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Petitioner: Pakistan Services Limited VS Respondent: Full Bench, Nationa Industrial Relations JUDGMENT
Court Name: Islamabad High Court Judge(s): Arbab Muhammad Tahir Title:Pakistan Services Limited vs Full Bench, Nationa Industrial Relations
JUDGMENT
Reported As: 2022 IHC 228 Result: Order Accordingly Judgment JUDGMENT ARBAB MUHAMMAD TAHIR, J. By reason of this common judgment, I shall propose to dispose of the captioned writ petition as well as writ petitions Nos. 536 of 2022, 1892 of 2022 and 1853 of 2022 since the question of law involved in all these petitions is almost identical, and since all these petitions entail certain common features and so also between the same parties. W.P. No.535 of 2022. 2. By means of writ petition No.535 of 2022 under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the "Constitution"), the petitioner, Pakistan Services Limited ("hereinafter referred to as the "petitioner-company") has called in question the validity and legality of the order dated 02.02.2022, passed by the learned Full Bench of the National Industrial Relations Commission (hereinafter referred to as the "Commission") dismissing the petitioner-company's appeal under Section 58 of the Industrial Relations Act, 2012 (hereinafter referred to as "the Act") against the order dated 25.04.2018 passed by the learned Single Member of the Commission. Through the said order dated 25.04.2018, the learned Single Member of the Commission dismissed the petitioner-company's petition filed under Section 60 read with Sections 9, 11 and 57 of the Act. W.P. No.536 of 2022. 3. Whereas, through writ petition No. 536 of 2022 under Article 199 of the Constitution, the petitioner- company seeks the annulment of the order dated 02.02.2022, passed by the learned Full Bench of the Commission dismissing its appeal under Section 58 of the Act against (i) the order dated 15.07.2021 passed by the learned Single Member of the Commission, thereby appointing an
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Authorized Officer to conduct the referendum proceedings, and (ii) the order dated 30.07.2021, whereby the Authorized Officer dismissed the petitioner-company's application for deferment of the referendum proceedings in the establishment of Pearl Continental Hotels (hereinafter referred to as "PC Hotels"). Through the said order dated 15.07.2021, the learned Single Member of the Commission appointed Mr. Muhammad Shafique, Private Secretary to the Chairman of the Commission, Islamabad as the 'Authorized Officer' under Section 19(12) of the Act with the mandate to conduct the referendum proceedings for determination of the Collective Bargaining Agent (hereinafter referred to as the "CBA") in the establishments of PC Hotels. Similarly through order dated 30.07.2021, the Authorized Officer turned down the petitioner-company's application seeking the referendum proceedings to be deferred. W.P. No.1892 of 2022. 4. Likewise, through writ petition No.1892 of 2022, the petitioner, Pearl Continental Hotels Staff Union Pakistan (hereinafter referred to as "Staff Union") has called in question the validity of the order dated 02.02.2022, passed by the learned Full Bench of the Commission dismissing its appeal under Section 58 of the Act against the order dated 30.07.2021, whereby the Authorized Officer had dismissed the petitioner-company's application (not the Staff Union's application) for deferment of the referendum proceedings in the establishments of PC Hotels. W.P. No.1853 of 2022. 5. Likewise, through writ petition No.1853 of 2022, the Staff Union has questioned the validity of the order dated 02.02.2022 passed by the learned Full Bench of the Commission dismissing its appeal under Section 58 of the 2012 Act against the order dated 17.08.2021, passed by the Authorized Officer. Vide said order dated 17.08.2021, the Authorized Officer decided the following issues:- "i. Whether the dismissed/terminated employees (Workers) can be included in the voter list to cost votes in the referendum? ii. Whether the employees (Workers) employed in Pakistan Services Limited (PSL) can be included in the voters list to cost votes in the referendum?" FACTS OF WRIT PETITION NO.535 OF 2022 6. The facts as gleaned out from the record are to the effect that the petitioner-company is a Public Listed Company engaged in various trades and businesses and employees almost 49 persons in total in its business; that it has set up Hotels in different cities of the Country viz Lahore, Karachi, Rawalpindi, Bhurban, Peshawar and Muzaffarabad; that it has no PC Hotel in Islamabad, but its Head Office is located at Islamabad Capital Territory (hereinafter referred to as "ICT"); that the petitioner-company is an "Establishment" as defined under Section 2(x) and an "Industry" as defined under Section 2(xvii) of the Act; that the petitioner-company is involved and undertakes various businesses, which include but not limited to setting up of Hotels in various cities of the Country; that in the year 2015, the Pearl Continental National Labour Union (i.e. respondent No.3 in writ petition No.535 of 2022 and shall hereinafter be referred to as the "Labour Union") applied for its registration as an Industry-wise Trade Union to the Registrar of Trade Unions (hereinafter referred to as the "RTU"); that the RTU registered the said union on 17.12.2015; that the Staff Union (i.e. respondent No.4 in writ petition No.535 of 2022) also applied for its registration as an Industry- wise Trade Union; that on 17.12.2015, the Joint Registrar of Trade Unions accorded registration to the Staff Union. Feeling aggrieved by the decision regarding registrations of the Labour Union and Staff Union, the petitioner-company filed a petition under Section 11 of the Act seeking the cancellation of the registration certificates issued to the said Unions. The said petition stood dismissed by the RTU vide order dated 30.04.2018. Being dissatisfied with the said order dated 30.04.2018, the petitioner-company subjected the same to a challenge before this Court in writ petition No.2495 of 2018, titled Pakistan Services Ltd. Vs. Registrar Trade Unions and others. The said writ petition was disposed of by this Court through judgment dated 06.07.2021.
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7. Additionally, in the year 2018, the petitioner company yet again filed a petition under Sections 9, 11, 57 and 60 of the Act against holding of referendum in the establishment of the petitioner- company. The said petition was dismissed by the learned Single Member of the Commission on 25.04.2018, which was assailed in an appeal under Section 58 of the Act before the learned Full Bench of the Commission, which appeal did not find favour with the petitioner-company. Hence, the present writ petition. FACTS OF WRIT PETITION NO.536 OF 2022. 8. The facts in brief of this petition are that the Labour Union and Staff Union were registered as Industry-wise Trade Unions by the RTU and Joint Registrar on 17.12.2015 and 19.12.2016, respectively. 9. It is noteworthy to mention here that the photocopies of the Staff Union's registration certificate bearing No.32/2016 annexed at page-62 of writ petition No.535 of 2022 as well as at page-28 of writ petition No. 536 of 2022 are illegible copies and the better copy annexed subsequent thereto, shows the date of the Staff Union's registration as "26.12.2016" and "19.12.2016", respectively. 10. The Deputy Registrar of the Commission commenced the proceedings for determination of the CBA for all Hotels on the application of the Labour Union. The Staff Union also moved a petition under Section 62 of the Act seeking for the two Collective Bargaining Units (hereinafter referred to as the "CBUs") to be certified in the establishments of PC Hotels located at Lahore and Karachi and also sought the referendum proceedings to be stayed. The referendum proceedings were subsequently stayed. However, vide order dated 19.12.2017, the order staying the referendum proceedings, was recalled. The petitioner-company filed an appeal before the learned Full Bench of the Commission. Staff Union also filed an appeal against the said order. Through order dated 10.05.2018, the learned Full Bench of the Commission dismissed the appeals filed by the petitioner- company as well as the Staff Union against the order dated 19.12.2017. Feeling dissatisfied with this order dated 10.05.2018, the petitioner-company invoked the constitutional jurisdiction of the Hon'ble High Court of Sindh and the Hon'ble High Court through its judgment dated 27.04.2021 passed in CP No.D-4674 of 2018, dismissed the said appeal. The said judgment has been assailed in CPLA No.3497 of 2021 before the August Supreme Court, which is reportedly still pending adjudication. The said judgment is to have not been suspended by the August Supreme Court hence, the same holds the field. FACTS OF WRIT PETITIONs NO.1892 OF 2022 and 1853 of 2022. 11. The facts of these two writ petitions are almost similar, which are to the effect that an application under Section 19(2) of the Act for determination of the CBA in the establishment of PC Hotels was filed by the Labour Union. The proceedings pursuant to the said application ensued. The petitioner- company contested the said application since it had already initiated the proceedings for cancellation of the Labour Union as well as Staff Union's registration. The Staff Union also filed a petition under Section 62 of the Act for determination of two CBUs in the establishment of PC Hotels. The said petition is said to be still pending and the learned forum below is yet to decide the said application. Initially, the RTU authorized an Officer for conducting Secret Ballot for determination of the CBA, but later on the learned Single Member of the Commission took up the matter himself and appointed Private Secretary to the Chairman, who conducted the Secret Balloting and through order dated 30.07.2021 dismissed the petitioner-company's petition. Being aggrieved by the said order dated 30.07.2021, the petitioner-company preferred an appeal before the learned Full Bench of the Commission and the learned Full Bench dismissed the said appeal by directing the Authorized Officer to complete the process of Secret Ballot at the earliest in accordance with the law. Hence these writ petitions. ARGUMENTS ADVANCED BY SYED NAEEM BUKHARI, LEARNED ASC APPEARING ON BEHALF OF THE PETITIONER-COMPANY.
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12. Contended that the petitioner-company undertakes various businesses which include but not limited to setting up of Hotels in different parts of the Country located in Lahore, Karachi, Rawalpindi, Bhurban, Peshawar, Muzaffarabad. The Hotels set up by the petitioner-company are "establishments" and an "industry" as defined in the Provincial Industrial Relations Laws enacted by the Provinces concerned. None of the said Hotels are governed by the provisions of the Act, the application whereof is restricted only to the ICT. The petitioner-company could become a "Trans- Provincial Establishment" only if the Federal establishment or an industry exists in ICT and has connection with a Provincial establishment. The jurisdiction and power to register a 'Trade Union' as an 'Industry-wise Trade Union' defined in Section 2(xxxi) of the Act vests exclusively in the Commission and not the RTU. Learned Full Bench of the Commission failed to decide the matter judiciously and correctly. The Commission cannot confer its power regarding registration of a Trade Union into Industry-wise Trade Union on the RTU. The RTU invaded the power of the Commission by registering the said two Unions unlawfully. Under the provisions of the Act, the Registrar appointed under Section 4 of the Act has no power to register Industry-wise Trade Unions, which function and power are exclusively vested in the Commission itself. The Commission has no power or authority to add to the jurisdiction, powers and functions of the RTU through a Regulation. As per Section 54(b) of the Act, the power to register an Industry-wise Trade Union as defined in Section 2(xviii) of the Act vested in the Commission. The essential pre-requisite for registration of an Industry-wise Trade Union is that all of the members of an industry ought to be workmen engaged as employees in such an industry with which the trade Union is concerned. The petitioner-company is not a trans-provincial establishment. No referendum can be ordered amongst Industry-Wise Trade Unions, which have been registered unlawfully and without jurisdiction by the RTU. Without including the employees of the petitioner-company in the industry, the concept of an Industry-wise Trade Union between independent entities is not remotely attracted. In the erstwhile Industrial Relations Ordinance, 1969, Industrial Relations Ordinance 2002 and Industrial Relations Act, 2008, the function to register an Industry-wise Trade Unions was with the Commission itself and not the RTU. The registrations as Industry-wise Trade Unions were procured/maneuvered by the said Unions in gross contravention of the provisions of the Act thus, their registration as Industry-wise Trade Unions is "void-ab-initio" and liable to be set aside as such. 13. He further argued that the registration to the said Unions had been granted without notice to the petitioner-company and the RTU did not apply his mind and did not pass a speaking order while granting registration. It was necessary to serve notice to all PC Hotels before granting registration to the said Unions. Learned Full Bench of the Commission fell into error by heavily relying on the judgment dated 06.07.2021 passed by this Court in writ petition No.2495 of 2018, which according to the learned counsel, is "per incuriam" and contrary to the other pronouncements of this Court as well as the Hon'ble Supreme Court. The judgment of this Court relied upon by the learned Full Bench, being per incuriam, misinterprets the vires of Regulation 10 of the National Industrial Relations Commission (Procedure & Functions) Regulations, 2016 (hereinafter be referred to as "the Regulations of 2016"). The impugned order passed by the learned Full Bench of the Commission is not sustainable in any sense of the term. The learned Full Bench of the Commission erroneously upheld the order dated 25.04.2018 passed by the learned Single Member of the Commission which order, according to the learned counsel, on the face of it, is illegal and unlawful. It is the requirement of the law that besides having membership in two provinces, some workers must be from ICT so as to give effect to the definition of the Trans-Provincial Establishment. The registration of an Industry-wise Trade Union pertains to the establishments which have presence in ICT as well as in more than one province. The petitioner-company's Hotels are not "Trans-Provincial Establishments" or a "Group of Establishments" in ICT thus, the registration of the Labour Union
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and the Staff Union as Industry-wise Trade Unions under the Act, claiming presence in Provinces, and not in ICT, is not permissible. The learned RTU while ignoring the basic definition of an "Industry" in the Act erroneously held that there was no provision in the Act which necessarily provided for a membership in the ICT and further concluding that the petitioner-company has no "locus-standi" to file the cancellation applications. The RTU dismissed the petitioner-company's applications seeking the cancellation of the Labour and Staff Unions' registration in a cursory and hasty manner. 14. Moreover, it was further argued that a Trade Union can be transformed into an Industry-Wise Trade Union in an establishment only if such an establishment has an existence in ICT and has presence in more than one province. The Authorized Officer commenced the proceedings for determination of the CBA for all PC Hotels. Staff Union with a claimed membership of 30 workers only, also moved a case under Section 62 of the Act praying for two CBUs in the establishments/PC Hotels at Lahore, Rawalpindi and Karachi. The petitioner-company filed a petition under Section 60 read with Sections 57, 9 and 11 of the Act before the Commission for enforcement of its fundamental rights guaranteed to it under the law. The law itself, from its very inception, restricted the functions and powers of the RTU appointed under Section 4 of the Act to register a Trade Union only. The exclusive jurisdiction in respect of the Industry-wise Trade Union is bestowed on the Commission in terms of Section 54(b),(c) and (i) of the Act. The jurisdiction of the Commission qua Industry-wise Trade Union is not a new innovation at all, but has been there in all previous labour legislations, concluded the learned counsel for the petitioner-company. Learned counsel for the petitioner company prayed for writ petitions No.535 of 2022 and 536 of 2022 to be allowed in light of the relief sought therein and for writ petitions Nos. 1892 of 2022 and 1853 of 2022 to be dismissed with costs. In order to supplement his submission, learned counsel relied upon the judgments reported as PLD 1978 Karachi 67, 1982 PLC 843, 2007 PLC 366, PLD 1997 SC 351, PLD 2009 SC 879, 2010 SCMR 1162, 2008 PLC 36, 2004 PLC 354, 1988 PLC 286, and 2004 PLC 354. ARGUMENTS ADVANCED BY HAFIZ ARFAT AHMED CH., LEARNED ASC APPEARING ON BEHALF OF THE LABOUR UNION. 15. Contended that the petitioner-company has set up PC Hotels in different parts of the Country i.e. Lahore, Karachi, Rawalpindi, Peshawar, Muzaffarabad, and Bhurban. Although there is no PC Hotel of the petitioner-company in Islamabad, but nevertheless its Head Office is located at Islamabad. All PC Hotels in the Country are being run and controlled by the petitioner-company. The petitioner-company is a Trans-Provincial Establishment as defined in Section 2(xxxii) of the Act. Under the provisions of the Act, the workers of an establishment such as the petitioner-company can form a Trade Union as well as an Industry-wise Trade Union. The registration of a Trade Union can only be cancelled in terms of Section 11 of the Act. Since through the alleged illegal registration, the Labour Union is supporting the case of the petitioner-company's management, therefore, the Labour Union can be termed as a 'pocket union' of the petitioner-company. In the year 2017, the Labor Union filed a case for determination of the new CBA in the establishment of PC Hotels. The said application is still pending and the petitioner-company stood succeeded in protracting the proceedings in the said case. The registration granted by the RTU to the Labour Union is such that the petitioner-company does not have any locus standi to object to the same. The registration of a Trade Union is a matter between the Registrar and the Trade Union and the employer is not a party to the proceedings nor does any provision of the Act authorize the employer to challenge the registration of a Trade Union before any forum. Even otherwise the registration of the Labour Union is a past and closed transaction and the objections taken by the petitioner-company with respect to the same have already been dispelled by the RTU. 16. Next it was argued that the Labour Union has lawfully been registered. A registered Trade Union / Industry-wise Trade Union could become beneficial for the workmen in a particular establishment
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only if it is certified as CBA. Under the garb of the cancellation of Labour Union's registration, the petitioner-company also wants the referendum proceedings not to take place. Without referendum, no Trade Union could be certified as the CBA. Normally the Courts of Constitutional Causes do not interfere in the concurrent judgments and/or orders passed by the fora below of competent jurisdiction, provided there is no patent error in such judgments/orders. The writ petitions filed by the petitioner-company and the Staff Union are writs of "Certiorari" and this Court has to exercise its supervisory jurisdiction not the appellate jurisdiction. The petitioner- company has in fact challenged the concurrent judgments/orders of the learned fora below, but regrettably it failed to show any jurisdictional error in the impugned judgments/orders of the learned fora below. It is well settled principle of law that while issuing a writ of Certiorari, a High Court acts in exercise of its supervisory jurisdiction and not appellate jurisdiction. 17. Furthermore, it was argued that the law laid down by this Court in the judgment dated 21.01.2020 passed by this Court in writ petition No.2188/2017, titled Chevron Pakistan Lubricants (Pvt.) Limited Vs. Federation of Pakistan, etc. is to be applied "prospectively" and not "retrospectively". The reliance of the petitioner-company on Chevron's case (supra) is nothing but just a misconception. Learned counsel for Labour Union prayed that the captioned writ petition as well as writ petitions No.536 of 2022, 1892 of 2022, 1853 of 2022 to be dismissed. In order to supplement his arguments, he placed reliance on the judgments reported 2006 SCMR 1163, PLD 1987 SC 145, 2001 SCMR 1161, PLD 2013 SC 829, 1998 PLC 500, 1986 PLC 533, 1998 PLC 122, 2007 PLC 521, 2016 PLC (CS) 565, 2014 SCMR 535, 2019 SCMR 1657, 2019 SCMR 919, 2020 SCMR 260, 2022 CLC 269. ARGUMENTS ADVANCED BY MR. ABDUL HAFEEZ AMJAD, LEARNED ASC APPEARING ON BEHALF OF THE STAFF UNION IN WRIT PETITIONS NO.1853 OF 2022 AND 1892 OF 2022. 18. The arguments advanced by Syed Naeem Bukhari, learned counsel for the petitioner-company in writ petitions Nos. 535 and 536 of 2022 were adopted by Mr. Abdul Hafeez Amjad, Advocate inasmuch as that the RTU was not vested with the jurisdiction to entertain the applications for registration of the Labour Union and Staff Union. During the course of his arguments, he has not just supported the stance of the petitioner-company before this Court but also before the learned Full Bench of the Commission. The relevant portion whereof is reproduced herein below:- "The learned counsel (Mr. Abdul Hafeez Amjad) for the respondent No.2 i.e. Pearl Continentals Staff Union at the very outset has contended that all the Industry-wise trade unions which have been registered by the Registrar are against the provision of IRA 2012 and he did not support the impugned order, although has not filed any appeal against the impugned order although has not filed any appeal against the impugned order........ The learned counsel further contended that the respondent No.2 union to whom he is representing has been registered in violation of law and cannot be considered as legally registered trade union." (Underlining is mine for emphasis). 19. He further added that a registered Trade Union and Industry-wise Trade Union are under obligation to have constitutions duly approved by the RTU and in case the constitution is in contravention of the basic law, the RTU can refuse to grant recognition to such Constitution. The Staff Union is bound to follow its Constitution. The Staff Union's Constitution confirms the fact that the membership of the Union extends to the PC Hotels and the petitioner-company. There is no legal justification for the Commission to decline the Staff Union's membership to the workmen employed in the petitioner-company's establishments. The impugned orders are not sustainable in the eye of law. The Authorized Officer has no legal authority to deprive the members of the registered Union from their rights of vote. The Staff Union and Labour Union were registered with titles "Pearl Continental Hotels" however, membership of the Unions can neither be restricted nor conditionalized for particular part of the establishment since this issue has not been dealt with by
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the Authorized Officer in the order dated 17.08.2021 hence, the same is of no legal consequence. Concluded the learned counsel for Staff Union. 20. In writ petitions No. 535 of 2022 and 536 of 2022, The Vakalatnama of Mr. Abdul Hafeez Amjad, Advocate is not on the record. But from the above excerpt of the impugned judgment, it is manifest that apparently Mr. Abdul Hafeez Amjad, Advocate has been representing respondent No. 4 (i.e. Staff Union) in the captioned writ petition as well as respondent No. 5 (i.e. Staff Union) in writ petition No. 536 of 2022. Writ petitions No. 1853 of 2022 and 1892 of 2022 filed by the Staff Union shows that the said Union is being represented by Mr. Abdul Hafeez Amjad, Advocate. 21. Heard the learned counsel for the parties and perused the available record with their valuable assistance. 22. The following are the foremost questions that need determination by this Court:- I. Whether the petitioner-company is a "Trans-Provincial Establishment" as defined under Section 2(xxxii) of the Act. II. Whether the RTU was vested with the jurisdiction to adjudicate upon the applications seeking registration as Industry-wise Trade Unions filed by the Labour Union and Staff Union. 23. The primary grievance voiced in all these writ petitions is to the effect that the RTU…
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