2006 PLC 614 (PLP)

MRS. QAISER IQBAL, J.

This appeal is directed against the order, dated 7-6-2005 passed by respondent No.4 on the application No.26 of 2006 under section 33 of the Industrial Relations Ordinance, 2002. Precisely the facts giving rise to this appeal are that the appellant was a union under the Industrial Relations Ordinance, 2002 (hereinafter referred to as Ordinance, 2002 for the sake of brevity) duly registered by the respondent No.1 and status of functioning as C.B.A. having been certified by the Registration Authorities. It is averred that the appellant-Union had paid the substantial subscription, as required under section 21 of the Ordinance, 2002 upto the month of May, 2006. The respondent No.3 being a political body malafidely has tried to form a third union on the basis of bogus and fake names of the members, submitted an application to the Registrar due to contravention of sections 6 and 7 of Ordinance, 2002, without notice and holding inquiry as required under the law, thereby appellant was condemned unheard and approached the competent forum for redressal of his grievance under section 33 of Ordinance, 2002 the respondent No.4. The respondents Nos.1 to 3 filed their written statement and the case was adjourned for hearing of the stay application, the learned Judge instead of holding inquiry, proceeded to finally dispose of the case through the impugned order. Mr. Abdul Ghani Khan, learned counsel for the appellant has contended that in terms of sections 6 and 7 of Ordinance, 2002 a trade union shall be registered on the number of persons forming the executive which shall not exceed the prescribed limit and shall include not less than seventy five per cent from amongst the workmen actually engaged or employed in the establishment or the industry for which the trade union was formed. It is further contended that the trade union shall not be entitled to registration under the Registration 6(2)(a) unless all its members are workmen actually engaged or employed in the establishment or industry with which the trade union is connected; and (b) where there are two or more registered trade unions in the establishment, group of establishments or industry, with which the trade union in connected, unless it has as its members not less than one-fourth of the total number of workmen employed in such establishment, group of establishments or industry, as the case may be. It is further contended that a registration after having duly verification of facts, and on being satisfied that a trade union was 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 under intimation to the concerned employer, which is failing in the present case. It appears from the record that mixed questions of fact and law are involved, as the theme of the law was required to be considered by the trial Court, which as contended by the learned counsel for the appellant, could only be decided on the basis of the evidence required to be recorded by the trial Court for just decision of the case, particularly number of the persons whether forms one fourth of the total number of persons employed in the establishment. In support thereof, reliance is placed on the case of Engro Chemical Pakistan Ltd. through S.M. Pervez Ghias v. Engro Chemical. Pakistan Ltd. Marketing Field Employees' Union and another reported in 2000 PLC 333, wherein Registration of trade union was object to by employer on the ground that official trade union was formed exclusively in relation to Salesmen in employer establishment and the total members of trade union was only 12/14 and it was further alleged that salesmen were not workmen, question raised by employer was mixed of fact and law which could not be decided unless and until evidence was recorded." It is also prima facie borne out that the appellant was a registered trade union, trial Court presumed that it ceased to have existed, thus the questions raised require proper inquiry in the matter, this view is supported from the dictum laid down in the case of B.P. Industries (Private) Limited Employees Union, Karachi v. Registrar of Trade Unions, Sindh and 3 others reported in 1992 PLC 66 (Karachi High Court). Indeed it appears that the learned trial Court passed impugned order without holding inquiry in the matter, the learned Additional A.-G. Mr. Masood A. Noorani, appearing for the respondent No.1 has fairly conceded and contended that best course in circumstances would be to remand the case to the respondent No.4 for adjudication, as required under the law. It is also conceded by learned Add1: A.G. that the trial Court erred in law by deciding the main case instead of passing order on interlocutory application. In view of the above observations, I am of the view this is a fit case warranting remand of the case to the trial Court for adjudication on merits, as a result whereof impugned order is set aside, and the appeal is allowed. The parties are directed to appear before the trial Court on 1st September, 2006. H.B.T./A-100/K Case remanded.