TIP Employees vs Federation

PESHAWAR HIGH COURT ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

JUDGMENT SHEET

FAL No.2-A of 2014

Date of hearing_____29.09.2014___________

Petitioner___TIP Employees____________

Respondents___ Federation _____________

WAQAR AHMAD SETH, J. TIP Employees & Workers Union appellants have filed this appeal under Sections 50 & 51 of the Khyber Pakhtunkhwa Industrial Relations Act, 2010 against order dated 24.04.2014 passed by Labour Court, Haripur.

2- Brief facts, as per contents of appeal, are that TIP employees and workers union is registered trade union of workmen employed in Telephone Industries of Pakistan, Haripur, duly registered with the Registrar of Trade Unions. It is averred in the appeal that all the temporary or so called contract workers became permanent workers by the operation of law but in utter violation of law of the land services of

appellant’s members (list attached with the petition) were not regularized. The appellants filed a petition under Section 46 of the KPK IRA, 2010 before the Labour Court, Haripur, who returned the same vide order dated 24.04.2014, hence, the instant appeal. Appellants alongwith the appeal moved CM No.79-A and 116-A of 2014 for grant of ad-interim relief and release of pay and allowances of the employees as per list attached with the petition.

3- Arguments heard and record perused.

4- The appellant, a registered CBA, has filed this appeal under Sections 50 & 51 of KPK Industrial Relations Act, 2010, against the order / judgment dated 24.04.2014 of the Presiding Officer, Labour Court, Haripur, whereby their petition filed under Section 46 of KPK Industrial Relations Act, 2010 for regularization of daily wages, contract and temporary employees has been returned for want of jurisdiction, in view of definition of trans-provincial status of the respondents establishment given in the Industrial Relations Act, 2012, without recording evidence, summarily.

5- In order to differentiate two laws i.e. KPK Industrial Relations Act, 2010 and Industrial Relations Act, 2012 with reference to the dispute in hand, the sections of both the said laws are important and are reproduced hereunder for ready reference:-

“KPK Industrial Relations Act, 2010 Preamble :- Whereas the Constitution of the Islamic Republic of Pakistan recognizes the freedom of association as a fundamental right of the citizens; and whereas it is expedient to formulate the law relating to the formation of trade unions, regulation of trade union activities, relations between employers and workmen and the avoidance and statement of any differences or disputes arising between them or ancillary matters;

Section 2 (iii) defines “collective bargaining agent” in relation to an establishment or group of establishments or industry, means the trade union of the workmen which under section 24 is the agent of workmen in the establishment or, as the case may be, industry, in the matter of collective bargaining;

Section 2(viii) “establishment” means any office, firm, factory, society, undertaking, company, shop, premises or enterprise in the Province, which employs workmen directly or through a contractor for the purpose of carrying on any business or industry and includes all its departments and branches, whether situated in the same place or in different places and except in section 25 of the Act includes a collective bargaining unit, if any, constituted in any establishment or group of establishment;

Section 2(xiv) ‘industrial dispute’ means any dispute or difference between employers and employees or between employers and workmen or between workmen and workmen which is connected with the employment or non- employment or the terms of employment or the conditions of work of any person, and is not in respect of the enforcement of such right guaranteed or accrued to him by or under any law other than this Act, or any award or settlement for the time being in force; and Section 2(xv) defines “industry” means any business, trade, manufacture, calling, service, private educational institution, private health center, employment or occupation of producing goods or services for sale excluding those set up for charitable purposes;

6- Whereas in the case of Industrial Relations Act, 2012 the preamble reads:-

“An act 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”. (underlining is mine to show emphasis) Sub-section (3) of Section 1 provides “ it shall apply to all persons in any establishment or industry, in the Islamabad Capital Territory or carrying on business in more than one province, but shall not apply to any person employed- (underlining is mine to show emphasis)

Section 2 (iv) reads “collective bargaining agent” in relation to an establishment or industry, means the trade union of the workmen which under section 19, is the agent of workmen in the establishment or, as the case may be, the subject of collective bargaining;

Section 2 (x) reads “establishment” means any office, firm, factory, society, undertaking, company, shop or enterprise, which employs workmen directly or through a contractor for the purpose of carrying on any business or industry and includes all its departments and branches in the Islamabad Capital Territory or falling in more than one province, whether situated in the same place or in different places and except in section 62 includes a collective bargaining unit, if any, constituted by any establishment or group of establishment;

Section 2 (xvii) reads “industry” includes any business, trade, calling, employment or occupation for production of goods or provisions of services in the Islamabad Capital Territory and falling in more than province, and excluding those set up exclusively for charitable purposes; Section 2 (xxxii) reads “trans-provincial” means any establishment, group of establishments, industry, having its branches in more than one province;

7- The preamble of Act No.X of 2012 reflects its applicability “in the Islamabad Capital Territory and in trans-

provincial establishments and industry” and in the definition of establishment provided in section 2(x) its applicability includes “all its departments and braches in the Islamabad Capital Territory or falling in more than one province”. In the definition of Industry section 2(xvii) the word ‘and’ has been used “in the Islamabad Capital Territory and falling in more than one province”.

8- This special legislation generally gives the impression that the same is applicable to the establishment and industry established within Islamabad Capital Territory having its branches / business office in other Provinces.

9- In the case of Pakistan Telecommunication Company Ltd Vs. Member NIRC and others reported as 2014 SCMR 535, it has been held as under:-

“Ss. 43, 54 & 2 (xxxii) – National Industrial Relations Commission (NIRC), jurisdiction of – Scope – Industrial dispute relating to a “trans- provincial employer” – Forum – Question as to whether a Provincial Labour Court or National Industrial Relations Commission (NIRC) would have jurisdiction in relation to such an industrial dispute – Status of employer or group of employers determined as to whether a Provincial Labour Court or National Industrial Commission (NIRC) would have jurisdiction, and not the nature of the dispute – Once it was established through any means that the employer or group of employers had an establishment, group of establishments,

industry, having its branches in more than one Provinces, then the jurisdiction of the NIRC would be exclusive in nature and of over-riding and super imposing effect over the Provincial Labour Court for resolving industrial dispute including unfair labour practice, etc – When employer had its establishment or branches or industrial units in more than one Province, then recourse had to be made by the aggrieved party to the NIRC and not the Provincial Labour Court”.

10- Since Pakistan Telecommunication Company Ltd (PTCL) having its head office in Islamabad Capital Territory and is admittedly performing its functions, nature of job, similarly throughout the country including all four Provinces, thus, rightly held applicability of IRA, 2012 and same could be for the purpose of Pakistan Railways, WAPDA etc etc for the establishments operating in Islamabad Capital Territory and falling in more than one provinces.

11- In the instant case, admittedly, the total activity of production / manufacturing is in the factory area located at Haripur with no production / manufacturing activity or unit in any other province. Not an iota of evidence has been brought on record to the effect that Telephone Industries of Pakistan is manufacturing its product elsewhere in any other Province or has its base in Islamabad Capital Territory. The members of the appellant, the employees (list enclosed with the petition) are exclusively production workers of the Factory, admittedly

situated at Haripur, meant for production of Telephone operates including all the accessories, with non-transferable nature / duties. Yes, there may be some sale offices, shops else where, but it is to be proved in evidence that as to whether those sale offices are on commission basis or directly connected to factory at Haripur with inter transferable employees. If the sale offices of a factory are at 2 / 3 different stations / provinces are taken as trans-provincial activity then each and every factory would be trans-provincial and the Provincial Labour Laws would become redundant e.g. Ghee Factory or for that matter Match industry having its unit of production at any Province and is selling the same in different markets / provinces, it could not be termed as trans-provincial.

12- The Industrial Relations Act, 2012 (Act X of 2012) was promulgated on repealing of IRA, 2008 after eighteen amendment and KPK IRO, 2010 is still in field for whole of Khyber Pakhtunkhwa whereas IRA, 2012 is specifically and exclusively made applicable for the establishment and industries in the Islamabad Capital Territory and establishments functioning in other provinces, exactly and similar activity has been defined in the definition clause of business of establishment and factory.

13- Even otherwise, it is to be determined in evidence that as to whether the sales and services departments of an establishment, producing particular items / products are part

and parcel of that establishment or functioning on non-transferable employees and on Commission basis with registration under the Shops and Establishment Ordinance, 1969, or not for the purpose of trans-provincial nature.

14- Without commenting upon the merits of the case, it is held that the provisions of laws being beneficial in nature are to be interpreted with a view to facilitate the adjudication of the disputes between the parties on merits and not to dispose of the same on the basis of mere technicalities. In essence, the matter in hand is looked and adjudged from any angle apparently requires recording of evidence by the trial Court in order to determine the trans-provincial character of the T.I.P.

and law favours decision of the same on merits. The parties are directed to appear before the Labour Court, Haripur on 20.10.2014. Meanwhile, the respondents are directed not to terminate the services of petitioners i.e. daily wagers, contract and temporary workers and shall pay them their all the due wages against work done till the decision of the case on merits in the main case.

15 - In the light of the above, the appeal alongwith Civil Miscellaneous petitions are allowed accordingly. No order as to costs.

Announced.

JUDGE