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Petitioner: AGRICULTURE WORKERS' UNION, BALOCHISTAN VS Respondent: THE REGISTRAR OF TRADE JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Saeeduzzaman Siddiqui, Ajmal Mian, Zia Mahmood Mirza Title:AGRICULTURE WORKERS' UNION, BALOCHISTAN vs THE REGISTRAR OF TRADE
JUDGMENT
Reported As: 1997 SCMR 66 Result: Appeal accepted Judgment JUDGMENT SAIDUZZAMAN SIDDIQUI, J.---The abovementioned to appeals with the leave of this Court are filed by the Agricultural Workers' Union, Quetta, and Quetta Municipal Corporation Employees' Union, Quetta, to call in question the judgments of to different Division Benches of High Court of Baluchistan dated 31-8-1994 and 10-10-1994 respectively. The leave granting order in both the appeals is common. However, after hearing the learned counsel for the parties, we are of the view that it will be appropriate to dispose of these appeals separately. Leave has been granted in the above appeals to consider the following legal proposition:-- "The learned Judges of Division Bench while allowing the writ petition filed by respondent No. l relied on an unreported decision of this Court passed in Civil Petition No.66-Q of 1992 and others, wherein it was held that the Vetenary Assistants, Stock Assistants and Technical Staff of Livestock Department could not be said to be persons engaged in the running of an industry and as such they were not entitled to get themselves registered as a Trade Union of workers. The learned counsel for the petitioner has relied on a subsequent decision of this Court by a larger Bench dated 29-6-1994 (C. As. 48-Q to 67-Q/93) wherein after taking into consideration the definition of 'workman' given in the I.R:O, it was held that the persons connected with the construction or maintenance work of buildings, employed in P.W.D., cannot be treated as persons employed in the administration of the State and therefore, such persons are entitled to form a Trade Union under
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I.R.O. The learned counsel, accordingly, contended that although in the judgment delivered in C.P. No.66-Q of 1992 and others, this Court held that the employees of the Department of Agriculture do not fall within the definition of 'employees of an industry' but the definition of 'workman' as given in the I.R.O., which has an important bearing on the matter was not considered. It is also contended by the learned counsel that in view of the subsequent decision of this Court in the case of Executive Engineer, P.W.D v. Abdul Aziz and others (C.A. 48-Q and others of 1993) decided, by a larger Bench of this Court the petitioners were entitled to get themselves registered as a Trade Union under I.R.O. The contentions of the learned counsel need further examination and we, accordingly, grant leave to appeal in the above case." Civil Appeal No. 889 of 1994 This appeal arises out of the judgment of a learned Division Bench of High Court of Baluchistan dated 31-8-1994, whereby C.P. No.156/94, filed by respondent No. 1 to call in question the order of respondent No.2 dated 24-5-1994, was allowed and the order of respondent No. l declining to register the appellants as a trade union of workers under the provisions of Industrial Relations Ordinance, 1979 (hereinafter to be called as the 'Ordinance' only), was upheld. The background of controversy in this appeal may be stated as follows: Persons employed as Beldars, Palaydars, Malis, tractor cleaners, vehicle drivers, storekeepers, budders, crop reperters, tractor drivers etc. Formed a trade union of workers under the name and style of appellants and got it registered under the Ordinance on 3rd of June, 1984. Government of Baluchistan feeling aggrieved by the registration of appellants as a trade union, filed C.P. No.90/92, challenging the registration of appellants as a trade union under the Ordinance. A learned Division Bench of High Court of Baluchistan relying on an earlier pronouncement of that Court in C.P. No.60/1985, allowed C.P. No.90/1992 filed by the Government of Baluchistan and held that respondent No. l while accepting the application of appellants for registration as a trade union neither applied its mind on the question whether the members of the appellants' union fell within the category of worker or workmen as defined in the Factories Act, 1934 or the Workmen's Compensation Act, 1923 nor it issued notices to the concerned Government Department before granting registration to the appellants as a trade union under the Ordinance. However, while allowing C.P. No.90/1992 and declaring the registration of appellants' union under the Ordinance as without lawful authority and of no legal effect for the above-stated reasons, the learned Judges made the following further observations in that case:-- "However, it may be observed that those employees of the said Government Departments, who consider themselves to fall within the category of worker/workman as defined in the Factories Act, 1934 and Workmen's Compensation Act, 1923 may apply afresh before appropriate forums who shall before passing any order on the same determine whether they in fact fall within the category of worker/workman as defined in the Factories Act, 1934 or Workmen's Compensation. Act, 1923 and then alone shall be competent to pass orders in accordance with law. In that even it would be necessary to issue notice to the Government/employer in order to furnish details of the nature of work or to place other necessary and relevant information regarding the duties being performed or salaries being drawn by such employees. " 2. The appellants challenged the above decision of Baluchistan High Court before this Court in C.P.L.A. No.67-Q of 1992 which was heard alongwith C.P.L.A. No.66-Q of 1992 and 74-Q of 1992 filed by Livestock Employees' Union and Forest Employees and Workers' Union respectively, but leave to appeal was refused in all the abovementioned three petitions by a common order dated 7-10-1992. After disposal of the leave petitions by this Court, the appellants approached respondent No.1 for granting them registration as a trade union of workers under the Ordinance in the light of the observations made by the High Court of Baluchistan in C. P. No.90/1992. Respondent No. l by order dated 21-7-1993 declined to register the appellants as a Trade Union on the ground that the
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observations made by the High Court of Baluchistan in its judgment dated 14-7-1992, while disposing of C.P. No.90/1992 stood superseded by the decision of this Court dated 7-10-1992 in C.P. No.66-Q of 1992, 67-Q of 1992 and 74-Q of 1992. The appellants challenged the decision of respondent No. l before respondent No.2 in an appeal which was allowed and case was remanded to respondent No. l for decision afresh in the light of the observations of High Court in C.P. No.90/1992 dated 14-7-1992. Respondent No. l challenged the decision of respondent No.2 dated 24-5-1994 in Constitution Petition No.156/1996 before the High Court of Baluchistan which was accepted and decisions of respondent No. I declining registration of appellants as a Trade Union of Workers under the Ordinance was upheld by the impugned judgment which gave rise to the present appeal. 3. In support of the above appeal, Mr. M.L. Shahani, the learned counsel for the appellants contended that whether the nature of duties performed by the members of the appellants' Union fell within the scope of definition of 'worker' or 'workman' as defined in the Ordinance was a question of fact which the respondent No. l was bound to decide in the light of the observations of the High Court in C.P. No.90/1992. In reply to the query raised by the Court whether the provisions of the Ordinance applied to the employees of Agricultural Department in view of the provisions of section 1(3) (b) of the Ordinance, the learned counsel very vehemently argued that persons performing manuat work like Beldar, Palaydars, Malls, tractor cleaners, vehicles drivers, storekeepers, tractor drivers, fitters, mechanics, film van drivers-cum-operators, crop reporters etc. Cannot be treated as persons performing functions in connection with the administration of State and as such they were entitled to form a trade union and get the same registered under the provisions of the Ordinance. It is contended by the learned counsel, that only those employees in the Government Department, who are performing duties which have some connection or nexus with the sovereign functions of the State, would fall within the mischief of expression "employed in the administration of the State". To support his contention that only persons connected with the performance of sovereign functions of the State, will be covered by the expression 'persons employed in the administration of State', the learned counsel relied on the following decision:-- (i) General Secretary, Provincial Buildings Employees' Union, Hyderabad v. Executive Engineer, Provincial Buildings Division and another (1972 PLC 275); (ii) Employees' Old-Age Benefits Institution v. N.I.R.C. (1988 SCMR 765); (i.e) Project Director, Karkhana Alaat-e-Zari, Bahawalpur v. Presiding Officer, Punjab Labour Court and 2 others (PLD 1989 SC 152); (iv) Controller, Stationery and Forms, Government of Pakistan v. Registrar, Trade Unions, Sind and others (PLD 1991 SC 353) and Faqir Muhammad v. Director of National Savings, Multan Region, Multan (PLD 1992 SC 127). 4. The learned counsel for the respondents on the other hand contended that the question, whether the members of the appellants' Union were employed in the administration of State need not be decided in the present proceedings as neither in the 1st round of litigation which ended with the order of this Court dated 7-10-1992 nor in the 2nd round of litigation which culminated in the present appeal, this controversy was raised or decided by any forum. The learned counsel, however, contended that in view of the decision of this Court dated 7-10-1992 disposing of the leave petition of appellants, against the judgment of High Court of Baluchistan dated 14-7-1992 in C.P. No.90/1992, the appellants were precluded from raising the contention that they were entitled to seek registration as a Trade Union of Workers under the provisions of the Ordinance. The learned counsel specifically relied on the following observations of this Court in C.P.L.A. No.67-Q/1992:-- "21. In the instant case, the primary object of the departments is to implore all avenues for the advancement of a 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 Forest Department is to protect
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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. Whatever little business is done 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. " The contention of learned counsel for the respondent that the question that the members of the appellants were engaged in the administration of State was not raised in the earlier round of litigation, therefore, it need not be decided now, does not appear to be correct. This contention was specifically raised before the High Court in C.P. No.90/1992 filed by Government of Baluchistan against the appellants and respondent No.1 but it was not accepted for the following reasons:-- "12. Counsel for the petitioners mainly urged that the members of respondent unions are performing their duties in the Administration of State hence provisions of I.R.O. Do not apply to them in view of section 1(3) (b) of the I.R.O. On the other hand relying on the case of Faqir Muhammad v. Director of National Savings, Multan Region, (PLD 1992 SC 127) learned counsel for the unions contended that the majority view of the Supreme Court on the subject is that the expression 'Administration of State' should be interpreted in--limited and narrow sense of the practical management and direction of the executive machinery or the operation of the various organs of the sovereign or conducting or carrying on the details of the Government. It, however, should not be extended to cover those employees of the State who are workers and perform duties which should not be covered by expression 'Administration of State' like Malis, Chowkidars, Budders, Beldars, Tubewell Machanics, Drivers etc. 13. We have thoroughly gone through the said judgment. There was difference of opinion regarding interpretation of "Administration of State". However, the Referee Judge of the Hon'ble Supreme Court on page 143 of the said judgment concluded as under:- Following the test laid down in this judgment I am inclined to agree with my learned brother that the appellant, being a Chowkidar in a directorate concerned with mobilizing savings in the country, can hardly be described as a person employed in the administration of State'. It is worth to mention here that this proposition had already come before the Supreme Court in the case of Employees' Old-Age Benefit Institution v. N.I.R.C. (1988 SCMR 765) where following conclusion was drawn:-- The expression 'administration of the State' is to be interpreted in a limited and narrow sense of the practical management and direction of the executive machinery or the operation of the various organs of the sovereign or the conducting or carrying on the details of the Government.' 14. Likewise in Constitutional Petition No. 192 of 1991 a Division Bench of this Court while following the -aforesaid ratio decidendi dismissed a petition wherein it was contended that the petitioner factory had been set up as subsidiary of Shaheen Foundation Pakistan Air Force and beneficiaries there from are persons connected with or incidental to Pakistan Air Force. It was argued that by virtue of section 1(3)(b) of I.R.O. Petitioner-factory was exempted from the application of I.R.O. 15. In view of the aforesaid authorities we see no reason to place a different and separate interpretation to the term "administration of State'." Neither Government of Baluchistan nor respondent No. 1, herein, challenged the above findings of High Court in CP 90/1992, any further and therefore, as against them these findings acquired finality. '1 `he other ground on which the Government of Baluchistan, which was petitioner in C.P. No.90/1992, assailed the registration of appellants as a Trade Union under the Ordinance was, that members of appellants being Government servants, they could not form a Trade Union. This
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contention to was repelled by the learned High Court in view of the definition of 'civil servant' given in section 2(b) of the Civil Servants Act, 1973. It is not disputed before us that the learned Judges of the Division Bench of the High Court of Baluchistan, while disposing of C.P. No. 90/1992, left it open for the appellants to apply afresh for registration as a Trade Union of Workers under the Ordinance if its members, though in the employment of Government, were covered by the definition of 'worker' or 'workman' as given in the Factories Act, 1934 and Workmen's Compensation Act, 1923. No doubt this Court rejected the petition for leave to appeal filed by the appellants against the judgment of High Court of Baluchistan in C.P. 90/1992 but the observations referred to above were neither set aside nor interfered with by this Court while declining leave to appeal. 5. In view of the preceding discussion, we are of the opinion that respondent No.1 was not justified in declining to entertain the request of appellants for registration as a Trade Union on account of the order of this Court dated 7-10-1992 declining leave to appeal against the order of High Court dated 14-7-1992 on the petition of the appellants. As pointed out by us earlier, the observation of the learned High Court of Baluchistan in C.P. 90/1992 which left open to the appellants to approach afresh to respondent No.1 for their registration as a Trade Union under the Ordinance if they could satisfy respondent No.1 that their members though employed in a Government department, fell within the category of worker/workman as defined in the Factories Act, 1934 and Workmen's Compensation Act, 1923, was neither interfered with not set aside and therefore, the respondent No.1 ought to have held enquiry in the light of observations of the High Court to determine whether, the appellants qualified for registration as a Trade Union or not. 6. We, accordingly, allow the appeal, set aside the impugned order of the High Court and remand the case to respondent No. l for disposal in accordance with the law. In the circumstances of the case, we will make no order as to costs. CA 532/1995 7. This appeal was arisen from the judgment of a learned Division Bench of Baluchistan High Court dated 10-10-1994, passed in Constitution Petition No. 191/1994 ' and 192/1994, filed by respondents Nos. l and 2 herein respectively. Facts relevant for disposal of this appeal are as follows. 8. Appellants were registered as a Trade Union of Workers on 4-7-1983. They were also declared collective bargaining agent in respect of the establishment of respondent No. 1. It appears that respondent No. 3 in January, 1994 applied to respondent No.2 for its registration a Trade Union of Workers of respondent No.1. This application was declined by respondent No.2, whereupon respondent No.3 approached respondent No.4 through an appeal. Respondent No. 4 accepted the appeal of respondent No.3 by order dated 24-5-1994 and remanded the case to respondent No.2 for a fresh decision on the application of respondent No.3 in accordance with the law. This order of respondent No.4 led to the filing of to Constitutional Petitions in the High Court of Baluchistan, one by respondent No. l (C. P. 191/94) and the other by respondent No.2 (C.P. 192/1994). In Constitution petition filed by respondent No. 1, (C. P. 191/1994) not only the order of respondent No. 2 dated 24-5- 1994 remanding the case of respondent No.3 to respondent No.2 for a fresh decision in accordance with the law but the registration of appellants as a Trade Union of Workers in 1983 was also challenged. Respondent No.2 in its Constitution Petition (C.P. 192/1994), however, only challenged the order of respondent No.4 dated 24-5-1994. A learned Division Bench of Baluchistan High Court by judgment dated 10-10-1994, accepted both the Constitution Petitions and declared the order of respondent No.4 dated 24-5-1994 as without lawful authority and of no legal effect and also quashed the registration of appellants as Trade Union of Workers under the provisions of I.R.O. Which led to the filing of above appeal. 9. In support of the appeal they teamed counsel for the appellants contended that the registration of appellants as a Trade Union of Workers was wrongly declared by the High Court as illegal as the employees of Quetta Municipal Corporation who were members of the appellants' Union, were
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covered by the definition of 'worker' or 'workman' given in the I. R.O. The learned counsel for the respondent on the other hand supported the judgment of High Court. 10. I may mention here that the appellants have questioned the impugned judgment in the above appeal only to the extent it declared the registration of appellants as a Trade Union of Workers under I.R.O. As without lawful authority and of no legal' effect. The impugned judgment of High Court is so far it set aside the order of respondent No.4 dated 24-5-1994 passed on the appeal of respondent No.3, has not been challenged before us by respondent No.3. I will, therefore, confine my consideration in this appeal only to the question whether the learned Judges of the High Court were justified in declaring the registration of appellants as a Trade Union of Workers under the provisions of I.R.O. Without lawful authority and of no legal effect. 11. The learned Judges of the High Court, though came to the conclusion that the employees of respondent No. l were not engaged in the administration of State and, therefore, it could not be argued that provisions of I.R.O. Did not apply to them, but held that they were not entitled to form a Trade Union of Workers under the provision of the I.R.O. As they were neither 'worker' nor workman', and respondent No. l was not a 'establishment' or an 'industry', as defined in the I.R.O. The learned Judges in support of their conclusion referred to the following cases:-- (i) K.G. Old, Principal, Chiristian Technical Training Centre v. Presiding Officer, Punjab Labour Court (PLD 1976 Lahore 1097). (ii) A.F. Ferguson v. The Sind Labour Court (PLD 1985 SC 429). (i.e) Employees' Union, Jamia Karachi v. Registrar of Trade Unions, Sind 1981 PLC 403). (iv) Government of Baluchistan v. Livestock Employees' Union, Baluchistan (1993 PLC 13). 12. The learned Judges did not agree with the dictum laid down in the case of Management of Municipal Committee, Mianwali v. The General Secretary, Municipal Muharris, Union and another (PLD 1968 Lahore 395) cited by the appellants, in view of the law laid down by this Court in the case of A.F. Farguson (supra). The learned Judges also distinguished the case of Liaquat National Hospital v. Government of Sind (PLD 1977 Karachi 843), Sind Road Transport Corporation v. Staff Union (1975 PLC 361), Punjab Small Industries Corporation v. Punjab Labour Appellate Tribunal, Lahore (1988 SCMR 1725) and Employees' Old-Age Benefits Institution v. National Industrial Relations Commission (1988 SCMR 765). 13. Section 3(72) of Baluchistan Local Government Ordinance (lI of 1980) defines 'worker' for the purpose of that Ordinance as follows:-- "(72) 'Worker'-- (a) means any person not falling within the definition of employer, who is employed (including employment as a supervisor or as an 'apprentice), in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be expressed or implied, and for the purpose of any proceeding under the Industrial Relations Ordinance, 1969 in relation to an industrial dispute, includes a person who has been dismissed, discharged, retrenched, laid of or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay of or removal has led to that dispute but does not include any person-- (i) who is employed in a managerial or administrative capacity; or (ii) who, being employed in a supervisory capacity draws wages exceeding eight hundred rupees per mensem or performs either because of the nature of duties attached to the office, or by reason of the powers vested in him, functions mainly of managerial nature; (b) and includes self-employed craftsman like blacksmiths, carpenters, tailors and shoe-makers;" 14. Sub-clause (a)(i) and (ii) of the above definition of worker in Ordinance II of 1980 is a verbatim reproduction of the definition of 'worker' and 'workman' given in the I.R.O. And sub-clause (b) ibid has further added self-employed craftsman like blacksmiths, carpenters, tailors and shoe-makers
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in the category of workers contemplated under Ordinance II of 1980. Therefore, it is not correct to contend that all the employees of Quetta Municipal Committee were outside the purview of the definition of 'workers' as given in the I.R.O. The fact that in the Ordinance II of 1980, the definition of worker was the same as given in the I.R.O. Goes to show that certain categories of employees of Local Government constituted under Ordinance II of 1980 belonged to the category of workers as defined in the I.R.O. 15. The learned Judges of the High Court declared the registration of appellants as a Trade Union of Workers under the provisions of I.R.O. Without lawful authority and of no legal effect mainly on the consideration that Quetta Municipal Corporation was not an industry as defined in the I. R.O. And therefore, its employees (members of appellants) were not covered by the definition of 'worker' or 'workman' given in the I.R.O. The learned Judges in support of their conclusion relied on the case of K.G. Old v Presiding Officer, Punjab Labour Court, decided by a learned Single Judge of Lahore High Court which was quoted with approval by a learned Division Bench of Sind High Court in the case of Employees' Union of Jamia Karachi. According to learned Judges of High Court of Baluchistan, both the above-noted cases were approved by this Court in the case of A.F. Ferguson v. The Sind Labour Court. 16. I will…
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