1981 PLP 154 (PLC)

Karachi Warehouse and Carriers Workers' Union v. Pakistan Ware house Carriers Workers' Union P L D 1978 Kar. 617 and Mushtag Hussain v. Riaz Muhammad Hazarvi P L D 1978 Kar. 612 rel. Employees' Union v. Smith Kline and French 1976 P L C 232; Trade Union v. Ali Automobiles Ltd. 1963 P L C 922 and Labour Union v. M. M. Ispahani Tea Packeting Factory 1976 P L C 660 dissented form. Farzand Ali v. Province of West Pakistan P L D 1970 S C 98 rel. Bata Shoe Company v. Registrar of Trade Unions of Sind P L D 1978 Kar. 567 distinguished. Hameed M. Siddiqi for Appellant. Abid Puri for Respondent. Date of hearing : 29th January, 1980. This appeal is directed against an award given by the learned Vth Labour Court on 13th October 1979, dismissing the application under section 32(1‑A), Industrial Relations Ordinance, 1969 (hereinafter referred to as the I. R. O.), filed by appellant‑Union, on the ground that its General Secretary, Ikram Hussain, was not a workman, and, therefore; had no locus standi to espouse the cause of workmen.

2. The facts which have led to the filing of this appeal are that the appellant‑Union served a charter of demands on the Bank of India, the respondent herein, but as no settlement could be negotiated with the respondent‑Bank and the matter also could not be resolved in the concilia tion proceedings, the appellant‑Union, through its General Secretary, Ikram Hussain filed an application under section 32(1‑A), I.R.O., with the Fifth Labour Court for an award in respect of the Union's demands. The said application was resisted by the respondent‑Bank on a number of grounds, including the ground that the General Secretary of the Union was not a workman for the purposes of the I.R.O., and as such the application filed by him was not maintainable. This ground found favour with the learned Labour Court, which has taken the view that since the General Secretary was holding the post of Sub‑Accountant, which was the highest post in the respondent‑Bank, was admittedly incharge of the other staff in the Bank and was also drawing a pay of about Rs. 1,000 p. m., therefore, he was employed in a supervisory capacity and could not be deemed to be a workman for the purposes of section 2(xxviii), I.R.O. and accordingly was not entitled to file an application under section 32(1‑A), I.R.O., on behalf of workmen. Aggrieved by the said decision, the appellant‑Union has come up to this Tribunal in appeal.

3. I have heard Mr. Hameed Siddiqi, the learned counsel for the appellant‑Union, and Mr. Abid Puri for the respondent‑Bank. Mr. Siddiqi's main contention was that in view of the provisions of sections 9 and 10, I.R.O., it was not permissible to question the constitution of the appellant Union in proceedings under section 32(1‑A), I.R.O., He further submitted that in any case the General Secretary of the appellant‑Union was a workman for the purposes of the I.R.O. and it was for the respon dent‑Bank to establish the contrary, which it had failed to do. Mr. Puri, while not disputing the proposition that in the proceedings before the learned Labour Court, it was not competent for the respondent‑Bank to question the registration of the appellant‑Union, submitted that in fact the respondent Bank had not questioned the appellant‑Union's registration, but had established that it was illegally constituted, which it was entitled to do. He submitted that a Trade Union of workers was not entitled to registration under the I.R.O. unless all its members were workmen actually engaged or employed in the establishment or the industry with which the Trade Union was connected, as provided in clause (a) of subsection (2) of section 7, I.R.O. In support of his contention, the learned counsel relied upon the decisions in the cases of Employees' Union v. Smith Kline & French (1976 P L C 232) and Bata Shoe Company v. Registrar of Trade Unions of Sind (P L D 1978 Kar. 567). Mr. Puri further supported the impugned order of the learned Labour Court and opposed the appeal preferred by the appellant Union on the grounds, firstly, that the appeal was not maintainable, and secondly, that the application under section 32(1‑A) had not been filed by a duly authoriz ed person. In support of his first contention, the learned counsel sub mitted that the impugned order of the learned Labour Court cannot be construed as an award, as no decision was given by it on any of the demands preferred by the appellant‑Union and, therefore, no appeal against such an order was envisaged by the I.R.O. In support of this contention, the learned counsel relied upon the decisions in the cases of Province of West Pakistan v. Muharram Ali (1970 P L C 408) and Mahmood Industries v. Mazdoor Union (1976 P L C 59).

4. In regard to his contention that the application under section 32 (1‑A) was not filed by an authorised person, Mr. Puri submitted that such an application can only be filed by a person who has been duly authorized to do so by the Union. According to him, though the General Secretary of the Union claim in his statement before the Lahore Court that he had been authorised by a resolution of the general body of the Union to file the said application, he had not produced the said resolution and, therefore, a presumption should be drawn that no such resolution had been passed. In order to satisfy myself whether such a resolution had or had not been passed, and whether the constitution of the Union reserved such powers in the general body or it conferred such powers upon the General Secretary, I recorded the further statement of Mr. Ikram Hussain, who not only produced a copy of the constitution of the Union, but also the minutes book of the Union, containing the resolution of the general body, dated 12th July, 1977 authorising the General Secretary to file the application concerned. Mr. Puri sought to assail the authenticity of the said resolution on the grounds, firstly, that it was signed only by the President and the General Secretary though the meeting is said to have been attended by all the 10 members of the Union, and secondly, that the minutes book in which the said resolution was contained concluded with the above resolution, and no subsequent minutes are recorded therein. As regards the first objection of Mr. Puri, it was explained by the General Secretary that notice of the general body meeting is circulated among the members and their signatures are taken on the notice and not on the minutes of the meeting. This appears to be the practice in the appellant Union, for I find that all minutes have been signed by the President and the General Secretary only. I have also gone through the constitution of the appellant Union and find that there is no provision therein that the minutes of the general body meeting have to be signed by all the members. In regard to the second objection of Mr. Purl, Mr. Ikram Hussain explained that after the above meeting, it was decided by the members of the Union that the minutes of the meetings should be recorded in Urdu and consequently another Minutes book had been maintained in which the subsequent minutes have been recorded. This explanation an fears to be entirely without substance, as in the minutes book produced by the witness, the minutes has been recorded in Urdu from 1st November 1976 upto 12th July 1977. 1t, therefore, appears that minutes were being recorded in Urdu all along or at least from 1st November 1976. The incorrect and untruthful explanation of Mr. Ikram Hussain as to why no minutes had been recorded in the minutes book after the meeting purported to be held on 12th July, 1977 thus casts suspicion on the authenticity of the minutes book and this in turn reacts on the resolution of 12th July 1977, specially as they were not produced before the Labour Court. However, the question that falls to be considered is whether the General Secretary, by virtue of his office, is entitled to file and maintain an application under section 32 (1‑A), I. R. O. The General Secretary being the person through whom the Union normally functions would ordinarily be competent to act on behalf of the Union in all matters except in cases where, the constitu tion of the Union otherwise provides. According to the constitution of the Union, the General Secretary is authorized to sign and serve notices of demands and strikes upon the employer according to Law. This being the position, he would in my humble opinion, be also deemed to be autho rized to file an application under section 32 (I‑A), I. R. O., if the demands are rejected and the conciliation proceedings in respect of the demands fail. Another argument in support of this view is that the Collective Bargaining Agent being a juristic person can only act through its authorize agent, who either would be the President or the General Secretary. Such an application, therefore, would be competent if filed by the Genera Secretary excepting in cases where the constitution of the Union otherwise provides. I am fortified in this view by a decision of this Tribunal in the case of Shalimar Silk Mills Mazdoor Union v. Management (P L J 1974 Tr. C (Lab 338 (2)). The question which fell to be determined in that case was whether an appeal by the President of the Union against the cancellation of the registration of the Union by the Labour Court was competent or whether such an application could only be filed by the General Secretary of the Union. Upholding the contention that such an application can only be filed by the General Secretary, my learned predecessor gave the following reasons in support of his view :‑ "Mr. Mahmood A. Ghani, the learned Representative for the respondent, has raised preliminary objection that the appeal is not main tainable as it is not preferred by the General Secretary of the Union but by the President. The scheme of the Industrial Relations (Sind) Rules, 1973 would disclose that there is much force in this contention. Under the Rules it appears that every thing must be done by the General Secretary. The appeal, no doubt, can be filed by the Trade Union but someone has to file an appeal on behalf of the Trade Union. I am of this view, after perusal of the different provisions of the Rules of 1973 and also old rules. In this connection reference may be made to rule 4 of 1973, particular ly Form 'C'. Rule 4 provides for an application for the member ship of the Trade Union which shall be in Form 'C'. The importance of Form 'C', in my opinion, is that the Application is addressed to the General Secretary of the Trade Union. Forms 'D' and 'L' to rule 4 are also important Rules. It is General Secretary who is required to maintain a Register in Form ' D' showing particulars of subscription paid by the members of the Union. Form `E' has also to be maintained by the General Secretary which shows all money received by a Trade Union. Rule 68 requires that Notice under subsection (9) of section 26 shall be in Form 'U'. It will be signed by the General Secretary of the Union. This was also the position under the old Rules. In this connection a reference may be made to M/s. A. I. Silk Mills Ltd. 1970 P L C

622. I would hold that the appeal is not maintainable as it has not been filed by the proper person."

5. Reference may also be made to the decision of the Karachi High Court in the case of Karachi Warehouse and Clearing Workers' Union v. Pakistan Warehouse Carriers Workers' Union (1). It was held in that case that a Trade Union being a body corporate, in proceedings by it, the pleadings may be signed by its President, Vice‑President, General Secretary or other principal Officer, as provided in Order XXIX, rule 1, C. P. C.

6. I also find no substance in the contention of Mr. Puri that the present appeal is not maintainable as the impugned order of the learned Labour Court cannot be considered to be an Award. The application under section 32 (1‑A) out of which the present appeal arises was for the grant of the demands made by the appellant‑Union which had been rejected by the respondent Bank. By the impugned order, the said application was rejected on the twin grounds that it had been filed by a person not competent to do so and that further it had not been established that the appellant‑Union was either a registered Union or C. B. A. Now a regards the latter ground, the General Secretary of the Union has produced in his evidence before this Tribunal, both the registration certificate of the Union under the I. R O., as well as its certificates as the Collective Bargaining Agent. This ground thus has no substance. Further more, since the learned Labour Court has rejected the application of the Union in regard to its demands, its order will be deemed to be an award. In fact the learned Labour Court itself was of this view and accordingly has headed its decision as an 'award'. The 2 decisions cited by Mr. Puri to show that the said decision is not an award do not, in my humble opinion, support his contention. In Muharram Ali's case, it was held by their Lordships of the Supreme Court that the phrase "any matter relating thereto", appearing in the definition of award as given in the Industrial Disputes Ordinance, 1959, has to be read ejusdem generis with the words industrial dispute' to cover only constroversies with regard to the employment or non‑employment or the terms of employment or the terms of employment of any person under subsection (5) of section 12 of the Industrial Disputes` Ordinance, 1959. In the instant case the controversy was in regard to the terms of employment of workers and a decision in regard to it would inevitably be an award In the case of Mahmood Industries, it was held by this Tribunal that a decision of the Labour Court that the Union which had lost in the referendum for the declaration of C. B. A. had ceased to be the C. B. A., could not be construed as either an award or any matter relating thereto. I am in respectable agreement with this view. The facts in the instant case, however, are totally different from those in the above reported case. No question or issues relating to an industrial dispute were involved in the matters which were decided in the reported cases. On the other hand, in the instant case, an industrial dispute was taken to the Labour Court by the appellant Union, by means of a proper application under section 32 (I‑A), which application has been rejected. It is true that the said application has been rejected on technical grounds without going into the merits of the demands, but such decision being in respect of an industrial dispute would clearly be an award for the purposes of the I. R. O. In the case of M.O. Badshah v. Presiding Officer, S.L.C. (P L D 1975 Kar. 57), a Division Bench of the Karachi High Court repelled the contention that the word `decision' as mentioned in section 38‑D, I. R. O., was limited to a decision on merits. On the analogy of the reasoning adopted in the said reported case, I would hold that the decision of the learned Labour Court holding that the application for enforcement of the demands on behalf of workers was not maintainable is an award.

7. This brings me to a consideration of the main contention of Mr. Puri that the appellant Union not being properly constituted, by the reason of the fact that the General Secretary was not a workman for the purposes of the I. R. O., the application in question was not maintainable. An application under section 32 (1‑A) can only be filed by a party raising an industrial dispute. Furthermore, such a dispute on behalf of workers, can only be raised by the C.B.A. In view of the certificate of C.B.A. granted to the appellant Union, which has been produced by its General Secretary, it cannot be disputed that the appellant Union is the C.B.A. As such, the Union was quite competent to file and maintain the application in question. No doubt; a Trade Union of workers is not entitled to registration if any of its members are not workmen actually engaged or employed in the industry or establishment concerned, and it may be that the General Secretary in view of the functions which be is required to perform, and his emoluments, does not fall within the definition of 'worker' or workman' as given in the I. R. O., but the question that arises is whether in proceedings under section 32 (1‑A) such an objection can validly be raised. According to section 9 of the I. R. O., a certificate of registration is conclusive evidence that the Trade Union has been duly registered under the Ordinance. The word 'duly' in the said section clearly indicates that the Trade Union has complied with all the require ments of the law, for its registration. In the case of the Karachi Warehouse and Carriers Workers' Union, it was held by the Karachi High Court that absence of refusal on the part of the Registrar to register change of office‑bearers of a Union raises a presumption that no fault has been found in the change of office‑bearers. In my humble opinion, the provision of section 9, I. R. O., preclude, during the currency of the certificate of registration, a challenge to the constitution of the Union, for any such challenge if successful would render the certificate of registration ineffective and meaningless, which could not possibly be the intention of the legislature. The only remedy provided by the I. R. O. in cases where a Union has been registered in contravention of the provisions of the said Ordinance or it has ceased to comply with the requirements of the Ordinance, is by way of cancellation of its registration under section 10, I. R. O. Such cancellation can only be affected by a Labour Court on the complaint of the Registrar. Admittedly, no such action has been taken in the instant case. The fact that the Legislature has thought it fit to empower only the Labour Court to cancel the registration of a Union, even in cases where it has been registered in contravention of the provisions of the L.R. O., and that too only upon the complaint of the Registrar, clearly indicates the legislative intent not to permit the challenging of the registration of a Union or its constitution in any other proceedings. In the case of Mushtaq Hussain v. Riaz Muhammad Hazarvi (P L D 1978 Kar. 612), it was held by the Karachi High Court, with reference to the provisions of sections 8 and 10, I. R. O., that the right to registration of a Trade Union and liability to cancellation of its registration having been conferred by Ordinance XXIII of 1969, and further such Ordinance having also provided authorities by which, and the mode in which registration could be granted or cancelled, such right or liability, cannot be enforced in any other manner or through any other forum. With great respect to the decision of the Industrial Court, West Pakistan, in the case of Trade Union v. Ali Automobiles Ltd. (1963 P L C 922), of my learned predecesser in the case Employees' Union v. Smith Kline & French of Pakistan and of the Punjab Labour Appellate Tribunal in the case reported as Labour Union v. M. M. Ispahani Tea Packeting Factory (1976 P L C 660). I am unable to appreciate how on the one hand the registration of a Union is to be deemed to be conclusive of its being duly registered under the Ordinance and on the other hand its very constitution can be challenged in the collateral proceedings, such as an sanction under section 32 (1‑A), I. R. O. In none of the above decisions were the important provisions of section 10 considered or even referred. In the case of Farzand Ali v. Province of West Pakistan (P L D 1970 S C 98), their Lordships of the Supreme Court repelled the contention that some of the members of the National Assembly who had enacted the constitutional amendments were disqualified from becoming members and, therefore, the constitutional amendments were themselves invalid, on the grounds that a collateral attack upon the status of the members was not permissible in the proceed ings before their Lordships and such attack could only be made by direct proceedings under a Writ of Quo Warranto or by way of an election petition. Similarly, in the instant case, a challenge to the constitution of the appellant Union could only be made by means of appropriate proceed ings (upon complaint of the Registrar) under section 10 of the Industrial Relations Ordinance. The decision in the case of Bata Shoe Company v. Registrar of Trade Unions of Sind relied upon by Mr. Puri in support of his contention that it was permissible for the respondent Bank to challenge the constitution of the appellant Union proceedings under section 32 (1‑A), does not in fact support his contention, the said decision turned upon the question whether the Union was a C. B. A or merely a registered Union. It was observed in the said decision chat a mere registered Trade Union of workers has no rights vis‑a‑vis the employer under the I. R. O., that an industrial dispute can only be raised by the C. B. A. and though a registered Union of workers can under section 22, I. R. O., aspire to became a Collective Bargaining Agent, this can only be done after notice to the employer and when that occasion arises, the employer can certainly raise objection as to the legality of the registration of the Union or its constitution.

8. The upshot of the above discussion is that the impugned order of the learned Labour Court has to be set aside and the appeal be allowed. I would accordingly remand the case to the learned Labour Court for decision of the case on merits. Appeal allowed.