P L D 1964 (W (PLP)

SAJJAD AHMAD JAN, J.-This is a petition under Article 98 of the Constitution of Pakistan, brought by the Pakistan Steel Re- rolling Mills Association, through its Secretary, Mr. Lutful Mannan. The prayer sought is that a writ be issued to the respondent, namely, the Province of West Pakistan, to cancel the Notification No. S-2 (L-IV)/63, dated the 15th of March 1963. The notification aforesaid was issued by the Governor of West Pakistan in exercise of the powers under subsection (1) of section 6 of the Minimum Wages Ordinance (No. XXXIX of 1961) (hereinafter referred to as the Ordinance), declaring that the minimum rates of wages as recommended by the Minimum Wages Board, that had been set up for the purpose, and which were reproduced in the annexure to the notification, shall, subject to the terms and con ditions specified therein, be the minimum rates of wages for all kinds of workers, skilled and unskilled, in the Steel Re-rolling Mills in West Pakistan.

2. In resisting the petition, some preliminary objections have been raised by the respondent, but the one which was strenuously argued before us by the learned Advocate-General on behalf of the respondent needs to be considered. The objection is that the peti tion as laid by the Pakistan Steel Re-rolling Mills Association is not competent qua the relief sought in the petition, as the petitioner cannot be said to be an "aggrieved party", as envisaged in Article 98 of the Constitution. It is contended that the petitioner association, as such, is not affected by the ultimate result ensuing from the impugned notification, laying down minimum rates of wages for workers in the Steel, Re-rolling industries, although its members, i.e., the mills who form this association may be so affected.

3. In order to determine whether the petitioner is an "aggrieved party" having a locus standi to bring the present petition for the relief sought therein, it may be useful to refer to the observations of the Ex-Chief Justice of Pakistan, Mr. Justice Muhammad Munir, in the case of Tariq Transport Company, Lahore v. The Sargodha-Bhera Bus Service (P L D 1958 S C (Pak.) 437), which lay down certain guide-lines on the subject. At page 452 of the report, his Lord ship observed as follows :- "In a petition for a writ the first question that the Court has to consider is whether the petitioner has the locus standi to invoke the extraordinary jurisdiction of the Court, and I consider it to be a basic principle that a person seeking judicial review of administrative or quasi judicial action must show that he has a direct personal interest in the act which he challenges before his prayer for review is entertained. `A petitioner', says Mr. Justice Frankfurt in his concurrent opinion in Giant Anti Fascist Refugee Committee v. McGrath (341, U. S. 123, 151) `does not have standing to sue unless he is interested in and affected adversely by the decision of which he seeks review. His interest must be of a personal and not of an official nature'. An application for an order of certiorari can only be made by an aggrieved party and not merely by one of the public, R. v. Nicholson (1899) 2 Q. B. 455 and in the case of an application for an order of mandamus, it is an established rule that the applicant must show that there resides in himself a legal right to the performance of a legal duty by the party against whom the mandamus is sought, R. Lewisham Union (1897) 1 Q B 498." The petitioner in the above noted case was the Provincial Trans port Authority and it was observed that in the matter concerned, the authority did not have any such interest as to entitle it sub stantially to assume the role of a petitioner. It was pointed out that where one, not a party, seeks to use certiorari, it must be shown that the decision 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 interest.

4. The learned Advocate-General has supported his objection by reference to a number of authorities. In a Full Bench case reported as Indian Sugar Mills Association through its President v. Secretary to Government, Uttar Pradesh Labour Department and others (A I R 1951 All. 1), a writ was sought, restraining the respondent from enforcing a notification issued by the Government, wherein the Governor in exercise of the powers under section 3 of the U. P. Industrial Disputes Act directed the payment of bonuses and retainer allowances to be made by the sugar mills to their respective workers. The application by the association was dis missed as incompetent. Answering the argument that though the amount may not be payable out of the property of the association, yet inasmuch as the payments have to be made out of the funds of the sugar mills, a large number of which were members of the association, the association had a right to move on their behalf, it was observed : "It is the interest of the applicant which must be directly affected by the statute or the order complained against and the applicant cannot claim that his interests are directly affected." In answer to a further argument that any person whether his interests are directly affected or not can file an appli cation, challenging any act of the Legislature or the order of the Government on the ground that it is ultra vires, a decision of the learned Judges of the Supreme Court of the United States in Commonwealth of Massachusetts v. Andrew W. Mellon (262 U S 447 : 67 Lawers Edn. 1078) was referred to, quoting with approval the following remarks of Thomson, J :- "It is only where the rights of persons or property are involved, and when such rights can be presented under some judicial form of proceedings that Courts of justice can interpose relief."

5. In Charanjit Lal Chowdhury v. The Union of India and others (A I R 1951 S C 41), the separate identity of the company from its share holders was recognised for purposes of relief in writ jurisdiction. The relevant observation is as follows:- (Per Fazal Ali, Das and Mukherjee, JJ.) "No one except those whose rights are directly affected by a law can raise the question of the constitutionality of that law. The company and the shareholders are in law separate entities, and if the allegation is made that any property belonging to the company has been taken possession of without compensation o: the right enjoyed by the company under Article 19 (1) (f) has been infringed, it would be for the company to come forward to assert or vindicate its own rights and not for any individual shareholder to do so."

6. In the case of The Bangalore District Hotel Owners' Association v. The District Magistrate, Bangalore and another (A I R 1951 Mysore 14), in which the situation presented was similar to that of the case in hand, the following observations were made :- "Under the Article (226 of the Constitution of India) an application for the issue of a writ must be made by the "aggrieved party". Thus an association, although registered under the Societies Registration Act, has no locus stand! to make an application under the Article for the personal and individual grievances of some of its members and not of the association itself." In this case the relief sought by the Hotel Owners' Association was that a writ of certiorari, prohibition or other appropriate writ be issued to cancel the order of the District Magistrate, Bangalore District, directing that all hotels, restaurants, milk bars and coffee clubs, in the villages of the Bangalore District except those as are licensed by the Amildar of the Taluk under the village Panchayat Act should be closed immediately. An affidavit was filed by the Secretary of the Association to state that the objects of the association, inter alia, were to promote the welfare of the Hotel owners who were members of the association and to represent trade difficulties of those members to the concerned official bodies. The competency of the Hotel Owners' Association to file a writ petition was not accepted in spite of the fact that the Association was out to protect the interests of its members, the hotel owners, which was the main concern of the Association.

7. Another case quoted by the learned Advocate-General is a Full Bench authority from the Karachi Bench of this Court in the case of Messrs Phalomal-Motiram v. The Chief Land Com missioner and others (P L D 1961 Kar. 384). In this case a writ petition was filed by a Joint Hindu Family through its Karta, seeking to protect the interests of the individual members of the family laying claims to their respective shares in the land to avoid the bar of paragraph 8 of C.M.L.A's. Regulation No. 64, which limited the area of individual holding to five acres. It was held that the joint Hindu family had no locus standi to make the petition as the grievance or cause of action rested in individual members and not the joint family as such.

8. No authority was cited before us by the learned counsel for the petitioners contending for the opposite view, but it was argued by them that the petitioner-association was a party aggrieved within the meaning of Article 98 of the Constitution for various reasons. It was said that the association is an "aggrieved party" because it enjoys a consultative status for operating the Ordinance, and that the grievance made in the petition is that in the process of setting up of the Minimum Wages Board and the recommendations made by the Board, there has been a departure from the provisions of the Ordinance. An added strength was given to this contention by the fact that there was no other association representing the Steel Mills Owners and that the petitioner-association was a registered body under the Trade Organization Ordinance of 1961. We consider that none of these considerations confers on the association the character of an "aggrieved party" within the meaning of Article 98 of the constitution, as the grievance complained of must in its effect entail a direct injury to the petitioner to make it an aggrieved party, and the injury has to be co-related to the relief sought in the petition to avoid that injury. In writ jurisdiction, reliefs claimed have to be construed and granted in terms of the prayers made in the petition See Pakistan v. Ali Afzal (P L D 1960 S C 1) and the Courts are not called upon merely to decide metaphysical questions of law without reference to the relief which is sought in the petition. In the present case, the petition under Article 98, according to the subject heading, is directed against the respondent for an order to withdraw and cancel and treat as of no valid effect the minimum rates of wages recommended by the West Pakistan Minimum Wages Board, as published in West Pakistan Gazette dated the 15th of March 1963 under section 6 (1) of the Ordinance and at the end the same prayer is repeated that the Court on being of the opinion that the respondent had acted in excess of its authority conferred on it by law may be pleased to issue an order directing the cancellation of the aforesaid Notification. It is obvious that the notification in question, laying down the minimum wages for the workers in the Schedule appended to it does not at all affect the interests of the petitioner association as such to make it an "aggrieved parts" for the purpose of making a writ petition. The Association does not have to pay the wages to workers and it cannot make a grievance of that fact--that the wages have not been legally fixed. It is the individual members, i.e., the owners of the different Steel Re-rolling Mills that have to foot the bill of the increased wages, as ordained in the notification, and it is they who are individually in various degrees affected by the notification. In this situation, respectfully agreeing with the view expressed in the authorities noted above, we are constrained to hold that this petition is not competent, as the petitioner association by itself, apart from its individual members, is not at all directly affected with the practical outcome of the impugned notification. The view that we have formed on this point is sufficient to dispose of the petition on the preliminary objection, dispensing with the need to go into the merits, but since the merits of the petition were also argued before us by the learned counsel and as the question raised might give rise to a number of petitions by the individual members of the association and we understand that one such petition by an individual member has already been filed which is pending for admission, we would like to express our opinion on the merits as well.

9. The points raised by Mr. A. K. Brohi, assisted by Mr. Karam Elahi Chauhan, learned counsel for the petitioner, in this respect may be briefly summarised as follows :- (a) The impugned notification is invalid because the Board which was set up for the purpose of fixation of minimum wages was not properly constituted, being deficient in strength and also being non-representative. (b) That the reference made to this Board for fixation of the wages under section 5 of the Minimum Wages Ordinance (XXXIX of 1961) was initially bad as the Board being unconstitutional lacked the authority to receive it. (c) Under section 5 of the Ordinance a direction can be made to the Board to recommend the rates of wages of workers in a given industry provided that no adequate machinery exists for the regulation of wages in that industry. In the present case, this condition precedent was not fulfilled, as no steps were taken by the Provincial Government to ascertain whether an adequate machinery did or did not exist and in fact for the steel re-rolling industry such a machinery does exist within the industry itself. (d) That the recommendations as adopted in the impugned notification are in excess of the powers of the Board as the wages have been recommended for certain types of workers out side the scope of the relevant provisions of the Ordinance.

10. The first objection about the deficient and defective con stitution of the Board rests on section 3 of the Ordinance, which may be examined in the light of the relevant circumstances of this case. Under this section the Provincial Government has to establish a Minimum Wages Board for the Province consisting of the following four members to be appointed by it, namely, (a) the Chairman of the Board; (b) one independent member; (c) one member to represent the employers of the Province ; and (d) one member to represent the workers of the Province. The proviso to the section adds another requirement that for purposes of discharging the functions of a Board specified in section 5, which primarily relate to the recommendation of the fixation of minimum rates of wages for workers in an industry, the Board shall have an increased strength of two more members, one to represent the employers connected with the industry concerned and the other to represent the workers engaged in such industry. Subsection (2) of section 3 of the Ordinance lays down that the Chairman of the Board and the independent member shall be appointed from persons with adequate knowledge of industrial, labour and economic conditions of the Province, who are not connected with any industry or associated with any employers' or workers' organizations. Under subsection (3) of the same section the member to represent the employers of the province and the member to represent the workers of the Province under subsection (1) shall be appointed after considering nominations, if any, of such organizations as the Provincial Government con siders to be representative organizations of such employers and workers respectively. Under subsection (4) the representative members of the employers and the workers of the industry concerned have to be appointed after considering nominations, if any, of such organizations as the Provincial Government considers to be representative organizations of such employers and workers respectively.

11. It was pointed out that in the present case when the reference was made to the Board under section 5 of the Ordinance, the Board was not complete in its basic strength of four members, as the fourth member, Malik Fateh Muhammad, was appointed in August 1962. The Board was set up by the Provincial Government on the 23rd of February 1962 by Notification No. 9-4-(L. 11) 61, consisting of the following :- (1) Mr. S. Alamgir, T. Pk. C.S.P. Chairman (2) Mr. Gulzar Ahmad Member (to represent the employers) (3) Mr. Bashir Ahmad Khan Bakhtiar Member (to represent the workers) (4) Independent Member To be notified later. Another notification was issued on the 18th of October 1962, No. 9-11-(L-Il) 62, adding two more members in terms of the proviso to subsection (1) of section 3 of the Ordinance. They were : - Mr. Abdul Rahim Malik, General Secretary, Batala Engineering Company, Lahore. to represent Steel Re-roll ing Industry. Rana Khuda Dad, Rana Motors, The Mall, Lahore. Rana Khuda Dad was nominated as the representative of the employers. The grievance made by the petitioner-association is that the employers were not given a proper representation as the nomination was arbitrary, having been made without regard to the interest of the industry as a whole and without consultation with the employers or their representative organizations. It is pointed out that Rana Khuda Dad Khan, who has been nominated to represent the Steel Re-rolling Industry in West Pakistan has nothing to do with this industry. At the material and the relevant time he was not at all concerned with any Steel Re-rolling Mill, nor was he a member of the petitioner-association.

12. The first objection that the basic membership of four members was not initially complete when the notification setting up the Board was made loses substance because the impugned recommendations were made by the Board when it was fully manned, including the fourth member, Malik Fateh Muhammad Khan. We do not consider that the Board was not brought into legal existence merely because one vacancy was left unfilled at the time when it was set up and the vacancy was filled later on.

13. The second objection pertaining to the non-representa tive character of the Board, as far as the employers are concerned, merits a more serious consideration. As mentioned above, the requirement of subsection (3) of section 3 of the Ordinance is that the representative members of both the employers and the workers of the Province under subsection (1) have to be appointed after considering nominations, if any, of such organizations as the Provincial Government considers to be representative organizations of such employers and workers respectively, and the members referred to in the proviso to subsection (1) to represent the employers connected with and the workers engaged in the industry concerned have to be appointed after considering nominations, if any, of such organizations as the Provincial Government considers to be representative organizations of such employers and workers respectively. The complaint of the petitioner-association is that no representative of the employers was appointed to the Board and in the matter of the additional appointment of the representative of the employers under the proviso to subsection (1), contrary to the legal requirements, the nominations submitted by the petitioner-association to the Government were completely ignored, although they were duly submitted on the 6th of September 1962 in response to a telephonic massage received from an officer of the Directorate of the Labour Welfare, Government of West Pakistan. There is no doubt that the relevant provisions of the Ordinance in regard to the formation of the Board do point out to the effective representation of the employers and the workers of the Province and for the purpose of fixation of minimum rates of wages in a particular industry the representatives of the employers and workers of that industry have also to be nominated to the Board, but it seems to us that the statute gives the power of selecting the required representatives to the Provincial Government. There seems to be no room for the argument that the Provincial Government has to confine its choice to the panel of the nomina tions that may be submitted by the respective organizations of the employers and the workers, The Provincial Government, while considering those nominations is not at all bound to accept them. In a given industry there may be several organizations, each insisting for acceptance of its own nominee for membership of the Board and the Government may find it desirable not to accept the nominee of one or the other, and may select its own, giving full weight to the consideration that the interests of both wings of the industry-employers and workers-on the Board are protected by the appointment of effective representatives to represent and safeguard their respective interests. To uphold the contention of the learned counsel in this respect will amount to giving a handle to the petitioner-association or other kindred organizations to defeat the very purpose of the "welfare legisla tion", as incorporated in the Ordinance.

14. The objections as to the defective constitution of the Board urged by the learned counsel meet a complete answer from section 11 of the Ordinance which reads :- "No act or proceeding of a Board or of the Council shall be invalid or questioned merely on the ground of existence of any vacancy therein or of any defect in the constitution or in the appointment or qualification of any member thereof." Even if it were to be said that the Board was defective in strength while receiving the reference from the Government for the fixation of minimum rates of wages owing to the existence of the vacancy of the fourth member, the deficiency is obviously cured by this provision, although, as already stated above, the act of merely receiving the reference is of no consequence, because what really matters are the final recommendations of the Board which were made by the Full Board. Similarly, we feel that this provision cures the defect in the Constitution of the Board also even if the defect be relatable to its non-representative status. We have not been able to appreciate the argument of the learned counsel that the words "defect in the constitution" in section 11 do not relate to the Board as a whole and govern merely the qualifications of the individual members.

15. The next point urged in support of the petition is that the conditions precedent which should exist before a reference can be made under section 5 of the Ordinance were not present in this case. It is submitted that before issuing the direction to the Board to make recommendations under section 5 two conditions are necessary

(a) that in the industry in question no adequate machinery exists for effective regulation of wages, and (b) the Provincial Government is of the opinion that having regard to the wages of the workers employed in the undertakings engaged in such industry, it is expedient to fix the minimum rates of wages of such workers. It was stressed by the learned counsel that adequate machinery does exist for effective regulation of wages in almost all the Steel Re-rolling Mills, as there are trade unions of workmen who have through collective bargaining, conciliation and adjudication, regulated wages of workmen employed in the said undertakings, and as regards (b) it is argued that there was no material available to the Provincial Government to form the opinion in terms of the requirement of section 5 to act on the supposition that it was expedient to fix the minimum rates of wages for all the persons employed in Steel Re-rolling Industry. The short answer to these objections is that whether adequate machinery exists in an industry or not for the effective regulation of wages, what is needed is the subjective satisfaction of the Government itself. What the employers may consider to be an adequate machinery may not be so accepted by the workers and vice versa and, therefore, the need for the Provincial Government for the sake of better harmony and efficient working between the employers and the workers to determine the matter and to set up the Board to engage itself in the task of recommending wages in that industry. If, as contended by the learned counsel the bargaining power in the various Trade Unions provides an effective machinery by itself, this machinery 'may in one case break its efficiency by over exerting its bargaining power against unwilling employers and in the other may have no bargaining power at all for lack of cohesion in the ranks of the workers, against the powerful resistance of the employers.

16. Mr. Karam Elahi Chauhan in his argument made reference to the Industrial Disputes Ordinance, 1959, as providing an effective machinery for regulation of wages where disputes arise, we have not been able to appreciate this argument. The object of the Ordinance in regulating wages through the agency of the Board for minimum wages is to bring an end to such disputes. The Industrial Disputes Ordinance does provide agency for the settlement of disputes, but it does not by itself provide a means for regulation of wages to avoid disputes. Again, the question of expediency of regulating wages in a given industry is for the Provincial Government to decide on the conditions of workers prevailing in an industry on the relevant data available to it, is no left under the Ordinance to an extraneous agency.

17. This brings us to the last contention of the learned counsel that the Board has exceeded its powers in fixing additional wages for payment of 50% additional wages for the workers employed within ten yards of the furnace fire and 25 % to those employed at a distance between 10 and 20 yards of the furnace fire. It is argued by the learned counsel that this recommendation artificially creates a class of workers defined on the basis of place at which the workers work from the place where the furnace is situated in the factory premises which class is not included in the categories of workers mentioned in subsection (2) of section 5 of the Ordinance. Subsection (2) of section 5 enables the Board to recommend minimum rates of wages for all classes of workers in any grade and enumerates the types of work that may be covered by the recommendations without exhaustive their list. In fact, the recommendations have to be made, as stated in the main provision itself, for all classes of workers in any grade and there seems nothing wrong in fixing additional wages for the workers working near the furnace. We do not find any excess of authority in the recommendations made for awarding additional wages to such workers.

17. In the result, we feel that this petition is without sub stance and we dismiss it with costs. K. B. A. Petition dismissed.