1983 PLP 124 (PLC)

The petitioner i.e. Hamdard Dawakhana (Wadf) was created try Hakim Hafiz Muhammad Said on 1st April, 1953, whereby various Dawakhanas were established in the country including Karachi. There are three Dawakhanas run by the petitioner in Karachi. They are known as Matabs and are situated at (1) Arambagh, (2) 3ahangir Road and (3) Firdous Colony. Attached to each one of these Matabs is a. Dispensing unit known as Depots for the purpose of dispensing medicines to the patients on prescriptions. Some patent medicines of Hamdard Dawa khana are also kept in these Depots and are sold even without prescrip tion. Respondent No. 2 is a Union of employees of the above Depots which, according to the petitioner, are Dispensing units.

2. Under the Industrial Relations Ordinance, 1969 (hereinafter referred to as the I. R. O.) the employees of certain categories of establishment have been excluded from the purview of the Ordinance. The categories have been enumerated in clauses (a) to (e) of subsection (2 of section 1 of the I.R.O. The I.R.O. was amended on 20th September, 1979' by Industrial Relations (Second Amendment) Ordinance, 197 (LI of 1979). By this amendment another category was added to the list of exempted establishments under a new clause (f) which was added t subsection (3). The establishment, the workers of which were excluded under . the new clause (f) from the purview of I.R.O. was: "an establishment maintained for the treatment or care of sick, infirm, destitute o mentally unfit persons."

3. The petitioner felt that by ,virtue of the above clause its three Matabs described above and its employees were no more entitled to the benefit of I.R.O. and that under section 3 of the above amending Ordinance of 1979, the registration of the Union of the employees 1. e. Respondent No. 2 should stand cancelled. Section 3 of the amending Ordinance runs as under :‑

3. Cancellation of registration of Trade Union.‑Notwithstanding anything contained in the Industrial Relations Ordinance, 1969 (XXIII of 1969), the registration of, and the certificate of regis tration issued to, the registered Trade Unions in any estab lishment maintained for the treatment or care of sick. infirmed, destitute or mentally unfit persons shall stand cancelled."

4. In view of the above provision the petitioner made an application to Respondent No. 1 claiming that the employees of the Matabs were hit by the mischief of clause ( f) of subsection I(3) of the I.R.O., 1969 ‑and as such under section 3 of the amending Ordinance of 1979 the registration of the union was liable to be cancelled. This prayer was not made in so many words by the petitioner in their petition to Respondent No.

1. The exact words in which the jurisdiction of Respondent No. t was invoked run as under:‑ "We would request you to please consider the effect of this amend ment on our organization. You are aware of the fact that our organization consists of three units viz. Production Factory, Sales Depots of medicines and Matabs. The only reason to establish the sales depots of medicines and matabs was to provide treatment and care of the sick and infirm. They are maintained for the same purpose only: You are, therefore, requested to please look into the matter and advise the unions in our organization to reject the membership of such workers who are working. in these two units in accordance with law and restrict their membership to the factory only." Alongwith its petition the petitioner also submitted a list to Respon dent No. 1 of the persons who were employed in the Dispensing Units of the three Matabs. Before its petition could be decided by Respondent No. 1, the petitioner made another application to Respondent No. 1 making it further clear that the Depots attached with the three Matabs were Dispensing Units and were part of the Matabs. After hearing the parties the learned Registrar of the Trade Unions i.e. Respondent No. I came to the conclusion that the Matabs will fall under the category o f clause (.f) but not the Sale Depots. Consequently the petition was partly allowed with the following observations :‑ "The contention of the management is, therefore, partly upheld and the union is directed to exclude the employees of the Matabs from the membership of the Union at an early date under intima tion to the management and to this office." ' 5, Aggrieved by this order Which is dated 29th March, 1980, tire petitioner filed this petition on 11th December, 1980 in which following reliefs have been prayed for :‑ (a) Declaring that the said order dated 29th March, 1980 of the Respondent No. 1 is without lawful authority and ,no legal effect; (b) declaring that by virtue of the provisions of the Industrial Rela tions (Second Amendment) Ordinance, 1979 (Ordinance 51 of 1979), the Industrial Relations Ordinance, 1969 ceased to apply to all persons employed in the clinics (called Matabs) and the dispensing units (called depots) with the said clinics of the Petitioner and that the registration of and the certificate of registration issued to the Respondent No. 2 stood cancelled; that the Respondent No. 2 ceased to be a CBA; and (c) making such other or further declarations or orders as may seem just and proper to this Honourable Court in the circumstances of the case."

6. The case has not been contested on behalf of Respondent No.

1. The plea of Respondent No. 2 is that only the employees of the Matabs, i. e. Hakims and Dispensers working in the Matabs are excluded from the purview of I.R.O. in view of clause (f) of section 1(3) thereof. The further plea of Respondent No. 2 is that the Union is composed of workers, who work in the Sales Depots where patent medicines of Ham dard Dawakhana are sold and that these Sales Depots are controlled by a. separate department of the Hamdard Dawakhana Trust. It is, therefore, claimed that the Depots, where they are employed, do not form part of Matabs, nor do they fall within the mischief of the said clause (f ).

7. It would appear from the petition that Hamdard Dawakhana has got three units, i.e. Production Factory, Sales Depots of medicines and Matabs. So far as the employees of Production Factory and Sales Depots not attached with any Matab are concerned, no exemption has been claimed by the petitioner under clause (f) of section 1 (3) of the I.R.O. However, they have claimed that Matabs and Dispensing Units/Depots attached with the Matabs from one Unit or Establishment which are maintained for the care of sick/infirm persons, etc. and as such should be deemed to be exempted‑from the purview of the I.R.O.

8. The learned Registrar of the Trade Unions did not conduct any inquiry whether the Depots attached with the Matabs from part of the Matabs or are separate entities from the Matabs. If the Depots attached to these Matabs are simply Dispensing Units, which are invariably attach ed to every clinic, then it should be held that Dispensing Unit and the Matabs from one Establishment or entity irrespective of the fact that medicines from such Dispensing Units are given under prescription of the Hakims of the Matab or patent medicines are sold even without prescrip tions. The question of fact that the learned Registrar should have decided was whether these Dispensing Units were actually attached with the three clinics and formed part of the clinics. It transpires that there are several stockists of the petitioner in the city at Karachi where patent medicines of the petitioner are sold with or without prescriptions. The petitioner has not claimed the benefit of clause (f) to respect of such stockists or Depots. It has specifically mentioned that only three clinics or Matabs as indicated above and asserted that the Depots attached with these clinics. in the forth of Dispensing Units, must be Effected as part of the clinics and as such, should be deemed to be 'Establishment' main tained for the care and treatment of sick, infirm, destitutes or mentally unfit persons. The learned Registrar of the Trade Unions did not distin guish between the Sales Depots which are attached with the three Matabs and the Depots which were not attached with the Matabs. It also seems that the Registrar did not consider the subsequent application of the petitioner dated 29.12.1979 which was in continuation of its original application dated 18.10.1979, in which it was elaborated that the three Sales Depots attached with the Matabs are inseparable and integral parts of the Matabs, nor has the Registrar given any reasons as to why the so -called Sales Depots which the petitioner claims to be part of the Matabs in the form of Dispensing units, should not be deemed to be part of the Matabs. The learned Registrar has simply referred to Telephone Direc tory in which Sales Depots of the petitioner have been classified under the head 'Sales and Marketing Division' of Hamdard Dawakhana. The fact that these Depots fall under the Sales and Marketing Division does not mean that the Depots have no connection with the Matabs to which they are attached as Dispensing Units. It may be for administrative purposes of supplying medicines that these Depots have been shown to fall under a particular Division. This fact, however, would not excluded the wor kers of such Depots from being part of the Establishment, i.e. the clinic to which they are attached as employees of its Dispensing Units. This was a point of fact which the learned Registrar should have investigated by calling upon the parties to lead evidence rather than to form his opinion on the basis of entries in Telephone Directory. The nature and status of an Establishment cannot be determined with reference to entries in Tele. phone Directory in respect of such Establishment. This ground alone is sufficient to set aside the order of the Registrar with the direction to recon sider the claim of the petitioner after holding an inquiry

9. Again the order of the Registrar that the persons who are mem bers of the Matabs shall be excluded from the membership of the Union i.e. Respondent No. 2 is also not consistent with the provisions of section 3 of the amending Ordinance, of 1979 quoted above. According to this section if a union consists of members who are workers of an Establish ment as defined by the said clause (f), then the registration of the union is to be cancelled. The section does not empower the Registrar simply to give direction to the union to exclude such persons from its membership who are workers of an Establishment which is exempted from the purview of I.R.O. under the said clause (f). If the Registrar comes to the conclu sion that the members of the union are workers of an Establishment exempted under the said clause (f), then the only legal order that he can pass is that the registration of the union stands cancelled. This order shall be irrespective of the fact that the union consists of members some of whom are workers of an exempted Establishment under clause (f), while others are not. The Registrar can only cancel the registration and cannot give a direction that the persons who are members of an exempted Estab lishment should be excluded from the membership of the union. In view of the above legal position, the order of the Registrar is set aside with the direction that he shall decide the petition of the petitioner after holding proper inquiry into the question of fact whether the three Depots attached with the three Matabs mentioned. in the petition are integral parts of the Matabs or not. After coming to definite conclusion about the nature of the Sales Depots/ Dispensing Units, he may pass such orders under section 3 of the amending Ordinance of 1979 as may be just and expedient.' The petition is, therefore, allowed but in the circum stances of the case there shall be no order as to costs. Petition accepted.