1981 PLP 958 (PLC(CS))

4. In support of his first 2 contentions, the learned counsel sub mitted, firstly, that the person who filed the application and initiated the proceedings before the learned Labour Court was not entitled to do so and that secondly, there were no proper parties before the learned Labour Court. Elaborating his arguments in this behalf, the learned counsel argued that though the complaint, dated 12th January, 1980, was made by the Registrar, Trade Unions, who was competent to make such complaint, but the complaint was not presented by him personally to the learned Labour Court but by the Assistant Director, Labour, who was not duly authorized to do so. The contention of the learned counsel was that the requirement of law was not merely that the complaint should be signed by the Registrar, Trade Unions, but that further it should be personally presented by him before the learned Labour Court. This, however, does not appear to be the requirement of law. Subsection (1) of section 10, I.R.O., lays down that the "registration of a trade union shall be cancelled if the Labour Court so directs upon a complaint in writing made by the Registrar

". The requirement of the law thus appears to be only that the orders for the cancellation of the registration of a trade union are to be passed by the Labour Court upon a complaint in writing made by the Registrar. In the instant case, admittedly the complaint has been made by the Registrar in writing.

5. In regard to his contention that the proper parties were not be fore the learned Labour Court, the learned counsel submitted that the complaint by the Registrar was not against the appellant‑Union but against the General Secretary. The contention of the learned counsel over looks the facts that not only throughout the proceedings it has been the appellant union which has contented the complaint made by the Re gistrar, though obviously it had to appear through its General Secretary, but that further on the application made on behalf of the Registrar, on 12th February, 1980, the complaint was allowed to be modified and for the General Secretary of the appellant‑Union, the appellant‑Union was substituted as the respondent. The substitution was allowed by the learned Labour Court by its order, dated 24th July, 1980. The said order has not been challenged by the appellant‑Union and accordingly, it has attained finality. In any case, the substitution was properly allowed as the complaint was obviously against the appellant anion and not its General Secretary.

6. Coming to the third contention of Mr. Shahani, it may be reitera ted that the allegations made by the Registrar against the appellant‑Union, are, firstly, that it had failed to submit the annual statements and returns for the years 1977 and 1978, within the prescribed period, secondly, that it had failed to hold annual general elections as provided in its constitu tion and that lastly, the General Secretary of the Union, Nazir Ahmad has held office since 1972 in contravention of the provisions of clause (J) of subsection (1) of section 7, I. R. O.

7. Now, as regards the failure to submit the returns for the years 1977 and 1978, in time, it may be pointed out that the returns for 1977 were due on 31st March, 1978, while the returns for the year 1978, were due on 31st March, 1979, as provided in section 21, I. R. O., read with rule 10 of Industrial Relations (Sind) Rules, 1973. These returns, even according to the appellant‑Union were sent to the Registrar, on 12th January, 1980, i.e. after about 21 months of the due date in the case of the returns for the year 1977, and after about 9 months of the due date in the case of the returns for the year 1978. The explanation for the delay given by the appellant‑Union is that it was due to the absence of their Auditor from the country. In support of their contention, the appellant‑Union have relied upon the letter, dated 19th December, 1979, from Faiz Qadir, a partner of Sheikh and Choudhry, Chartered Accountants, which reads as follows :‑‑ "The General Secretary, Merchant Navy Seamen's Union. Dear Sir, Re: Audit for the year ended 21st December, 1977 and 21st December, 1978. The audit of the above years could not be completed due to absence of the undersigned from Pakistan. Now the same has been taken in hand and shall be finalised very soon, Thanking You, Yours faithfully, for Sheikh & Choudhri." The above letter, however, does not show when the reference was made to Faiz Qadir for the audit of the accounts for the year 1977 and the year 1978, when he left Pakistan and on what date, he returned back to Pakistan. In order to clear up these points Mr. Faiz Qadir was sum moned, but it transpired that he had died on 25th January, 1981. Accord ingly, his son, Sheikh Lutfur Reham was examined only in regard to the date of the death of Mr. Sheikh Faiz Qadir, the date of his leaving Pakistan and the date on which he returned back to Pakistan. Witness Sheikh Lutfur Rehman (confirmed that his father had expired on 25th January, 1981. He further testified that his father had gone to England and America in February, 1978 and he remained there till November, 1979 when he returned back to Pakistan. The witness, however, was unable to say when the accounts of the appellant‑Union were sent to his father. He also admitted that during the absence of his father from the Country, his office affairs were being looked after by his Partner, Mr. Sami Choudhry, and his father's assistants. An examination of the material on the record thus shows, on the one hand, that it is not known when the accounts of the appellant‑Union for the years 1977 and 1978, were sent to Sheikh and Choudhry for audit, and on the other hand, it does not justify the abnormal delay in the submission of the prescribed accounts and returns to the Registrar, Trade Unions. If, Mr. Faiz Qadir was absent from the country, then the accounts could have been audited by his partner, Mr. Sami Choudhry or his assistants. Furthermore, if Mr. Faiz Qadir was absent from the country from February, 1978, till November, 1979 apparently the accounts of 1977 and even of 1978 Registrar, Trade Unions, within the prescribed period been a contravention of the provisions of section 21, I.R.O. It was, however, contended by Mr. Shahani that non‑submission of the prescribed returns by the due date by the appellant union, in the instant case, amounted to mere failure to comply with the provisions of section 21, I.R.O., but did not constitute contravention of the law. The learned counsel submitted that it was only contravention of the law by the Union which entitled or empowered the Labour Court to cancel its registration to and not mere failure to comply with the provisions of law. According of the learned counsel, there was a vital difference between contravention la the law and failure to comply with the law and that this distinction fey in the fact that contravention of the law implied mens rea. The learned counsel, however, was unable to cite any authority in support of his contention. According to "Law Terms and Phrases". Judicially interpreted by Sardar Mohammad Iqbal Khan Mokal contravention means, "an act done in violation of legal condition or obligation particularly any act by an heir of entail in opposition to the provisions of the deed of entail." In Ballentine's Law Dictionary, IIIrd Edition, the word 'contravention' has been defined as, "violations, infraction," and the word 'contravene' has been defined as "to go against to violate, as, to contravene the constitution." In the instant case, the appellant union has clearly gone against and violated the provisions of section 21, I.R.O., in not submitting the prescribed returns by the due dates. In spite of show cause notices and reminders in this behalf by the, Registrar, Trade Unions.

8. The appellant‑Union also appears to have contravened the provisions of its constitution in more than one aspect. Paragraph 22 of the constitution of the appellant Union reads as follows:- "

22. General Meeting shall ordinarily be held once a year for the transaction of the following business: (a) Election of office‑bearers. (b) Passing of Annual Report and Audited Accounts. (c) Passing of Budget for the new year. (d) Appointment of Auditor or Auditors in accordance with Regulation 18 of the Sind Trade Union Regulations of 1927 and their remuneration. (e) Amendments of any rules. (f) Any other business that may be brought forward."

9. The above paragraph clearly provides for the passing of the annual report and the audited accounts at the general body meeting of he Union. Admittedly, no such meeting or annual meeting of the appellant‑Union was held since 12th August, 1976. As such, neither the annual report nor the audited accounts were submitted to or passed by the general body meeting as required by paragraph 22 of the constitution of the Union. Furthermore, no election of the office‑bearers could be held since 12th August, 1976 as no meeting of the general body was called after the said date. Mr. Shahani, the learned counsel for the appellant‑Union, while conceding that the general body meeting was to be called once a year, stressed the fact that constitution of the appellant Union provided that ordinarily a meeting was to be held once a year. The learned counsel submitted that there were circumstances which justified not holding the annual general body meeting. He contends that from the middle of 1976, the conditions in the country were such that the National and Provincial Assemblies were dissolved and in spite of the earnest desire of the President of Pakistan to hold elections, he has not found it possible or feasible to do so. The dissolving of the National and the Provincial Assemblies, however, was necessitated due to the condi tions, noticed by their Lordships of the Supreme Court in the case of Begum Nusrat Bhutto v. Chief of the Staff, Pakistan Army. So far as holding of elections in the country are concerned, they cannot be equated withholding of elections in Labour Unions. It is not disputed that in other unions, the elections are being held as provided in their constitu tions. If other Labour Unions, some of which have far greater member ship than the appellant union, are able to hold their elections in accord ance with their constitutions, there is no valid ground why the appellant. Union cannot do so. It may also be pointed out that though originally Martial Law Regulation 5, promulgated on 5th July, 1977 prohibited the holding of meetings or elections, but Martial Law Regulation 23, promulgated in September, 1977 permitted meetings and elections of Trade Unions. In view of this provision in the law, of which the appellant union is to be deemed to be aware, it cannot take the stand that the condition in the country were such as not to make the holding of elections of the union feasible. The appellant union, in failing to hold b elections, or to hold its general body meeting since 12th August, 1976 has contravened the provisions of its own constitution and thus, fall within the mischief of section 10, I.R.O.

10. There remains to be considered only the question whether the appellant‑Union has also contravened the provisions of clause (j) of sub section (1) of section 7, I. R. O. The said clause refers to the manner of selection of officers of a Trade Union by a general body of the Union and prescribes a period, not exceeding 2 years, for which an officer may hold office upon his election or re‑election. It is contended on behalf of the Registrar, Trade Unions that inasmuch as Nazir Ahmad, the General Secretary of 'the appellant union, has continuously held his office since 1961 he has contravened the provisions of the said clause. It may, however, be pointed out that section 7, I.R.O., deals with the requirements for the registration of a trade union. It was held by a Division Bench of the Karachi High Court in the case of A.F. Ferguson do Co. v. Vth Sind Labour Court (1974 P L C 98). In view of the provisions of sub section (2) of section 7, I.R.O., that, the provisions of subsection (1) of the said section are applicable only at the time of the registration of the union and not afterwards. It may also be pointed out that whereas sub section (2) of section 10, I.R.O., specifically provides that the registration of a trade union shall be cancelled if a person disqualified under section 7 (A) is elected as an Officer of a trade union, there is no specific, provision that the registration of the Trade union shall be cancelled if a person is elected or re‑elected as an office‑bearer for a period exceeding that provided in clause (f) of sub section (1) of section 7, I.R.O.

11. It was lastly contended by Mr. Shahani, though somewhat feebly, that there was no proper judgment in the instant case by the learned Labour Court. His contention in this behalf was founded on the fact that though the judgment purports to have been announced on 12th January, 1981 it was doubtful if it was announced on the said date. His sole ground for so contending is that he was present in the Court of the learned Labour Court on 12th January, 1981 upto 3‑00 p.m., but till that time the judgment was not announced. He, however, has conceded till his memo of appeal that on 13th January, 1981 when he went to the learned Labour Court, he was informed that the judgment had been announced on the preceding day. There is thus nothing improbable in the judgment having been announced on 12th January, 1981. There is a legal presumption of regularity in respect of judicial proceedings. The judgment of the learned Labour Court shows that it was announced on 12th January, 1981. I am, therefore, satisfied that it was announced on the said date.

12. For the reasons discussed by me above, I would uphold the decision of the learned Labour Court and dismiss the appeal. The interim stay order issued in favour of the appellant Union stands vacated. Appeal dismissed.