MUHAMMAD SHAKEEL, METER READER WAPDA, LAHORE Versus REGISTRAR OF INDUSTRYWISE TRADE UNIONS, ISLAMABAD
Muhammad Shakeel who is employed by the Water and Power Development Authority as a Meter Reader and is posted presently in the Green Town Sub‑Division of Lahore, has brought this Constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan of 1973, against the Registrar of Industry wise Trade Unions, National Industrial Relations Commission, Islamabad (respondent No. 1), the Water and Power Development Authority through its Chairman, WAPDA House, Lahore (respondent No.2) and the Pakistan WAPDA Hydro Electric Central, Labour Union, Nisbat Road, Lahore (respondent No. 3), praying that the Registrar of the Industry wise Trade Unions, National Industrial Relations Commission, Islamabad (respondent No.1) be directed to initiate proceedings for the cancellation of the registrations of the Pakistan WAPDA Hydro Electric Central Lahore Union, Nisbet Road, Lahore (respondent No. 3) and also to set aside the approval of the elections of the office‑bearers of the Pakistan WAPDA Hydro Electric Central Lahore Union, Nisbet Road, Lahore (respondent No. 3) which were held on the 8th of February, 1994 and finally that the Water and Power Development Authority (respondent No.2) be ordered to stop the deduction of union fund from the salaries of the members of the respondent union because they are civil servants.
2. It is the petitioner's case that the Pakistan WAPDA Hydro Electric Central Labour Union, Nisbet Road, Lahore (respondent No.3) is a Trade Union registered with the Registrar of Industry wise Trade Unions, National Industrial Relations Commission, Islamabad (respondent No.1), under the provisions of the Industrial Relations Ordinance of 1969 and that the petitioner is a member of the respondent union and further that he is paying his union subscription by means of the CHECK OFF System according to section 23 of the Industrial Relations Ordinance, 1969. The grievance of the petitioner is that the registration of the Pakistan WAPDA Hydro Electric Central Labour Union, Nisbet Road, Lahore (respondent No. 3) is illegal and unlawful because it is ultra vires section 7, subsection (1), clauses (i) and (j) of the Industrial Relations Ordinance, 1969. The petitioner brought this factual and legal position to the notice of the Registrar of Industry wise Trade Unions, National Industrial Relations Commission, Islamabad (respondent No.1) through a written application which is attached to this petition as Annex B, on the 23rd of January, 1994 praying for cancellation of the Registration of the Pakistan WAPDA Hydro Electric Central Labour Union, Nisbet Road, Lahore (respondent No.3), but according to the petitioner no proceedings have been initiated by the Registrar of Industry wise Trade Unions, National Industrial Relations Commission, Islamabad (respondent No 1). Hence this petition.
3. The main theme of the petitioner's case, however, is that by virtue of section 17 (1‑A) and (1‑B) of the Water and Power Development Authority Act of 1958, all employees of the Water and Power Development Authority are civil servants within the ‑meaning of the Civil Servants Act of 1973 and civil servants cannot become members of a Trade Union of workers, nor can a subscription be deducted from their salaries, therefore, the deduction from the salaries of the members of the Pakistan WAPDA Hydro Electric Central Labour Union, Nisbet Road, Lahore (respondent No. 3) being made by the Water and Power Development Authority (respondent No.2) is unlawful.
4. The Registrar of the Industry wise Trade Unions, National Industrial Relations Commission, Islamabad (respondent No.1) in' his parawise comments has taken a preliminary objection to the effect that the petitioner has no locus standi to file the present petition because the petitioner has already filed a complaint under section 10 of the Industrial Relations. Ordinance of 1969 (Annexure B to the writ petition) which is pending for adjudication before the Commission, therefore, the matter being sub judice, parallel proceedings cannot be initiated by way of a writ petition. The position taken by the Registrar of Industry wise Trace Unions, National Industrial Relations Commission, Islamabad (respondent No.1) is that the provisions of the Industrial Relations Ordinance, 1969 are applicable to the workers employed by the Water and Power Development Authority (respondent No. 2) and that the union subscription is deducted under section 23 of the Industrial Relations Ordinance, 1969 under the CHCEK OFF SYSTEM. Finally it is submitted by the Registrar of Industry wise Trade Unions, National Industrial Relations Commission, Islamabad (respondent No.1) that proceedings have been initiated under section 10 of the Industrial Relations Ordinance of 1969 against the Pakistan WAPDA Hydro Electric Central Labour Union, Nisbet Road, Lahore (respondent No.3) on the complaint made by the petitioner and that the said proceedings are presently pending and the whole matter is sub judice.
5. The position taken by the Water and Power Development Authority (respondent No. 2) in their written statement/comments is that the answering respondent has been deducting union subscription towards union funds through CHECK OFF SYSTEM under section 23 of the Industrial Relations Ordinance, 1969 in favour of the Pakistan WAPDA Hydro Electric Central Labour Union, Nisbet Road, Lahore (respondent No.3) under the written authorisation of the members of the said union:
6. The Pakistan WAPDA Hydro Electric Central Labour Union, Nisbet Road, Lahore (respondent No.3) in its written statement has raised certain preliminary objections. The first preliminary objection is that admittedly the petitioner filed a complaint on the 23rd of January, 1994 (Annexure B to the writ petition) before the Registrar of Industry wise Trade Unions, National Industrial Relations Commission, Islamabad (respondent No.1) under section 10 of the Industrial Relations .Ordinance, 1969 for cancellation of the registration of the Pakistan WAPDA Hydro Electric Central Labour Union, Nisbat Road, Lahore (respondent No.3) and that the matter is still sub judice and, therefore, the Constitutional petition brought by the petitioner tantamounts to circumventing the law by way of initiating parallel proceedings in this Court when an alternate and adequate remedy is available. Another preliminary objection raised by the Pakistan WAPDA Hydro Electric Central Labour Union, Nisbet Road, Lahore (respondent No.3) is to the effect that the petitioner has no locus standi to challenge the deduction of union subscriptions on behalf of the members of the answering respondent union and that he is not an aggrieved person within the meaning of Article 199 of the Constitution of the Islamic Republic of Pakistan and, therefore, cannot invoke the jurisdiction of this Court in the matter of deduction of the union subscriptions from the wages of members of the answering respondent union. Finally, it is submitted by the respondent‑union that the petitioner has not approached this Court with clean hands because he has concealed material facts from this Court.
7. The first contention of the petitioner being that the very registration of the respondent union is unlawful being in violation of section 7, subsection (1)(i)(j) of the Industrial Relations Ordinance, 1969, it would be useful to reproduce the said provision:‑‑
"Section 7. Requirements for registration .‑‑‑(1) A trade union shall not be entitled to registration under this Ordinance unless the constitution thereof provides for the following matters, namely:‑‑
(a) the name and address of the trade union;
(b) the objects for which the trade union has been formed;
(c) the purposes for which the general funds of the union shall be applicable;
(d) the number of persons forming the executive which shall not exceed the prescribed limit and shall include not less than seventy‑five per cent. from amongst the workmen actually engaged or employed in the establishment or establishments or the industry from which the trade union has been formed;
(e) the conditions under which a member shall be entitled to any benefit assured by the constitution of the trade union and under which any fine or forfeiture may be imposed on him;
(f) the maintenance of a list of the members of the trade union and of adequate facilities for the inspection thereof by the officers and members of the trade union;
(g) the manner in which the constitution shall be amended, varied or rescinded;
(h) the safe custody of the funds of the trade union, its annual audit, the manner of audit and adequate facilities for inspection of the account books by the officers and members of trade union;
(i) the manner in which the trade union may be dissolved;
(j) the manner of election of officers by the general body of the trade union and the term, not exceeding two years, for which an officer may hold office upon his election or re‑election.
8. Challenge is thrown by the petitioner to the respondent union on the basis of clauses (i) and (j) of section 7 of the Industrial Relations Ordinance, 1969 which necessarily involves a factual controversy necessitating a factual inquiry. Be that as it may, the remedy provided by law for resolving a dispute of the nature envisaged under clauses (i) and (j) of section 7 of the Industrial Relations Ordinance, 1969 is provided for under section 10 of the Industrial Relations Ordinance, 1969 and it would be useful to repeat the said provision:
"Section 10. 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‑‑
(i) contravened or has been registered in contravention of any of the provisions of this Ordinance or the rules; or
(ii) contravened any of the provisions of its constitution; or
(iii) made in its constitution any provision . is inconsistent with this Ordinance or the rules.
(2) Where any person who is disqualified under section 7‑A from being elected as, or from being, an officer of a trade union is elected as an officer 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 Registrar, so directs.
(3) The registration of a trade union shall be cancelled by the Registrar if, after holding such inquiry as he deems fit, he finds that such trade union has dissolved itself or has ceased to exist.
9. On the petitioner's own showing, the petitioner prior to bringing his Constitutional petition in this Court, did file a complaint on the 23rd of January, 1994, which is appended as Annexure B to the writ petition, before the Registrar of Industry wise Trade Unions, National Industrial Relations Commission, Islamabad (respondent No.1) under section 10 of the Industrial Relations Ordinance, 1969 for the cancellation of the registration of the respondent union. According to respondent No. 1 and also respondent No. 3, notices were issued to the petitioner as also the Pakistan WAPDA Hydro Electric Central Labour Union, Nisbat Road, Lahore (respondent No.3) through its General Secretary to appear before, Mr. Muhammad Hussain Chaudhary, Member, National Industrial Relations Commission, Islamabad (respondent No.1) for further proceedings on the 17th of April, 1994. A photostat copy of the said notice, dated the 9th of April, 1994 has been placed on record by the respondent union as Annexure R‑3/1. This matter is still pending and, therefore, sub judice.
10. The objection of the petitioner which relates to the constitution of the respondent union on the basis of its being repugnant to the provisions of the Industrial Relations Ordinance, 1969 can be taken note by the Registrar and indeed the Registrar had already taken cognizance and has initiated proceedings and is empowered by law to pass fair and just orders. On this legal proposition, that has been the view of this Court expressed in the case of Riaz Hussain Shah and 23 others v. Punjab Labour Court No. 2, Lahore and 7 others reported in PLD 1977 Lah. page 316.
11. The right to have a Trade Union registered and correspondingly the liability of cancellation of registration has been conferred by the Industrial Relations Ordinance, 1.969 and the said Ordinance has also provided the modalities for the grant or cancellation of registration and, therefore, such right or liability cannot be enforced in any manner or through any other forum except the one provided by the Ordinance itself. This view was expressed by the High Court of the Sindh, Karachi in the case of Syed Mushtaq Hussain Shah v. Riaz Muhammad Hazarvi and another reported in PLD 1978 Karachi page 612.
12. Since the complete machinery and methodology has been provided by the Industrial Relations Ordinance, 1969 in the matter of cancellation of registration of Trade Unions, this Court has been declining to interfere in the said matters as was done in the case of Habib Bank Staff Union v. Punjab Labour Appellate Tribunal reported in 1984 PLC 1677.
13. Since the remedy against registration of a Trade Union is available in the Industrial Relations Ordinance, 1969, therefore, interference by the High Court in exercise of its Constitutional jurisdiction is unwarranted and uncalled for as held by the Karachi High Court in the case of Messrs Khas Traders v. Registrar, Trade Unions and another reported in 1990 PLC page 351.
14. The same view was taken by a Division Bench of the Karachi High Court in the case of Sui Gas Employees' Union v. Member and Registrar, Industry wise Trade Unions, Islamabad reported in 1991 PLC 643.
15. The Registrar, in such cases has been empowered to move either suo motu or on an information laid before him as has been held by the Karachi High Court in the case of Holiday Inn Workers' Union v. Registrar of Trade Unions and 2 others reported in 1992 PLC 23.
16. In case of an adverse decision, the petitioner has a statutory remedy by way of an appeal before a Full Bench of the National Industrial Relations Commission under section 22‑D of the Industrial Relations Ordinance, 1969. Thus, an adequate remedy is provided by law and available to the petitioner and, therefore, the petitioner cannot invoke the Constitutional jurisdiction of this Court without first exhausting the adequate remedy available to him under the law, particularly when he has admittedly already availed it.
17. The non‑existence of another adequate remedy provided by law is a sine qua non for the exercise of jurisdiction of a High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 which begins by saying that subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law. Thus, before the High Court assumes jurisdiction under Article 199 of the Constitution of the Islamic 6 Republic of Pakistan of 1973 it has to be satisfied that there is no other adequate remedy provided by law, then and only then will the High Court assume its Constitutional jurisdiction. This proposition of law is now settled by the Supreme Court in the case of Dr. M.O. Ghani, Vice‑Chancellor, University of Dacca v. Dr. A.N.M. Mahmood reported in PLD 1966 SC page 802 and has been followed eversince. Some of the leading cases on this proposition are:‑‑
(i) Hasan Din Chishti v. Chief Engineer, WAPDA (1970 SCMR 58);
(ii) Abdul Jamil v. Registrar of Trade Unions, West Pakistan, Lahore and another (PLD 1971 Lah. 220);
(iii) Raja Habib Ahmad Khan v. The Income‑Tax Officer, Hazar Circle, Abbottabad (1972 SCMR 631);
(iv) Sufi Malik Muhammad Sarfraz v. Government of the Punjab through its Chief Secretary and others (1981 SCMR 838);
(v) Atiq‑ur‑Rehman and others v. Muhammad Ibrahim and others (PLD 1983 SC 182);
(vi) Allah Ditta and others v. Malik Ijaz Hussain (1986 SCMR 959);
(vii) Post Master General v. Custodian, Evacuee Property, Sindh and 2 others (1990 CLC 861);
(viii) Chief Administrator of Auqaf v. Muhammad Ramzan and others (PLD 1991 SC 102);
(ix) Haji Khan Bhatti v. Dr. Munir Ahmad Mughal, Registrar, R.I.T.U, and 2 others (1992 PLC 632);
(x) Wealth Tax Officer and another v. Shaukat Afzal and 4 others (1993 SCMR 1810) and
(xi) Adamjee Insurance Company Ltd. v. Pakistan through the Secretary to Government of Pakistan in the Ministry of Finance, Islamabad and 5 others (1993 SCMR 1798).
18. The ratio decidendi being that resort to the High Court's Constitutional jurisdiction should not be permitted if it amounts to circumvention of the normal process of law. Yet another reason is that equity follows the law and, therefore, the remedy by way of a Constitutional petition in the High Court is not available to a person seeking to circumvent and defeat the law by initiating parallel proceedings and substituting the Constitutional jurisdiction of a High Court for a remedy otherwise available in law. There can be no justification for absconding or bypassing a statutory remedy and invoking the Constitutional jurisdiction of a High Court.
19. Parallel proceedings under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 cannot be allowed to circumvent proceedings already pending under statutory provisions. This was the view expressed by the Supreme Court in the case of Messrs Steel Brothers & Company Ltd. v. Central Board of Revenue, Islamabad reported in 1968 SCMR 374 and followed in:‑‑
(i) Mushtaq Ahmad and another v. Custodian, Evacuee Property, Punjab and others (1972 SCMR 328);
(ii) Mukhtar Ali and others v. Settlement Commissioner (Lands), Sargodha and others (1975 SCMR 489);
(iii) Messrs Macdonald Lytton and Costain Ltd. v. Messrs Avari Hotels Ltd. (1976 SCMR 316);
(iv) Manzoor Ahmad v. XXIX Civil Judge, Karachi and others (1985 SCMR 579), and
(v) Aleem Javed v.. National Industrial Relations Commission (1988 PLC 418).
20. It is indeed ironical that on the one hand the petitioner claims to be a member of the respondent union and on the other hand he has filed a complaint before the Registrar of Industry wise Trade Unions, National Industrial Relations Commission, Islamabad (respondent No. l) seeking cancellation of the registration of the respondent union under section 10 of the Industrial Relations Ordinance of 1969 and at the same time is invoking the Constitutional jurisdiction of this Court for cancellation of the registration of the respondent‑Union and also seeking a prohibition of the deduction of the union subscriptions from the wages of the members of the respondent‑Union.
According to the annual return filed by the respondent union before the Registrar of the Industry wise Trade Unions, National Industrial Relations Commission, Islamabad (respondent No. 1) under section 21 of the Industrial Relations Ordinance, 1969, the membership of the respondent union is 1,32,629. There is no duress or coercion in the payment or deduction of subscription by the members of the respondent union which is entirely of their own free choice and volition and according to the methodology provided by law under section 23 of the Industrial Relations Ordinance, 1969 which provides as follows:‑‑ .
"Section 23. Check off.‑‑(1) If a collective bargaining agent so requests, the employer of the workmen who are members of a trade 74 union shall deduct from the wages of the workmen such amounts towards their subscription to the funds of the trade union as may be specified with the approval of each individual workman named in the demand statement furnished by the trade union.
(2) An employer making any deduction from the wages under subsection (1) shall, within 15 days of the end of the period for which the deductions have been made, deposit the entire amount so deducted by him in the account of the trade union on whose behalf he has made the deductions.
(2‑A) A collective bargaining agent shall maintain with a branch of the National Bank of Pakistan or with a Post Office Saving Bank an account to which shall be credited the entire amount deducted by the employer under subsection (1) from the wages of the members of the trade union.
(3) The employer shall provide facilities to the collective bargaining agent for ascertaining whether deductions from the wages of its members are being made under subsection (1).
21. The petitioner has not been able to show as to how is he an aggrieved party within the meaning of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.
In the case of Messrs Associated Cement Companies Ltd. v. Pakistan through the Commissioner of Income‑tax reported in PLD 1978 SC 151 their Lordships of the Supreme Court were pleased to enunciate the principle that a writ petition can be maintained by a person provided he be an "aggrieved party" and in order to be an "aggrieved party" it would be imperative for a party to show that any of his proprietary or personal rights, as recognised by laws of the country, has been invaded or denied to him. The same principle has been reiterated in the case of Anjutrian Araian, Bhera v. Abdul Rashid and others reported in PLD 1982 SC 308 where their Lordships were pleased to hold that a person can be deemed to be "aggrieved" if he has some interest in the corpus of property to which the law attaches some sanctity. The same view has consistently been taken in the reported cases of:‑‑
(i). Pakistan Steel Re‑Rolling Mills Association v. Province of West Pakistan (PLD 1964 (W.P.) Lahore 138);
(ii) Mian Muhammad Abdullah, District Manager, Government Transport Service, Lyallpur v. The Road Transport Corporation, Lahore through its Secretary and others (PLD 1964 (W.P.) Lahore 743);
(iii) Sher Muhammad v. Chairman, Industrial Court of West Pakistan and others (PLD 1966 (W.P.) Lahore 1019);
(iv) S. Sajjad Haider v. Government of West Pakistan and another (PLD 1967 Lahore 938);
(v) Muhammad Abdus Salam v. Chairman, East Pakistan Election Authority and others (PLD 1965 Dacca 231);
(vi) Haji Majakkir Ali v. Regional Transport Authority, Sylhet and others (PLD 1967 Dacca 6);
(vii) The Punjab Miners Labour Union v. The West Pakistan Industrial Development Corporation, Jhelum (PLD 1972 Lahore page 489);
(viii) Ch. Muhammad Yunus v. The Islamic Republic of Pakistan through ' the Secretary, Ministry of Communication, Government of Pakistan, Islamabad and 3 others (PLD 1972 Lah. 847);
(ix) Rashid A. Khan v. West Pakistan Railway Board through its Chairman, Lahore and another (PLD 1973 Lah. 733);
(x) Miss Nadra Imam v. The Appellate Committee for Permanent Residence Certificate (PLD 1976 Kar. 851);
(xi) Messrs S.M. Ilyas and Sons Ltd. v. Monopoly Control Authority, Islamabad and another (PLD 1976 Lah. 834) and
(xii) M/s. Tariq Brothers and another v. The Deputy Commissioner etc. (PLD 1995 Lah. 142).
22. Considering that the petitioner withheld and actually tried to conceal the fact that his application under section 10 of the Industrial Relations Ordinance of 1969 is still sub judice before the Registrar of Industry wise Trade Unions, (respondent No.1). The petitioner is not entitled to any relief in the discretionary Constitutional jurisdiction of this Court because he who seeks equity must do equity. This maxim has always been enforced by this Court and some of the leading decisions of this Court and also the Supreme Court are to be found in the cases of:‑‑
(i) Haji Noor Muhammad v. Ghulam Masih Gill (PLD 1965(W.P.) Baghdad‑ul‑Jadid 1);
(ii) Abdul Hafeez v. Board of Intermediate and Secondary Education and another (1983 SCMR 566);
(iv) Muhammad Siddiq and 2 others v. Settlement Commissioner, Punjab and others (1985 CLC 1897) and
(v) Nasrullah Jan and 3 others v. Muhammad Karim and 14 others (1986 CLC 1).
23. On merits, the pith and substance of the petition is that after the addition of subsection (1‑B) to section 17 of the Water and Power Development Authority Act of 1958, service under the respondent authority has been declared to be service of Pakistan and every person holding a post under the respondent authority shall be deemed to be a civil servant for the purposes of the Service Tribunals Act of 1973.
24. The Water and Power Development Authority was established under the West Pakistan Water and Power Development Authority Act, 1958 (West Pakistan Act (XXXIX of 1958).
Chapter II of the Act deals with the constitution of the Authority.
Section 3 provides that:‑‑
"Section 3. Constitution of the Authority .‑‑‑(1) There shall be established an Authority to be known as the Water and Power Development Authority for carrying out the purposes of this Act.
(2) The Authority shall be a body corporate, shall be entitled to acquire and hold property, shall have perpetual succession and a common seal and shall by that name sue and be sued."
24. Chapter IV of the Water and Power Development Act, 1958 deals with the Establishment.
Section 17 provides:‑‑
"Section 17.‑‑‑ Employment of Officers and servants .‑‑‑(1) The Authority may from time to time employ such officers and servants or appoint such experts or consultants, as it may consider necessary for the performance of its functions, on such terms and conditions as it may deem fit." ,
25. After subsection (1), the following subsections were added:‑‑
"(1‑A) Notwithstanding anything contained in subsection (1) or any rules made, or orders or instructions issued, by the Authority, or in the terms and conditions of service of any person employed by, or serving under the Authority, the Authority may at any time, retire or remove from its service any person without assigning any reason, after giving him not less than thirty days' notice or pay for the period by which such notice falls short of thirty days.
(1‑B) Service under the Authority is hereby declared to be service of Pakistan and every person holding a post under the Authority, not being a person who is on deputation‑to the Authority from any province, shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973 (LXX of 1973)."
Thus, by virtue of a deeming clause every person holding a post under, the Authority but not a person who is on deputation to the Authority from any Province, shall notionally be considered to be a civil servant for the limited and specific purpose of the Service Tribunals Act of 1973.
26. To be deemed to be a civil servant for the purposes of the Service Tribunals Act of 1973 (Act LXX of 1973) cannot be held to be synonymous with a "civil servant" as defined in clause (b) of subsection (1) of section 2 of the Civil Servants Act of 1973 (LXXI of 1973) which reads as follows:‑‑
"Section 2. Definitions .‑‑‑(1) In this Act, unless there is anything repugnant in the subject or context,‑‑
`Civil servant' means a person who is a member of an All‑Pakistan Service or of a civil service of the Federation or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include‑‑
(iii) a person who is a `worker' or `workman', as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen's Compensation Act, 1923
Thus, a person who is a `worker' or `workman' as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act of 1923 has been specifically excluded from the definitions of `civil servant'.
27. The Service Tribunals Act of 1973 (LXX of 1973), being an Act providing for the establishment of Service Tribunal to exercise jurisdiction in respect of matters relating to the terms and conditions of service of civil servants defines a civil servant as follows:‑‑
"Section 2. Definitions .‑‑In this Act, unless there is anything repugnant in the subject or context:‑‑
(a) Civil servant means a person who is, or has been, a civil servant within the meaning of the Civil Servants Act, 1973 (LXXI of 1973)."
Section 4 of the Service Tribunals Act, 1973 provides for appeals:
"Section 4. Appeals to Tribunals.‑‑‑ (1) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the. terms and conditions of his service may, within thirty days of the communication of such order' to him or with six months of the establishment of the appropriate Tribunal whichever is later, prefer an appeal to the Tribunal."
Thus, the appeal has to be in respect of any of the terms and conditions of service.
29. The legal position which emerges is that the Water and Power statutory body established under the Water and Power Development Authority Act of 1958 and by virtue of subsection (2) of section 3 the Authority is a body corporate, having its own independent legal status distinct from the Government. The employees of Water and Power Development Authority are not civil servants stricto senso but are only deemed to be civil servants for the purposes of Service Tribunals Act of 1973, i.e. for the purposes of regulating matters relating to their terms and conditions of service.
The formation, registration and all other matters relating to Trade Unions is clearly beyond the scope and purview of the Service Tribunals Act of 1973.
30. The legal effect and consequence of the addition of subsections (I‑A), (1‑B) and (1‑C) to section 17 of the Water and Power Development Authority Act of 1958 was held to be that:‑‑
"It is clear from these provisions that the employment in the Authority was declared to be service of Pakistan and remedy provided under Service Tribunals Act, 1973 was made available to such employees by deeming them to be civil servants under that Act., The two explanations subsequently added and `deemed always to have been so added' had the effect of bringing under purview of subsection (1‑A) even the Provincial Civil Servant serving the authority under provisions to subsection (1). All employees, except those on deputation, were without qualification or limitation, declared to be civil servants for the purposes of Service Tribunals Act. All the terms and conditions of their service, be it statutory or contractual, were made the subject‑matter of reference to Service Tribunal. Subsection (1‑A) of the Act, as will be seen contained overriding terms and conditions of employment and provisions thereof could like any other terms and conditions of service be brought before the Service Tribunal for adjudication. Article 212(2) of the Constitution ousting the jurisdiction of all other Courts came into play and so did section 6 of the Service Tribunals Act, abating "all suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before."
This was held in the case of WAPDA and another v. Muhammad Arshad Quraishi (1986 SCMR 18) which was followed in Water and Power Development Authority v. Javaid Ahmad, Line Superintendent and another (1989 SCMR 1068 and the same view was again reiterated in the case of Project Director. Ghotki, (WAPDA) v. Commissioner, Workmen's Compensation and Authority under Payment of Wages Act, Sukkur and 3 others (PLD 1992 SC 451).
31. The basic question is what is Trade Union activity? In order to understand the concept and philosophy of Trade Unionism it is necessary to understand the historical process.
32. Prior to the advent of the Industrial Revolution, there were no fixed hours of work and workmen uses to labour for 16 hours a day on the average.
33. Workers were not allowed to combine or unite because of the then prevalent anti‑combination laws and any attempt by workers to unite or combine was deemed to be a conspiracy by virtue of those anti‑combination laws.
34. By about 1830 the process of the Industrial Revolution in England and Europe was complete, and correspondingly the bourgoisie became the dominant class. Kingships were mostly abolished or survived merely as figure heads. Henceforth, money was King.
35. In this background, working class leaders of the world met in London in 1864. The First Workmen's Association was formed and its basic demand was the right to form Trade Unions and regulate working hours by limiting them to 8 hours a day.
On the 1st of May, 1886 workers of Chicago (U.S.A.) mostly of Automobile Industry demanded working hours to be fixed at 8 hours a day; took out a procession and held a demonstration: during which some of the workers lost their lives.
In 1889 a meeting of working class leaders was held in Paris. The Second Workmen's Association commonly known as the Second International was formed. Working class leaders from the Untied States of America suggested and all others accepted the suggestion to commemorate the 1st of May as a Working Class Day commonly known as May Day having a red flag in memory of those workers who laid down their lives in Chicago. The demand of fixing working hours to a maximum of 8 hours a day was once again made and it was decided that the said demand would be pressed for throughout the world. These demands were more or less granted after the Bolshevik Revolution of 1917 in Russia. "Workers of the world unite, you have nothing to loose except your chains" had become an irresistible world‑wide slogan.
Earlier, in the American Declaration of Independence in 1775, three basic rights had been recognized. The right to life, the right to liberty and the right to happiness.
The French Revolution of 1789, gave birth to concept of Fraternite Equalite, Liberte (Fraternity, Equality, Liberty). Jean Jacque Rousseau's Le Contaract Sociale (Social Contract) declared that "man was born free yet he is in chains everywhere".
Social democratic parties were formed in many countries of Europe after the Second International.
Workers of the world started getting the right to vote during this period.
36. After the First World War the International Labour Organisation (ILO) was formed alongwith the League of Nations. International Labour Organisation (ILO) was adopted by the United Nations after the Second World War as an advisory body in matters relating to the working class.
In Pakistan most of the conventions of the International Labour Organisation (ILO) have been adopted.
In the Indo‑Pakistan Sub‑Continent laws beneficial for the working class were enacted for the first time in more or less the third decade of the 20th Century, for example, the Workmen's Compensation Act of 1932, the Factories Act of 1934 and the Trade Unions Act of 1926, which guaranteed the right of the working class to form Trade Unions.
37. Trade Unionism which is the result of along drawn historical process of struggle and sacrifice was finally safeguarded and guaranteed by the Constitution of the Islamic Republic of Pakistan of 1973. The preamble of the Constitution of the Islamic Republic of Pakistan of 1973 declares that:‑‑
"Whereas Sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust:
'And whereas it is the will of the People of Pakistan to establish an Order:
`Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed.'
Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality."
Part II of the Constitution of the Islamic Republic of Pakistan provides Fundamental Rights and Principles of Policy. Chapter 1 provides fundamental rights. Article 17 guarantees Freedom of
Association.
"Article 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."
The right to form Trade Unions is too fundamental to be defeated by virtue of a deeming clause in a subordinate legislation.
39. There is no merit in this petition which is dismissed with no order as to costs.
A.A./M-1985/L Petition dismissed.