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Appeal No. 118 of 1983, decided on 26th February, 1986.
‑‑‑Ss. 3(a), 7(2)(a) a (b)‑‑Trade Union, registration of‑‑Trade union seeking registration, held, would be bound to fulfil requirements of Ss.3(a) a 7(2(a) & (b) of Ordinance XXIII of 1969‑‑Failure to comply with provisions of Ordinance XXIII of 1969 would not entitle trade union for registration.
‑‑‑S. 7(2)(b)‑‑Trade Union, registration of‑‑Requisite number of members of registration‑‑There being already two registered trade unions functioning in establishment, new trade union seeking registration, held, would be required to have members not less than 1/5th of total number of workmen employed in establishment‑‑Trade union having members less than 1/5th of total number of workmen would be refused registration.
‑‑‑S. 8(i)‑‑Word 'satisfaction', connotation of‑‑For registration of trade union, satisfaction of Registrar, held, would be necessary in accordance with requirement of the whole ordinance and not of any particular section‑‑Word 'satisfaction' having been used therein, same would make room for enquiry by Registrar‑‑Silence on part of Registrar with regard to any illegality in objections made by him would not make it imperative for such Registrar to issue registration certificate‑‑Silence of Registrar if interpreted in favour of Union seeking registration would amount to estoppel against law which could not be permitted‑‑Time limit provided by law for Registrar to grant/refuse registration is directory in nature and not mandatory.
P L D 1975 S C 134ref.
‑‑‑Ss. 3 a 7(2)(a), (b)‑‑Trade 'union, registration of‑‑Contradictions‑‑Plea that opportunity to meet out contradictions was not given by Registrar, held, would not be convincing in view of fact that union seeking registration had been submitting list of membership again and again.
‑‑‑Ss. 3 a 7(2)(a), (b)‑‑Qanun‑e‑Shahadat Order (10 of 1984), Art.118 ‑Extraneous considerations‑‑Plea of‑‑Such plea not established on record, held, could not be considered.
‑‑ Ss. 3, 7(2)(a)(b) a 8(i)‑‑Trade Union, registration of‑‑Enquiry by Registrar‑‑While making enquiry for registration of trade union, Registrar, held, could take note of illegalities brought to his notice by rival trade on.
‑‑‑S. 8(i)‑‑Enquiry by Registrar‑‑Plea that copies of complaints of rival trade union were not supplied to trade union seeking registration, held, would have no force where such copies were neither sought nor was there any need to supply same.
‑‑‑S. 8(3)‑‑Appellate jurisdiction, exercise of‑‑Labour Court's findings on merit, held, would make order of Registrar refusing registration of trade union‑due to non‑requirements of legal obligations, perfectly lawful.
Syed Aqa Asif Jaffary for Appellant.
Respondent No. 1 in person.
Ch. Muhammad Anwar Awan for Respondent No.2.
Date of institution: 8th May, 1985.
This judgment will dispose of an appeal under section 8(3) of the Industrial Relations Ordinance, 1969, hereinafter to be called the Ordinance, against the order, dated 2‑5‑1985, whereby the Registrar of Trade Unions, Dera Ghazi Khan Region, Dera Ghazi Khan hereinafter to be called the respondent No.l. refused to register the appellant union, namely the Mazdoor Ithad Union Mehmood Textile Mills Limited, Muzaffargarh.
2. To understand the background of the dispute, it may be stated that some of the workers employed in the Mehmood Textile Mills Limited, Muzaffargarh, met on 23‑3‑1985 at the residence of Allah Bakhsh Mujahid, subsequently elected as General Secretary of the union, and formed a trade union, titled as Mazdoor Ittehad Union. The assemblage then proceeded for the fulfilment of the requirements, necessary for its registration. By 31‑3‑1985, the appellant union was in a position to move for its registration and it did accordingly. The respondent No. 1 proceeded with the matter, as alleged by him, in accordance with law. After necessary investigation, he found the union lacking in certain respects, therefore, he disallowed the registration vide his order which R is now challenged by way of an appeal in this Court.
3. The appellant's contention is that:‑
(i) the respondent No. 1 communicated his objections on 4‑4‑1985. The appellant union met these objections satisfactorily. After meeting his requirements, the respondent No. l had no alternative but to issue the certificate of registration;
(ii) the respondent started enquiries subsequent to the removal of objections. According to law, he had no such right;
(iii) the appellant union was not given a chance to meet the contractions pointed
out by respondent No.l after the submission of objections by him;
(iv) the impugned order is based on extraneous considerations;
(v) the respondent No.l also relied upon the complaints and inform4tions supplied to him by the rival union. He went on holding the enquiries in accordance with those complaints and informations. Legally, he could not do so. After the communication of objections, to the appellant union by him, he had no right to go beyond the same;
(vi) the copies of the alleged complaints of the rival union were not furnished to the appellant;
(vii) the impugned order is illegal, ultra vires; arbitrary and coram non judice; and
(viii) the members of the appellant were victimised throughout this process. They were compelled to thumb‑mark certain documents and to affix their signatures on the others. These irregularities were in the notice of the respondent No.l but he did not take care of them.
4. In order to ascertain the validity of the allegations raised by the appellant, I summoned the respondent No.l, who in the parawise comments, filed by him in this connection, denied each and every allegation of the appellant. According to him: ‑
(i) the objections, raised by him, were removed by the appellant union on 13‑4‑1985. After removal of the same, he held the enquires on the spot to verify the list of membership etc. on 11‑4‑1985. The enquiries, after 13‑4‑1985 were held on the request of the appellant itself. The enquiries showed the application against the provisions of the Ordinance, therefore, he rejected it rightly;
(ii) the objections in regard to section 7 (1) of the Ordinance were communicated to the appellant union on 4‑4‑1985. Meanwhile, the General Secretary of Pak Workers Union, existing in the same establishment submitted three applications to him together with the Photostat copies of 177 affidavits, 125 checkoff forms and 160 membership forms filled in by the members of the appellant union to prove that application for registration was quite forged one. In the second application, it had been alleged that many members of the appellant union had signed the check off forms in favour of Pak Workers Union and had also paid the monthly union subscription through the check off system. It is on this ground that the enquiries were held on the spot. These enquiries were held to ascertain whether members of the appellant union were actually employed in the establishment as provided by section 7 (2) (b) of the Ordinance; whether none of them was member of the other union as provided by section 3 (a) of the Ordinance and whether the proceedings about the formation of the union were true;
(iii) the enquiries which were held in the presence of the parties led to the following conclusions:‑
(a) out of 121 persons produced before him, by the appellant, 37 persons denied their membership with the appellant union. They also denied their participation in the meeting as well as payment of union subscription. They rather confirmed their membership with Pak Workers Union;
(b) 8 persons included in the list of membership of the appellant union were found being not employed in the establishment;
(c) the names of six persons in the original list and one out of the second list, provided by the appellant, were recorded twice in the list of membership;
(d) 16 members said to have attended the formation meeting were found present on duty in the mills from 2‑00 p.m. to 10‑00 p.m.;
(e) 2 of the office‑bearers of the union said to have attended the union meeting were found present on that date in the mills from 2‑00 p.m. to 10‑00 p.m.;
(f) from the statements of 22 persons who appeared before him on 11‑4‑1985, the contents of the affidavits submitted by Pak Workers Union were confirmed;
(g) 60 persons were found to be members of Pak Workers Union in the check off forms signed in favour of the said union. Moreover, 60 persons had paid the monthly union subscription through check off sy 3tem on 7‑4‑1985; and
(h) the total number of the workmen employed in the establishment on 23‑3‑1985, the date of formation of the union, were 1035. According to section 7 (2) (b) of the Ordinance, the appellant union needed at least 207 members to bring the third union. The appellant union failed to have the required minimum number of members.
(iv) the application for registration was to be disposed of y 16‑4‑1985. On that date, the appellant union submitted an additional list of 37 members to cover the required membership. For the verification of this list, enquiries were held on the spot with a due notice to the appellant As a result of enquiries, 16 members out of 47 denied their membership with the appellant union ;
(v) On 24‑4‑1985, again the General Secretary of the appellant union submitted another list of 39 members to meet the requirement of law. The enquiries with regard to this list as well did not prove fruitful to the appellant. 14 members out of 39 denied their membership with the appellant union;
(vi) the enquiries were held in the presence of representative of the appellant;
(vii) the complaints and information supplied by the rival union necessitated enquiries in the interest of justice;
(viii) the appellant never applied for the supply of the copies of the complaints or information. In spite of the same, the record was shown to the appellant. Moreover, it remained within his reach throughout the enquiries; and
(ix) the order of rejection is quite lawful.
5. The Pak Workers' Union, Mehmood Textile Mills Limited, Muzaffargarh, (C.B.A) also applied for its impleading as a party to the proceedings. Its application was allowed on 15‑5‑1985 with the consent of the General Secretary as well as the learned counsel for the appellant. The points brought before the Court by the Pak Workers Union are the same, which have already been referred in the parawise comments of the respondent No.l.
6. To resolve the dispute, I have gone through the record and heard the arguments. In the light of the record and the relevant provisions of law, I am unable to see any force in the appeal. The appellant union has failed to fulfil the requirement of the proviso to sections 3 (ay, 7 (2) (a) and 7 (2) (b) of the Ordinance For ready reference, these provisions. are reproduced below: ‑
"Section 3. Trade unions and freedom of association. Subject to the provisions contained in this Ordinance
(a) Workers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join associations of their own choosing without previous authorisation:
Provided that no worker shall be entitled to be a member of more than one trade union at any one time."
"Section 7 (2) (a) a (b) Without prejudice to the provisions of subsection (1), a trade union of workmen shall not be entitled to registration under this Ordinance‑‑
(a) unless all its members are workmen actually engaged or employed in the industry with which the trade union is concerned; and
(b) where there are two or more registered trade unions in the establishment, group of establishments or industry with which the trade union is concerned, unless it has as its members not less than one‑fifth of the total number of workmen employed in such establishment, group of establishments or industry, as the case may be."
The application for registration was conveyed to the respondent No.l on 31‑3‑1985. After communication of the objections to it, the respondent No.2, namely, the Pak Workers Union, complained that the appellant included in its list of members the persons who were already on its roll and had been paying the subscription to it through the check off system. In support of its version, the respondent No.2 supplied to the respondent No. 1, 117 affidavits, 125 check off forms and 160 membership forms. To enquire into the complaints of respondent No. 2, the respondent No.l hold the necessary enquiries. The enquiries conducted by him resulted in the following conclusions: ‑
(i) 37 persons denied the membership of appellant union as they were already on the roll of respondent No.2. The list of these 37 persons has been brought on the record as Annex. G and their statements, recorded by respondent No.l as Annex. H.1 to Annex. H.37.
(ii) 7 persons from amongst the list of membership of the appellant union were not found employees of the establishment. The list of these 7 persons forms part of the record as Annex. I.
(iii) 6 persons were found recorded twice in the list of membership as is apparent from Annex. J.
(iv) 60 persons from amongst the list of membership of the appellant were found members of the respondent No.2 for having signed the check off forms and for having paid the union subscription. The list of these 60 persons is part of the record as Annex. R. 1‑2
(v) 16 of the members of the appellant union, stated to have attended the formation meeting held on 23‑3‑1985 at 5‑00 p.m. were found present on duty in the establishment in between 2‑00 p.m. to 10‑00 p.m. The list of these persons is Annex. K and their attendance cards pertaining to the relevant time are Annex. M.1 to Annex. M.16. A certificate of the factory manager about their presence at that period is Annex. 2.
(vi) 2 of the office‑bearers of the appellant union stated to have attended the first meeting held on 23‑3‑1985 were found on duty in between 2 p.m. to 10 p.m. as per certificate of the manager Annex. L and the attendance cards Annex. P.I and Annex. P.2. The list of these two persons has been placed on the record as Annex. N.
From these figures, duly supported by the record, it is established that the appellant had violated the provisions of proviso to section 3 (a) and section 7 (2) (a) of the Ordinance.
7. Admittedly, there are two registered trade unions already in the same establishment. In accordance with the provisions of section 7 (2) (b) of the Ordinance, the appellant was required to have its members not less‑‑than 1/5th of the total number of workmen employed in the establishment. The appellant knew that its membership had fallen short of the requirement of law, therefore, it submitted an additional list of 47 members to the respondent No.l on 16‑4‑1985. To verify the authenticity of the second list, the respondent No.l held further enquiries. Out of 28 members, brought before him, 16 persons were B found on the roll of respondent No.2. In their statements, these 16 persons also denied the membership of the appellant union. The list of these 16 members is Annex. W while their statements are Annex X.1 to Annex X.16. In the light of denial by these 16 persons, the appellant again fell short of the requirement of section 7 (2) (b).
8. On 24‑4‑1985, the appellant submitted another list of 39 members to achieve its target. It, however, could not come up to the required standard. Out of 31 persons, produced before the respondent No. I, for necessary enquiries, 14 persons denied their membership of the appellant union and confirmed that of the respondent No.2. The list of 14 members is on the record as Annex. 'AA' and their statements are. Annex. 'BB‑1' to Annex. 'BB‑14'. In spite of its efforts thrice, the appellant could not fulfil the requirement of section 7 (2) (b) of the Ordinance. As per certificate on the record, the total strength of the workers employed in the establishment at the relevant time was 1035. The appellant failed to achieve its 1/5th Out of list of 211 members, submitted by the appellant alongwith the application for registration, 110 persons, being the members of respondent No.2 to the extent of 97 persons non employees to the extent of 7 persons and 6 persons recorded twice were to be deducted. After deduction, the balance came to 101 which was definitely below the required limit. The two additional lists submitted subsequently to that failed to help the appellant as I have already discussed total strength of the persons derogating from the appellant.
9. The respondent No.l further says that the proceedings about the formation of the union are fake. He has relied on the statements of 67 persons denying the membership of the appellant union on the strength of their affidavits and from this fact that 18 persons said to have participated in the meeting held on 23‑3‑1985 were actually on duty. In the light of the statements and presence of the cards pertaining to 18 persons, the contention of respondent No.1 is quite considerable.
10. After the establishment of point of view of respondent No.l, I now proceed to the grounds, taken by the appellant. The appellant has tendered 35 affidavits to meet the requirement of 1/5th membership and, to counter the 117 affidavits, filed by the respondent No.2 before respondent No.l. The affidavits of Allah Ditta son of Wahid Bux, Khizar Hayat son of Khuda Bux, Ghulam Abbas son of Imam Bux, Muhammad Aslam son' of Mashooq Ali, Mureed Hussain son of Ghulam Farid, Muhammad Hussain son of Muhammad Ali, Muhammad Shameer son of Muhammad Bux, Muhammad Hussain son of Wahid Bux, Shabbir Hussain son of Muhammad Bux; Makhan Khan son of Sher Muhammad, Muhammad Rustam son of Sher Muhammad, Manzoor Hussain son of Gul Muhammad, Muhammad Ramzan, son of Nabi Bux, Muhammad Aslam son of Mashooq Ali, Muhammad Siddique son of Khushi Muhammad, Muhammad Shaft son of Pir Bux, and Muhammad Hussain son of Rahim Bux have duly been considered by the respondent No.l to make up the required deficiency about 1/5th membership. In spite of the inclusion of their names, the deficiency is there.
11. The affidavits of Riaz Hussain son of Ghulam Hussain, Ahmad Yar son of Ghulam Sarwar, Ghaus Muhammad son of Ghulam Rasool Muhammad Raft son of Kaloo Khan, Din Muhammad son of Ghulam Hussain, Ahmad Yar son of Allah Bukhsh, Muhammad Shafi son of Kaloo Khan, and Gulzar Hussain son of Badar Din have been brought on record for disproving the false elections proceedings. In their affidavits, these persons say that the election proceedings were held on 23‑3‑1985. They attended the same because the mills remained closed on that day on account of festival holiday. Their contention is not proved from the following facts. ‑‑
(i) Vide Annex. HH‑1', the C.B.A. union requested for the substitution of holiday falling on 23‑3‑1985 for 13‑4‑1985 on account of Sher Shah Fare.
(ii) Vide Annex. 'HH‑2', the mills notified the substitution.
(iii) Vide Annex. HE‑31, which is certificate of the Inspector Central Excise, the functioning of the establishment was confirmed on 23‑3‑1985.
(iv) Vide Annex. IHH‑51 which is joint affidavit of 110 employees,- the substitution of festival holiday as per detail given above is confirmed.
That being the situation, these 8 persons could not be relied upon
12. The affidavits of Ghulam Qasim son of Muhammad Ramzan, Ghulam Shabbir son of Ghulam Qadir, Mureed Hussain son of Rahim Bux, Muhammad Afzal son of Rahim Bux. Mulazim Hussain son of Muhammad Ramzan, Muhammad Rustam son of Rahim Bux, and Muhammad Bux son of Elahi Bux can be over looked as per detail given below.
13. The affidavit of Ghulam Qasim son of Muhammad Ramzan is countered by another affidavit filed by him in favour of the appellant as HH‑6. The affidavit of Ghulam Shabbir son of Ghulam Qadir is countered by another affidavit filed by him as HH‑9. He also resigned on 4‑3‑1985. The affidavit of Mureed Hussain son of Rahim Bux is not worthwhile because of his resignation and the clearance certificate as Annex. IHH‑101 and Annex. 'HH‑11'. He tendered the resignation on 16‑3‑1985. Mulazim Hussain son of Muhammad Ramzan resigned on 1‑3‑1985. His resignation and clearance certificate are Annex. 'HH‑12 and Annex. 'HH‑13'. Muhammad Bux son of Illahi Bux resigned on 1‑3‑1985. His resignation and clearance certificate are Annex. IHH‑161 and Annex. 'HH‑17'. Muhammad Afzal son of Rahim Bux was issued trial pass and was found not fit. Accordingly, he was refused the employment. He is no more in the employment of the establishment.
14. Ghulam Rasool son of Qadir Bux and Muhammad Akbar son of Muhammad Ismail were not employees of the mills.
15. Legally, the most important plea, taken by the appellant, is that the objections were conveyed to it on 4‑4‑1985. These objections did not pertain to the facts disclosed above. The objections were met satisfactorily by the appellant as such the respondent No. 1 had no alternative but to issue the certificate of the registration. This plea cannot be given any weigh because of the law in this connection. In this regard, section 8 (i) of the Ordinance is notable which says: ‑
"Registration.‑‑(1) The Registrar, on being satisfied that the trade union has complied with all the requirements of this Ordinance, shall register the trade union in a prescribed register and issue a registration certificate in the prescribed form within a period of fifteen days from the date of receipt of the application. In case the application is found by the Registrar to be deficient in a material respect or respects, he shall communicate in writing his objections to the trade union within a period of 15 days from the receipt of the application and the trade union shall reply thereto within a period of fifteen days from the receipt of the objections."
The very opening sentence of the above provision of law makes the satisfaction of the Registrar necessary in accordance with the requirement of the whole Ordinance, and not of any particular section, such as section 7 etc. If a trade union violates any of the provisions of the Ordinance, it cannot claim the registration. Moreover, the word 'satisfaction' having been used therein makes a room for enquiry by respondent No.l, which it held accordingly. This argument can still b met on another footing. Silence of the respondent No.l with regard to any illegality in the objections, raised by him, does not make it imperative for him to issue a registration certificate. His silence cannot defeat the provisions of law. He may remain silent but if the union has contravened any provision of the Ordinance, then this provision is to prevail at every cost. In the present case, if the respondent No. 1 did not touch any illegality in his objections it does not mean that he is now bound down to issue the certificate of registration. His silence, if interpreted in favour of the appellant, shall amount to an estopple against law, which is not at all permitted. Further, the time limit provided by law for respondent No.l is directory is nature and not mandatory. If it has been violated,, it does not amount to acceptance of the application for registration, I have already held this view point in appeal No.257 of 1984 titled as President and General Secretary, Pak Labour Union, Burewala Textile Mills Limited, Burewala v. The Registrar of Trade Unions, Multan Region Multan, decided on 23‑12‑1984. This opinion was based on the observations of law made by the worthy Supreme Court of Pakistan vide P L D 1975 S C 134. That opinion still holds true. Lastly, the appellant, itself, is estopped by its conduct in this connection because it had itself been inviting enquiries by submitting additional lists.
16. It is further alleged that enquiries could not be held after the removal of objections raised by respondent No.l. I have sufficiently discussed this point above, therefore, I need not revert to it again.
17. The appellant's third contention is that it was not given chance of meeting the contradictions pointed out by the respondent No.l after the submission of objections by him. This contention is equally not convincing because the appellant had been submitting the list of membership again and again. Had it not been in his knowledge, he would not have taken such steps.
18. Fourthly, the appellant says that the respondent No.l was moved by extraneous considerations while passing the impugned order. The appellant has brought nothing on record to uphold this view as such findings accordingly.
19. Fifthly, the respondent has contended that respondent No. l relied upon the complaints of the rival union which he legally could not do‑1 This point has already been discussed above. The respondent No.2 brought certain illegalities in the notice of the respondent No.l and legally the respondent No.2 could not be stopped from doing so. These complaints were fully in the knowledge of the appellant. So far as enquiries are concerned, those could be held for necessary satisfaction of respondent No.l.
20. Sixthly, the appellant says that the copies of the complaints of the rival union were not supplied to it. By way of reply to this plea, the respondent No.l says that he was not asked for copies, therefore, he did not supply them to the appellant Moreover, there was no need of supplying the copies. The explanation of respondent No. 1 is quite considerable.
21. Lastly, the appellant says that the impugned order is ultra vires, illegal and coram non-judice. My findings on merits make the impugned order perfectly lawful, therefore, this objection once again is held in the negative.
22. Finally, the appellant has stated that his members were victimised throughout this process. They were compelled to thumb‑mark certain documents and to affix their signatures on others. These irregularities were in the notice of respondent No.l, but he did not take care of them. The appellant has brought nothing on the record to support his contention. In the given situation, it cannot be held that any victimisation was going on.
23. In the presence of the discussion, made above, the appeal cannot succeed, which is as such, hereby dismissed.
A. A.
Appeal dismissed.
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