1990 PLP 351 (PLC)

It is alleged in the petition that the petitioner had sent a letter dated 15‑2‑1989 wherein it raised an objection on the ground that the second respondent was founded by some outsider elements and the office‑bearers are also outsiders. This letter was delivered in the Head Office on 16‑2‑1989. As the petitioner did not receive any reply, it sent another letter dated 22‑2‑1989 which was addressed to the first respondent and the same was received on 28‑2‑1989. Another letter dated 25‑2‑1989 was received on 26‑2‑1989. The petitioner being aggrieved against the order dated 22‑2‑1989 has filed the present petition. The first respondent filed parawise comments/summary of facts wherein it is alleged that the second respondent was registered after complying with all the formalities. The second respondent also filed counter‑affidavit. The second respondent denied the allegations made against it. I have heard Mr. Suleman Habibullah, learned counsel for the petitioner in support of the petition. I have also heard Mr. A.G. Mangi, learned Assistant Advocate‑General, Sindh and Mr.Shahbaz Khan, learned counsel for second respondent in response to pre‑admission notice. Mr. Suleman Habibullah contended that the registration of second respondent was illegal for the reason that it did not have as its members 1/5th of the total number of employees in the petitioner's firm. He also contended that A the first respondent issued the certificate in violation of Section 7(1)(d) of the Ordinance. On the other hand, learned counsel for the second respondent submitted that all the members are workmen engaged in the petitioner and the second respondent have its numbers 1/5th of the total number of employees in the petitioner. Mr. Abdul Ghafoor Mangi, learned Assistant Advocate‑General submitted that all the requirements of the Ordinance have been complied with in respect of registration of the second respondent. The contentions of the petitioner are without any force. The petitioner did not send the letters before the first respondent within time. Even the delivery of the letter in office of the Head Office is of no use to the petitioner. It is not in dispute that no list of workmen was sent to the first respondent. The argument advanced by the learned counsel for the petitioner that the second respondent is not a legally registered trade union is neither supported by any evidence on record nor by any rule of law. The second respondent is duly registered union. Section 9 of the Ordinance provides that a certificate of registration was issued by the Registrar to a trade union registered under Section 8 or in the prescribed form, shall be conclusive evidence of the fact that the said union has been duly registered under the Ordinance. Reference may be made here to the Commentary on Companies Law by K.M. Ghosh (10 Ed) at page 142 under Section 35 of the Indian Companies Act, 1956, where the learned author has summarised the law as follows: "The certificate of incorporation is conclusive on the following points, viz, (1) that all the requirements of the Act in respect of registration and of matters precedent and incidental thereto have been complied with; (2) that the association is a company authorised to be registered under the Act; (3) that it has been duly registered. Even though a company is formed for the mere purpose of being registered, the question cannot be raised whether it was authorised to be registered under the Act." This question was considered by a Division Bench of this Court in Karachi Road Transport Corporation Workers' Union v. Registrar of Trade Unions and 4 others 1983 P L C 417 wherein it was held that a certificate of registration issued by the Registrar to a trade union registered under section 8 or in the prescribed form, shall be conclusive evidence of the fact that the said trade union has been duly registered under the said Ordinance. It was further observed that the High Court is not expected to embark upon an inquiry in disputed questions of fact in exercise of its Constitutional jurisdiction. In Landale and Morgan (Pakistan) Ltd., Narayanganj v. The Chairman, Jute Board, Dacca and another 1970 S C M R 853 the Hon'ble Supreme Court observed while refusing to grant leave to appeal as under:‑‑ "The question raised in the writ petition was a controversial one of facts as to the status of the petitioner‑Company qua the consignees of the shipment, which required investigation and proof, and did not fall appropriately within the writ jurisdiction of the High Court. The writ petition was rightly dismissed." Section 7 deals with the registration of Trade Unions and prescribes that a trade union shall not be registered unless its constitution provides for the several matters specified in subsection (1) of section

7. The constitution of a trade union seeking registration must state its objects and the purpose for which the general funds of the unions are to be used. A constitution petition must also state the number of persons who are to form the executive of the trade union and it must further prescribe that the executive shall include not less than seventy‑five per cent from amongst the workmen actually engaged or employed in the establishment or establishments or the industry for which the trade union has been formed. Several other conditions are prescribed but they are not relevant to the contentions advanced before me. Subsection (2) specifically provides that all the members of the union must be workmen actually engaged or employed in the establishment or in the industry to which the trade union is connected in the establishments, group of establishments or industry to which the trade union is connected, minimum one fifth of the total number of workmen employed in such establishment must be members of the union. The fact whether the membership of second respondent 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 Ordinance, is a question of fact which may best be adjudicated upon by the Labour Court after due notice to the parties and/or examining or recording the necessary evidence. I am of the humble opinion that this question would not be proper subject‑matter of proceedings under Article 199 of the Constitution. Mr. Shahbaz submitted that the petition is incompetent and the petitioner has no locus standi to file the petition. This point was considered in Abdul Jamil v. Registrar of Trade Unions, West Pakistan, Lahore and another P L D 1971 Lah.

220. The Division Bench held as follows:‑ "Moreover, the scheme of the Industrial Relations Ordinance, 1969, is to set up a particular machinery by the use of which alone the formation of Trade Unions, the regulation of relations between employers and workmen and the avoidance and settlement of any differences or disputes arising between them or matters connected therewith and ancillary thereto can effectively be had. The Ordinance prescribes both the remedy and the manner in which it may be enforced. In our view the only remedies open to the petitioner against the order of the registrar whereby he registered the respondent‑Union, whether by means of an application under section 10 to the Registrar for cancellation of registration or an appeal to the Labour Appellate Tribunal under section 11, are to be found within the four corners of the Ordinance. Since an effective and appropriate machinery is provided by the Act itself, we would not like to exercise the extraordinary jurisdiction conferred on us by Article 98 of the Constitution of 1962." This decision was followed by a Single Judge of this Court in the case of Bata Shoe Company (Pakistan) Ltd., Karachi v. Registrar of Trade Unions of Sindh and 2 others P L D 1978 Kar.

567. Mr. Fakhruddin G. Ebrahim, J. (as he then was) also referred the following passage from the Extraordinary Legal Remedies by Ferris at page 199:‑‑ "174‑175.‑‑As a general rule certiorari will not issue at the instance of one not named as a party to the proceeding in which the judgment or order sought to be reviewed was entered. Where one not a party seeks to use certiorari, he must show that the decision sought to be reviewed is directed against him or his property in the sense that the enforcement of the decision would involve special immediate and in its effect a direct injury to his interests. But if petitioner is a party in substance though not in form, he may have the writ. It is not necessary that he be a party to the record, but only that he be interested in the subject‑matter upon which the record rests." The aforesaid passage was approved by the Supreme Court of Pakistan in Tariq Transport Company, Lahore v. The Sargodha‑Bhera Bus Service, Sargodha and 2 others P L D'1958 S C (Pak)

437. The principle laid down in the above decision is applicable to the facts of the instant case. It was held in above -referred Bata Shoe' Company case P L D 1978 Kar. 567 that "a registered Trade Union of workmen has as such no rights vis‑a‑vis the employer under the I.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 can under H section 22 of the Ordinance aspire 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 as to the legality of the registration of the Union, or that the Union does not have as its members at least one‑third of the total number of workmen employed in the establishment. Mr. Ali Ahmed Fazeel, the learned counsel for the Union did not hesitate to concede that mere registration of a Trade Union will not pre‑empt the employer from raising appropriate objection as to its legality and/or that its members are not workmen:" The principle laid down in the above decisions is applicable to the facts of the instant case. I, therefore, hold that the petitioner has no locus standi to challenge the registration of the second respondent. For the aforesaid reasons the petition is without any merit and the same is dismissed in limine. The application (Miscellaneous 40/89) is dismissed as having become infructuous. M.Y.H./K‑177/K Petition dismissed.