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Petitioner: COL. (RETD) FEROZE HUSSAN, SENIOR MANAGER (ADMN.) ARMY WELFARE TRUST, CEMENT PLANT, NIZAMPUR VS Respondent: ZAIN-UL-ABIDIN, HEAVY MECHANIC ARMY WELFARE TRUST, CEMENT PLANT, NIZAMPUR and 2 others
Court Name: National Industrial Relations Commission Judge(s): Qazi Ahmed Saeed Title:COL. (RETD) FEROZE HUSSAN, SENIOR MANAGER (ADMN.) ARMY WELFARE
TRUST, CEMENT PLANT, NIZAMPUR vs ZAIN-UL-ABIDIN, HEAVY MECHANIC ARMY WELFARE TRUST, CEMENT PLANT, NIZAMPUR and 2 others Case No.: Cases Nos.4A(350) and 24 (464) of 1996 Date of Judgment:2002-07-03 Reported As: 2006 PLC 572 Result: Petition allowed Judgment ORDER ' QAZI AHMED SAEED (MEMBER).---This petition under section 22-A(8)(g) of the Industrial Relations Ordinance, 1969 annexed with an application under Regulation 32(2) of the N.I.R.C. (Procedure and Functions) Regulations 1973 was filed by Col. (Retd.) Feroze Hussan in his capacity as Senior Manager (Admn.) Army Welfare Trust Cement Plant, Nizampur, impleading Zainul Abidin, Heavy Mechanic, Amer Qayyum Kayani, Sampler of the petitioner's establishment and Registrar Trade Unions, Peshawar Division N.-W.F.P. As respondents, alleging therein that Army Welfare Trust is a trust registered under the Societies Registration Act, 1860 and according to the Memorandum and .Articles of Association, its objects are primarily to provide for the welfare of the beneficiaries and their families namely the personnel who are serving or have served in the Pakistan Army including Azad Kashmir, Regular Force and Ex-Servicemen of the Pre-independence Indian Army in all ranks including civilians employees of the Armed Forces and their dependents and all its activities are focused and directed to this objective alone through Welfare and Rehabilitation Directorate of Pakistan Army. The Management of the Army Welfare Trust (hereinafter referred to as the Trust) vest in the Committee of Administration in the Welfare and Rehabilitation Directorate, Adjutant General Branch GHQ Rawalpindi and the entire funds are to be applied solely towards the promotion of the objects as set forth in the Memorandum and Articles of Association of the Army Welfare Trust. 2. It is further stated that all the original members/subscribers of the Trust were the Senior Army Officers namely Adjutant General Pakistan Army, Director Welfare and Rehabilitation Directorate
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GHQ, Director Pension and Accounts GHQ, Director Army Farms, DAAG and A.A.-G. Welfare and Rehabilitation, Directorate GHQ. 3. It was further alleged that the petitioner's Factory/Plant which is owned by the Army Welfare Trust is in the process of installation and in this process Chinese, Germans and French nationals are involved but as a result of intimidation and use of force by the respondents No,1 and 2, most of the foreign nationals have abandoned their job, which has left the Factory/Plant in a very serious situation. 4. It was further submitted that the petitioner's establishment namely AWT Cement Plant Nizampur is an organization which is directly connected with the incidental to the Armed Forces of Pakistan, therefore, in view of section 1(3)(a) of the Industrial Relations Ordinance, 1969, provisions of the said Ordinance are not applicable to the petitioner's establishment, accordingly the respondents Nos.1 and 2 are not entitled to form a trade union and apply for its registration. But on the contrary the respondents Nos.1 and 2 are styling themselves as President and Vice-President of a Union namely Awami Labour Union Army Welfare Trust Cement Plant, Nizampur and have submitted an application for its registration to the respondent No,3. They are also not performing their duties and are involved in persuading the workers during working hours to join a non-existence illegal trade union. They are also extending threats of injury to life and limb. Thus they have committed various acts of unfair labour practice as defined under section 16 of I.R.O., 1969. It was prayed that the respondents Nos.1 and 2 and other workers/alleged members of the said so-called union be restrained from committing unfair labour practice and respondent No,3 may also be restrained from issuing certificate of registration. 4-A. This petition along with stay application was placed before the then learned Member Mr. Muhammad Hussain Chaudhry, who after hearing Mr. Tanvir Bashir Ansari, Advocate, learned counsel for the petitioner, ordered the respondents to file their comments with the following directions:-- "In the meantime the respondents Nos.1 and 2 and other workers are restrained from committing acts of unfair labour practice, from persuading or intimidating any person to leave work and to become member of a trade union in violation of law during working hours or from taking out any procession, raising slogans and to continue any strike or go-slow and from compelling or attempt to compel the employer to accept any demand by using force or coercion. The respondent No,3 is also restrained from issuing the registration certificate to Awami Labour Union Cement Factory Nizampur." 5. The respondents Nos.1 and 2 while filing their written statement/comments to the main petition and reply to the application for grant of interim relief, have resisted and vehemently opposed the petition by raising inter alia certain legal objections regarding maintainability of the petitions. On merits the respondents Nos.1 and 2 also controverted the allegations/objections made by the petitioner. Respondent No,3 also tiled his reply to the petition. 6. It may be submitted that besides the above petition three other petitions were also filed by other parties on the same controversy. All the petitions were disposed of by the then learned Member Mr. Anwar-ul-Hassan through a single judgment passed on 2-1-1997 whereby the instant petition was allowed with the following observations:-- "In these circumstances, it is not only difficult but impossible to run smoothly such like sensitive nature project in the presence of a trade union. After my above discussion, I am scrupulously of the view that the Army Welfare Trust and its Nizampur Cement Plant Project is an establishment which is connected with and incidental to the Armed Forces of Pakistan and by virtue of section 1(3)(a) of the I.R.O., 1969 is immune of applicability of I.R.O., 1969 and the act of forming or registration of Awami Labor Union as a trade union is against the law. The Awami Labour Union Nizampur Cement
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Plant and Registrar of Trade Unions Peshawar Division are permanently restrained to form or register the said Awami Labour Union as a trade union." 7. Agitating against the aforesaid judgment, an appeal was filed by the respondent No,1 Mr. Zainul Abidin, General Secretary, Awami Labour Union, Army Welfare Trust, Nizampur Cement Plant (under registration with the RTU Peshawar Division) before the Full Bench of this Commission, which was dismissed by the Honourable Full Bench vide order dated 8-8-1997. 8. The respondent No,1 while agitating against the aforesaid orders dated 2-1-1997 and 8-8-1997 passed by the Single Bench and Full Bench of this Commission, has filed a Writ Petition No,40 of 1998 in the Honourable Peshawar High Court, Peshawar. The learned High Court vide order dated 18-9-2001 disposed of the said writ petition with the following observations:-- "In the light of the aforesaid discussion, we would allow this writ petition, set aside the impugned judgments and orders and direct that the application of the petitioner pending before the Registrar Trade Unions Peshawar Division shall be deemed to be pending and be processed in accordance with law in the light of the above observations." 9. Challenging the said order dated 18-9-2001, a Review Petition No,68 of 2000 was filed before the Honourable Peshawar High Court Peshawar which was allowed vide order dated 30-1-2002 with the following observations/directions:-- "All the parties agree that since the Registrar Trade Unions, will not be in a position to record the evidence for the purpose of determining the questions which were directed to be resolved while accepting the writ petition under review, it was agreed that the N.I.R.C. Be directed to resolve the controversies between the parties. Accordingly, this review petition is accepted and paragraph No,5 in the judgment under review is substituted with the following paragraph:-- ' In the light of the aforesaid discussion, we would allow this writ petition, set aside the impugned judgment and orders and remit the case to N.I.R.C. For disposing of the petition moved by the establishment under section 22-A of the I.R.O., 1969 which shall be deemed to be pending, in accordance with law and in the light of the observations made above. The N.I.R.C. Shall dispose of the petition within three months'. ' The Review Petition is thus allowed in the above terms". 10. In terms of the aforesaid order dated 30-1-2002, the learned Chairman of this Commission vide order dated 9-3-2002 has assigned the instant petition to this Bench. Notices were issued to the petitioner and the respondents, who joined the proceedings. Both the parties adduced their evidence through affidavits in evidence. On behalf of the petitioner Mr. Habib-ur-Rehman General Manager of the petitioner's establishment has filed his affidavit in evidence. He was cross- examined by the learned counsel for the respondents Nos.1 and 2. Similarly on behalf of the respondents Nos.1 and 2 three witnesses namely the respondent No,1 Mr. Zainul Abidin, Mr. Muhammad Iqbal and Imtiaz Gul have filed their affidavits in evidence and all of them were cross- examined by the learned counsel for the petitioner. It may be submitted that the respondent No,2 has not filed any affidavit in evidence. Though respondent No,3 has not filed his affidavit in evidence but he was cross-examined by the learned counsel for the petitioner and respondents Nos.1 and 2. 11. In his affidavit in evidence, Habib-ur-Rehman General Manager of the petitioner's establishment i,e, AWT Cement Factory Nizampur, has reproduced the contents of the petition and asserted that AWT is managed by a Managing Director and Board of Director with sitting Adjutant-General Pakistan Army (GHQ) as Chairman. The objects of the Trust is to provide for welfare of the beneficiaries and their families exclusively through Welfare and Rehabilitation Directorate of Army. The funds of the Trust vest in the Welfare and Rehabilitation Directorate Adjutant-General's Branch GHQ and the entire funds of the Trust are to be applied solely towards the promotion of the objects as given in the Memorandum and Articles of the Trust.
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12. The deponent has further deposed that the main aim of establishing/installation of the Nizampur Cement Plant is to meet the requirements of the defence projects of national interest as well as to meet the public requirements for their construction Projects and therefore, in view of availability of such raw material as required for manufacturing of special cement for the construction of Defence-Projects, the site of plant i,e, Village Kahi near Nizampur was selected, otherwise the Trust could have installed this Plant near LiIla, KaliarKahar or near Taxila with better marketing opportunities and lesser transportation cost, but in view of the national interest of Defence Projects this area was selected which could meet the requirements of special cement. It is further asserted that Chemical Composition of the special Cement is a trade secret which cannot be disclosed in the national interest. It is further stated that during the last two years about ten thousand tons of special cement was supplied to the Defence Services. In support of his assertion, the deponent has enclosed copies of the following documents with his affidavit:-- (1) Memorandum and Articles of Association of the Army Welfare Trust P.1. (2) Memorandum and Article of Association of the Army Welfare Project Funds GHQ-P.2. (3) Statement showing supplies to Defence Project for the year May 2000 to April 2001 with supply Orders P.3. (4) Statement showing supplies to Defence Projects for the year April 2001 to March, 2002 with supply order P.4. (5) Statement showing supplies to Defence Projects for the year November, 2001 to March, 2002 with supply order P.5. ' The deponent has further deposed that Army Welfare Trust is an establishment which is directly connected with and incidental to the Armed Forces therefore in terms of section 1(3)(a) of the I.R.O., 1969, the provision of the said Ordinance are not applicable to the establishment of the petitioner, accordingly the respondents Nos.1 and 2 neither can form a trade union nor can apply for its registration, therefore, the respondents Nos.1 and 2 and other alleged members of a body described as Awami Labour Union, AWT Cement Factory Nizampur are committing. Various acts of unfair labour practice by persuading and intimidating workers to leave their work and to become member of the said union in violation of law. 13. The witness Habib-ur-Rehman was cross-examined by the learned counsel for the respondents Nos.1 and 2. In his cross-examination he admits that Nizampur Cement is connected with and incidental to the Armed Forces and therefore, the I.R.O., 1969 is not applicable to the deponent's establishment. He denied the suggestion that Nizampur Cement is not supplying Cement to Army. A glance at the documents annexed with the affidavit in evidence would confirm the assertion of the petitioner witness that Nizampur Cement supply cement to the Armed Forces and therefore, the said establishment is connected with and incidental to the Armed Forces. 14. On the other hand in their affidavits in evidence, the respondents witnesses namely Zainul Abidin, Imtiaz Gul and Muhammad Iqbal have denied the allegation of the petitioner and asserted the I.R.O., 1969 is very much applicable to the AWT Cement Plant Nizampur. The respondents have further asserted that they have neither raised any demand nor have made any attempt to compel the petitioner management to accept their demands. It is further asserted that allegations of the petitioner are misleading, false and incorrect and they have failed to pinpoint specifically any act of unfair labour practice. They further asserted that they are ready to give every assurance that neither the deponents nor their union/other workers shall participate in any illegal activity as they have never resorted to any such acts or omissions which may result in the Commission of unfair labour practice. In support of their assertions the deponents have annexed certain documents with their affidavits. It is further asserted that in other projects of AWT, there are registered trade unions which are also C.B.A., such as Askari Cement Wah Cantt. Wah, Army Welfare Trust Sugar Mills Badin
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and Kot Lakhpat Engineering Lahore. The deponents have further deposed that the petitioner establishment are not supplying any cement to the Armed Forces. 15. In his cross-examination the witness Zainul Abidin has admitted that the Factory is supplying 11 tons of Cement daily to the Army. However, he denied the suggestions that his calculations are arbitrary and wrong. He admitted the contents of letter dated 20-12-2001 (Exh.P.C.) wherein it is stated that a General Body Meeting was held at the main gate. The other witnesses namely Imtiaz Gul and Muhammad Iqbal also made similar statement in their cross-examination. 16. I have heard learned counsel Mr. Mumtaz Hussain Malik, Advocate for the petitioner and learned counsel Mr. Abdul Hafeez Amjad for the respondents Nos.1 and 2 at quite some length; 17. Learned counsel for the petitioner while justifying filing of the instant petition under section 22- A(8)(g) of I.R.O., 1969, before the Commission on the ground of unfair labour practice has contended that in terms of Memorandum and Articles of Association of the Army Welfare Trust and the certificate of its incorporation, the provision of section 1(3)(a) of I.R.O., 1969 are fully attracted and therefore, provisions of I.R.O. Are not applicable to the employees of the petitioners establishment accordingly neither any trade union can be formed nor registered under the I.R.O. 1969 but the respondents Nos.1 and 2 have illegally formed a union in violation of the provisions of section 1(3)(a) of I.R.O., 1969 and thus they have committed various acts of unfair labour practice within the meaning of section 16(2) of the said Ordinance. He further argued that the respondents Nos.1 and 2 were not performing their duties and were involved in persuading the workmen, during working hours to join the so called trade union, besides extending serious threats of injury to life and limb. Since they were committing various acts of unfair labour practice, therefore, in order to refrain them from these illegal activities, the instant petition under section 22-A(8)(g) of I.R.O., 1969 was filed. 18. Learned counsel for the petitioner has further argued that Army Welfare Trust is a Trust registered under the Societies Registration Act, 1869. According to the Memorandum and Articles of Association, its objects are primarily to provide for the welfare of the beneficiaries and their families namely those personnel who are serving or have served in the Pakistan Army including Azad Kashmir Regular Force and Ex. Servicemen of the Pre-independence Indian Army in all ranks including civilian employees of the Armed Forces and their dependents and all its activities are focused and directed to this objectives alone through Welfare and Rehabilitation Directorate of Pakistan Army. The management of the Army Welfare Trust vest in the Committee of Administration in the Welfare and Rehabilitation Directorate, Adjutant General Branch, GHQ Rawalpindi and the entire funds are to be applied solely towards the promotion of the objects as set forth in the Memorandum and Article of Association of the Trust. 19. It is further contended that all the original members/subscribers of the Trust were the Senior Army Officers namely Adjutant General Pakistan Army, Director Welfare and Rehabilitation Directorate GHQ, Director Pension and Accounts GHQ, Director Army Farms, D.A.A.-G. And A.A.-G. Welfare aid Rehabilitation Directorate GHQ. He further contended that the main aim of establishing of the Cement Plant Nizampur is to meet the requirement of the defence projects of national interest as well as to meet the public requirement for their construction projects and therefore, in view of the availability of such raw material as required for manufacturing of special cement for the construction of defence Projects, the site of plant i,e, Village Kahi near Nizampur was selected, otherwise the Trust could have installed this plant near LiIla, Kallar Kahar or near Texila with better marketing opportunities and lesser transportation cost but in view of the national interest of Defence Projects, this area was selected which could meet the requirement of Special Cement. He further argued that Chemical Composition of the special cement is a trade secret which cannot be disclosed in the national interest, however, he contended that the special cement is exclusively produced for defence projects and is not used in ordinary project and it is on record that during the
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last two years about ten thousand tons of special cement was supplied to the defence services and this fact has been admitted by the respondent No,1 in his cross-examination that the Factory is supplying eleven tons of cement daily to the Army. He contended that since the AWT Cement Plant Nizampur is an establishment which is directly connected with the incidental to the Armed Forces of Pakistan, therefore, in view of section 1(3)(a) of the Industrial Relations Ordinance, 1969, provisions of the said Ordinance are not applicable to the Army Welfare Trust, accordingly the respondents Nos.1 and 2 are not entitled to form a trade union and apply for its registration to the respondent No .3. Regarding the registration of trade union in Askari Cement Wah and Badin Sugar Mills, he contended that the said projects have no connection with the petitioner project. In support of his contention he sought reliance upon the judgment of the Honourable Lahorc High Court in the case of United Builders Association versus Presiding Officer Punjab Labour Court and others (1976 PLC page 855) in which the scope of the above quoted section 1(3)(a) of the I.R.O., 1969 was dilated upon inter alia in the following terms:-- "The express provisions of the law made the Ordinance inapplicable to any service connected with or incidental to the Armed Forces of Pakistan. If the army is directly engaged on the construction of a road, of a building or is getting it constructed by employing a Contractor or Sub-contractors then it is for the time being a matter connected with and incidental to the Armed Forces of Pakistan irrespective of the nature of the construction. As long as the construction lasts and remains the responsibility of the Armed Forces irrespective of the use to which it will be put when completed the project remains connected and incidental to the Armed Forces itself. A duty undertaken by the Armed Forces to have it constructed either through its own manpower or by employing others establishes this connection. The source of the finance, the ultimate use of building are all irrelevant for determining its character while the construction is in the hand and control of the Army Authorities': 20. Learned counsel for the petitioner has contended that from the above cited case, it is evident that in order to bring an establishment within one of the categories excluded by section 1(3)(a) of I.R.O., 1969 it is not necessary that the finances or funds should come from the Armed Forces or installation should be under the direct 'control and management of Armed Forces, but what is important is, whether the person is employed inter alia in any of the Armed Forces of Pakistan or in services or installation connected with or incidental to the Armed Forces of Pakistan, therefore, keeping in view the supply of special cement to the Armed Forces for defence projects, it can be concluded that the petitioner's employees are covered by the provision of clause (a) of subsection (3) of section 1 of the I.R.O., 1969. Learned counsel in this behalf has referred to the case of the Controller Stationery and Forms Government of Pakistan v. The Registrar of Trade Unions Sindh and others (PLD 1991 SC 353), the case of Din Muhammad alias Dona v. Manager Army Stud Farm Dipalpur District Sahiwal (1978 PLC 261) the case of Abdul Jabbar Khan v. M/s. Fauji Foundation and another (1990 PLC 580), the case of Canteen Stores Department Employees Welfare UniOn Karachi v. Canteen Stores Department and others (1983 SCMR 1101), the case of Haji Malik Aman and 3 others v. Federation of Pakistan through Secretary Ministry of Law, Justice and Parliamentary Affairs Islamabad and (1993 SCMR 1837), the case of National Radio and Telecommunication Corporation Employees and Workers Union Haripur v. Labour Appellate Tribunal N.-W.F.P. And others (1990 PLC 218) Peshawar High Court, Rchmat Gill and others v. Quetta Cantonment Board (PLD 1983 SC 133). 21. Replying to the contention of the learned counsel for the petitioner as raised above, learned counsel for the respondents has strongly opposed the arguments of the petitioner's counsel and strenuously contended that the petitioner has no cause of action and the present petition is misuse of process of law. The petitioner has not come to this Commission with clean hand and has filed this petition with mala fide, hence not entitled for any equitable relief. He further contended that the instant petition in the present form is not maintainable as during the entire proceedings,
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the petitioner has failed to appear in person or to authorize any other person on his behalf. The petitioner has failed to pin-point any specific act of unfair labour practice. The prayer clause of the petition is outside the ambit and scope of the power conferred upon the Commission. He further argued that the petitioner establishment is a Company registered under the Companies Ordinance, 1984 and the objects of the Trust is the welfare of the retired Army personnel and not of active army. Therefore, the petitioner's establishment being an industrial unit is not connected with the incidental to the Armed Forces of Pakistan but they are carrying on an industry just like all other private industries. He further contended that in other projects of AWT there are registered trade unions which are also C.B.As. Namely AWT Badin Sugar Mills, Askari Cement Wah etc. He further contended that the respondents Nos.1 and 2 have never committed any act of unfair labour practice. On the other hand the petitioner has terminated the services of so many workers including the service of respondent No,1 even during pendency of the petition on account of their trade union activities. He further argued that even the petitioner witness…
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