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Petitioner: All Pakistan Ztbl Workers Union (CBA) and others VS Respondent: Federation Of Pakistan JUDGMENT
Court Name: Islamabad High Court Judge(s): Miangul Hassan Aurangzeb Title:All Pakistan Ztbl Workers Union (CBA) and others vs Federation Of Pakistan
JUDGMENT
Reported As: 2021 PLC 1 Result: Petition allowed Judgment JUDGMENT MIANGUL HASSAN AURANGZEB, J.---- Through the instant writ petition filed in the public interest, the petitioners (All Pakistan ZTBL Workers Union and others) seek a direction to the respondents to take immediate steps for the appointment of a Registrar Trade Unions ("R.T.U.") under Section 4 of the Industrial Relations Act, 2012 ("I.R.A ."). Furthermore, the petitioner seeks a direction to the respondents to make arrangements for the establishment of the office of the R.T .U. with the necessary infrastructure in the Islamabad Capital Territory . 2. Dr. G.M. Chaudhry , learned counsel for the petitioners, submitted that the petitioners are industry-wise trade unions; that petitioners Nos.1 and 2 had filed applications under Section 19 of the I.R.A. for a referendum to be held for the determination of a collective bargaining agent; that these applications could not be decided due to the office of the R.T.U. being vacant; that when the said applications were filed the office of the R.T.U. had been vacant for a long time; that the National Industri al Relations Commission ("N.I.R.C ")., in Case No.19(03)/2013, held that the R.T.U. is not a part and parcel of N.I.R.C.; that the fundamental right to form associations and trade unions enshrined in Article 17 of the Constitution cannot be exercised effectively without the R.T.U. having been appointed on a regular basis; that it is incumbent on the respondents to appoint the R.T.U. on a regular basis at the earliest; that since the R.T.U. and the Joint Registrars perform specialized functions under Section 5 of the I.R.A., it is necessary to provide an independent secretariat for the R.T.U.; that there are important functions that are required to be performed by the R.T.U. under several other provisions of the I.R.A.; that due to the R.T.U. not having been appointed on a regular basis, the administration of the office of the R.T.U. has been impaired; that the appointment of the R.T.U. on an ad hoc basis over a long period of time is in violation of the law laid down by the Superior Courts; and that even if the R.T.U. has to be appointed on an ad hoc basis, the incumbent must be well-versed with
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the subject of labour administration. Learned counsel for the petitioners prayed for the writ petition to be allowed in terms of the relief sought therein. 3. On the other hand, the learned Deputy Attorney-General, in reiteration of the written comments filed on behalf of the Ministry of Overseas Pakistanis and Human Resource Development ("Ministry of O.P.&H.R.D .") on 08.05.2017, submitted that the necessary infrastructure for the office of the R.T.U. has already been provided in the N.I.R.C. Building; that the support staff and equipment are also available for the office of the R.T.U.; that the rules for the recruitment of the R.T.U. has alrea dy been framed by the Ministry of O.P.&H.R.D. and notified in the official Gazette; that under the said rules, appointment to the post of the R.T.U. is to be made 75% by promotion and 25% by direct recruitment; that the post of Joint Registrar (BPS-19) has already been advertised by the Federal Public Service Commission ("F.P.S.C."); that for appointment to the post of the R.T.U., the N.I.R.C. has already been requested to prepare a working paper for submission to the Central Selection Board ("C.S.B ."); that the F.P.S.C. has also initiated a process for the appointment of the R.T.U.; and that for the post of the R.T.U., a stop-gap arrangement will continue to be made until the appointment of a regular incumbent. The learned Deputy Attorney- General produced the notifications issued by the Ministry of O.P.& H.R.D., whereby officers were appointed on a temporary basis to the post of the R.T .U. 4. The position taken by the N.I.R.C., in its report and para-wise reply filed on 02.03.2019, is that when this writ petition was filed, the post of the R.T.U. was vacant but subsequently since appoint ment to the said post was made on a temporary basis, the instant petition is liable to be dismissed as having become infructuous; that in the meeting dated 15.05.2017 chaired by the Secretary , Ministry of O.P.&H.R.D., an objection had been raised by the Senior Joint Secretary , Ministry of Law and Justice to the recruitment rules for the post of the R.T.U. on the ground that the same had been framed pursuant to the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 ("A.P.T. Rules "); that he had suggested that rules gover ning the appointment of the R.T.U. should be framed under the provisions of the I.R.A.; that the draft rules were prepared and after the Establ ishment Division concurred with the draft rules, they were sent to the Ministry of Law and Justice; that the opinion of the Ministry of Law and Justice was that since the post of the R.T.U. is related to the affairs of the Federation, consultation with the F.P.S.C. was necessary; that the opinion of the F.P.S.C. was that the existing rules (i.e. set out in the notification dated 01.12.2016) should be kept intact or amendments may be made in such rules; that subsequently , the Ministry of Law and Justice took the view that the objection raised by the Senior Joint Secretary in the meeting dated 15.05.2017 was his personal opinion; and that since there is no one eligible for promotion to the post of R.T.U., the process for direct appointment under the existing rules has been initiated. 5. Furthermore, the position of the N.I.R.C. is that appointment to the post of R.T.U. on temporary basis had been made as a stop-gap arrangement for the efficient performance of the functions of the R.T.U.'s office; that the appointment to the said post on a regular basis had been delayed due to the rule-making process; that this Court, in the judgment reported as 2017 PLC 115, has held that the R.T.U. and the N.I.R.C. have concurrent jurisdiction under Sections 5 and 54 of the I.R.A.; and that presently , the officer appointed as the R.T.U. on temporary basis has extensive experience in the field of Labour Administration. The N.I.R.C. prayed for the writ petition to be dismissed. 6. I have heard the contentions of the learned counsel for the petitioners as well as the learned Deputy Attorney- General and have perused the record with their able assistance. 7. Article 240(a) of the Constitution provides that subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined in the case of the services of the Federation, posts in connection with the affairs of the Federation and All-Pakistan Services, by or under Act of Parliament. The Civil Servants Act, 1973 was enacted by Parliament to regulate by law, the appointment of persons to and the terms and conditions of service of persons in the service of Pakistan, and to provide for matters connected therewith or ancillary thereto. Section 25(1) of the Civil Servants Act, 1973 provides that the President or any person authorized by the President in this behalf, may make such rules as appear to him to be necessary or expedient for carrying out the purposes of said Act. In exercise of the powers conferred by Section 25(1) of the Civil Servants Act, 1973, the President made the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973
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(A.P.T. Rules ). The methods of appointment to posts prescribed by Rule 3(1) of the said Rules are (i) by promotion, (ii) by transfer , and (iii) by initial appointment. Rule 3(2) of the said Rules provides that the method of appointment and the qualifications and other condition s applicable to a post shall be as laid down by the Ministry or Division concerned in consultation with the Establishment Division. 8. Rule 4(4) of the Rules of Business, 1973 provides that the attached departments as allocated to the various Divisions are shown in Schedule III. As per Schedule III to the Rules of Busines s, 1973, the N.I.R.C. has been declared by the Federal Government to be an attached department of the Overseas Pakistanis and Human Resource Development Division. Rule 3(3) of the Rules of Business, 1973 provides that the business of government shall be distributed among the Divisions in the manner indicated in Schedule II. The entry at Serial No.13, Item No.27 in Schedule II to the Rules of Business, 1973 shows that the "administration of the Industrial Relations Act, 2012, keeping a watch on labour legislation from international perspective, coordination of labour legislation in Pakistan and the Industria l Relations Commission " comes within the purview of the Overseas Pakistanis and Human Resource Development Division. (Earlier this Division was split into the Overseas Pakistanis Division and the Labour Division). Hence, the "Division concerned" for laying down the method of appointment and the qualifications and other conditions applicable to posts under the I.R.A. is the Overseas Pakistanis and Human Resource Development Division. 9. Vide notification dated 12.03.1990 (S.R.O. 263(1)/90) issued by the erstwhile Labour Division pursuant to Rule 3(2) of the A.P.T. Rules, the method, quali fications and other conditions were laid down for appointment to the posts of (i) Registrar (BPS-19), (ii) Deputy Registrar (BPS-17), (iii) Administrative Officer (BPS-17) and (iv) Reader to Chairman (BPS-16). 10. In order to consolidate and rationalize the law relating to formation of trade unions and improvement of relations between employers and workmen in the Islamabad Capital Territory and in trans-provincial establishments and industry , the I.R.A. was enacted by Parliament on 14.03.2012. Section 4 of the said Act is reproduced herein below:- "Registrar of trade unions .---For the purpose of this Act, the Government shall, by notification in the official Gazette, appoint the Registrar of T rade Unions who shall be assisted by one or more Joint Registrars." 11. The said notification dated 12.03.1990 was amended by notification dated 01.12.2016 (S.R.O. 1128(1)/2016.) issued by the Ministry of O.P.&H.R.D. This notification shall hereinafter be referred to as "notification dated 01.12.2016 ." This notification lays down the method, qualifications and other conditions for appointment to the post of the R.T.U. (BPS-20). It provides for the method of appointment to the post of R.T.U. (BPS-20) to be 75% by promotion and 25% by initial appointment. The persons eligible for appointment as R.T.U. are Registrar/Joint Registrar (BPS-19) provided they fulfill the eligibility criteria of 17 years of service in BPS-17 and above or 5 years of service in BPS-19, in the case of initial appointment in BPS-19. The qualificatio ns and experience required for appointment to the said post are (i) second class or Grade "C" L.L.B. degree or equivalent qualification from a university recognized by the Higher Educa tion Commission, and (ii) 17 years of experience in BPS-17 and above in the field of Labour Administration or 5 years-experience in BPS-19 in case of initial appointment in BPS-19 in the field of Labour Administration. 12. Ever since the enactment of the I.R.A., an R.T.U. has not been appointed on a regular basis. The instant writ petition was filed on 20.06.2016 (i.e. prior to the issuance of the notification dated 01.12.2016 by the Ministry of O.P.&H.R.D. providing for the conditions of eligibility , qualifications and method of appointment for the R.T.U.). When the instant writ petition was filed, the office of the R.T.U. was vacant. On 21.06.2016, this Court issued notices to the respondents. I deem it appropriate to give relevant details of the proceedings of this Court as discerned from the order sheet as well as the developments that took place durin g the pendency of the said writ petition. 13. The relevant portion of the order dated 13.04.2017 passed by this Court reads thus:- "Learned counsel for the petitioners submits that the office of the Registrar , Trade Union has now been vacant since past two years. This bespeaks of a sorry state of affairs at the end of the respondents. Public offices of importance ought not to keep vacant and the responsibilities of such offices cann ot exercised by adhocism. The
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Secretary , Ministry of Human Resource Development/respondent No. 2 is directed to explain, by the next date of hearing, as to why an appointment in terms of Section 4 ibid has not been made as yet . Learned Assistant Attorney-General shall communicate this order to respondent No.2 for compliance. If at all any process has been initiated for appointme nt in terms of Section 4 (ibid), the same shall also be intimated, on the next date of hearing. Re-list on 27.04.2017 " (Emphasis added) 14. Since no plausible explanation for not appointing the R.T.U. in accordance with Section 4 of the I.R.A. was given, this Court, vide order dated 27.04.2017, directed the Ministry of O. P. &H.R. D. to depute a responsible officer to attend the Court on 09.05.2017 and explain as to why the R.T.U. has not been appointed. On 09.05.2017, this Court passed the following order:- "Mr. Mukhtar , Senior .Assistant Chief (Legal), has tendered appearance on behalf of respondent No.2, and submitted that as a stopgap measure, the Registrar , Trade Union, has been appointed on current charge basis . This is the second phase of three months for which, the Registrar , Trade Union has been appointed on current charge basis. This sort of adhocism shalt not be tolerated. The Registrar of Trade Union, has to be appointed strictly in accordance with the provisions of the Statute . Mr. Mukhtar , Senior Assistant Chief (Legal), further submitted that the post of the Registrar , Trade Union, is to be filled through promotion; and that the next meeting of the Central Selection Board, is scheduled to be held in the month of June this year, in which, the matter regarding the promotion to the post of the Registrar , Trade Union, will be considered/decided . This matter needs to be considered/decided. This matter needs to be resolved expeditiously . Therefore, this case is being adjourned to next Friday i.e. 19.05.2017 ." (Emphasis added) 15. On 15.05.2017, a meeting was held under the chairmanship of the Secretary , Ministry of O.P.&H.R.D. and was attended by (i) the Chairman, N.I.R.C., (ii) Senior Joint Secretary , Ministry of Law and Justice, (iii) Senior Joint Secretary , Ministry of O.P.&H.R.D., and (iv) Deputy Secretary (Regulation), Establishment Division. The purpose of this meeting was to discuss the issue of the appointment of the R.T.U. The minutes of this meeting show that the Senior Joint Secretary; Ministry of 0.P.&H.R.D., informed the participants inter alia that for the appointment of the R.T.U. and Joint Registrar , rules had been framed under the Civil Servants Act, 1973 and for the appointment of Chairman and Members of N.I.R.C., rules have to be framed under the I.R.A. The Senior Joint Secretary , Ministry of Law and Justice, had objected to the mode of appointment of the R.T.U. under the A.P.T. Rules. He had suggested that rules governing the appoi ntment of the R.T.U. and the Joint Registrar should be framed under the I.R.A. and not under the A.P.T. Rules. He had also suggested that a Joint Registrar appointed pursuant to the rules framed under the I.R.A. should also be made eligible for promotion to the post of the R.T.U. His view was that the Registrar of N.I.R.C. appointed under the A.P.T. Rules could not be promoted against the statutory post of the R.T.U. The views of the Senior Joint Secre tary, Ministry of Law and Justice were endorsed by the Deputy Secretary (Regulation), Establishment Division, who was also of the view that rules for the appointment to the posts of the R.T.U. and the Joint Registrar should be separately framed. The' Chairman, N.I.R.C. had pointed out that Section 86 of the I.R.A. was the relevant provision for the making of rules for carrying out the purposes of the said Act. The decisions taken in the said meeting are reproduced herein below:- "i. Due to discrepancy in appointment/promotion Rules of Registrar Trade Unions, the promotion process may be withheld and Rules for appointment of Registrar Trade Unions and Joint Registrar should be framed under the Industrial Relations Act, 2012. ii. Similarly promotion of Registrar NIRC to the post of statutory post of Member , NIRC may also be reviewed as Registrar NIRC is appointed under Civil Servants (APT) Rules, 1973, while Member , NIRC is appointed under Industrial Relations Act, 2012. iii. Chairman, NIRC will initiate a case for extension of additional charge of Mr. Ghulam Nabi Deeshak for the post of Registrar Trade Unions for further three months or till 'appointment of permanent Registrar Trade Unions whichever is earlier .
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iv. Fresh recruitment rules under Section 86 of Industrial Relations Act, 2012 for appointment of Registrar Trade Unions and Joint Registrar will be framed as well as appropriate amendments in Chairman and Members (Qualification) Rules, 2016 will be made to remove the discrepancy of putting Civil Servant as feeding post for promotion to the post of Member , NIRC." 16. The minutes of the said meeting dated 15.05.2017 were brought to the notice of this Court on 19.05.2017, whereon the following order was passed:- "Through the instant writ petition, the petitioners, All Pakistan ZTBL Workers Union (CBA) and others, primarily seek the appointment of a suitable person against the post of the Registrar of Trade Union strictly in accordance with Section of the Industrial Relations Act, 2012 ("the 2012 Act") which is reproduced herein below:- "4. Registrar of trade unions.- For the purpose of this Act, the Government shall, by notification in the official Gazette, appoint the Registrar of T rade Unions who shall be assisted by one or more Joint Registrars." 2. Furthermore, no regular appointment against the said post has been made. It is a matter of concern to this Court, that the Federal Government has not paid due regard to the mandate of law i.e. Section 4 ibid, and has not made the regular appointment against the said post. From time to time Members of the National Industrial Relations Commission ("N.I.R.C.") have been appointed on current charge basis. The Registrar of Trade Union primarily discharges executive responsibil ities under the provisions of the 2012 Act, and to appoint a Member of the N.I.R.C. on ad-hoc/current charge basis as Registrar of Trade Union is a stark violation of the doctrine of separation of powers as enshrined in Article 175 of the Constitution of the Islamic Republic of Pakistan. 3. This Court vide orders dated 18.04.2017, 27.04.2017 and 09.05.2017, had required the respondents to expeditiously make an appointment against the said post in discharge of their statutory obligations. 4. Today , learned Additional Attorney-General, has brought on record minutes of the meeting dated 15.05.2017, attended by the following persons:- i. Mian Shakerullah Jan, Chairman, NIRC. ii. Mr . Haider Ali Sheikh, Senior Joint Secretary , Ministry of Law and Justice. iii. Mr . Noor Zaman, Senior Joint Secretary , Ministry of OP and HRD. iv. Mr. Zulfiqar Shah, Deputy Secretary (Regulation), Establishment Division. 5. It appears that a decision has been made to make Rules regulating the appoint ment process of the Registrar of Trade Union. The position is that until and unless these Rules are made (for which no period has been indicated), the appointment of the Registrar Trade Union on ad-hocism shall continue. This position cannot be tolerated by a Court of constitutional jurisdiction. Statutory provision i.e. Section 04 of the 2012 Act, does not pre-condition the appointment of the Registrar of Trade Union on the framing of the Rules which is left at the mercy of the executive, however , giving a benefit of the doubt to the respondents, let the appointment process against the post of the Registrar of Trade Union, be immediately initiated and the same be completed within a period of two months, failing which this Court will be left with' no other option but to restrain the incumbent working on the current charge basis to act as the Registrar of T rade Union. 6. Office is directed to communicate this order directly to the Secretary , Establishment Division, Islamabad as well as the other respondent for compliance. 7. The respondents shall intimate compliance through the Additional Attorney-General to his Court, on the next date of hearing. Re-list on 31.07.2017 ." 17. On 12.07.2017, another meeting was held under the chairmanship of the Secretary , Ministry of 0.P.&H.R.D. and attended by (i) the Chairman, N.I.R.C., (ii) Legislative Advisor , Ministry of Law and Justice, and (iii) Senior Joint Secretary , Ministry of O.P.&H.R.D. to inter alia discuss the different judgments of the Islamabad High Court regarding the appointment of R.T.U., and the discrepancies in the appointment/pro motion rules for the R.T.U. The minutes of this meeting show that the view of the. Ministry of 0.P.&H.R.D. was that the appointment rules for the post of R.T.U. had to be framed under the I.R.A. instead of the A.P.T. Rules. These minutes also show that an impression was projected as to a conflict in the judgment dated 21.03.2017 rendered by another Bench of this
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Court in Writ Petition No.101/2017 and the interim order passed in this Writ Petition (i.e. W.P.No.2454/2016) directing the respondents to appoint the R.T .U. In the said meeting, the following decisions were taken:- "(i) Draft Rules for the posts of RTU and Joint RTU and amendments in the Chairman and Members (Qualification) Rules, 2016 will be prepared by this Ministry in consultation with NIRC within 10 days. (ii) The Ministry in consultation with Chairman, NIRC will prepare statement for Hon'ble Islamabad High Court, Islamabad illustrating position regarding provisions of IRA, 2012 in respect of appointment of Registrar Trade Unions along with the Judgment of Hon'ble Mr. Justice Ather Minallah, to be submitted in the Islamabad High Court, Islamabad before 31.07.2017. The Chairman, NIRC has also stated that recently Hon'ble Islamabad High Court, Islamabad has delivered a Judgm ent pertaining to the judicial allowance of the employees of NIRC and if anything relevant to the point involved found, may be considered while framing rules for the post of RTU and Joint RTUs. (iii) The rules pertaining to the qualification of the civil servants regarding their appointment as Member , NIRC shall also be appropriately amended i.e., the serving or retired civil servant in BS-20 or above, having law degree with at least two years-experience in legal matters shall be eligible for appointment as a Member , NIRC." 18. As an excuse for not initiating the process for the appointment of an R.T.U., the Ministry of O.P.&H.R.D. took refuge behind the decisions taken in the said meeting dated 12.07.2017. The minutes of the said meeting were produced before this Court on 31.07.2017. 19. On 14.09.2017, the Deputy Chief (Legal), Ministry of O.P.&H.R.D. appeared before this Court and brought on record office memorandum ("O.M.") dated 05.09.2017 issued by the Ministry of O.P.&H.R.D., according to which the additional charge of the post of R.T.U. had been given to an existing member of N.I.R.C. for a period of ninety days as a stop-gap arrangement. 20. On 18.02.2019, the Joint Secretary , Ministry of Law and Justice tendered appearance and submitted that the responsibility for making the appointment of the R.T.U. under Section 4 of the I.R.A. is that of the Ministry of O.P.&H.R.D. and not that of the Ministry of Law and Justice. He had referred to Entry No.67 in Schedule III to the Rules of Business, according to which, N.I.R.C. is an attached department of the Ministry of O.P .&H.R.D. 21. On 05.03.2019, Ms. Atifa Raffat, Joint Secretary , Ministry of O.P.&H.R.D., who had been mandated to "look after the post of" R.T.U., tendered appearance and submitted that the Ministry of O.P.&H.R.D. had, vide letter dated 04.03.2019, asked the F .P.S.C. to initiate the process for the appointment to the post of the R.T .U. on priority basis. 22. It would be tedious to detail the events on every date of hearing over the past four years but suffice it to say that till date an R.T .U. has not been appointed on a regular basis in terms of Section 4 of the I.R.A. 23. Now, as mentioned above, the Ministry of O.P.&H.R.D. had, vide notification dated 01.12.2016, prescribed the method, qualifications and other conditions for appointment to the post of the R.T.U. But for the objection by the Senior Joint Secretary , Ministry of Law and Justice, in the meeting dated 15.05.2017, to the mode of appointment…
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