1987 PLP 782 (PLC)

SALEEM AKHTAR, J.‑‑Pakistan Trading Communication Union is a duly registered union with N.I.R.C. Islamabad as CBA of the establishment. It has its own constitution and according to the petitioner there is no set procedure for the appointment of the office-bearers of the said Union at the Regional, Provincial and Divisional Level. According to the petitioner, the office‑bearers at provincial and divisional level are appointed and change is affected by a decision of the executive body at the national level sometime through nomination by the authorised office‑bearers or through elections under the procedure. laic: down by the executive body at the national level. The petitioner alongwith ottierr5 were nominated as office‑bearers by the President of the Union who claims to have been authorised by the managing committee on 15‑5‑1986. The respondent No.3 who was previously holding the office was removed and was replaced by the present petitioner. The respondent No.3 filed a case before the Single Bench NIRC under section 22(8)(g), Industrial Relations Ordinance, 1969 and Regulation 32(2)(c), NIRC Regulation 1973. In this regard an interim consent order was passed directing the holding of election under the supervision of an officer authorised by the Registrar of Trade Union, Hyderabad Division. It is alleged that the Registrar of Trade Union, Hyderabad Division expressed his inability to hold election at the divisional level as there is no provision for such election in the constitution of the Union. The Single Bench NIRC set aside the nominations of the office‑bearers and the previous office‑bearers were allowed to continue in the office. The petitioner filed an appeal before the Full Bench NIRC which was dismissed by the impugned order. The petitioner has alleged that the Single Bench of NIRC has passed the order without joining all tile office‑bearers. According to them only Muhammad Soomar was joined before it. Mr. Mirza Muhammad Kazim the learned counsel for the petitioner has contended that in the Constitution of the Union there is no provision for election for the office‑bearers at divisional and regional level and further that NIRC had no jurisdiction to entertain the petition and pass the impugned order. A copy of the Constitution of the Union has been filed With the petition. Article 10 provides for election of the union which shall be held after every two years after the month of September. Article 10(4) provide that 11 months before the election the Executive Committee shall form an Election Committee which will hold the election giving due notice of the rules and regulations, inviting nominations and allot the election symbol. Article 10(6) provides that in the session of the General Council the office‑bearers of every divisional and regional Union and the members of the Executive Committee shall be settled with the majority vote. It therefore seems clear that the constitution provides for election of the office‑bearers of the divisional and regional unions. It is an admitted position that the constitution does not authorise any person or body to nominate the office‑bearers at the divisional and regional level. Mr. Kazim the learned counsel for the petitioner has contended that this has been a practice of the union to nominate such office -bearers. This practice may have been prevalent, but it was unconstitutional and the moment any one has objected to it, it cannot be enforced. From the order of the Single Bench NIRC it seems that the respondent No.3 had produced sufficient material to establish that he was an elected President and was not a nominated office‑bearer. From the order of the Senior Member dated 12‑11‑1986 it does not appear that the petitioner had challenged his jurisdiction. It is correct that all the nominated office‑bearers were not joined as party, but petitioner No.1 who has been nominated as President was party before the N.I.R.C. and he did not raise any objection to the jurisdiction. This objection seems to have been raised in appeal. We however, find that letter by which Muhammad Hussain was nominated office‑bearers was illegal, unauthorised and not according to the constitution of the Union. Therefore, in the facts and circumstances of the case even if the N.I.R.C. did not have the jurisdiction to entertain the dispute justice has been done. Reference can be made to Raunaq Ali's case P L D 1973 S C 236 where following observation was made:‑ "...but it is also now well‑established that where an inferior tribunal or Court has acted wholly without jurisdiction or as Rubinstein puts it in his book on "jurisdiction and illegality" taken any action "beyond the sphere allotted to the tribunal by law, and therefore, outside the area within which the law recognizes a privilege to err", then such action amounts to a "usurpation of power unwarranted by law" and such an act is a nullity; that is to say, "the result of a purported exercise of authority which has no legal effect whatsoever". In such a case it is well‑established that a superior Court is not bound to give effect to it, particularly where the appeal is to the latter's discretionary jurisdiction. The Courts would refuse to perpetuate, in such circumstances, something which would be patently unjust or unlawful. An order in the nature of a writ of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked." We dismiss the petition in limine. S.Q./M‑172/K. Petition dismissed.