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Constitutional Petition No. S/60 of 1979, decided on 27th January, 1982.

‑‑ Ss. 7, 8 & 10 ‑Registration of Trade Union‑Application by union made validly‑Registrar raising certain objections which were also replied to ‑Reply of union not taken into consideration Registrar neither registering nor communicating rejection within prescribed period of 15 days and thereafter without taking into consideration reply of union against certain objections sending rejection letter‑Labour Court on appeal of union directing Regis trar to issue registration certificate‑Order of Labour Court challenged by employer before High Court by constitutional peti tion‑Four Unions already existing in establishment‑Remedy for cancellation of registration of union otherwise available under S. 10‑Four trade unions already existing hence registration of fifth union, held, could not be understood to have adversely affec ted the employer ‑Interference in writ jurisdiction refused by High Court‑Writ jurisdiction‑‑Constitution of Pakistan, 1973, Art. 199.

Abdul Jalil v. Registrar of Trade Union, West Pakistan, Lahore and another 1971 P L C 507; Bata Shoe Company (Pak.) Ltd., Karachi v. Registrar of' Trade Unions, Sind and 2 others P L D 1978 Kar. 567 Syed Mushtaq Hussain Shah v. Riaz Muhammad Hazarvi and another P L D 1978 Kar. 612 and Rustam Cycle Factory Mazdoor Union v Rustam and Sohrab Cycle Factory Labour Union and 3 others 1981 P L C 414 rel.

Mian Fazaldin v. Lahore Improvement Trust, Lahore and another P L D 1969 S C 223 ref.

Khalid M. Ishaque for Petitioner.

Shahenshah Hussain and Mirza Muhammad Kazim for Respondent No. 3.

Dates of hearing: 7th December, 1980; 28th May; 1st November, 1981 and 18th January, 1982.

The petitioner, a public limited Company, seeks to challenge the order of the IVth Sind Labour Court, Karachi dated 16th May, 1978, accepting the appeal of respondent No. 3 against the order of the Re gistrar, Trade Unions dated 30th March, 1978, whereby the application for registration of respondent No. 3 was rejected, and directing respon dent No. 1 to issue registration certificate in favour of respondent No. 3 forthwith.

The facts leading to the filing of the Petition briefly stated are as under:‑

The petitioner is a public limited Company and is engaged in the business of manufacture and export of textiles and is running a mill. It is the case of the petitioner that in January and February, 1978, the petitioner had on its rolls about 5,306 workers who were employed in the mill and there were four registered Trade Unions of workers of the mill namely (1) Gul Ahmed Textile Mill Mazdoor Union, (2) Gul Ahmed Textile Mazdoor Tanzeem Union, (3) Gul Ahmed Textile Azad Labour Union, (4) Gul Ahmed Textile Mill Staff Union. Of these four Unions Gul Ahmed Textile Mills Mazdoor Union has been certified by the Registrar of Trade Unions Sind as collective bargaining agent for the petitioner's Establishment at Landhi. In January/February, 1978 respon dent No. 3 made an application dated 25th January, 1978 to respondent No. 1 under section 8 of the Industrial Relations Ordinance, 1969 (Ordi nance XXIII of 1969) (hereinafter referred to as the Ordinance) for regis tration of their Trade Union. In the aforesaid application registration was sought of Trade Union under the name of Gul Ahmed Textile Mill Mahnat Kash Union which had been formed on 1st day of January, 1978, the application was delivered as provided by section 5 of the Ordinance under signature of its President and Secretary. On 7^th February, 1978, the Assistant Director (Registration) East Division delivered letter dated 4th February, 1978, to the General Secretary of the Union directing him to produce documents mentioned in the letter so that the application of the Union for registration should be further examined. The aforesaid documents were submitted by the Union on 19th February, 1978 and the Assistant Director again sent a letter dated 4th March, 1978 to the Union pointing out certain objections and defects and directing the Union to remove the same within three days of the receipt of the letter. The Union by its letter dated 6th March, 1978, requested the Assistant Director to specify the defects and supply list of persons mentioned in that letter dated 4th March, I978, who were alleged not to be the employees of Gul Ahmed Textile Mill Ltd., Landhi enabling the Union to remove the defects and comply with the objections, if any. The aforesaid letter dated 6th March, 1971, sent by the Union remained unreplied; however a typed list of 456 members was delivered to the General Secretary of the Union on 13th March, 1978, on which date respondent No. I informed respondent No. 3 that the time allowed for removing the defects in the application be read as 25 days instead of 3 days. The respondent No. I also supplied a list of 46 workers whose names appeared twice or thrice in the list of members supplied by respondent No. 3. On 16th March, 1978, respondent No. 3 applied to' No. 1 for return of documents including membership, register minute books so that the objections raised by respondent No. I could be complied with. The respondent No. I allowed the request and returned the requisite documents.

Respondent No. 1 holding that respondent No. 3 had tailed to satis factorily comply with the objections raised within time rind to substantiate that it enjoyed membership of 20%, of the workers employed in the establishment vide order dated 30th March, 1978, rejected the application for registration filed by respondent No.

Respondent No. 3 being aggrieved by the aforesaid order of rejection passed by respondent No.1 preferred appeal before respondent No. 2 in which the order impugned in this Petition was passed.

It is contended on behalf of the petitioner that the impugned order of respondent No. 2, dated 16th May, 1978, is illegal and not maintainable being without jurisdiction for the following reasons

(1) That the petitioner Union was not entitled to registration having not complied with the requirement of the law.

(2) That respondent No. 2 erred in law by refusing to receive on record the para. wise comments of respondent No. 1.

(3) That the view of respondent No. 2 that tine for compliance with objections should have commenced from the date when the list of persons in employment of the petitioner was supplied to the Union even if correct, the case should have been remanded to respondent No. 1, since respondent No. 2 did not go into the factual aspect as to whether respondent No. 3 did in fact have 20% of the workers as it, members.

(4) 'That, in any case, even if the reply of respondent No. 3 which had not been waited for till 28th March, 1978, had been con sidered, the case should have been remanded to verify the infor mation conveyed by respondent No. 3 in their letter dated 21st March, 1978.

Before considering the contentions raised on behalf of the petitioner it would be fit and proper to look into the relevant provisions of law with regard to registration of a Trade Union under the Ordinance. Sec tion 5 of the Ordinance provides Chit any Trade Union may under the signature of its President and Secretary apply for registration of the Trade Union under the Ordinance. The application made in the instant case by the petitioner was signed by the President and Secretary. Section 6 provides that such application should be accompanied by certain statements with regard to name of the Trade Union, the address of its Head Office, the date and formation of the Union, the titles, names, ages, addresses and occupation of the officers of the Union and the statement of total paid membership. The application of the petitioner per se was accompanied by the aforesaid statements, besides three copies of the constitution of the Union together with resolution of members of the Trade Union adopting the aforesaid constitution and a copy of the resolution of the members of the Trade Union authorising its President and Secretary to apply for registration.

Section 7 deals with requirements for registration and provides that a Trade Union shall not be entitled to registration under the Ordinance unless the constitution thereof provides for matters enumerated in clauses (a) to (1). Of these clauses, clause (b) reads as under

7 (d) "The number of persons forming the executive which shall not exceed the prescribed limit and shall include not less than 75% of the workmen actually engaged or employed in the establish ment or establishments or the industry from which the Trade union has been formed."

Subsection (2) of section 7 aforesaid further provides that Trade Union of workmen shall not be entitled to registration unless all its members are workmen actually engaged or employed in the industry with which the Trade Union is connected and where there are two or more Trade Unions in the establishment, group of establishment or industry with which the Trade Union is connected unless it has members not less than 1/5th of the total number of workmen employed in such establishment, group of establishments or industry as the case may be. Clauses 7 (1) (d) and 7 (2) (a) and (b) have been quoted verbatim inasmuch as, according to the petitioner, the material on record was not sufficient for the Regis trar to consider the entitlement of the Trade Union for registration. With regard to requirement of section 7 (2) (a) it is the case of the petitioner that the Registrar on first scrutiny of the application inter alia giving the names of the workmen found that mare than 500 na nes of the members were not employees of the establishment, and with regard to requirement of section 7 (1) (d) that the number of office‑bearers were more than 25 /o of the total number of office‑bearers On the other hand with regard to contention about names of members not being employees of Gul Ahmed Textile Mill it is the case of respondent No. 3 that on the date of making of the application the information given was correct, but as may well be imagined in an establishment of the size of the petitioner, and workers come and workers go and therefore it is only on a particular date that the facts can be correctly given about the workers employed in the establishment. It is further the case of the respondent No. 3 that in collusion with the staff of respondent No. 1 the objections on the appli cation for registration were made late and in the meantime it was so manoeuvred that certain employees of the establishment were ousted and new ones appointed. The application for registration was made on 31st January, 1978 and under section 8 of the Ordinance the Registrar on being satisfied that the Trade Union had complied with all the require ments of the Ordinance had to issue a registration certificate within a period of 15 days from the date of receipt of the application. However, in case the application was found by the Registrar to be deficient in material respects or respects he had to communicate the objections in writing to the Trade Union within the period of 15 days from the receipt of the application and the Trade Union had to reply thereto within a period of 15 days from the receipt of objections. In the instant case the letter of objections was received on 7th February, 1978, which referred to the application of respondent No. 3, dated 28th January, 1978, received by the Registrar on 31st January, 1978. The letter mentioned that relevant documents had not been submitted alongwith the application for regis tration which was therefore incomplete and that letter further required that the Minutes Book, membership register, membership form O', account book and receipt book and subscription vouchers, notice/ agendas and other documents be supplied for scrutiny of the Registrar. There is nothing in section 8 of the Ordinance with regard to any docu ments being submitted with the application, but however as the Registrar had to be satisfied with regard to compliance with the requirements of the Ordinance, the requisition of the documents could be justified. How ever, even if the aforesaid requisition of documents is considered neces sary, the letter dated 4th February, 1978, of the Registrar of Trade Unions could not be considered to be one raising objections as provided for in section 8 of the Ordinance. It was only in the letter dated 4th March, 1978, that the objections were raised, including the one about members of the applicant‑Union not being employees of the establish ment and about the number of outsider office‑bearers. Since the applica tion for registration was actually received in the office of the Registrar on 31st January, 1978, the letter dated 4th March, 1978, was after the period of 15 days as prescribed in section 8 of the Ordinance for raising of objections by the Registrar burl expired. Again, as pertinently pointed out by the General Secretary of the petitioner in his letter dated tech March, 1978, since the names of the 500 workers who were in the objection considered as not employees of the establishment had not been mentioned, the objection was really not complete. Even the documents requisitioned had been submitted on 19th February, 1978. The IVth Sind Labour Court dealing with the question observed that a typed list of 456 members was delivered to the General Secretary of the Union on 13th March, 1978, and the Union by its letter dated 21st March, 1978, complied with the objection raised by the Assistant Director, but in spite of the compliance the application for registration was rejected by respondent No. I vide letter dated 30th March, 1978. It was therefore further observed that the grievance of the Union was that the office of the respondent No. I violated the mandatory provisions of law in that it did neither register the Union nor communicate the rejection within the stipulated period of IS days of the receipt of application a for registration despite the removal of objections and defects and that the Union's letters dated 6th March, 1978 and 21st March, 1978, were never even considered or replied. Even the objections raised by respondent No. I in the letter dated 4th March, 1978, were of vague and unspecific nature and therefore the request for supplying names of workers who were said to be outsiders were made by the Union the very day and another letter in the same connection was also sent and delivered to respondent No. 1 on‑6th March, 1978. The record does not show that the two letters were replied to but it is apparent that a letter dated 13th March, 1978. was delivered informing the Union that the time for removal of defects had been changed from 3 days to 15 days. It is also clear from the observations in the impugned order that the learned Labour Court considered the position that all the relevant documents on record of the Union being in possession of the Registrar the same had to be brought back for consideration of the removal of so‑called defects, and this was done by letter dated 16th March, 1978. The defects were removed and notified to respondent No. I by letter dated 21st March, 1978. It was, therefore, argued before the learned Labour Court that the Registrar not only violated the mandatory provisions of section 8 of the Ordinance but also suppressed letters dated 4th March, 1978, 6th March, 1978 and 21st March, 1978, with mala fide intention. The learned Labour Court has tightly further observed that even if the objections were correct the time for compliance of the objections should have commenced from the date of the supply of list of persons demanded by the Union and, therefore, the office of the Registrar was under legal obligation to wait at least up to 28th March, 1978. It is admitted position that the objections raised were met with by the respondent No. 3 in letter dated 21st March, 1978 which was not considered when rejecting the application for registration.

Mr. Shahenshah Hussain. the learned counsel for respondent No. 3, has argued that in the clauses of section 7 of the Ordinance the provision is that the Trade Union shall not be entitled to registration unless the matters provided for in the clauses are complied with and that the expression ‑Trade Union shall not be entitled to registration" is quite different from the expression "Trade Union shall not be registered", since whereas in the latter case there is a bar to registration, in the former one a Trade Union cannot claim as of right to be registered. He has referred to the Lahore High Court decision in Abdul Jalil v. Registrar of Trade Unions, West Pakistan, Lahore and another (1971 P L C 507) wherein it was inter alga observed as under :‑

"It is one thing to say that a Trade Union shall not be entitled to registration and quite another to provide that a Trade Union shall not be registered under the Ordinance. Whereas in the latter case there is a bar to the registration, in the former one a Trade Union cannot claim as of right to be registered. A Trade Union in the peculiar circumstances of its own case may be registered in the discretion of the Registrar even if it is not able to comply with all the requirements contained in clauses (a) to (i) of section 7. The intention of the Legislature in enacting clause (a) being applicable to one set of circumstances or situation and that being a Trade Union of workmen, it cannot be pressed into service to contend that it negatives the possibility of a Trade Union of the employers to be constituted. To hold so would be to destroy the definition clause of "Trade Union" and also other provisions which are laid down for the formation of a Trade Union of the Employers."

In the decision relied upon the question was one concerning Trade Union of employers and not employees but the reasoning for arriving at the finding is equally applicable to Trade Unions.

In the impugned judgment, for reasons recorded it was considered that the application for registration was in compliance with all the legal requisites and even the reply to the objections dated 21st March, 1978, which should have been considered by the Registrar before giving his final decision was adequate and covered all the objections raised and further that the reply was admittedly received in time. Be that as it may, it is a question of fact whether all the prerequisites far registration of the Union were shown to be in existence; but, in any case, even if the same are considered to be lacking, the remedy lay in the provisions of section 10 of the Ordinance, which provides for cancellation of registration R if the Labour Court so directs upon complaint in writing by the Registrar. inter alia that the Trade Union has been registered in contravention of any of the provisions of the Ordinance or the rules,

Mr. Shahenshah Hussain, the learned counsel for respondent No. 3, had also raised the preliminary objection about the petitioner not being competent to file petition before this Court on the ground that the petitioner cannot be considered to be an aggrieved person inasmuch as the employer is not authorised to object to registration of a trade union. He relies upon the decision of this Court in Bata Shoe Company (Pak.) Ltd., Karachi v. Registrar of Trade Unions, Sind and two others (P L D 1978 Kar. 567) in which it was held that there is no room in law for any challenge by employer considering himself affected by decision of Registrar in favour of a Trade Union and, therefore notice to employer was not contemplated by the law. It was observed in that case that a registered Trade Union of workmen has as such no rights vis- -vis the employer under the 1. R. O. An industrial dispute under section 43 of the Ordinance can only be raised by a collective bargaining agent. No doubt that a registered Trade Union under section 22 of the Ordinance aspires to become a collective bargaining agent but not without notice to the employer and when that occasion arises, the employer can certainly raise the objection to the legality of the registration of the Union, or that the Union does not have as its members at least 1/3rd of the total number of workmen employed in the establishment." It was further observed that mere registration of Trade Union will not pre‑empt the employer from raising appropriate objection as to its legality and/or that its members are not workmen.

In Syed Mushtaq Hussain Shah v. Riaz Muhammad Hazarvi and another (P L D 1978 Kar. 612) it was inter alia held that "the right to registration by Trade Union having been conferred by the 1. R. O. has also the liability to cancellation of registration under certain circumstances, and the statute having provided the authorities by which and the mode in which the registration was to be granted or cancelled the right or liability cannot be enforced in any other manner or through any other forum."

In Rustam Cycle Factory Mazdoor Union v. Rustam and Sohrab Cycle Factory Labour Union and three others (1981 P L C 414) it was observed as under

"The law saddled the Registrar and the Labour Court with the responsibility for ensuring due compliance with regard to registra tion of a Trade Union. Under section (0 of the Industrial Rela tions Ordinance, 1969, it is open to the Registrar to move the Labour Court for cancellation of registration of a Trade Union which has either contravened or has been registered in contravention of any of the provisions of the Ordinance or the rules. The fact whether the membership of respondent No. 1 on the date of its registration was less than the minimum number of members required by clause (b) of subsection (2) of section 7 of the I. R.O. is a question of fact which may best be agitated upon the learned Labour Court after due notice to parties and summoning and/or examining or recording necessary evidence. To my mind this question ought to be taken before the Registrar and the Labour Court and would not be subject‑matter of proceedings under Article 199 of the Constitution."

On the other hand Mr. Khalid M. Ishaque, the learned counsel for the petitioner, has relied upon Mian Fazaldin v. Lahore Improvement.

Trust Lahore and another (P L D 1969 S C 223) on the point that for maintaining proceedings in writ jurisdiction it need not be necessarily a right in strict juristic sense, and it is enough if the petitioner can show that it had a personal interest in the performance of a legal duty which had not been performed in the manner required by law. It is however, clear from the evidence on record that already four Trade Unions were in existence and it is not easily understandable how the fifth Union, if registered, could have adversely affected the petitioner. Moreover, an alternative remedy for action under section 10 of the Ordinance can be availed of and therefore, also it is not considered fit and proper to interfere with the order of the learned Labour Court which is sought to be impugned. If at any time it is considered that the Trade Union has contravened or has been registered in contravention of any provision of the Ordinance or the rules, the Registrar has the right to make such a complaint in writing before the Labour Court.

The writ petition is accordingly dismissed with no order as to cost,.

Petition dismissed

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