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Petitioner: PUNJAB AGRICULTURE (BAGH-E-JINNAH) VS Respondent: THE REGISTRAR, TRADE UNION JUDGMENT
Court Name: Lahore High Court Judge(s): Muhammad Aqil Mirza Title:PUNJAB AGRICULTURE (BAGH-E-JINNAH) vs THE REGISTRAR, TRADE UNION
JUDGMENT
Reported As: 1997 PLC 579 Result: Petition dismissed Judgment JUDGMENT This petition filed under Article 199 of the Constitution was dismissed vide the short order dated 31- 3-1997. Mr. Muhammad Azam, Advocate argued the case on behalf of the petitioner, Mian Mahmood Hussain, Advocate appeared for respondent No. 2, Ch. M. Khalid Farooq, Advocate appeared for respondent No. 3 and Mr. Muhammad Yawar Ali Khan, Additional Advocate-General appeared for respondent No. 1. The reasons in support of the short order aforesaid are given in the paras. Hereinafter appearing. 2. This petition has been filed by the Superintendent of Bagh-e-Jinnah. Lahore in the name of Punjab Agriculture (Bagh-e-Jinnah)'. The relevant facts are that workers union of Bagh-e-Jinnah (respondent No. 2) made an application to the Registrar of the Trade Unions, for registration as a trade union under section 3 of the Industrial Relations Ordinance. This application was granted and certificate of registration was issued on I1-1-1988. The Superintendent of Government Garden (Bagh-e-Jinnah) made an application to the Registrar of the Trade Union for deregistration of respondent No. 2. It appears that no decision was taken on this application, whereupon this Court in Intra-Court Appeal No. 68 of 1991 vide order dated 30-4-1991 directed the Registrar to dispose of the application of the Superintendent of the Garden. Subsequently, after hearing both sides the Registrar dismissed the application vide order dated 16-7-1991 by holding that the employees such as electricians, helpers, tubewell operators, drivers, mechanics, gardeners, beldars, and sweepers were entitled to form trade union under the Ordinance. This order was passed after hearing both sides but it was not challenged either in this Court or elsewhere by the petitioner. Subsequently, respondent No.3 also moved the Registrar on 31-10-1992 for its registration as trade union. This
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application was granted and respondent No. 3 was registered as trade union on 10-11-1991. Previous to that another union, namely Employees Union (respondent No. 2 in the connected Writ Petition No. 11998 of 1994) was also registered as trade union on 8-3-1992. 3.The petitioner moved an application on 1-9-1993 before the Registrar, Trade Unions for of respondent No. 2 as a trade union.The letter dated 12-9-19932. (Annexure 'F') informed the Superintendent of Bagh-e-Jinnah that such a request had already been refused vide order dated 16-7-1991. This letter dated 12-9-1993 of the Registrar alongwith his order dated 16-7-1991 and certificates of registration of respondents Nos. 2 and 3 have been impugned in this Constitutional petition filed on 14-10-1993. 4.Learned counsel for the petitioner has made the following submissions:-- (i) The Bagh-e-Jinnah is not an 'industry' within the meaning of section 2(xiv) of the I.R.O. And, therefore, employees working in the garden are not entitled to form trade union under the Ordinance. (ii) The employees working in Bagh-e-Jinnah are civil servants and not workmen under the I.R.O. Trade Union under the Ordinance can only be formed by workers as defined thereunder. (i.e) The employees of Bagh-e-Jinnah are not workers or workmen under the Factories Act and the Workmen's Compensation Act because they are civil servants within the purview. Of the Punjab Civil Servants Act and the certificates of registration issued in favour of respondents Nos. 2 and 3 are illegal. Learned counsel has placed reliance on 1996 SCM R 1399 in support of his contention that civil servants working in the Government gardens cannot form trade unions. 5. Learned counsel for respondents Nos. 2.And 3 raised the following preliminary objections: (i) The writ petition suffers from laches, in that, the petitioner's application for deregistration was dismissed by respondent No. 1 on 16-7-1991 whereas the present writ petition has been filed on 14- 10-1993 i.e. After more than 2 years. (ii) The impugned order dated 16-7-1991 was acquiesced, as not only that this order was not further assailed but subsequent registration of respondent No. 3 and the Employees. Union aforesaid as trade unions was not objected to. According to the learned counsel, these to unions were got registered on 8-3-1992 and 10-11-1992 at the instance of she petitioner because these are pocket unions. (i.e) The present petition has been filed mala fide for ulterior purposes. In this behalf it is submitted that the President and the General Secretary of respondent No. 2 were dismissed from service through ante-dated order dated 3-3-1993 with a view to avoid the prohibitory order of N.I.R.C. Passed on 4-3-1993. The operation of the dismissal orders was also suspended by the N.I.R.C. On 7- 3-1993. The last mentioned order was challenged through Writ Petition No.2795 of 1993 which was dismissed. Thereafter, the present writ petition was filed to undo the effect of the orders passed by the N.I.R.C. Learned counsel has further highlighted the mala fides by pointing out that application was made to the Registrar for deregistration of respondent No. 2 only. So far as the other to unions (respondent No. 3 and respondent No. 2 in the connected Writ Petition No. 11998 of 1994) are concerned no such request was made in respect of them. This shows that the management of the garden was hostile to respondent No. 2 alone. Learned counsel has also submitted that if the petitioner is wholly a Government department, then the petition should have been made through the Advocate-General or through private counsel after obtaining permission from the Law Department. According to the learned counsel, the litigation against respondent No. 2 in this Court as also before the other forum have been pursued by the Garden Superintendent through private counsel by paying money from his own pocket and without seeking permission from higher authorities. (iv) The present petition not having been filed through Government pleader or with permission of the Law Department is not competent and no relief therein can he granted.
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(v) No relief has been claimed against the adjudicatory order dated 16-7-1991 passed by the Registrar and as such relief only with respect to the certificates of registration issued much earlier cannot be granted. 6. On merits, learned counsel for respondent No. 2 has raised the following contentions:- (i) In view of the activities relating to Bagh-e-Jinnah, Lahore, as detailed in paras. (b) and (c) at page 12 of the written statement of respondent No.2, Bagh-e-Jinnah is an industry within the meaning of section 2(xiv) of the I.R.O. And the employees working therein are not engaged in the administration of the State within the meaning of section 1(3)(b) of the I.R.O., and therefore, they come within the purview of the I.R.O. For the purpose of forming trade union. Learned counsel has placed reliance on the following case-- law:-- (i) 1997 SCM R 66, (ii) 1988 SCM R 765, (i.e) PLD 1992 SC 127 and (iv) PLD 1989 SC 152. (ii) The members of the respondent unions by nature of their duties are workers and workmen within the meaning of I.R.O. And despite being Government servants they are entitled to form trade unions for the purpose of making demands in respect of their service conditions before appropriate authorities. The law had not placed any bar for making demands for the betterment of labour relating employees working in the service of Pakistan. (i.e) At any rate, the members of the respondent unions are not civil servants within the meaning of Punjab Civil Servants Act because they are 'workers' and 'workmen' falling within the purview of the Factories Act and the Workmen's Compensation Act, with reference to the nature of duties performed by them. Tubewell Operators, Fitters, Mechanics, Electricians, Helpers, Sweepers, Vehicle Drivers, Mallis and Beldars are 'workers' under section 2(h) of the Factories Act and they are also workmen' under section 2(1)(n) read with Schedule II of the Workmen's Compensation Act. Reliance is placed on 1987 PLC 180, 1989 PLC 605, 1992 PLC 575. 7. It is argued that in the application (Annexure 'C') made to the Registrar, the petitioner never urged that the employees were civil servants not covered by the Factories Act and the Workmen's Compensation Act. The only thing said was that they were public servants not covered by section 2(xxviii), I.R.O. 8. Let me first deal with the preliminary objections. The first objection relates to laches. Respondent No. 2 was registered as a trade union on 11-1-1988. On petitioner's application respondent No. 1 after hearing the petitioner and respondent No. 2 through a well-reasoned order refused to cancel the registration of respondent No. 2 vide order dated 16-7-1991. Admittedly this order was not further assailed anywhere. This order, therefore, attained finality. After this decision to more unions were registered on 8-3-1992 and 10-11-1992. According to learned counsel for respondent No.2, both these unions are pocket unions of the management of the garden and they were registered at the instance of the management. Even if this allegation is not correct, the fact remains that the petitioner did not make any motion before the Registrar for cancellation of the registration certificates of these to unions. Such a motion was made only in respect of respondent No.2. It was for the first the on 14-10-1993 that decision of the Registrar has been impugned by filing the present writ petition. Obviously, this petition has been filed with inordinate delay of to years and three months. No plausible explanation has been given with regard to the delay in approaching this Court. Resultantly, I find that the petition suffers from laches and deserves to be dismissed on that score. It may be observed that it is petitioner's own case as mentioned in para. 9 of the writ petition that respondent No. 1 could not review the registration, hence application dated 1-9-1993 for cancellation of registration was made mala fide to avoid objection of laches. 9. The next objection relates to mala fides. As earlier pointed out., the petitioner did not make any application for cancellation of the registration of the other to unions. The President and the Secretary of respondent No. 2 were dismissed and they obtained prohibitory .Orders from the N.I.R.C. Against their dismissal vide orders dated 3-3-1993 and 7-3-1993 (R. 9 and R.10). These orders
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of the N.I.R.C. Were challenged in this Court but the petitioner's Writ Petition No.2795 of 1993 was .Also dismissed. It was thereafter that the present writ petition has been filed to challenge the very registration of respondents Nos,2 and 3. In these circumstances, the contention of the learned counsel that the writ petition has been filed for ulterior purpose of frustrating the proceedings in the N.I.R.C. Appears to be correct. What is more striking, however, is that this petition has been filed by the previous Superintendent of the Garden through the private counsel without seeking permission from his higher authorities or the Law Department. Indeed the petitioner being subordinate undertaking in the Agriculture Department of the Punjab Government, this.. Petition could be filed either by the Government Pleader (Advocate-General) or by a private counsel with permission from the Law Department: Still more astonishing is the fact that the Garden Superintendent engaged the counsel and bore expenses from his own pocket. This - means that he had personal animus against the office-bearers of respondent No.2 and for that reasons he approached the Court by engaging a counsel by spending money from his own pocket, because apparently he was not sure that the Advocate-General would have agreed to file this petition and the Law Department would have permitted to engage a private counsel. In order to find out the correctness of the allegations made at the Bar I examined Mr. Abid Mahmood, Superintendent Garden on 21-3-1997. He stated that the counsel against respondent No. 2 had been engaged by the former Superintendent who has since retired without the permission of the Law Department. Earlier on 13- 3-1997 he had stated that the expenses with regard to this litigation were not borne from the public exchequer. I also examined. Mr. Muzaffar Ali Khan who was Director, Horticulture at the relevant the. He stated that nod case had been filed on behalf of the Bagh-e-Jinnah administration with his permission in which a private counsel was engaged. The present writ petition in these circumstances, lacks bona fides and speaks volumes regarding the personal animus which the Garden Management bore against respondent No.2, on account whereof this petition has been filed. Resultantly, I find that this petition has been filed mala fide and deserves to be dismissed on that count. 10. Now the objection relating to the competence of petition may be dealt with. The admitted position is that the petition has been filed by the former Garden Superintendent by engaging a private counsel from his own personal resources and without the permission of the Law Department to engage the private counsel, Rules of Business of the Punjab Government-- framed under Article 139 of the Constitution provide that the proceedings in the Courts of law can be instituted and defended on behalf of the Government or Government Officers with permission of the Law Department. Rule 17(1) reads as follows:-- "The Law and Parliamentary Affairs Department shall be consulted by other departments:-- (a) (b) (c) before instituting criminal or civil proceeding in a Court of law in which Government is involved; and (d) whenever criminal or civil proceedings are instituted against Government." Distribution of business among the Government Departments is given by Schedule II of Rules of Business. The powers of Law and Parliamentary Affairs Department relating to the matter in issue are as follows:-- "(1) Conduct of Government litigation, include:-- (a) ................................. (b) ..................................... (c) filing and defending civil suits against Government and public servants; (3) Government Law Officers, Advocate-General, Public Prosecutors, Government Pleaders, Special Counsel, Appointment, Transfer, Leave, Fees etc; of-"
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Government gardens fall within the control of the Agriculture Department under Schedule II. It is thus clear that appointment of a counsel for conducting litigation on behalf of the Government or Government Officers can be made with permission of the Law Department in view of the aforequoted items Nos. 1 and 3, Schedule II. In the instant case no such permission has been sought from or accorded by the Law Department. Therefore, the appointment of private counsel by the former Garden Superintendent is totally invalid and his representation in the case is not authorised representation. The petition cannot be deemed to be personal and at any rate the Garden Superintendent who instituted the petition having already retired, this petition cannot be continued and pursued by the present incumbent. I, therefore, hold that the engagement of private counsel by public servant without permission of the Law Department is not legal and the private counsel so engaged cannot at and plead on behalf of the Government and public servants, unless the litigation is personal to the public servants' involved. In this view of the matter the present petition through the learned D private counsel is not competent. 11. The preliminary objection on the point that in the absence of claiming relief against order dated 16-7-1991 the cancellation of certificates of registration cannot be asked for, has some force but it is of technical nature and, therefore, I do not attach any importance to this. It is true that in the prayer clause no relief has been claimed against the order dated 16-7-1991 but this order has been impugned otherwise in the body of the petition. 12. The contentions of the learned counsel for the parties, relating to the merits of the case should be examined in the light of the following recent decisions of the Honorable Supreme Court:- (i) Live Stock Employees Union and others v. Government of Baluchistan, Live Stock Department 1996 SCM R 1399). (ii) Agriculture Workers Union, Baluchistan v. The Registrar of Trade Unions, Quetta and others (1997 SCM R 66). The first mentioned case, inter alia, relates to the registration of the Agriculture Workers Union, Quetta, as a trade union under the Industrial Relations Ordinance. Members of this union were Beldars, Pallaydars, Mallis, Tractor Drivers, Fitters, Mechanics etc. Of the Agriculture Department of Baluchistan Government. Their union was registered as a trade union. The learned High Court of Quetta allowed the writ petition of the Government and held that the Registrar while accepting the application of the union neither applied his independent mind on the question whether the members of the union fell within the category of workers or workmen as defined in the Factories Act or the Workmen's Compensation Act nor it issued notice to the concerned Government Department before granting the registration to the union under the Ordinance. On taking this view the registration of the union under the Ordinance was set aside. It was, however, observed that those employees of the Government Departments who consider themselves to fall within the category of worker/workman under the Factories Act and the Workmen's Compensation Act might apply afresh before appropriate forums. The decision of the High Court was challenged in the Honourable Supreme Court by the union. The leave was refused on taking the view that civil servants working in the Government Departments were not entitled to form trade unions as employment in the Government Departments cannot be treated as employment in the 'Industry' as defined under the Ordinance. The conclusion of the Honourable Supreme Court in 1996 SCM R 1399 is reproduced below:-- "In the instant case, the primary object of the department is to implore all venues for the advancement of particular field and to cater, the needs of public-at-large. The cost is to be borne from public funds. They do not run any industry. The function of the Forests Department is to protect the forests from destruction which is necessary for the healthy environment. For the performance of their duties they make research in their special field. From the nature of their work it cannot be deduced by any stretch of imagination that the respondents are running any industry.
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Whatever the business does that is ancillary to the main object. The departments are performing multifarious duties in this behalf but their main function is not changed. The petitioners are not employed to run any industry. The Government is not consuming any wealth from these establishments. The ingredients of an industry are lacking in the present case, therefore, the learned High Court has taken a correct view of the matter. " After the aforementioned decision the employees of the Agriculture Department approached the Registrar of the Trade Unions for fresh registration of the union under the Ordinance. This application, however, was rejected in view of the fact that unions petition for leave to appeal before the Supreme Court had been dismissed. The Constitutional petition filed by the Agriculture Workers Union was dismissed by the learned High Court, as a result whereof the workers union approached the Honourable Supreme Court in the case reported as 1997 SCM R 66. It was contended before the Honourable Supreme Court that persons like Beldars, Pallaydars, Mallis, Tractor Cleaners, Vehicle Drivers, Tractor Drivers, Fitters, Mechanics etc. Would not be treated as persons performing functions in connection with the administration of the State and as such they were entitled to form a trade union and get the same registered under the provisions of the Ordinance. It was argued that only those employees in the Government departments, who performed duties which have some connection or nexus with the sovereign function of the State would fall within the mischief of the expression "employed in the administration of the State." The appeal of the union was accepted by setting aside the order of the learned High Court on the view that the employees were entitled to satisfy the Registrar of Trade Unions that their members though employed in the Government department, fell within the category of worker/workman as defined in the Factories Act and the Workmen's Compensation Act. The Registrar of the Trade Unions was directed to hold inquiry to decide the question of registration as trade union. This case also decided the appeal of the Quetta Municipal Corporation Employees Union, in the matter of its registration under the Ordinance as a trade union. The appeal to was accepted and the case was remanded to the Registrar Trade Union to find out whether the employees were performing any of the regal functions of the Corporation, so as to disentitle them to get their union registered as a trade union under the Ordinance. It was observed by the Honourable Supreme Court that the I.R.O. Is a beneficiary legislation which provides protection for labour classes and it has to be constructed liberally and beneficially in favour of the workers. The relevant discussion of the Honourable Supreme Court in this latest pronouncement is reproduced bellow:--- "The IRO is basically a beneficial legislation which provide for protection of the rights of labour classes Its object amongst other is to ameliorate the conditions of workers Such a legislation has to be construed liberal and beneficially. A restricted constructor of the provisions of the IRO would defeat the manifest objective of the legislation. Keeping in view of the beneficial nature of the statute I am inclined to hold that except for those functions of Quetta Municipal Corporation which may fall within the ambit of its regal functions its other functions, such as rendering civic services etc. Would be covered by the expression 'service' used in the definition of word 'industry' under the I.R.O. I am unable to subscribe to the view taken by the learned Judges of High Court that on account of omission of the word 'undertaking' from the definition of 'industry' in the I.R.O., the Municipal Corporation would not be covered by the definition of 'Industry' as it stands now in the I.R.O. In my humble view the omission of word 'undertaking' from the definition. Of 'Industry' in the I.R.O. Made no difference as the ' service' continue to remain a part of the definition of 'Industry'. I, therefore, respectfully feel inclined to agree with the interpretation of word 'Industry' by the Indian Supreme Court in the case of Nagpur Corporation and Bangalore Water Supply. In the case of Employees Old-Age Benefits Institution v. N.I.R.C. (1988 SCM R 765) it was contended before this Court that the institution of Old-- Age Benefit does not fall within the meaning of 'Industry' as defined in the I.R.O. The contention was repelled as follows:---
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'Finally, it is urged on behalf of the appellant institution that its functions do not constitute 'Industry' within the meaning of section 2(xiv) of the Industrial Relations Ordinance. The said clause defines the word 'Industry' to mean any business, trade, manufacture, calling, service, employment or occupation. There are a large number of reported cases in which attempts had been made to determine the precise scope of this clause; in some cases a narrower construction has been placed upon it while in others it had been given a wider content. For example, see K.G. Old, Principal, Christian Technical Training Centre v. Punjab Labour Court (1976 PLC 675) and A.F. Ferguson & Co. v. The 5th Sind Labour Court (1974 PLC 98). For the disposal of this appeal, it is unnecessary to refer to these cases as there can be little doubt that the functions of the appellant institution do constitute 'service' Within the meaning of the said clause. Ordinarily, it would be the obligation of at employer himself to look after his workers by providing relief to them in the event of their becoming sick or disable or aged. The statute which has created the appellant has institutionalized these functions, which really belong to the employer, by setting up a body for performing them for him. The appellant institution is thus rendering a service to be industrial and commercial sectors. It cannot, therefore, say that its functions fall outside the purview of clause (xiv). 13. The contentions of the learned counsel for the petitioner revolved around the decision of the Honourable Supreme Court in Livestock Trade Union (supra). The observations made in…
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