1993 PLP 808 (PLC)

Asmat Kamal Khan for. Respondent No.

2. Date of hearing: 25th April, 1993. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question an order passed by the Registrar, Trade Union, Lahore Region, Lahore on 26‑11‑1991.

2. Respondent No. 2 is a trade union‑formed by the workers in the employment of the petitioner and has been registered as such under section 8 or Industrial Relations Ordinance, 1969.

3. It appears that on 26‑5‑1991 a complaint was made by the petitioner to the Registrar, Trade Union (respondent No. 1), alleging that as the number of the members of respondent No. 2 was not more than 45, it had by having more than 5 members of its executive committee, two of whom were outsiders, violated section 7 (1) of the Industrial Relations Ordinance, 1969 read with rule 5 of Industrial Relations Rules, 1973. As this application was not being decided by respondent No. 1, the petitioner filed Writ Petition No.10686/91 in this Court which was disposed of on 20th November, 1991 with the direction to the respondent No. 1 to decide the application filed by the petitioner without any delay. On 26‑11‑1991, respondent No. 1 informed the petitioner that the application filed by him has been rejected. The rejection of this application has been assailed in this Constitutional petition.

4. Mr. Noor Muhammad Chandia, learned counsel for the petitioner has contended that as admittedly the number of the workers in the establishment of the petitioner was less than 50, the total members of its executive committee could not exceed five out of whom not more than 25% could be outsiders. It is asserted that respondent No. 2 had seven executive members, two of whom were not in the employment of the petitioner. According to the learned counsel, notwithstanding any subsequent amendment in the Constitution of respondent No. 2, once' a violation of law had taken place at particular time, respondent No. 1 had no jurisdiction to refuse to file a complaint before the Labour Court under section 10 of the Industrial Relations Ordinance, 1969.

5. The learned counsel appearing for contesting respondents as also the learned Additional Advocate‑General have, on the other hand, controverted assertion that the number of workers employed in the establishment has always been less than

50. Mr. Asmat Kamal, Advocate states that since the formation of the union till February, 1991, the number of workers in employment of the petitioner was 60 and it was only thereafter that as a result of termination of services of the Secretary‑General and some other employees which resulted in reduction of number of workers to less than

50. It is explained that it was on this account that the respondent No. 2 had amended its constitution so as to bring it in consonance with law.

6. From the respective contentions of the parties, it is clear that there is a serious dispute between the parties relating to the number of workers employed in the establishment. Unfortunately, while deciding the application of the petitioner, all important questions were ignored from consideration by the Registrar, Trade Union who instead proceeded on the assumption that by virtue of amendment made in the constitution by respondent No. 2, the illegality stood cured. The approach on the part of respondent No. 2 can hardly be countenanced. In the circumstances of the case, the first question which should have attracted the attention of the said respondent was as to whether or not number of the workers in the establishment was less than 50 and if so, since when and with what effect. Unfortunately, there is no decision on this factual aspect with the result that there is no option but to remit the case to respondent No. 1 for decision afresh. In view of what has been stated above, the impugned order of Registrar, Trade Unions, Lahore dated 26‑11‑1991 is declared to be without lawful authority and of no legal effect with the result that the application filed by the petitioner before him shall be deemed to be pending who shall proceed to decide it in accordance with law. No order as to costs. H.B.T./A‑430/L Order accordingly.