Pakistan Wapda Worders Pasban Union VS Malik Falak Sher Farooqa

ORDER SHEET

IN THE ISLAMABAD HIGH No., ISLAMABAD

JUDICIAL DEPARTMENT

W.P. No.4179 of 2017 Pakistan WAPDA Workers Pasban Union Versus.

The Registrar Trade Unions, Government of Pakistan and another S. No. of order Date of order/ Order with signature of Judge and that of parties or counsel / proceedings Proceedings where necessary. 13.12.2017 Mr. Tanveer Ahmed Ghumman, Advocate for the petitioner.

Chaudhary Muhammad Khalid Farooq, Advocate for the respondents.

Through the instant writ petition, the petitioner, Pakistan Wapda Workers Pasban Union, impugns (i) judgment dated 07.11.2017, passed by the learned Member, National Industrial Relations Commission (respondent No.1), and (ii) order dated 15.11.2017, passed by the Registrar Trade Unions (respondent No.2), Islamabad.

2.Learned counsel for the petitioner submitted that a referendum was held on 29.05.2013, in which the petitioner did not participate; that the reason why the petitioner boycotted the referendum was because a referendum could only be held in W.A.P.D.A. and not in the corporatized distribution companies; that since the petitioner did not participate in the referendum, respondent No.2 vide order dated 03.06.2013, cancelled the petitioner union’s registration in exercise of its powers conferred under Section 11(1)(d) of the Industrial Relation Act, 2012 (“I.R.A.”) that vide order dated 28.10.2013, the petitioner’s appeal against the said order was partially accepted by respondent No.1 with the direction to respondent No.2 to move for permission for cancellation of the

petitioner union; that vide order dated 07.11.2017, respondent No.1 granted permission to respondent No.2 to cancel the petitioner union’s registration; and that in compliance with the said order dated 07.11.2017, respondent No.2, vide order dated 15.11.2017, cancelled the petitioner union’s registration,

3.Learned counsel for the petitioner further submitted that the impugned orders are fully unlawful, because the application for the cancellation of the petitioner union’s registration had not been addressed to respondent No.1; that the permission granted by respondent No.1 to respondent No.2 for the cancellation of the petitioner union’s registration was beyond the prayer in respondent No.3’s application No.20(10)/2014; that at no material stage, was any application/reference filed by respondent No.2 before respondent No.1 for the cancellation of the petitioner union’s registration; that respondents No.1 and 2 did not consider the legal points agitated by the petitioner; and that respondents No.1 and 2 did not consider that the petitioner union’s registration could not be cancelled, because no unfair labour practice had been committed within three months prior to the submission of the application to respondent No.1 for the cancellation of the petitioner union’s registration. Learned counsel for the petitioner prayed for the impugned orders to be set aside.

4.I have heard the contentions of the learned counsel for the petitioner.

5.The record shows that on 15.01.2013, a certificate of registration was issued by the National Industrial Relations Commission (“N.I.R.C.”), Lahore, in favour of the petitioner under the provisions of the I.R.A.

6.Vide order dated 08.04.2013, passed by this Court in writ petition No.1478/2013, it was inter- alia directed that a referendum be held within a period of thirty days for the determination of Collective Bargaining Agent (“C.B.A.”) for the workmen employed in the establishments of WAPDA/Corporatized Companies. In compliance with the said order, the referendum was scheduled to be held on 29.05.2013. The Registrar of N.I.R.C. Islamabad, was appointed by the Registrar Trade Union (“R.T.U.”) for the proceedings of the referendum to be conducted under his supervision. Polling was conducted on the said date. All Pakistan WAPDA Hydro Electric Workers Union (respondent No.3) secured 77,059 votes, which were the highest, and more than 1/3rd of the total number of workmen employed in the establishments of the WAPDA/Corporatized Companies. Therefore, the said union was entitled to be certified as C.B.A. under Section 19(9)(e) of the I.R.A.

7.Since the petitioner’s union did not contest the referendum, the R.T.U., vide order dated 03.06.2013, cancelled the petitioner union’s registration under Section 11(1)(d) of the I.R.A. An appeal was preferred by the petitioner union against the said order before respondent No.1. Vide order dated 28.10.2013, the said appeal was partly allowed, and the said order dated 03.06.2013, only to the extent of the cancellation of the petitioner union’s registration was set aside. In the said order dated 28.10.2013, it was observed that respondent No.2 may move respondent No.1 seeking requisite permission for the cancellation of the petitioner union’s registration on account of it not contesting in the referendum proceedings.

8.Subsequently, respondent No.3 filed an application before respondent No.2 seeking the cancellation of the petitioner union’s registration under Section 11(2) of the I.R.A. As per the Registrar N.I.R.C’s report dated 12.01.2015, since respondent No.1 had decided the matter vide order dated 28.10.2013, and the same has attained finality, respondent No.3’s said application is not maintainable.

9.It appears that respondent No.2 had sent a reference to respondent No.1 seeking permission for the cancellation of the petitioner union’s registration. This appears to have been done in compliance with the order dated 28.10.2013, passed by respondent No.1, wherein it was observed that respondent No.2 may move respondent No.1 seeking requisite permission for the cancellation of the petitioner union’s registration due to non-participation in the referendum proceedings.

10.Vide order dated 07.11.2017, respondent No.1 granted permission to respondent No.2 to cancel the petitioner union’s registration. This is because the petitioner union had admittedly not contested the referendum proceedings which had been held on 29.05.2013. Thereafter, respondent No.2, vide order dated 15.11.2017, cancelled the petitioner union’s registration.

11.It is an admitted position that respondent No.1’s order dated 28.10.2013, wherein it was observed that respondent No.2 may move to respondent No.1 seeking requisite permission for the cancellation of the petitioner union’s registration had not been assailed by the petitioner union, therefore, the said order dated 28.10.2013, had attained finality. As per the order dated 28.10.2013, respondent No.2 had sent a

reference to respondent No.1 seeking the cancellation of the petitioner union’s registration.

12.Section 11(1)(d) of the I.R.A. inter-alia provides that the registration of a trade union may be cancelled by the Registrar, if the trade union has obtained less than ten percent of total votes polled in an election for the determination of a C.B.A., or is not a contestant in such an election. It is an admitted position that the petitioner union did not contest the election/referendum held on 29.05.2013. Section 11(2) of the I.R.A. provides that where the Registrar is of the opinion that the registration of a trade union should be cancelled, he shall submit an application to the Commission/N.I.R.C. praying for permission to cancel such registration. It is clearly mentioned in the order dated 07.11.2017 that respondent No.1/Registrar Trade Unions, had sent a request/reference to respondent No.1 seeking permission for cancellation of the petitioner union’s registration on account of it not contesting in the election/referendum proceedings. Section 11(3) of the I.R.A. provides that the Registrar shall cancel the registration of a trade union within seven days from the date of the receipt of permission from the Commission. Vide order dated 07.11.2017, respondent No.1 had granted permission to respondent No.2 to cancel the petitioner union’s registration.

13.Now, Section 11(4) of the IRA, 2012 reads as follows:

“(4) The registration of a trade union shall not be cancelled on the ground mentioned in clause (d) of sub-section (1) if the unfair labour practice is not committed within three months prior to the date of submission of the application to the Commission.”

14.Learned counsel for the petitioner has emphasized that while passing the impugned orders dated 07.11.2017 and 15.11.2017 against the petitioner, respondents No.1 and 2 did not adhere to the requirements of Section 11 Sub- Section 4 of the I.R.A. The petitioner is at liberty to agitate this point before an appellate forum.

15.Section 12 of the I.R.A. provides for a remedy of an appeal against an order, decision, and proceedings conducted by the Registrar within thirty days before the Commission. Such an appeal can be preferred by a trade union, its members or an officer.

16.Even though the order dated 15.11.2017, was passed by respondent No.2 after the requisite permission was granted by respondent No.1, it is nonetheless an appealable order under Section 12 of the I.R.A. It is well settled that a writ petition is not maintainable in the presence of the remedy of an appeal provided by statute. Reference in this regard may be made to the cases of Abdul Rehman Mayat Vs. Wealth Tax Officer (1988 SCMR 1722), Qamar Ahmad Vs. Anjum Zafar (1994 SCMR 65), Muhammad Ramzan Vs. Union Council, Bajnial (1994 SCMR 1484), Mst. Kaniz Fatima through legal heirs Vs. Muhammad Salim (2001 SCMR 1493).

17.In the case of Aslam Trader Vs. Asghar Ali Tahir (2000 SCMR 65), a writ petition was held not to be maintainable in the presence of the remedy of an appeal. However, the petitioner was permitted to file an appeal before a proper forum within a certain time frame during which time it was ordered that no coercive measures would be taken against the petitioners. Similar relief was granted by the Hon'ble Lahore High Court in the

case of Javed Iqbal Butt Vs. Tehsil Nazim/Tehsil Council, Daska (2003 CLC 1030).

18.In view of the above, the instant writ petition is dismissed in limine as not maintainable. The petitioner is at liberty to resort to a remedy of an appeal against the order dated 15.11.2017, passed by respondent No.2 in accordance with Section 12 of the I.R.A. In line with the judgments referred to hereinabove, the operation of the impugned order dated 15.11.2017 is suspended only until the petitioner files an appeal or for a period of three weeks from today (i.e. 13.12.2017), whichever is earlier.

(MIANGUL HASSAN AURANGZEB)

JUDGE

Sanaullah*

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