IN THE HIGH COURT OF SINDH, KARACHI
C.P No. D-1795 OF 2006
Present Justice Mushir Alam, Acting Chief Justice
Justice Safdar Ali Bhutto
Date of hearing
15.4.2005
1. MALIK MUHAMMAD RASHEED
2. MUHAMMAD FAREED KHAN TANOLI
3. MR. QAYYUM SIDDIQ
4. KESC LABOUR UNION………………………..PETITIONERS.
VERSUS
AND CHAIRMAN, NIRC
MAZDOOR UNION
IN THE HIGH COURT OF SINDH, KARACHI
C.P No. D-1268 OF 2008
Present Justice Mushir Alam, Acting Chief Justice
Justice Safdar Ali Bhutto
KARACHI ELECTRIC SUPPLY
COMPANY LIMITED………………………………PETITIONERS
VERSUS
CHAIRMAN NIRC
Kashif Paracha Advocate (for the Petitioner in CP 1795/07)
Mr. Ashraf Mughal DAG
Mr. Sarwar Khan Additional Advocate General Sindh.
Rasheed A Razvi Advocate. (for Respondent No. 5 in CP 1268/08).
Ch Muhammad Ashraf Khan Advocate.
Shoa-Un-Nabi Advocate (for Resp. No. 3 in CP 1268/08)
Mahmood Abdul Ghani Advocate for KESC Respondent No.3 in CP 1795/07 and Petitioner in CP 1268/08)
JUDGMENT
Through instant Judgment, we proposed to decide C.P No.1795/06 filed by the petitioners claiming to be workman in the establishment of Respondent No.3 i.e. KESC, seeking directions against the Respondents No. 1 and 2 to hold referendum for CBA in KESC forthwith, further declaration that delay in holding referendum in KESC is violative of fundamental rights of its workers and further directions to Respondent No. 1 & 2 to resolve issue of registration of contract workers within shortest time and not beyond 15 days.
2). In C.P No.1268/08, the KESC has impugned the orders dated 7.2.2007 passed by Respondent No.2 (RITU) and order dated 15.12.2008 passed by the Full Bench of NIRC in terms of Section 52 of IRO 2002. It is further prayed;
a). Contract employees irrespective of their length of service are not eligible to participate in any Secret Ballot for determination of CBA.
b). That the status of the contract employees could not in any case to be determined without recording evidence before RIUT.
c). That RIUT as a judicial functionary could not be expected to delegate its functions to a non judicial officer Deputy Registrar of NIRC and observation and finding made by RIUT based on such finding are of no legal effect.
d). That the principle well settled by Supreme Court of Pakistan and High Court especially in context of Karachi electric Supply Company having been ignored and by not taken into consideration much less discussed were binding on sub-courts and any finding given by the Respondent No.1 and 2 contrary to the settled principles of law is of no legal effect.
e). That before determining through CBA, RITU is first expecting in person to determine the issue pertaining to disputed members through an enquiry to be conducted by him in person and not by any other authority.
f). That this Hon’able court may be pleased to set aside the two impugned orders and direct RIUT to conduct an enquiry all over again in person and thereafter come to the conclusion as regards participation of the contract employees in the proposed secret ballot.
g). To grant such further and or appropriate relief as this Hon’able Court may deem fit under the circumstances.
3). In order to appreciate the controversy in issue, facts as may be necessary, are recapitulated as follows;
4). Petitioners No.1 to 3 in CP 1793/07 claims to be working since over thirty years in KESC. On 4.2.2003 KESC Labour Union, applied to the Registrar ITU to hold the referendum to determine CBA in the KESC, the application was rejected vide order dated 26.8.2003 on the ground inter alia; that Industrial Relation Ordinance 2002 (IRO 2002) is not applicable on KESC. The order was successfully impugned before a Division Bench of this Court in CP No. D-1301 of 2003 reported as KESC Labour Union and another Vs. Federation of Pakistan and others SBLR 2005 Sindh 1131. Learned Division Bench directed the RITU to treat the application of the Labour Union seeking to hold referendum as pending and decide the same within a reasonable time and preferably not beyond 90 days from the date of receipt of the order. However, despite opposition by the Respondent No.7, the application for holding referendum was accepted vide order dated 3.5.2006 and Respondent No.2 the Deputy Registrar NIRC was directed to hold secret ballot for the determination of the CBA under his supervision in a transparent manner by associating all the parties.
5). All the labour/worker unions and the KESC were taken on board by the Deputy Registrar, NIRC and vide order dated 31.10.2006 fixed the date to hold referendum on 25.11.2006. Final voters list was prepared and schedule and polling booths were announced.
6). It appears that CP No. 2140/06 was sponsored to interrupt the referendum failed, and was dismissed by a division bench on 16.1.2007.
7). The Respondent No.1 the learned Chairman NIRC vide order dated 18.11.2006 directed the Deputy Registrar NIRC not to hold referendum and further to decide the status of contract employees. The issue of contract employee was resolved vide order dated 19.12.2007. It was held that the contract employees/workers who are member of any union are entitled to be enlisted in the voters list, referendum was directed to be held as expeditiously as possible by the Authorized Officer.
8). However, the Referendum has not been held on the pretext that matter of registration of union of contract worker is pending registration.
9). Grievance of the petitioners in the first mentioned petition is that Referendum has not been held since over 10 years and workers and employees are being deprived of their fundamental right to franchise as guaranteed under the constitution of Pakistan.
10). Above, is half of the story that was highlighted in CP 1795/06, other half of the story is recounted in CP No. 1268/08. KESC, the petitioner, therein, appealed against the order dated 19.12.2007 under Section 52 of the IRO 2002, before the full bench of the NIRC, on the ground inter alia that Referendum proceedings were initiated by a union that was not registered and secondly the impugned judgement was rendered without recording evidence and giving finding as to length of service of contract employees. In subject petition, judgement dated 19.12.2006 passed by learned RITU and Order of the learned Full Bench of the NIRC dated 15.5.2008 have been impugned.
11). Attending to the first objection of the learned Counsel for the KESC in CP No. 1795/2007 that the petition is not maintainable, as the Petitioners No.1 to 3 were neither an aggrieved person nor workman. Mr. Ghani, maintained that Petitioner No. 1 was Office Superintendent and during pendency of the Petition he retired. Petitioner No. 2 was working as a foreman, GSM Department and as per PLC 1971 (LC) 8, he does not qualify to be a workman. As regard the Petitioner No.3, it was stated that he being Chief Inspector, he does not meet the criteria of a workman.
12). It was urged that Petitioner No.4 i.e KESC Labour Union, joined later under the orders of this Court dated 24 October 2008 is of no avail. According to him when the petition at the inception was incompetent, joinder of any party will not resurrect or give life to a dead petition. In support of his contentions he has placed reliance on the case of Yousuf Ali V. Fazal Mohammad 1970 SCMR 681, in the cited case it appears that the Petitioner declined to be joined in a petition arising out of orders passed by Settlement and Rehabilitation Commissioner between two claimants. It was observed by the apex court that since he was not privy to the dispute before the settlement authority, therefore, high court rightly declined his prayer to be joined as a party. He vehemently urged that jumping the vessel will not rescue the Petition that is bound to sink.
13). Mr. Paracha, for the Petitioner in CP D- 1795/07, vehemently controverted the contentions of Mr. Ghani. It was argued that the Respondent KESC, denied that the Petitioners are in its service through out. It was only when one of the Petitioners retired it was acknowledged that such petitioner, has since retired, therefore, the Petition is rendered not maintainable. It was, without prejudice, contended that at the motion of KESC Labour Union, it was added as respondent No. 4 vide order dated 24.10.2007, therefore, the objection as to locus standi of the original petitioners will not render the petition as infructious.
14). Respondent No.4 union admittedly has a representative status, in the KESC establishment, therefore, objection of Mr. Ghani, that petition filed by person not workman and thus has no locus standi to invoke the jurisdiction of this court, has lost the charm. Petitioner No. 4 was added as Petitioner when the vessel was afloat. If at all, contention of Mr. Ghani is taken on its face value, than also it is not denied that Petitioner’s No.4, having representative capacity, locus standi is not questionable, petition to seek enforcement of right to franchise and for determination of CBA is fundamental right, guaranteed under the Constitution of Pakistan 1973 by the Respondent No.4 is available. Where even one of the petitioners has locus standi, the petition cannot be dismissed merely because some of the parties are not entitled to the relief on technical grounds.
15). Core controversy in instant petition hinges on determination as to status of contract employees and whether they are eligible to right of franchise or not. The issue was decided by the RITU vide order dated 19.12.2007, and was upheld in appeal by the Full Bench of NIRC vide order dated 15.5.2008 both, impugned by the KESC in CP 1268/08.
16). Through impugned orders, dispute with regard to status of contract employees/workers with regard to their entitlement to exercise right to franchise was settled. The RITU after hearing the parties through a reasoned order concluded;
“For the aforesaid reasons I have no doubt in my mind that the contract employees/worker whose service are hired either directly or through a contractor by the management and performing continuous and permanent nature of work and are also members of any contesting trade unions, are entitled to be enlisted in the voters list. I direct the authorized officer to include the names of all these employees/workers who are members of any contesting trade union and hold the referendum expeditiously as possible”
17). Full Bench of the NIRC upheld the order with further clarity vide impugned order dated 15.5.2008 which reads as follows:
“For what has been discussed above we hold that no prejudice to either side has been cause by not recording evidence before pronouncement of judgment impugned. The objection with regard to the eligibility of a worker can still be agitated before the learned Authorized Officer as and when he asks for the list of workmen from the unions as well as the establishment. It will however, not be open to any side to question the eligibility of a contract worker, if he is appointed against a permanent post and performing the job for more than three months.”
17). Mr. Mahmood A Ghani, learned Counsel for the KESC contended that he has no objection, if the referendum is held to determine CBA, however, the exercise could only be carried out by the Registrar alone as provided for under Section 20 (3) and (4) of the IRO 2002, such powers are judicial and therefore cannot be delegated to any other functionary, as was done in the instant matter. To support his contentions he placed reliance on unreported judgement in HCA 208/1998 Ghandhara Nissan Ltd. V. RITU passed by a division bench of this court and one of us as its member (namely Mushir Alam.J). Learned DAG Mr. Ashraf supported Mr. Ghani on such score.
18). Mr. Paracha, appearing for the Petitioners and so also Mr. Rizvi and Chaudry Ashraf appearing for other respondents controverted the contentions, it was urged that sub-section (14) of Section 20 empowered the Registrar to delegate such powers to other office bearer therefore, no exception could be taken to such exercise of authority by the delegatee of the authority.
19). In order to appreciate the contentions Sub-section (14) of Section 20 of IRO 2002 may be examined which runs as follows;
(14) The Registrar may authorize in writing an office bearer to perform all or any of his functions under this Ordinance and the rules made there under. (Underlined to add emphasis)
20). Sub-section 14 ibid, clearly empowers the Registrar to delegate his authority to an office bearer, to perform all or any of his functions under the Ordinance and the rules made there under. Only requirement of the delegation is that such delegation of the authority must be in writing and to an office bearer.
21). In the instant case, the application of the ‘KESC labour Union’ to hold election was dismissed by the RITU on 26.8.2006, which order was successfully impugned in this court reported in SBLR 2005 (Sindh) 1121. On the direction of this court application of the Union was heard and accepted vide order dated 3.5.2006 with “direction that Mr. Ghulam Nabi Deeshak, Deputy Registrar would hold secret ballot for determination of CBA under the supervision in a transparent manner by associating all parties”
22). We have also examined the unreported judgement in Ghandhara Nissan Ltd. V. RITU supra. Issue in said case inter-alia pertained to registration of trade union, and the manner in which objections of the employer pre-registration and post registration of the trade union are to be treated was in issue. We have gone through entire judgement no where it was held that the registrar could not delegate his functions to other functionaries as canvassed by Mr. Ghani. In para 21 of the judgement, while rendering opinion it was observed by the bench “The registrar, being statutory functionary under the provisions of IRO, is obliged to perform his duties in accordance with law”. Said observation cannot be said to abridge the authority of the Registrar to delegate its function as provided for under sub-section (14) of Section 20 of IRO 2002. Even it had been so, than too any observation in a judgement will not override the provision of a statute. It was not expected from any counsel, what to speak of counsel of high stature to mislead the court.
23). Reliance of Mr. Mahmood Ghani on All Pakistan Seamen’s Worker Union v Pakistan Seamen’s Union 2007 SCMR 1380, is of no avail. In cited case the Court examined provisions of Section 22-A (4), (8)(d) and 22 (b) of the repealed IRO 1969, where under the Chairman of the Commission delegated the function to the Deputy Registrar, which exercise of power was not approved by the High Court, and it was held that power of the Commission to be exercised by the Chairman or the bench could not be legally delegated to or entrusted to an officer of the Commission and rightly so as, such power was vested in the Commission could not be delegated to the an officer of the commission or the Registrar of the Commission and the view of the High Court was upheld by the Supreme Court. In the instant case as noted above the Registrar of the Trade Union under Section 20 of IRO 2002 is clothe with authority to certify CBA for an Establishment, in the manner provided for under Section 20 of the IRO 2002, which is self contained provision and elaborately deals with the manner Registrar has to act and perform his functions right from receiving application for the certification of CBA, inviting and issuance of notices to the trade unions desiring to contest election, calling from the trade unions list of its members with all requisite detail, affiliate trade unions etc as provided for in Sub-section (3) ibid and like wise power to direct employers to furnish details of employees/worker in the establishment to facilitate verification of the such list furnished both, by the trade union and the employer, prepare the list of eligible voters, hold secret ballot and certify the trade union securing highest number of votes as CBA. All or any of the array of functions and tasks as elaborated in sub-section (1) to (13) of 20 could be performed by the registrar himself and by virtue authority to delegate, as bestow unto him, by virtue of sub-section (14) thereof to a designated person same could be performed by the person so designated in writing. It may be observed that in corresponding provision of Section 20 (13) IRO 1969 the predecessor enactment, Registrar enjoyed authority to delegate as is provided in sub Section (14) of Section 24 of IRO 2008, only curtailment or limitation in sub-section (14) of Section 24 of Industrial Relation Act 2008 is that the authority to delegate is restricted and or curtailed to the extent of “all or any function under this section” unlike unlimited authority to delegate “all or any of his functions under the Ordinance and the rules made thereunder” was conceded under Section 20(14) of IRO 2002.
24). Controversy as to authority of the Registrar to delegate function to determine collective Bargaining Agent also came up for consideration of a learned Division Bench of Baluchistan High Court in the case of United Bank Progressive Employees Union v Registrar of Trade Union 1986 CLC 2911, while examining corresponding provision of Section 22(13) of IRO 1969, in para 9 at page 2915 it was concluded by the learned bench as follows;
“The Registrar has the power under section 13 of the Ordinance to determine a collective bargaining agent of an establishment where as under section 22 the procedure has been prescribed for such determination and subsection (13) thereof empowers the Registrar to delegate his functions of such determination to any officer. It can, therefore, safely be concluded that the Registrar could competently delegate his power to any other officer to determine the Collective bargaining Agent, out of two rival union”.
25). Mr. Mahmood A Ghai, learned counsel for the KESC, attempted to draw distinction between judicial functions and non judicial functions of the Registrar. According to him preparation and verification of voters list is judicial function, which a Registrar is required to perform personally under section 24(5) of IRA 2008.
26). According to Mr. Ghani, Registrar cannot delegate this power of verification and preparation of voters list to any other functionary. Arguments are fallacious. Registrar, in the matter of certifying CBA could either himself perform all or any functions enumerated in Section 20 of IRO 2002 or delegate his function in view of the authority conferred on him under Section 20(14) thereof, similar authority is concede in successor IRA 2008.
27). Sub-section (14) of Section 20 of IR0 2002 or for that matter Section 20 (14) of IRA 2008 do not draw any distinction or lays down any limitation except in earlier enactment Registrar could delegate all or any function under the Ordinance and the rules made thereunder” where as in the later Act, such delegation was limited to “all or any function under this section”, as identified above.
28). Section 20 (14) ibid does not draws distinction between judicial or administrative/non judicial function, when law does not draw any distinction or prescribe any limitation, same cannot inferred or imposed. The authority of the Registrar to delegate its functions as contained in Section 20 (14) of IRO 2000 or for that matter in section 24 (14) of IRA 2008 is unbridle and unequivocal, no exception in exercise of such authority could be taken nor any limitation could be imposed.
29). In the case of United Bank Progressive Employees Union v Registrar of Trade Union 1986 CLC 2911, also attempt was made to distinguish between power and functions, required to be performed by the registrar. Court while repealing such distinction held at page 2916 “ We are, therefore, unable to go along with the learned counsel for the [petitioner in interpretation of the word “power” and “function”. These two terms are not only synonymous to each other but also compliment and supplement each other. An officer can only function if he has power in that regard. The Registrar could therefore validly delegate his power to any other officer and could also authorize him to function as Registrar for the purpose of section 22 of the Ordinance”
30). It was no body case that the Registrar delegated what was not vested in him or that the delegatee exceeded the authority that was lawfully conferred. Where the laws confers authority to delegate, such authority cannot be curtailed, curbed or impeded, therefore, impugned orders dated 19.12.2006 passed Chairman/RITU and order dated 15.05.2008 passed by the Full Bench of NIRC call for no interference.
31). Adverting to other aspect of the matter as urged ‘whether contract employees irrespective of their length of service are not eligible to participate in any secret ballot’ is concerned, it was vehemently argued by Mr. Mahmood A Ghani, that KESC employs workman on case to case basis on temporary assignment and the moment contract expires they are no more in employment of KESC, therefore no right of franchise could be given to such temporary workers.
32). Right to form and establish association and union is a fundamental right guaranteed under Article 17 of the Constitution of Islamic Republic of Pakistan, 1973, however subject to reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality. Right to form trade union and right to franchise available to the employee and workman is being regulated under the industrial relation enactments right from IRO 1969, IRO 2002 and now in IRA 2008, all three successive legislation acknowledges and recognizes that a “worker without distinction what so ever have right to form” and subject to constitution or rules of the “trade union, join any trade union of their choice” within the establishment or industry they are employed in. Right to franchise is fundamental right, guaranteed under the Constitution, 1973, it cannot be impinched or denied on any count, such rights are subject to reasonable restrictions imposed by law, in the interest of sovereignty or integrity of Pakistan, public order or morality. (One may refer to illustrative full bench judgement in the case of “Civil Aviation Authority v. Union of Civil Aviation Employees PLD 1997 SC 781)
33). There has been much debate whether contract workman/employee enjoys such right to franchise or not. To appreciate such contention, to appreciate such aspect one may revert to the definition of workman as given in IRO 2002, which reads as follows:
2 (xxx) “worker” and “workman” means any and all persons not falling within the definition of employer who is employed in an establishment or industry for remuneration or reward either directly or through a contractor, whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off or removal has led to that dispute but does not include any person who is employed mainly in a managerial or administrative capacity.”
34). Section 20 of the Industrial Relations Ordinance 2002 reads as follows:
“20. Collective bargaining agent.- (1) . . .
(2) . . .
(3) Upon receipt of an application under sub-section (2) the Registrar shall, by notice in writing, call upon every registered trade union in the establishment or group of establishments to which the application relates:-
(a) to indicate whether it desires to be a contestant in the secret ballot to be held for determining the collective bargaining agent in relation to such establishment or group of establishments, as the case may be; and
(b) to submit to him within the time specified in the notice a list of its members showing, in respect of each member, his parentage, age, the section or department and the place in which he is employed, his ticket number and the date of his becoming a member and if the trade union is a federation of trade unions, a list of its affiliated trade unions together with a list of members of each such trade union showing in respect of each such member the said particulars.
(4) Every employer shall-
(a) on being so required by the Registrar, within fifteen days, submit a list of all workmen employed in the establishment excluding those whose period of employment in the establishment is less than three months and showing, in respect of each workman, his parentage, age, the section or department and the place in which he is employed, his ticket number and the date of his employment in the establishment. However a separate list of workmen whose period off employment is less than three months showing the said particulars in respect of each workman may also be submitted; and
(b) provide such facilities for verification of the list submitted by him and the trade unions as the Registrar may require;
Provided that in computing the period of three months referred to in clause (a), in the case of a workman employed in a seasonal factory within the meaning of section 4 of the Factories Act, 1934 (XXV of 1934), the period during which he was employed in that factory during the preceding season shall also be taken into account.
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
35). On reading definition of workman (Section 2 (xxx) of the IRO 2002) read with section 20 (4) ibid it can irresistibly deduced that all persons not falling within the definition of employer and who are employed in an establishment or industry for remuneration or reward either directly or through a contractor, whether the terms of employment be express or implied, without distinction whatsoever have a right to form and join any trade union. However, right to vote is not conferred on a workman employed in the establishment whose period of employment in the establishment is less than three months. Nevertheless, the employer is obliged to forward to the Registrar or his delegatee list of all such workers. Under IRA 2008 registrar is not required to call list of workers whose period of employment is less than three months, whereas it was required under IRO 2002.
36). The list required to be prepared by the Registrar or his delegatee in terms of Section 20 (5) of IRO 2002 is the list of eligible voter workman, who have completed three months of service and who are member of any trade union running for election of CBA.
37). The distinction between contractual worker and or otherwise is no more available. Now workman without discrimination of any classification can form a union likewise workers of all classification have a right to franchise, provided they have minimum three months service to their credit. IRO 2002 or for that matter the predecessor law (IRO1969) on the subject nor, the successor enactment (IRA 2008) draws any distinction between employee/workman employed directly and or through contractor, only limitation that can be read is that the workman must be member of a contesting trade union and have completed three months before he could be enlisted as an eligible voter. It therefore follows that a workman/employee who is member of contesting trade union, without any discrimination as to classification whatsoever, who has completed three months of service may cast their vote to elect CBA.
38). Mr. Mahmood A Ghani, proceeded to oppose the Petition 1795/07 on another plane, according to him, election under Section 24(2) IRA 2008, could only be held upon application of 1/5th of the total number of workman employed in the KESC, where as it is not so. According to him, if such application is 1/5th of the total number of workmen it may be considered. According to him since IRO 2002 has been repealed and now elections are to be held under IRA 2008, which sets down such requirement, referendum if at all, is to be held under new regime.
39). Mr. Paracha, Mr. Razvi and Chaudry Ashraf Advocates, with all vehemence controverted the contentions. It was contended that repealing provision contained in Section 87 of IRA 2008 has saved any thing done under the repealed Ordinance 2002, according to them. Directions given to hold election, were made under the late Ordinance 2002 are protected, therefore, Petitioners may not be deprived of right to fundamental franchise, that is being denied for almost a decade.
40). In order to appreciate last limb of the arguments of Mr. Ghani, it will be appropriate to examine repealing and saving provisions contained in Section 87 of IRA 2008, which reads as follows;
Section 87. Repeal and saving.- (1) The Industrial Relations Ordinance 2002 (XCI of 2002), is hereby repealed.
2). Notwithstanding the repeal of the Industrial Relations Ordinance, 2002 (XIC of 2002, hereinafter to be called the repealed Ordinance, and without prejudice to the provisions of sections 6 and 24 of the General Clauses Act, 1897 (X of 1897)-
(a) every trade union existing immediately before the commencement of this Act, which was registered under the repealed Ordinance shall be deemed to be registered under this Act and its constitution shall continue in force until altered or rescinded;
(b) anything done, rules made, notification or order issued, officer appointed, Court constituted, notice given, proceedings commenced or other actions taken under the repealed Ordinance shall be deemed to have been done, made, issued, appointed, constituted, given, commenced or taken, as the case may be, under the corresponding provisions of this Act; and
(c) any document referring to the repealed Ordinance relating to industrial relations shall be construed as referring to the corresponding provisions of this Act.
(3) This Act shall, unless repealed earlier, stand repealed on 30th April, 2010.
41). On reading above, it is clear that every trade union existing immediately before the commencement of this Act, which was registered under the repealed Ordinance shall be deemed to be registered under this Act. Repealing provisions has also preserved and protected anything done, rules made, notification or order issued, officer appointed, Court constituted, notice given, proceedings commenced or other actions taken under the repealed Ordinance. All such action deed and acts are deemed to have been done, made, issued, appointed, constituted, given, commenced or taken, as the case may be, under the corresponding provisions of this Act. Therefore, contentions of Mr. Ghani, are misconceived and not tenable. The election for the CBA were directed to be held vide impugned order dated 19.12.2006 and as maintained by the full bench of the NIRC dated 15.5.2008, therefore let the election be held in terms of the directions contained therein as per provisions of Industrial Relations Ordinance 2002.
42). instant cases, are one of those unfortunate cases where the workman/employee of an establishment are deprived of their right of franchised as guaranteed under the constitution of Pakistan, by an establishment for almost 10 years last elections were held in 1999. It may be observed that obedience to Constitution and law is the inviolable obligation of every citizen, wherever he may be and of every person for the time being within Pakistan and the KESC cannot claim any exception.
43). In view of the foregoing we allow the C.P No. D-1795/07 with cost through out and direct the authorized officer, to hold the referendum in the Respondent No.1 KESC establishment within as expeditiously as possible but not later than three months from the date of receipt of the copy of this order. Dismiss the C.P No. 1268/08 with cost through out.
44). Since the Respondent No.1 KESC in CP 1795/07 and Petitioner in CP No. 1268/08, unjustly denied and deprived its workmen to exercise their fundamental right to franchise as guaranteed under Article 17 of the Constitution of Pakistan, 1973 read with Section 20 of IRO 2002, while allowing CP No.1795/2007 and dismissing CP 1268/08 with cost through out we impose cost of Rs 10,000/= per year from the date of last referendum till to date, the cost the be deposited in the KESC employees worker welfare fund within fifteen days from the date of receipt of the copy of this order.
Karachi
Dated May 29th, 2009
_____________________
Acting Chief Justice
___________________
JUDGE