1988 PLP 354 (PLC)

2. Brief facts of the case are that respondent No.7, namely, Messrs Lever Brothers' Employees Union, was a registered trade union, having been registered on 9‑10‑1967 and was also granted a certificate of Collective Bargaining Agent on 16‑5‑1975. That respondent No.l was always recognising the respondent No.7 as a C.B.A. in the establishment and also arriving at various settlements had also introduced a check‑of system under section 23 of I.R.O. 1969. That respondent No.7, i.e. the C.B.A. of the establishment had applied to the Provincial Government, under section 23‑B, I.R.O. 1969, for appointment of auditors to audit the accounts of Messrs Lever Brothers (Pak.) Ltd. For the year 1982‑83 and that the Provincial Government in exercise of its powers had issued a Notification to audit the accounts of Messrs Lever Brothers (Pak.) Ltd. by appointing Messrs Sandhu & Co., as Auditors and thereafter the Provincial Government as well as the auditors had directed several times to Messrs Lever Brothers (Pak.) Ltd. to submit their accounts for the purpose of audit and that finally after getting no positive response from Messrs Lever Brothers (Pak.) Ltd., a show‑cause notice was issued by the applicants (complainant) to the respondents. That even after issuance of the said show cause Messrs Lever Brothers (Pak.) Ltd. failed to submit their accounts for audit, so the applicant complainant had submitted a complaint against all the respondents Nos. l to 5, which was subsequently dismissed by the learned Court i.e., respondent No.6 herein, vide order dated 9‑3‑1987. Further, the case of the applicant/ complainant is that the impugned order is improper, unlawful and is in excess of the authority vested in the said Labour Court besides being unjust and in violation of the principles of natural justice.

3. The case of the respondents Nos.1 to 5, before the learned Labour Court was that Lever Brothers Employees Union (respondent Nd.7 herein), who had asked for the second audit was illegally constituted union and as such had no locus standi to ask for the second audit under section 23‑B(10) of I.R.O. 1969. It was also the case of the respondents that Messrs Lever Brothers (Pak.) Ltd., have two factories, one at Karachi in the Province of Sind and the other at Rahim Yar Khan in the Province of Punjab and that Lever Brothers Employees Union i.e. the respondent No.7 herein, was a registered Trade Union for Karachi factory only and it had applied for second audit in terms of section 23‑A, I.R.O. 1969, whereupon the Government of Sind had appointed Messrs Sandhu & Co. to audit the account of the company, whereas this Notification of Government of Sind did not apply on the factory, located in the province of Punjab. Further, it was the case of the respondents Nos.1 to 5 that the applicant /complainant namely, Mr. Hussain Ally, Deputy Director Labour, Government of Sind, Karachi, had no valid authorisation to institute criminal proceedings for the reasons, firstly, that he was not properly and specifically authorised to institute criminal proceedings against the respondents and secondly, that the Lever Brothers Employees Union had illegally asked for the second audit of the company on all Pakistan and that the Provincial Government of Sind had also informed the management of the respondents on 18‑9‑1984 that the second audit should be confined to Karachi factory only, .yet, the applicant /complainant had instituted criminal proceedings which were not maintainable and liable to be dismissed.

4. The learned Labour Court, after recording statement of the applicant /complainant in the preliminary enquiry, had issued process against the respondents Nos. 1 to 5‑A, charge was framed against the respondent and thereafter the evidence of prosecution witnesses, namely, the complainant, Hussain Ally, Mr. Nabi Ahmed, President, Lever Brothers Employees Union and one witness from Messrs Sandhu & Co. were examined. Then, an application under section 249‑A, Cr.P.C. was submitted by the respondents Nos.1 to 5 before the learned Labour Court and there after hearing both the parties, it had passed the impugned order, hence, the present suo motu revision application.

5. I have heard Mr. Hussain Ally, the Deputy Director Labour, Government of Sind, Karachi, the applicant /complainant in. person, and also on behalf of the Registrar, Trade Union, Karachi, and Mr. Mahmood A. Ghani, the learned Advocate on behalf of respondents Nos. l to 5, while, none was present on behalf of respondent No. 7, i.e. Lever Brothers Employees Union, I have also carefully gone through the record and proceedings of. the case as well as the documents brought on record.

6. It was 'contended by Mr. Hussain Ally that the impugned order, passed by the learned Labour Court is liable to be set aside on the grounds that Lever Brothers Employees Union was not heard by the learned Labour Court and as such, it could not be said that it was illegally constituted body. He further submitted that the constitution and registration. of the said union was protected in terms of section 67(2) of I.R.O. 1969 and that he had valid authority to institute criminal proceedings against the respondents Nos.1 to 5 as‑they had committed violation of provision of Law for not submitting their accounts for the second audit. I see no force in, any of the contentions of Mr. Hussain Ally, on behalf of the applicant /complainant i.e., the Registrar of Trade Unions, Karachi.

7. On the other hand, Mr. Mahmood A. Ghani, the learned Advocate for the respondents Nos. 1 to 5, had firstly argued that the Lever Brothers Employees Union i.e. respondent No.7 herein, is an illegally constituted union of the workers of respondent No.1 establishment, therefore, it had no legal rights to ask for the second audit of the accounts of the establishment. In report of his arguments, Mr. Mahmood A. Ghani has referred to an admission by Mr. Hussain Ally in his cross‑examination to the effect that the Lever Brothers Employees Union had moved application before the Provincial Government for the appointment of Auditors to audit the accounts of the Company, as well as the Constitution of the said Union and a list of office‑bearers, submitted before the Registrar of Trade Unions, Karachi as Exhs.C.W.1/12, C.W.1/13, C.W.1/14 and C.R.1/15 respectively. A perusal of copy of the Constitution of the said union reveals that it provides for 37 office‑bearers of it, but according to the evidence of Mr. Hussain Ally, there were only 382 workers employed in the Karachi factory of the respondents Nos.1 to

5. There is also contradictory evidence by Mr. Nabi Ahmad, the President of Lever Brothers' Employees Union that the total number of workers in Karachi factory were more than 300 but less than

350. In this behalf Mr. Mahmood A. Ghani has relied upon Rule 5 of the Industrial Relations (Sind) Rules, 1973, wherein it is specifically provided that where the number of workers are 400, the executive forming the trade unions, shall not be more than 14 in all', Mr. Mahmood Ghani has further submitted that the Lever Brothers Employees Union had a provision in its constitution for 37 office‑bearers quite contrary to Industrial Relations (Sind) Rules, 1973, as such, that provision clearly makes the union as an illegally constituted body. There is an admission by Mr. Nabi Ahmad C.W.2 in his cross‑examination on the record, that the said union was registered with the Registrar of Trade Union government of Sind, Karachi, but its membership is not confined to the Province of Sind, but, if an employee is transferred temporarily to Rahim Yar Khan, i.e. out of Province of Sind, even in that case, he continues to be a member of the union. Therefore, in view of this admitted position, Mr. Mahmood A. Ghani, the learned Advocate for the respondents Nos. 1 to 5, has rightly argued that since Lever Brothers Employees Union had a provision in its Constitution which provides 37 office‑bearers as against 14, as provided under Industrial Relations (Sind) Rules, 1973, and further that the said union had provisions for workers to have membership for the workers not working in the Province of Sind although the union is registered with the Provincial. Registrar of Trade Unions Sind, Thus, it is an illegally constituted body and had no locus standi to act either as registered trade union or the Collective Bargaining Agent or otherwise to ask for the second audit under section 23‑B. In support of his pleadings, Mr. Mahmood A. Ghani, the learned Advocate for the respondents B Nos. 1 to 5, has referred me to a number authorities, reported in PLD 1978 Kar. at page 567‑569; 1976 ‑P L C 203 at page 201; 1964 PLC 629 at page 632; 1967 P L C 156 at page 159; P L D 1966 S C 731 at page

737. Mr. Hussain Ally, the learned Deputy Director Labour, representing on behalf of the applicant /complainant, has miserably failed to submit anything cogent in rebutal of the pleading of Mr. Mahmood A. Ghani in support of his pleadings are very well‑applicable to the facts and circumstances of the present case. It is crystal clear from the record that at no stage, Lever Brothers Employees Union had applied to the learned Labour Court to be impleaded as a party specially when its President, Mr. Nabi Ahmed had appeared as a witness and even, after the impugned decision, it had not apprehended to this Tribunal also, in any manner, therefore, the contention of Mr. Hussain Ally that the said union was not heard, had no substance. In this respect, Mr. Hussain Ally has stated that in terms of section 67(2) of I.R.O. 1969, registration of Lever Brothers Employees Union was protected as it was registered prior to promulgation of I.R.O. 1969 and since this union was registered prior to promulgation of I. R.O. or Rules framed thereunder, it can have provisions in its constitution, which are not only inconsistent with Law, but, also the Rules framed thereunder and that it is open to the union to decide as to whether it made amendment in its constitution so as to bring in line with the provisions of Law. I would not agree with this argument of Mr. Hussain Ally, while on the other hand, Mr. Mahmood A. Ghani the learned Advocate for the respondents Nos. 1 to 5, has rightly contended that section 67 is to be given limited interpretation and it merely provides for a situation where the union registered prior to promulgation of I.R.O. need not apply a fresh for its registration, and its registration, or constitution remains intact and only for limited purposes and that section 67 cannot be interpreted so as to give permission to the union to continue to have provisions which are contrary to Law and the Rules framed thereunder, in its Constitution. Mr. Ghani has further submitted that legislature could not contemplate to a situation where there are two sets of law prevalent in one and same establishment. He has thus, rightly contended that Lever Brothers Employees Union cannot insist to retain in its constitution the provision for 37 office‑bearers, contrary to provisions of Law and Rules framed thereunder which provide only 14 office‑bearers, keeping in view the number of workers employed at Karachi factory Mr: Ghani has further submitted that if another trade union is formed in the Karachi factory, and has 14 office‑bearers, in accordance with Law, it cannot, therefore, be the intention of legislature to have simultaneously two trade unions, having different number of office‑bearers in their respective unions. He has referred that in terms of section 10 of the I.R.O. 1969, the registration of trade union is liable to be cancelled if it is in contravention to provision of I.R.O. and the Rules, framed thereunder, therefore, his contention that legislature was conscious of the fact that the unions which were in existence before the promulgation of I.R.O. and also settlements with the union and management were in operation had adjudication proceedings were also lying in this Courts, if no protection was given to such registered union, it would have created a situation where all the proceedings would have abated and industrial turmoil resulted thus, for limited purpose only, protection was given to the registration of such unions. Mr. Mahmood A.Ghani, the learned Advocate for respondents Nos.1 to 5, has also correctly argued that the words 'until altered or rescinded' as appears in section 67(2)(a) cannot be interpreted so as to mean that it is left on the discretion of the union to alter or rescind its constitution as and when they desire, therefore, the words 'until altered and rescinded' is to be given restricted meanings whereby it is incumbent upon the union to make provisions in its Constitution which are consistent to‑Law and the Rules framed thereunder, and that the Constitution of the union is always subservient to Law and cannot be argued that union Constitution shall supersede the Law. Mr. Mahmood A. Ghani, the learned Advocate for the respondents Nos.1 to 5, has lastly argued on this very important issue, by pointing out that originally in section 67(2)(a) of I.R.O. 1969, the words as far as it is not inconsistent with the provision of this Ordinance 'have now been omitted. This omission does not in any way improve upon the case of the union. It is again correct 'to argue that this omission merely means that provision which are inconsistent in the Constitution, to law and the Rules does not mean that such inconsistencies is now recognised and the Ordinance and it only means that if there are provisions which are inconsistent to Law, the registration of the union was protected subject to condition that any provisions, which are inconsistent to Law, shall be brought in accordance with Law and rectified by the union. However, after the lapse of about 15 years, no such amendments have been brought in the Constitution of the said. Union and thus, the said union is alone responsible for its consequences and as it has become an illegally constituted body, therefore, its registration is liable to be cancelled forthwith, hence, it has also no locus standi to apply for second audit of the 'accounts of the establishment, in' terms of section 23‑B, I.R.O. 1969.

8. It was next contended by Mr. Mahmood A. Ghani the learned Advocate for the respondents Nos. l to 5, that the letter of Authority, Exh.C.W.1/11, whereby Mr. Hussain Ally was authorised to institute criminal proceedings against the respondents Nos. l to 5 is neither proper and specific, nor in accordance with law. It reads as under:‑ "I, Muhammad Javed Ashraf Hussain, Registrar of Trade Unions Sind, Karachi, do hereby authorise Mr. Hussain Ally, Deputy Director Labour (Trade Unions) Karachi, to appear, act and file the complaint/documents/affidavit and argue before the Hon'ble Court on behalf of the undersigned."

9. A perusal of this Authority letter will reveal that it is undated and nowhere, it has authorised, Mr. Hussain Ally to institute any criminal complaint against any establishment muchless accused establishment before the Labour Court Mr. Mahmood A. Ghani, the learned Advocate for respondents Nos.1 to 5, has correctly pointed out that Mr. Hussain Ally had been authorised to lodge any complaint and that he had acted upon his own‑self in instituting the instant proceedings before the learned Labour Court. There is nothing, on record to show as to what had prevented the Registrar Trade Union, Government of Sind, Karachi, in not filing the present complaint before the learned Labour Court, under his own signatures. There is an admission, on record, by Mr. Hussain Ally, that criminal proceedings have been instituted against the respondents Nos.1 to 5 on 13‑9‑1984, and at the same time, he had admitted that on 18‑9‑1984, the Government of Sind had requested Messrs Sandhu & Co. to audit the accounts of only Karachi factory of the respondents; there is further admission by Mr. Hussain Ally that the respondents have shown their willingness to co‑operate with Messrs Sandhu & Co. to audit their accounts of Karachi factory. The admission of Mr. Hussain Ally is as under: "It is correct to suggest that having come to know about the letter, dated 18‑9‑1984 C.W.1/10 I did not inform the Court that second audit was in process."

10. Mr. Mahmood A. Ghani, the learned Advocate for respondents Nos. 1 to 5, has referred me to further admission made by Mr. Hussain Ally in his cross‑examination that he was not notified as Inspector of Factories under the Factories Act on 13‑9‑1984, when he had instituted the proceedings against the said respondents. Under section 23(f)(2) of Industrial Relations Ordinance, no Court shall take any cognizance of offence punishable under subsection (1) except upon a complaint, in writing made by the Registrar. The admitted F position in the present case is the complaint against the present respondents Nos.1 to 5, is not signed by the Registrar of Trade Unions Government of Sind, Karachi. Thus, Mr. Hussain Ally being not an Inspector of Factories had no authority to lodge any complaint in the Court under section 23‑B of I.R.O., which has rightly been dismissed by the learned Labour Court, vide its impugned order.

11. Lastly, it was argued by Mr. Mahmood A. Ghani, the learned Advocate for respondents Nos.1 to 5, that the learned Labour Court was correct in rejecting the evidence of one Mr. Nadeem, a trainee student of Messrs Sandhu & Co. who admittedly had no authority to depose before it, on behalf of the said Audit firm. I would also agree with this contention, of Mr. Mahmood A. Ghani.

12. For the reasons discussed by me above, I. would hold that the impugned order of the learned Labour Court is legal, proper and in accordance with law, and would thus, maintain the same. The present suo motu revision application is accordingly dismissed. A.E./1072/Lb.S Revision dismissed.