1992PLC78 (PLP)

SYED HAIDFR ALI PIRZADA, J.

This constitutional petition is directed against the impugned certificate of registration dated 17-3-1990 issued by the first respondent. The petitioners have sought a declaration that "the impugned certificate of registration dated 17-3-1990 in favour of second respondent has been issued without any jurisdiction and authority and is a nullity and non-existent in the eyes of law and/or to pass such other order/orders as may be deemed just and proper in the circumstances of the case.". The facts leading to the' filing of the above petition are that the petitioners are a registered trade union of the workmen of fourth respondent in their establishment at Karachi. The petitioners are also collective bargaining agents of these workmen and have a membership of 3439 out of the total number of 3491 workers employed by the fourth respondent at their establishment at Karachi. The third respondent was registered on 31-1-1990 as another union of workmen of fourth respondent. The second respondent also made an application for its registration sometime on 3rd/6th February 1990 as the third union of the fourth respondent's establishment. The case of the petitioners, as set out in the memo. of petition, is that on or about 13th February 1990 they received a letter from first respondent requiring them to send a list of their members showing their parentage, age, address and other details in order to verify dual membership of the union as required under section 3(a) of Industrial Relations Ordinance, 1969 (hereinafter referred to as the Ordinance) and to check 1/5th membership as per section 7(2)(b) of the Ordinance in order to decide the application for registration filed by second respondent. At the same time fourth respondent was also required to send a list of workmen employed in their establishment for the same purpose. It is the further case of the petitioners that in the meanwhile the second respondent filed an application under section 8(3) of the Ordinance before the Sindh Labour Court NoN, Karachi with the prayer to direct the first respondent to accept its application for the registration of the said trade union and deal it in accordance with law in the interest of justice. At the same time an application for injunction was also moved by the second respondent seeking to restrain first respondent from granting any certificate of registration and C.B.A. in the name and style of the applicant/second respondent union. It is the further case of the petitioners that they fled their reply statement and counter-affidavit whereas first respondent filed their written statement/parawise comments along with the letter written by it to the second respondent on or about 13th February, 1990. The petitioners averred in para. 7 of the petition that in the course of hearing before the Labour Court on 24-2-1990 the second respondent did not press its stay application in view of the statement of first respondent that no referendum; ballot was being contemplated. On 8-3-1990 the second respondent filed an application under section 151, C.P.C. praying to direct the Registrar of Trade Unions to register the applicants' union without any further delay. The petitioners and first respondent filed their objections/counter affidavit to the application under section 151, C.P.C. The first respondent specifically denied that the requirements of registration have been complied' with by the second respondent. It was also specifically contended by the first respondent that the requirements/compliance of the provisions of section 7(2)(b) of the Ordinance was at the stage of examination and the present petitioners had submitted that they have a membership of 3439 workers out of about 3491 workers employed by the fourth respondent at Karachi and have produced their membership list and other documents in B support of their contention. The matter was fixed for hearing before the Vth Labour Court on 17-3-1990. It is their further case that in the meanwhile news appeared in the daily press that the officers of the Labour Department/ The Registrar of Trade. Unions situated in Sindh Secretariat, Block 86 were kidnapped by certain persons demanding that registration to second respondent may immediately be granted. It also appears that these officers of the Labour Department were released from illegal custody after few hours under threat that certificate of registration must be granted to the second respondent. It is their further case that on 17-3-1990 the second respondent filed an application for the adjournment of the hearing of its application under section 8(3) of the Ordinance before Labour Court No.V and the matter was again put off for 24th March 1990. It is their further case that on 17-3-1990 the first respondent issued a certificate of registration to second respondent which is impugned in this petition. The second respondent filed counter-affidavit. The second respondent denied the various allegations made against them in the memo. of petition. The second respondent contended that the first respondent had committed no illegality in granting/registering them as a trade union of workmen.

10. The first respondent also fled parawise comments. The first respondent has not disputed contents of para.12 of the petition. With regard to ground No.(iv), the first respondent stated that the registration was granted mainly on the bAsis of affidavit filed by the second respondent. Mr. Ali Amjad, learned counsel appearing for the petitioners raised the following contentions:-- (1) The registration certificate has been issued in contravention of the mandatory provisions of section 7(2)(b) of the Ordinance; (2) the impugned certificate of registration has been issued prima facie under duress, threat, intimidation; and (3) the first respondent did not consider the objections filed by the petitioners. On the other band Mr. Muhammad Ashraf, learned counsel appearing for the second respondent submitted that the provisions of sections 7(2)(b) were duly complied with. He submitted that the certificate of registration was issued after complying with ail the formalities and no illegality was committed by the first respondent. Mr. Abdul Ghafoor Mangi has supported the order. In order to appreciate the respective contentions of the learned counsel appearing for the parties, it is advantageous to reproduce sections 7(2)(b) and 8 of the Ordinance. Section 7(2)(b) reads as under:-- "

7. REQUIREMENTS FOR REGISTRATION: -(1) ................................... (2) Without prejudice to the provisions of subsection (1), a trade union of workmen shall not be entitled to registration under this Ordinance-- (a) . ....................................................... (b) where there are two or more registered trade unions in the establishment, group of establishments or industry with which the trade union is connected, unless it has as its members not less than one-fifth of the total number of workmen employed in such establishment, group of establishments or industry, as the case may be.

8. REGISTRATION.--(I) Registrar, on being satisfied that the trade union has complied with all the requirements of this Ordinance, shall register the trade union in a prescribed register and issue a registration certificate in the prescribed form within a period of fifteen days from the date of receipt of the application. In case the application is found by the Registrar to be deficient in a material respect or respects he shall communicate in writing his objections to the trade union within a period of 15 days from the receipt of the application and the trade union shall reply thereto within a period of fifteen days from the receipt of the objections. (2) When the objections raised by the Registrar have been satisfactorily met, the Registrar shall register the trade union as provided in subsection (1) and issue a certificate of registration in the prescribed form within three days of the date of the objections having been so met. In case the objections are not satisfactorily met, the Registrar may reject the application. (3) In case the application has been rejected or the Registrar has delayed disposal of the application beyond the period of fifteen days provided in subsection (1) or has not issued a certificate of registration within a period of three days as provvided in subsection (2), as the case may be, the trade union may appeal to the Labour Court who for reasons to be stated in its judgment, may pass an order directing the Registrar to register the trade union and tit issue a certificate of registration or may dismiss the appeal. (4) Notwithstanding anything contained in any other provision of this Ordinance, every alteration made in the constitution of a registered trade union and every change of ire officers shall be notified by registered post by the trade union to the Registrar within fifteen days of such change. (5) The Registrar may refuse to register such change or alteration if it is in contravention of any of the provisions of this Ordinance, or if it is in violation of the constitution of the trade union. (6) Subject to the provisions of subsection (3), every inclusion or exclusion of any constituent unit of a federation of trade unions shall be notified by registered post by the federation to the Registrar within fifteen days of such inclusion or exclusion. (7) In case there is a dispute in relation to the change of officers of a trade union, or any trade union is aggrieved by the refusal of the Registrar under subsection (5), any officer or member of the trade union may appeal to the Labour Court, who shall within seven days of receipt of the application or appeal, as the case may be, pass an order either directing the Registrar to register the change or alteration in the constitution or in the officers of the trade union or may, for reasons to be recorded in writing, direct the Registrar to hold fresh elections of the union und.-r hi, supervision." Subsection (2) of section 7 provides that without prejudice to the provisions of subsection (1), a trade union of workmen shall not be entitled to registration under this Ordinance unless all its members are workmen, actually engaged or employed in the establishment, group of establishments or industry with which the trade union is connected, unless it has as its members not less than one-fifth of the total number of workmen employed in such establishment, group of establishments or industry, as the case may be. Admittedly, there are two registered unions in the fourth respondent, namely, the petitioners are not only registered trade union but are also collective bargaining agents of these workmen. The third respondent was registered on 31-1-1990 as another union of workmen of fourth respondent. The second respondent also moved an application before the first respondent for its registration 'as the third union of the fourth respondent's establishment. In accordance with the provisions of section 7(2)(b) of the Ordinance, the second respondent was required to have the members not less than one-fifth of the total number of workmen employed in the fourth respondent's establishment. The petitioners' claim is that they have a membership of 3439 out of the. total number of 3,491 workers employed by the fourth respondent. The petitioners annexed a certificate issued by the Executive Vice- President/Divisional Head of the fourth respondent as Annexure `A' to the petition. The petitioners asserted in para.15 of the memo. of petition that the certificate of registration dated 17-3-1990 is impugned on three grounds namely, (i) certificate has been issued in clear contravention of the mandatory provisions of section 7(2)(b) of the Ordinance, since the second respondent did not enjoy one-fifth membership of the total number of workers employed by the fourth respondent at Karachi; (ii) the petitioners had filed a list of their members as well as certificate of membership in respect of their members whose subscription was being deducted under section 23 of the Ordinance under due and proper authorization, membership 3439 out of 3491 workers clearly showing that the second respondent could not claim the requisite membership under section 7(2)(b) of the Ordinance; (iii) no resignation has been received from any of their members by the petitioners and none of their members had authorised the discontinuance of the deduction of their, membership subscription from his salary at the source, (iv) the first respondent was still to verify finally the claims of the second respondent as stated in his comments before the Sindh Labour Court No.V and no subsequent verification could possibly take place between 15th and 17th March, 1990 without notice to the petitioners. The first respondent averred in para.14 of parawise comments that the Generally Secretary of second respondent had filed an affidavit dated 14-3-1990 in support of his one-fifth membership claim and considering the contents of affidavit in connection with their one-fifth membership claim and to avoid any E major labour trouble in the area and any possible untoward incident between the petitioners and respondent No.2, the registration certificate was issued on 17-3-1990. Copy of affidavit dated 14-3-1990 of respondent No.2 is filed as Annexure `A' to the reply. The first respondent stated that as submitted in para.14 of the reply of respondent, the registration certificate was issued to second respondent on the basis of affidavit and for the reasons as stated above. The very first sentence of the provisions of section 8(1'1 of the Ordinance makes the satisfaction of the Registrar necessary in F accordance with the requirement of this Ordinance. If a trade union violates any, of the provisions of the Ordinance, it cannot claim the registration.' The Ordinance uses the expression "being satisfied". Satisfaction is essentially a condition of the mind. It means that there is a substantial ground for the conclusion on the material available that the trade union has its members not less than one-fifth of the total members of workmen employed in the establishment. The first respondent granted the registration certificate to the second respondent. I am clearly of the opinion that the Registrar of Trade Unions did not apply his mind to the facts of the instant case. This point has been considered by a Division Bench of this Court in an unreported judgment in Constitutional Petition No.D-1161 of 1989 in the case of Habib Bank Ltd. Employees, Federation Pakistan, Karachi and another v. Full Bench of N.I.R.C., Islamabad and 5 others in which it has come to the conclusion, after giving cogent reasons that "in the present case, certain legal objections were brought to the notice of the Registrar and he was required to take a decision on such legal objections before passing final orders on the application of the respondent No-5 union. No doubt, in this case, great delay has taken place in deciding the application and this has greatly prejudiced respondent No.5 but this did not mean that the Registrar was not required to decide the legal objections which came to the notice of the Registrar and the application was to be granted automatically without the Registrar satisfying himself that, under the law, respondent No.5 was entitled to be registered:" The dictum laid down in the above judgment is fully aplicable to the facts of the instant case. The first respondent did not at all consider the objections raised by the petitioners in their reply. Reverting to the second contention of Mr. Ali Amjad that the impugned certificate has been issued prima facie under duress, threat, intimidation, it is suffice to observe that the petitioners averred in para.12 of the petition that the officers of the Labour Department/Registrar of Trade Unions were kidnapped by certain persons demanding that registration of second respondent may immediately be granted. This averment was not denied by the first respondent in his parawise comments. The first respondent stated that considering the contents of affidavit in connection with their one-fifth membership claim and to avoid any major labour trouble in the area and any possible untoward incident between the petitioners and second respondent, the registration certificate was issued on 17-3-1990. In the result, the petition succeeds and the impugned order allowing the application of second respondent and the certificate of registration dated 17-3-1990 are declared to have been passed/issued without lawful authority and to be of no legal effect. The matter is remitted to the Registrar of Trade Unions to decide the application of second respondent by 28-2-1991 and while passing orders on the application of second respondent consider and dispose of objections file] by the petitioners or which have- come to the notice of the Registrar. In the circumstances of the case, the parties are directed to bear their own costs. H.B.T./U-115/K Petition allowed.