 12 of IRO, 2002 and has contended that the respondent No. 1 while acting as Registrar of the industry wise trade union could not have himself cancelled the registration but should have referred the matter to a Member of National Industrial Relations Commission (referred to as Commission). Mr. Khalid Anwar, learned counsel appearing for the respondent No. 2 has contended that there was no occasion for referring of the matter by the respondent No. 1 to a Member of the Commission but the respondent No. 1 himself being Member/Registrar of the Commission was competent to pass such an order as the provision of Section 12 gives him power to do so. Now in order to appreciate the respective contentions of the learned counsel, it may be noted that Section 12 of I.R.O., 2002 makes provision for cancellation of registration of a trade union.
Such provision is with regard to . Cancellation of locally registered trade unions whose memberships are confined to only one Province. Industry-wise trade unions are such trade unions whose membership extends to establishments in more than one Province.
The industry-wise trade unions are registered by the Commission under clause (.b) of sub-section
(4) of Section 49 of I.R.O., 2002.
Section 50 of IRO, 2002 deals with the matter of Constitution of Benches of the Commission.
Subsection (3) of it is as follows:- "(3) The Benches shall,--
(a) (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 or a Labour Court 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" or "Labour Court", as the case may be, shall be deemed to be a reference to the appropriate Bench of the Commission to which such functions are assigned."
6. The perusal of clause (b) of the above-quoted sub -section (3) shows that a Bench of the Commission shall perform the same functions and exercise same powers as are performed and exercised by a Registrar, or Labour Court in relation to trade unions and federations of trade unions within a Province and that reference to Registrar or Labour Court, shall be deemed to be reference to an appropriate Bench of the Commission. Therefore, the Bench of the Commission has been clothed with dual function and power that of Registrar as well as that of a Labour Court. There is no Registrar in the Commission but the , Bench of the Commission has been conferred the functions and power of Registrar, Bench of the Commission registers an industry-wise trade union and performs functions and exercise powers in relations to an industry-wise trade union which are performed and exercised by the a Registrar of trade union in the Province. The provision for cancellation of registration of trade union is made in Section 12 of IRO, 2002 which is as follows:- "12. Cancellation of registration.-- (1) The registration of a trade union shall be cancelled if the Labour Court so directs upon a complaint in writing made by the Registrar that the trade union has--{{TABLE}}
(i) contravened or contravention of, this Ordinance thereunder; contravened any constitution; or has been registered in any of the provisions of or the rules made of the provisions of its
(ii) made in its constitution any provision which is inconsistent with this Ordinance or the rules made thereunder.
(2) Where any person who is disqualified under Section 7 from being elected or from being an office bearer of a trade union, is elected as an office bearer of a registered trade union, the registration of that union shall be cancelled if the Labour Court, upon a complaint in writing made in this behalf by the Registry r, so directs.
(3) J The registration of a trade union shall be cancelled by, ,the Registrar, by giving reasons for such cancellation in writing, if, after holding an injury he finds that any trade union:-
(i) has dissolved itself or has ceased to exist; or
(ii) has not been a contestant in a referendum for the determination of a collective bargaining agent; or
(iii) has not applied for determination of collective bargaining agent under Section 20(2) within two months of its registration as another union or promulgation of this Ordinance, whichever is earlier, provided there does not already exist a collective bargaining agent determined under Section 20(11) in an establishment, or group of establishments or industry; or
(iv) has secured has than 15% of polled votes per final list of voters, during a referendum or the determination of collective bargaining agent.
Now in the above provision two modes have been provide for cancellation of registration of a trade union one is by way of a complaint by the Registrar to the Labour Court in the circumstances which are mentioned in clauses (i) to (iii) of sub-section (1) and in the circumstances as mentioned in sub-section (2). Subsection (3) however, empowers the Registrar to cancel the registration of a trade union where the circumstances attract of situations as are narrated in clauses (i) to' (iv) of this sub-section. The present case is not that of sub-sections (1) and (2.) but of clause (i) of sub- section (3) as the case of the respondent No. 2 before the respondent No. 1 was that the petitioner union has ceased to exist. Thus, when the Registrar is empowered to cancel the registration of trade union when it has ceased to exist, the Bench of the Commission pursuant to the provision of clause (b) of sub-section (3) of Section 50 is similarly empowered to cancel the registration of an industry wise trade union if it has ceased to exist in exercise of the powers of the Registrar conferred by sub-section (3) of Section.
12. Thus the argument of the learned counsel for the petitioner that the respondent No. 1 had no jurisdiction to cancel the registration of the petitioner has no force.
7. It was the next contended by the learned counsel for the petitioner that the conditions' for cancellation of the petitioner's union as laid down in Section 12(3), IRO, 2002 were not satisfied.
Perusal of this provision shows that for invoking it, there should be a registered trade union which has ceased to exist and the Registrar shall cancel the registration of such trade union by giving reasons in writing after holdings inquiry if he finds it so. In the present case all these conditions have been met inasmuch as the petitioner was registered industry wise trade union, and the respondent No. 1 has held inquiry to find whether the petitioner has ceased to exist and has given reason in writing finding that the petitioner has ceased to exist. Thus, all conditions as laid down in Section 12(3) of IRO, 2002 are met and in this respect there is no illegality. .8. It was next contended by the learned counsel for the petitioner that the Bank established by Ordinance, 2001 is not a separate legal entity but merely a department of the respondent No. 2 and there is no division of the establishment of the respondent No. 2. He has referred to the various provisions of Ordinance, 2002 and annexure E, E-1, E-2 and E-3 filed with the petition. Mr. Khalid Anwar? Learned counsel for the respondent No. 2 has argued that by Ordinance, 2001, the bank was established as a separate juristic entity. He has also referred to various provisions of the Ordinance, 2001. We have gone through the provisions of Ordinance, 2001 and find that Section 3 provides as from date of promulgation of this Ordinance there shall be established a Bank to be called SBP Banking Services Corporation and Bank shall be a body corporate having perpetual succession and seal and shall, by the name assigned to it sue and be sued and the head office of the Bank shall be situated in Karachi and it may establish branches, offices and agencies in Pakistan and anywhere outside Pakistan with the prior approval in writing of the State Bank. Section 4 provides the the Bank shall be a subsidiary of the State Bank and State Bank shall excise control over the Bank in accordance with the provisions of this Ordinance. The business and functions of the Bank are laid down in Section 5 and Section 6 provides that the authorized share capital of the Bank shall be one billion rupees. Section 7 provides that the Bank shall have its Board of Directors who shall have general superintendence, direction and management of the affairs and business of the -Bank and overall policy making in respect of its operations. Section 13 provides for accounts and audit of the Bank. Section 15 provides for Transfer of undertaking to the Bank, the operational functions and activities of State Bank, all related assets and liabilities and certain employees of State Bank to the Bank on issuing of Transfer Order by the State Bank which transfer will take effect on the Transferred Date. This provisions also elaborately lays down the business and functions and powers and authority of the Bank. Section 16 provides that the Transfer Order shall specify by category or by name the employees of the State Bank who shall as from the Transferred Date, stand transferred to, and become the employees of the Bank and the transferred employees shall be governed by there existing terms and conditions of service as was with the State Bank unless the same are altered by the Bank with the consent of the transferred employees.
9. On examination of these provisions of the Ordinance, 2001 it is clear that the. Bank has been established by Ordinance, 2-n1 as a corporate body and as a subsidiary of the State Bank. Now settled rule of interpretation of law is that the law as is made by the legislature is to be given effect to -and nothing is to be read in the law for which there is no provision. In other words Court cannot add to or subtract anything in the law unless there be some good reasons for doing so and that too to give effect to the legislative intent. In the present case learned counsel for the petitioner has not shown us as to how a corporate body which has been established by law can be considered as a department of the respondent No. 2. Learned counsel for the petitioner as well as the learned counsel for the respondent No. 2 have stated that the petitioner has challenged the vires of Ordinance, 2001 through a petition in the Hon'ble Supreme Court of. Pakistan. It may however be recorded that the learned counsel for the petitioner has not in any terms attacked the vires of the Ordinance, 2001 before us. For this reason, we find that as the Bank has been established through a law passed by the legislature, it is not possible to hold that the Bank is merely a department of the respondent No. 2 as by doing so, the situation will arise for which there is no mandate in the Ordinance, 2001. In this view of the matter, this argument of the lea. Ned counsel for the petitioner is without substance.
10. The next argument of the learned counsel for the petitioner is based upon the definition of term "establishment" as given in IRO, 2002 and has contended that the Bank and State Bank are engaged in the same industry and they have common balance sheet and profit and loss account and that the State Bank having been declared as collective bargaining unit (CBU) such status of it still continues which will also be inclusive of the Bank. The definition of the term "establishment" is in clause (xi) of Section 2 of 'IRO, 2002 which is reproduced as follows:, "(xi) "Establishment" means any office, firm, factory, society, undertaking', company, shop, promises or enterprise which employs workmen directly or through a contractor for the purpose of carrying on any business or industry and includes all its departments and branches, whether situated in the same place or in different places having a common balance sheet and profit and loss account and, except in Section 54, includes a collective bargaining union (CBU) constituted under the section in any establishment; The term "industry" as is mentioned in the above definition of establishment is defined in clause
(xvii) of Section 2 of IRO, 2002 and it is also reproduced as follows:- "(xvii) "industry" means any business, trade, manufacture, calling, services, occupation or employment engaged in an organized economic activity of producing goods or services for sale, excluding those set-up exclusively 'for charitable purposes, operating through public or private donations where "charitable purpose" includes provision of education, medical care, emergency relief and other needs of the poor and indigent."
11. The term "establishment" is defined to mean office, firm, factory, society, undertaking, company, shop, promises or enterprise which employees workmen directly or through a contractor for the purpose of carrying on any business or industry and includes all its departments and branches, whether situated in the same place or in different places having a common balance sheet and profit and loss account and except in Section 54, includes a collective bargaining unit, if any constituted under that Section in any establishment. So far the definition of industry is concerned the same refers to any business, trade, manufacture, calling, services, occupation or employment engaged in an organized economic activity of producing goods or services for sale excluding those set-up exclusively for charitable purposes, operating through public or private donations where charitable purpose includes provision of education, medical care, emergency relief and other needs of the poor and indigent. It may be noted that the term "industry" common balance sheet and profit and loss account and CBU in the definition of "establishment" is used in the context of any office, firm, factory, society, undertaking, company, shop, premises or enterprise employing workmen: Both State Bank as well as the Bank are two distinct companies under their respective laws a;-id both employ workmen for their respective business or industry. The business or industry of the State Bank is distinctly mentioned in the State Bank of Pakistan Act, 1956 whereas the business or industry of the. Bank is distinctly mentioned in the Ordinance, 2001. There is no common business or industry of State Bank and of the Bank nor any common business or industry of State Bank and of the Bank was pointed out to us. With regard to the common balance sheet and profit and loss account, the learned counsel for the petitioner has referred to annexure E-3 which is a Consolidated Financial Statement, 2002 of the State Bank of Pakistan and its subsidiaries. It may be noted that Section 23;' of the Companies Ordinance, 1984 requires that the balance sheet of the holding company having subsidiaries at the end of the financial year at which the holding company's balance sheet is made out to attach certain documents of its subsidiaries inter alia its balance sheet and profit and loss account.. The document referred to by the learned counsel for the petitioner is the Consolidated Financial Statement, 2002 of the State Bank and its subsidiaries including the Bank. This appears to have been done by the State Bank as per its own requirement as holding company. It has not been argued that the Bank did not had its own balance sheet and profit and loss account. Sub-section (2) of Section 13 of the Ordinance, 2001 is as follows:- "(2) The Bank shall maintain proper accounts and other records to reflect true and fair view or its state of affairs and prepare annual statement of accounts, including the profits and loss accounts and balance sheet."
12. In view of the above provision of law, it cannot be held that the Bank has no balance sheet and profit and 'loss account of its own. As regards the matter of CBU, it may be noted that such status of the respondent No. 2 is not affected as in terms of definition of CBU given in clause (vi) of IRO, 2002 means those workers or class of workers of an employer in one or more establishments coming with the same class of industry whose terms and conditions of employment are or could appropriately be the subject of collective bargaining together. Now it has already been dealt with above that the State Bank and the Bank are two separate establishment and are engaged in separate industry within the framework of their respective law. Here the additional feature of employer has been mentioned. It may be pointed out that subsection (2) of Section 15 of the Ordinance, 2001 provides that on making of Transfer Order by the State Bank the Transferred undertaking and the Transferred Employees shall stand transferred to and vest in the Bank and as on the Transfer Date shall be operated, managed and regulated by the Bank as the undertaking and employees of the Bank. So as on the transfer date the Bank became employer of the transferred employees and the State Bank ceased to be the employer of the Transferred Employees. The worker of the State Bank can have a CBU as its such status is not affected by the transfer of employees to the Bank.
13. The learned counsel for the petitioner then argued that the petitioner's registration can be saved as in terms of clause (v) of Section 5 of IRO, 2002 there can be a trade union in group. Of establishments and respondent No. 2 State Bank and the Bank can be considered as group of establishments. This argument on the face is not tenable as it overlook the definition of the term group of establishment as given in clause (xiii) of Section2 of IRO, 2002 which is as follows:- "(xiii) "group of establishment" means establishments belonging to the same employer and the same industry."
It has already been found that the State Bank and the Bank are not one employer but two distinct employers of their own workmen and that their industry are also separate and distinct.
14. As regards the challenge to the maintainability of the petition, we find that the basis question raised by the petitioner in this matter was of jurisdiction of the respondent No. 1. Where jurisdiction of any Tribunal or authority is challenged by an aggrieved person, invariably this Court in exercise of its extraordinary jurisdiction under Article 199 of the Constitution do entertain such proceedings.
This however in no circumstances be considered to mean that where alternate remedy by way of appeal or other proceeding is provided by law, the same can conveniently be by passed. The matter in consideration was such that ultimately it would have come to this Court and in order to cut short the time factor, we have indulged in considering the matter. Furthermore the petition did not involve question of disputed facts but purely question of law and for this reason also the petition has been heard and disposed of by us on its merits. We may however point out that by not producing the detail reason which the respondent No. 1 has given in support of the short order which has been impugned in this petition. Petitioner obviously has not approached this Court with clean hands. However, for this reason we have not non-suited the petitioner.
We have found no illegality in the impugned order and by our short order dated 20.8.2003 the petition was dismissed and above are the reasons for it. .