1976 PLP 410 (PLC)

Mirza Abdur Rashid for Appellant. Khaliquzzaman for Respondent. Date of hearing : 2nd November 1973. This is an appeal against an order of the learned Presiding Officer of Sind Labour Court No. III, Karachi dated 9th October 1973 where by the learned Labour Court ordered the registration of the appellant Union to be cancelled. The facts necessary for the disposal of this appeal briefly put are these.

2. The Deputy Director (Registration), for Registrar of Trade Unions, Karachi, made an application on 6th March 1972, under section 10 of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance), for cancellation of the registration of the appellant-Union. The main ground. as stated in the application of the Deputy Director (Registration), runs as under: "That the respondent-Association was, therefore served a notice No. DRLW/RTU-1235/70-2136, dated 10-12-1971 (copy attached) with the notice to amend its constitution so as to restrict the membership to only those categories of employees who are not employed in the administration of the state."

3. It is alleged in the application that the appellant-Union failed to amend its constitution, as directed, and therefore, the Union had contravened the provision of section 1 (3) of the Ordinance by allowing these workmen to continue to be its members, who are employed in the administration of the State.

4. Mr. Mirza Rashid, the learned Advocate for the appellant-Union, has raised two-fold contentions before me, namely, (1) that the application as filed was not maintainable, inasmuch as under section 10 of the Ordinance it is the Registrar of Trade Unions, who is competent to make a complaint before the Labour Court for cancellation of the registration and not Deputy Director (Registration) and (2) that there is no evidence, whatsoever, on the record of this case for the conclusion that any of the members of the appellant-Union are. employed in the administration of the State, so as to attract the application under section 1(3) of the Ordinance.

5. Mr. Khaliquzzaman, the learned Advocate for the respondent contended that the application cannot be dismissed on the ground that it contravenes the provisions of section 10 of the Ordinance. He submitted that section 13(b) of the Ordinance empowers the Registrar of Trade Unions to authorize anyone to lodge a complaint with the Labour Court for action against the appellant Trade Union. There is much force in this contention. It is a question of fact as to whether the Registrar had authorised the Deputy Director (Registration) to prefer a complaint under section 10 of the Ordinance. This objection was not taken by the appellant Union before the learned Labour Court, so as to enable the Registrar to produce its order authorising the Deputy Director (Registration), to make an application under section 10 of the Ordinance. I would hold that the application was rightly filed by the Deputy Director (Registration).

6. In respect of the second contention of Mr. Rashid, Mr. Khaliq uzzaman made two submissions. He relied on a Notification of the Ministry of Interior, States and Frontier Regions and Kashmir Affairs (Interior Division), dated the 31st of May 1973 made under section 3(3) of the Pakistan Essential Services (Maintenance) Act, 1952 (hereinafter called the Act of 1952). Under the said Notification, the provisions of the Act of 1952, were made applicable to all employment in the Civil Medical and Public Health Services. Mr. Khaliquzzaman submitted that Jinnah Postgra duate Medical Centre Employees Association is covered by the said Notification and, therefore, under section 7-A of the Act of 1952 the Trade Union should be deemed to have ceased to exist. There is not much force in this contention. Section 7-A of the Act of 1952 reads as under : "The provisions of this Act shall have effect, notwithstanding anything to the contrary contained in the Trade Unions Act, 1926 (XVI of 1926) B or the Industrial Disputes Ordinance, 1959, (LXI of 1959), or any other law.

7. Mr. Khaliquzzaman was not able to point out any of the provisions of the Act which can be said to be in conflict or contrary to the provisions of the Ordinance, so as to debar a Union from mere registration. I would hold accordingly.

8. Mr. Khaliq was not able to point out anything from the record of the case of the learned Labour Court to establish that any of the employees of the respondent Medical Centre was employed in the administration of the State. It is a question of fact as to whether a person is employed in the administration of the State or not. There must be some evidence before a Court to lead one to the conclusion. Mere opinion of the Deputy Director (Registration) that the employees of the Medical Centre are employed in the administration of the State is not sufficient. The respondent should have placed before the Court the duties that the employees of the Medical Centre were performing, so as to enable the Court to come to a conclusion as to whether they were employed in the administration of the state or not. The learned Labour Court should not have accepted the mere opinion of the Deputy Director (Registration) for his conclusion that the employees of the Medical Centre are employed in the administration of they State. The learned Labour Court should have applied its own mind.

9. I would, for the reasons given above, set aside the order of the learned Labour Court. The application for stay has become infructuous.