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Civil Petitions Nos. S‑23, S‑28, S‑38 and S‑42 of 1986, decided on 9th April, 1987.

‑‑‑S.38(7)‑‑Transfer of case from one Labour Court to another by Labour Appellate Tribunal‑‑Requirement‑‑For transfer of a case from one Labour Court to another, Labour Appellate Tribunal, held, besides acting on application of a party, could also act on its own motion Mere fact that a reference was made by Labour Court for transfer of case would not render order of Labour Appellate Tribunal as without jurisdiction.

‑‑‑Art.199‑‑Industrial Relations Ordinance (XXIII of 1969), S.38(7)‑ Constitutional jurisdiction, exercise of‑‑Objection to jurisdiction of Labour Appellate Tribunal to transfer case from one Labour Court to ""f another‑‑Labour Appellate Tribunal not joined as a party to constitutional petition‑‑Effect‑‑Objection to jurisdiction of Labour Appellate Tribunal, held, could not be raised where such Tribunal had not been joined as a party to constitutional petition.

‑‑S.38(7)‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional jurisdiction‑‑Discretion of Labour Court not to be interfered with‑ Where Labour Court had discretion either to grant request of petitioner or to refuse the same, non‑exercise of discretion in favour of petitioner, held, could not render proceedings thereof as without jurisdiction.

‑‑‑S.2‑‑Word "Establishment", connotation of‑‑Word "establishment", as defined in Industrial Relations Ordinance, held, fails to provide any specific test for determining a single establishment‑‑For determining whether a branch or a department of a large organization was a separate establishment, one has to depend upon consideration in the ordinary sense to determine unity of an industrial or commercial establishment keeping in mind, the scheme and object of the Ordinance, 1969.

Muhammad Aqil v. Sind Labour Appellate Tribunal 1974 P L C 194; Multan Cotton Industries Multan v. Mehnat Kash Union 1978 PLC 97; Pakistan Industrial Development Corporation v. Khadim Hussain 1980 P L C 1012; Grindlays Bank (Lloyds Branch) Employment Union v. Registrar Trade Unions, Lahore Region, Lahore 1980 P L Q 8001 and The Associated Cement Companies Ltd. v. Their Workmen A I R 1960 S C 56 ref.

‑‑‑S.121‑‑Industrial Relations Ordinance (XXIII of 1969), S.8 Karachi Water and Sewerage Board established in Karachi Metropolitan Corporation, whether a separate "establishment"‑‑Power of supervision of Karachi Metropolitan Corporation over Karachi Water and Sewerage Board, not of such nature as to deprive the Board of its independent character‑‑Such Board being separately managed by an independent Chief Executive exercising such powers as a Municipal Commissioner, having its separate officers and employees with separate budget, held, had all the attributes of an independent 'establishment'‑‑Workers working therein could form a trade union relating only to such Board and get same registered by Registrar, Trade Unions.

‑‑Art.199‑‑Industrial Relations Ordinance (XXIII of 1969), S.8‑ Constitutional jurisdiction, exercise of‑‑Questions of fact not to be determined in constitutional jurisdiction‑‑High Court, held, could not resolve factual controversies by conducting inquiry into fact while 'exercising constitutional jurisdiction‑‑Relief claimed by petitioners which required factual inquiry was declined by High Court in exercise of its constitutional jurisdiction.

A. Rashid Ahmed for Petitioner.

Muslim Naqvi and Mirza Muhammad Kazim for Respondents.

Dates of hearing: 3rd, 9th and 10th March, 1987.

This judgment I propose to dispose of C.P. No,.S‑23 of 1986, C. P. No. S‑28 of 1986, C. P. No. S‑38 of 1986 and C .P. No S‑43 of 1986. These petitions have arisen under the following circumstances:‑

The petitioner in C. P. No. S‑23 of 1986 is a Trade Union of Workmen who are employed in various departments of Karachi Metropolitan Corporation, the respondent No.2 in the petition, (hereinafter referred to as "the Corporation"). On 25th January, 1983 Ordinance II of 1983 was promulgated by the Governor of Sind, making an amendment in the Sind Local Government Ordinance, 1979 and 'a new Chapter No. XVI embodying sections 121 to 148 was added to the Ordinance. According to section 121 in the new Chapter, a Board called the Karachi Water and Sewerage Board (hereinafter referred to as the "Board") was established to function within the Karachi Metropolitan Corporation. Section 121 read as under:‑

"121. (1) There shall be established a Board in the Karachi Metropolitan Corporation called the Karachi Water and Sewerage Hoard."

The case of the petitioner is that it has membership in all the departments of the Corporation and the same extends even within the Board. At present the petitioner Union is the Collective Bargaining Agent for all the workmen working in the Corporation including those working in the Board, except such employees who are working in the medical and educational departments of the Corporation.

After establishment of the Board four unions were formed by the workmen working in the Board which related only to the new establishment, but the applications were 'rejected by the Registrar Trade Unions, Sind on ground that the Board was part and parcel of the Corporation. Three out of the four unions filed appeals before the learned Labour Court which were allowed on account of a compromise entered into between the officers appearing on behalf of the Registrar, Trade Unions and the Union Consequently, the three unions got themselves registered under the directions of the Labour Court.

On coming to know about the registration of the Unions, the petitioner submitted objections to the Registrar Trade Unions, questioning legality and validity of the registration. An application under section 10 of the I.R.O. was also filed but nothing was done in the matter.

Thereafter, one of then three unions applied to the Registrar for holding of a referendum for determining collective bargaining agent among the unions, but two petitions being C.P. No.S‑31/84 and C.P. No.S‑47/84 were filed, the second being filed by the petitioners and stay order against holding of the referendum was obtained. When C. P. No. S‑47 / 84 came up for final hearing on 13‑8‑1975 before a learned single Judge of this Court, the learned Judge was pleased to remand .the case to the Registrar, Trade Unions for resolving the controversy between the Unions. The respondent No.4 namely Aabkar Workers Union filed a High Court Appeal (HCA No.64/85) which also was dismissed vide order dated 3‑10‑1985.

The Registrar Trade Unions Sind then issued notices to the parties and after receiving oral and documentary evidence held that the Board was not an independent establishment and consequently no separate Unions could be formed by its employees relating only to the Board. Aggrieved by this order the Karachi Mutheida Aakbar Mazdoor Union, the respondent No.3 in this case filed an appeal under section 8(3) of the Industrial Relations Ordinance, 1969 (hereinafter referred to as "the I. R. O") before the learned first Labour Court Karachi. A preliminary objection was raised by the petitioner as to the territorial jurisdiction of the learned Labour Court, but another appeal was filed by the same respondent before the learned Fifth Labour Court which had jurisdiction in the matter. Thereafter, it appears reference was made by the Presiding Officer of the learned First Labour Court to the Chairman, Sind Labour Appellate Tribunal, Karachi who ordered that both the appeals be heard by the learned First Labour Court. Thereafter, the case proceeded before the learned First Labour Court which disposed of the same vide order dated 22‑2‑1986, holding that the Board was an "establishment" within the meaning of the term as defined in the I.R.O. and the employees working the Board had a right to form separate Unions within the Board.

C. P. No. S‑28 of 1986 has been filed by the Corporation which is also aggrieved by the same order passed by the learned Labour Court.

C. P. No. S‑38 of 1986 and C. P. No. 42 of 1986 have been filed by the KMC Peoples Workers Union and the KMC Mazdoor Union respectively, as they are aggrieved by the manner in which referendum is being held by the Registrar Trade Unions Sind, respondent No.l in these cases on the application of the KMC United Workers Unions, the respondent No.3 in the two petitions.

I have heard Mr. Chaudhry Abdul Rashid, Mr. S.M. Muslim Naqvi and Mr. Mirza Muhammad Kazim, learned counsel who appeared on behalf of the petitioners in these petitions and Mr. A. A. Muhammadally, the learned AAG and Mr. M.L. Shahani on behalf of the respondents.

Although the arguments of the learned counsel in these petitions have mainly revolved around the expressions "establishment" and "Group of establishments" as occurring in the I.R.O. but the petitioners in C.P.No.S‑23 of 1986 and S‑28 of 1986 have also raised objections as to the jurisdiction of the learned Labour Court to hear the case.

I would, therefore, first deal with the questions relating to the jurisdiction of the Labour Court.

According to Chaudhry Rashid Ahmad, admittedly the learned first Labour Court had no territorial jurisdiction in the matter. The learned counsel argued that although reference was later made in this respect by the Court to the learned Sind Labour Appellate Tribunal which ordered for hearing of both the cases by the learned First Labour Court, but such order according. to the counsel did not confer jurisdiction upon the learned Labour Court as section 38(7) of the I.R.O. provides that "a Tribunal may, on its motion or on the application of a party transfer any application or proceeding from a Labour Court within its jurisdiction to any other such Labour Court". According to the learned counsel, since neither the learned Labour Appellate Tribunal acted on its own motion on an application made to it in this behalf by any party, the question therefore, would be whether the learned Tribunal had actually acted under section 38(7) of the I.R.O. while transferring both the cases to the learned First Labour Court for disposal.

Although admittedly, no application was made to the learned Labour Appellate Tribunal for transfer of the case from Fifth Labour Court to the First Labour Court, but besides acting on the application of a party the learned Labour Appellate Tribunal could also act on its own motion. No doubt, in this case the learned Appellate Tribunal acted on reference made by the First Labour Court but since the learned Tribunal could act on its own motion, in my opinion, it would be deemed to have acted on its own motion while transferring the case from one Labour Court to another. The mere fact that a reference was made in this respect by the learned First Labour Court, would not render the order of the learned Appellate Tribunal without jurisdiction. However, even if I am wrong, the objection cannot be raised by the petitioners for the simple reason that the learned Labour Appellate Tribunal has not been joined as a party to the petition. Since it was the order of the learned Appellate Tribunal which conferred jurisdiction on the first Labour Court, it was imperative that the Tribunal should have been joined as a party to the petition. The same not having been done, the objection the jurisdiction of the learned First Labour Court cannot be sustained.

The Next objection to the jurisdiction has been taken by the petitioners in C.P. No.S‑28 of 1986 on the ground that the appeal was decided without providing an opportunity of hearing to the petitioners' counsel. According to the petitioners after the petitioners had been joined as a party to the proceedings before the learned First Labour Court, an adjournment was sought by the petitioners' counsel on 15‑2‑1986 but the same was refused and thereafter the learned Labour Court without hearing the petitioners' counsel decided the case.

The objection, in my opinion, would have been valid if no opportunity had been given at all to the petitioners to present their case. In this case, admittedly, an opportunity was given to the petitioners as after they were impleaded as patty to the appeal before the learned Labour Court on 8‑2‑1986 as the case was adjourned to 15‑2‑1986. But a request for adjournment was made on behalf of the petitioners on that date. Consequently the Labour Court had discretion either to grant the request of the petitioners or to refuse the same. Merely because the discretion was not exercised by the Labour Court in favour of the petitioners the same cannot render the proceedings before it without jurisdiction. Of course, if no opportunity of hearing at all had been provided to the petitioners, the case might have been different. I, therefore, do not find force in this contention as well and the same is also repelled.

Turning now to the next argument of the petitioners in C.P. No. S‑23 of 1986 and S‑28 of 1986, a perusal of section 6 of the I.R.O. indicates that at the time of making an application for registration of a trade union before the Registrar, every trade union has to state the name of the establishment or group of establishments or the industry, as the case may be, to which the trade union relates. Section 22 of the same enactment also envisages determination of a collective bargaining agent within an establishment or a group of establishment (See section 22 of the I. R. O.) The definition of "establishment" in the I . R. O. is as under.‑

"establishment means any office, firm. industrial unit undertaking shop or premises in which workmen are employed for the purpose of carrying on any industry; and except in section 22‑EE, includes a collective bargaining unit, if any,, constituted under that section in any establishment or group of establishments".

Although the expression group of establishment has riot been defined but 'Industry' has been defined to mean ns "any business, trade, manufacture, calling, service, employment or occupation."

A question consequently arises what is the actual meaning of the word "establishment" as used in the IRO in Muhammad Aqil v. Sind Labour Appellate Tribunal 1974 P L C 194 a Division Bench of this Court while referring to the aforesaid definition of establishment observed:

"from the aforesaid definition it would appear that an employer may have more than one establishment, for example offices in a commercial area shops in business are or one or more industrial units in an industrial area and the expression "establishment" would include not whole establishment of an employer but each of them individually. That an employer may have more than one establishment for carrying on his industry or for the purpose of his industry is clearly envisaged by provisions contained in the then section 22‑A of the industrial Relations Ordinance 1969 "

In Multan Cotton Industries Multan v. Mehnat Kash Union 1978 P L C 97 the Labour Appellate Tribunal Punjab held in the case of two factories situated at a distance of about three miles from each other that they were not one establishment. It was held that although they had unity of ownership, but there was no unity of finance, employment, supervision and control, labour and conditions of service of workmen. In another case reported as Pakistan Industrial Development Corporation v. Khadim Hussain 1980 P L C 1012, the Sind Labour Appellate Tribunal, Karachi while examining the definitions of "establishment" and "commercial establishment" as defined in the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 came to the conclusion that the Ordinance envisaged that their could be an establishment within an establishment. Similar views appear to have been expressed by the Lahore High Court in Grindlays Bank (Lloyds Branch) Employment Union v. Registrar Trade Unions, Lahore Region, Lahore 1980 P L C 8001 as a learned single Judge of the Court came to a conclusion that every branch of the Bank constituted a separate establishment.

The definition of "establishment" in the IRO fails to provide any specific test for determining what .is a single establishment, consequently for the purpose of determining whether a branch or a department of a large organization is a separate establishment one has to depend upon consideration as in the ordinary sense would determine the unity of an industrial or commercial establishment, keeping of course, in mind and scheme and object of the enactment.) The Associated Cement Companies Ltd. v. Their Workmen A I R 1960 S C 56, it was observed by the Supreme Court of India that if in their true relation the parts, branches or units of a large estt: constitute one integrated whole, the establishment is one; if on the contrary they do not constitute one integrated whole, each unit is then a separate unit. This; however, was not considered to be the only test as it was further held in that case:‑

"Thus, in one case the unity of ownership, management and control may be the important tests; in another case functional integrity or general unity may be important test and in still another case, the important test mad be the unity of employment. Indeed, in a large number of cases several tests may fall for consideration at the same time. The difficulty of applying three tests arises because of the complexities of modern industrial organization; many enterprises may have functional integrity between factories which are separately owned; same may be integrated in part with units or factories having the same ownership and in part with factories or plants which are independently owned. In the midst of all these complexities it may be difficult to discover the real thread of unity."

Consequently, before any, definite opinion can be formed, it is necessary to examine the relationship between the Board and the Corporation on the basis of guidelines indicated above. The Board, as pointed out above, was created by an amendment made in the Sind Local Government Ordinance, 1979. Before ‑the Board came into existence, the supply of water in Karachi Division was regulated by the Karachi Water Management Board which had been constituted as an independent body under Ordinance X of 1981. However, after amendment in the Sind Local Government Ordinance, 1979 (hereinafter referred to as "the Ordinance") as pointed out above, Ordinance X of 1981 was repealed and simultaneously the Board was established under Section 121 of the Ordinance as is indicated by subsection (1) of the section already reproduced above. According to section (2) of section 121.

"(2) The jurisdiction of the Board shall extend to the limits of the Karachi Metropolitan Corporation and such area or areas outside the said limits as may be notified by the Government."

The various provisions in Chapter XVI relating to the Board indicate that the Chairman of the Board shall be the Mayor of the Corporation. The Government of Sind has also been empowered to appoint a Managing Director who according to section 121(3) shall be a member of the Board. According to section 122 of Ordinance, the Managing Director shall be the Chief Executive of the Board. According to subsection (2) of section 122, subject to the general control of the Chairman of the Board, the Managing Director shall exercise all powers, other than financial powers, as are exerciseable by the Municipal Commissioner in relation to the Karachi Metropolitan Corporation. However, the Managing Director can also exercise financial powers as mentioned in Appendix 'A' to Chapter XVI. Besides that, the Chairman of the Board, according to section 123, can exercise the same powers as are exerciseable by the Mayor in relation to the Corporation. The Chairman of the Board can also exercise financial powers which are specified in Appendix 'B' to Chapter XVI. Apart from that the Board' has been assigned several other functions which include making of its own regulations, sanctioning of water connections and sewerage connections, collection of rates, charges or fees for water supply, sewerage services etc. The Board also has full financial powers within the budget grant and it can undertake construction improvement maintenance and operation of water works, sewerage works etc. Section 139 of the Ordinance further indicates that the employees of the Karachi Development Authority and the Corporation serving in connection with water supply and sewerage service may be transferred to serve under the Board as the Government may direct and on such terms and conditions as may be determined by the Government. Subsection (2) of section 139 further provides that the service rendered by such employees in the Karachi Development Authority, the Corporation or the Board shall be deemed to be the service rendered in the Board. According to subsection (3) of section 139 the Board has also been made responsible for pension gratuity and other service benefits admissible to the employees of the Karachi Development Authority, the Corporation and the Board who retired or died while serving in relation to water supply before the commencement of the Ordinance.

A closer look at the above provisions of the Ordinance indicates that although the Board is independent in many respects, but still it has to work under the direct supervision and control of the Corporation. However, a careful study of the provisions indicates that the power of supervision over the Board assigned to the Corporation is not of such a nature as may deprive it of its independent character. The Board is to be separately managed by an independent Chief Executive know as the Managing Director who can exercise similar functions as Municipal Commissioner under the Ordinance, of course, with certain exceptions. The Board has its separate officers and employees and also has its separate budget and the Corporation. Consequently in my opinion, it has all finance although the same are subject to the approval of the attribute of an independent establishment. No doubt, according to certain provisions of the Ordinance, the Board has to work under the supervision and overall control of the Corporation as its budget, both annual or revised is to be sanctioned by the Corporation, its finance are to be provided by the Corporation and all its schemes in respect of water supply and sewerage are to be approved and sanctioned by the Corporation. The argument of the learned counsel for the petitioners in C.P. No. S‑23 of 1986 and S‑28 of 1986 although has been that the Corporation being a large organization has many branches and departments functioning within it and the Board constitutes only one of such deptts. However, a perusal of the above provisions, in my opinion clearly indicates that the Board cannot be regarded as a department of the Karachi Metropolitan Corporation as the same has been constituted as a separate entity, although to function within the over‑all supervision and control of the Corporation. There can be an establishment functioning within a larger establishment as was held by this Court in Muhammad Aqil's case or the Sind Labour Appellate Tribunal in the case of Pakistan Industrial Development Corporation. Therefore, in my opinion, the Board constitutes a separate establishment within the meaning of the term "establishment" as defined in the I.R.O. and the workers working therein can form a trade union relating only to the Board and get it registered by the Registrar Trade Unions, Section 3 of the IRO gives right to workmen to form associations of their choice.

Consequently I do not find force in C.P. No.S‑23 of 1986 and C.P. No.S‑28 of 1986 and the same stand dismissed.

Turning to C.P. No.S‑38 of 1986 and S‑42 of 1986, the main grievance of the petitioners therein is, as to the manner in which referendum is being held by the Registrar, as according to the petitioners the list of voters has not been prepared by the Registrar in accordance with section 22(5) of the IRO. According to the petitioners many persons who are workers have been excluded from such list and others who are not workmen have been included therein. It may be pointed out that the question whether a person is qualified to cast his vote at the referendum is a question of fact and the same has first to be established by the petitioners. These petitions indicate that no such foundation has been laid by the petitioners to enable this Court to arrive at a definite conclusion in this respect. Needless to say that this Court cannot resolve factual controversies by conducting an enquiry into facts while exercising constitutional jurisdiction. Since this Court cannot conclusively determine as to which of the members of the petitioners were workmen or which of them were erroneously included or excluded from the lists of voters prepared by the Registrar, the relief claimed in the petitions cannot be granted to the petitioners. Both the petitions, in my opinion, are therefore, misconceived and the same also stand dismissed. Consequently, all the petitions are dismissed, but there will be no order as to costs, in view of the questions raised therein.

A. A. / K‑20 / K.

Petitions dismissed.

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