Full Judgment Text & Judicial Ruling

1993 P L C 358

1993 P L C 358

[Karachi High Court]

Before Muhammad Hussain Adil Khatri and Imam Ali G. Kazi, JJ

HYDERABAD DEVELOPMENT AUTHORITY EMPLOYEES' UNION

versus

GOVERNMENT OF SINDH and another

Const. Petition No. D‑11 of 1990, decided on 7th December, 1992.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S. 2(viii)(d)‑‑‑Validity of notification dated 17‑3‑1980 issued by Government whereby specified staff of an establishment (Development Authority) was notified to be "Employers"‑‑‑Notification in question, was claimed to have been issued in order to defeat and frustrate trade union activities of union and that staff mentioned in said notification was not in any way connected with the administration and was not covered by the categories specified in the provision of S. 2(viii)(d), Industrial Relations Ordinance, 1969‑‑‑Government although had power to issue notification for the purpose of distinction from the category of worker or workmen, officers and employees of establishment, who belonged to superior, managerial, secretarial, directorial, supervisory or agency staff, if notified in the Official Gazette, to be deemed to fall within the category of employer, yet said notification did not qualify the basic requirements of provision of S.2(viii)(d), Industrial Relations Ordinance, 1969 and was thus ultra vires and arbitrary.

Government has the power to issue notification for the purpose of distinction from the category of worker or workmen, officers and employees of respondent establishment who belong to the superior, managerial, secretarial, directional, supervisory or agency staff, if notified in the Official Gazette, to be deemed to fall within the category of employer.

In clause (viii) of section 2, Industrial Relations Ordinance, 1969 the term employer, in relation to an establishment, means any person who employs workmen and includes, as provided by sub‑clause (b) any person responsible for the management, supervision and control 4>f the establishment. In so far as any department of the Federal Government or Provincial Government or local authority is concerned, it has been provided that in relation to the establishments run by or under the said authorities, the authority appointed in this behalf would be the employer or where no authority was appointed, the head of the department or the Chief Executive Officer, respectively would fall within the definition of employer. It was in harmony with the aforesaid language used in sub‑clauses (b), (c) and (d) of clause (viii) of S.2, Industrial Relations Ordinance, 1969 that the Legislature while, making the Special Provision provided that the worker or workmen, officers and employees of the Federal and Provincial Government or a local authority who belonged to the superior, managerial, secretarial, supervisory or agency staff and who had been notified for the said purpose in the Official Gazette, would be deemed to fall within the category of employers. The said Special Provision, therefore, does not in any manner give any unrestricted power to respondent‑Government to notify any category of the worker or workmen, officer and employee of respondent‑establishment to fall within the category of employers.

Since the aforesaid notification did not satisfy the basic requirements of the Special Provision, it was accordingly held to be ultra vires and arbitrary and having been issued without lawful authority was of no legal effect.

M. Salahuddin H. Ahmed for Petitioner.

Syed Masood Ali for Respondents.

Date of hearing: 7th September, 1992.

JUDGMENT

MUHAMMAD HUSSAIN ADIL KHATRI, J.‑‑‑The present petition has been filed by Hyderabad Development Authority Employees' Union which is also the collective bargaining agent in the establishment of Hyderabad Development Authority, praying that the notification dated 17‑3‑1980, issued by respondent No. 1 and published in the Sindh Government Gazette dated 27‑3‑1980, be declared as illegal, void, ultra vires, arbitrary, mala fide, without jurisdiction and of no legal effect.

The aforesaid notification was issued by Government of Sindh in pursuance of the special provision made in sub‑clause (d) of clause (viii) of section 2 of the Industrial Relations Ordinance (XXIII of 1969) (hereinafter referred to as the said Ordinance), whereby the following staff of Hyderabad Development Authority, including the water and sanitation agency were notified to be the employers:‑‑

"(1) Bill Clerks (including meter readers)."

(2) Junior Clerks (all categories).

(3) Senior Clerks (all categories).

(4) Assistants (all categories).???

(5) Superintendents (all categories).

(6) Typists/Steno‑Typists/Stenographers."

In reply to the petition, counter‑affidavit has been filed by respondent No. 2 alone.

We had heard learned counsel Mr. M. Salahuddin H. Ahmed for the petitioner and Mr. Syed Masood Ali for the respondents.

The learned Advocate for the petitioner contended that respondent No. 2 had managed with respondent No. 1 to issue the impugned notification in order to defeat and frustrate the trade union activities in its organisation. The staff mentioned in the said notification is not in any way connected with the administration and are not covered by the categories specified in the Special Provision, namely, superior, managerial, secretarial, directorial, supervisory or agency staff and as such the aforesaid notification has been issued with mala fide intentions and without lawful authority.

For better appreciation of the submission made, clause (viii) of section 2 of the said Ordinance is reproduced below:‑‑

"(viii) `employer' in relation to an establishment means any person or body of persons, whether incorporated or not, who or which employs workmen in the establishment under a contract of employment and includes‑‑‑

(a) an heir, successor or assign as the case may be, of such person or body as aforesaid;

(b) any person responsible for the management, supervision and control of the establishment;

(c) in relation to an establishment rum under the authority of any department of the Federal Government or Provincial Government, the authority appointed in this behalf or, where no authority is appointed, the Head of the Department;

(d) in relation to an establishment run by or on behalf of a local authority, the officer appointed in this behalf or where no officer is so appointed, the chief executive officer of that authority;

Special Provision.‑‑‑For the purpose of distinction from the category of "worker or workmen" officers and employees of a department of the Federal Government or a Provincial Government or a local authority, who belong to the superior, managerial, secretarial, directorial, supervisory or agency staff and who have been notified for this purpose in the official Gazette shall be deemed to fall within the category of employers."

There is no dispute that respondent No. 1, the Government of Sindh has the power to issue notification for the purpose of distinction from the category of worker or workmen, officers and employees of respondent No. 2, who belong to the superior, managerial, secretarial, directorial, supervisory or agency staff, if notified in the Official Gazette, to be deemed to fall within the category of employer. The petitioner had specifically pleaded that the staff mentioned in the notification do not fall within any of the categories specified in the Special Provision. In the counter‑affidavit filed by respondent No. 2, there is general denial of the averments made in the petition, but the duties performed by the aforesaid staff mentioned in the notification have not been disclosed to persuade this Court to reach the conclusion that the aforesaid staff belongs to the superior, managerial, secretarial, directorial, supervisory or agency staff. Therefore, on the simple construction of the aforesaid provisions of law, the notification does not meet the basic requirements of the aforesaid provisions.

In clause (viii) of section 2, the term employer, in relation to an establishment, means any person who employs workmen and includes, as provided by sub‑clause (b) any person responsible for the management, supervision and control of the establishment. In so far as any department of the Federal Government or Provincial Government or local authority is concerned, it has been provided that in relation to the establishments run by or under the said authorities, the authority appointed in this behalf shall be the employer or where no authority is appointed, the head of the department or the Chief Executive Officer, respectively would fall within the definition of employer. It as in harmony with the aforesaid language used in sub‑clauses (b), (c) and (d) of clause (viii) that the Legislature while making the Special Provision provided that the worker or workmen, officers and employees of the Federal and Provincial Government or a local authority who belonged to the superior, managerial, secretarial, supervisory or agency staff and who have been notified for the said purpose in the Official Gazette, shall be deemed to fall within the category of employers. The said Special Provision, therefore, does not in any r manner give any unrestricted power to respondent No. 1 to notify any category of the workers or workmen, officers and employees of respondent No. 2 to fall within the category of employers.

Since the aforesaid notification does not qualify the basic requirements of the Special Provision, it is accordingly held to be ultra vires and arbitrary and having been issued without lawful authority and is of no legal effect. Similar view was also taken by another Division Bench of this Court in Constitutional Petition No. D‑117/1988 (Sindh Seed Corporation Employee Union v. Government of Sindh and others) and we are in respectful agreement with the same.

We had, therefore, allowed the above petition with no order as to costs by short order dated 7‑9‑1992 and above are the reasons therefore.

A.A./H‑352/K???????????????????????????????????????????????????????????????????????????????????? Petition accepted.

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