1998 PLP 477 (PLC)

"(i) that the enterprise in question must be organised and systematic; (ii) that it should depend substantially if not entirely on cooperation between labour and capital; (iii) that its object should be production, distribution and consumption of wealth and production of material service, (iv) that the main object for formation of enterprise or any part thereof should be considered and incidental, ancillary or adjunct purposes are not relevant; and (v) that profit making may not be the object for running the enterprise. " The learned counsel contended that Pakistan Engineering Council, is a profit earning organization.. It charges fees from the engineers, construction contractors and also earn profit by leasing out its properties. The council has substantial amount in its reserve funds which are collected through its involvement in business activities. It was, thus, claimed that Pakistan Engineering Council was purely a commercial organisation and was covered under the definition of "industry" and "establishment".

5. The learned counsel for respondent No. 2 also referred to the definition of "commercial establishment" as given in section 2(b) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, claiming that the said definition was equally applicable to the Pakistan Engineering Council as it employs workmen and is engaged in commercial activities. These contentions are, however, without any force. The definition of "commercial establishment" is applicable to the aforesaid Ordinance and cannot be made applicable in the cases covered under the industrial Relations Ordinance, 1969, which itself contains the definitions of the terms "establishment" and "industry". Hence, for the purposes of the latter Ordinance, the definition given therein shall apply and in that connection definitions of other statutes are not required to be borrowed.

6. Ch. Naseer Ahmad, Advocate, learned counsel representing the petitioner, on the other hand, in detail referred to the various provisions of the Pakistan Engineering Council Act, 1976, to urge that the main purpose of the Pakistan Engineering Council is to regulate the engineering profession. In this regard, the Council caused the registration of practising professional engineers and consulting engineers, accord recognition to engineering qualifications for the purpose of said registration, lays down standard of conduct of the engineers, brings reforms in the engineering profession and exercises the disciplinary powers over the engineers in accordance with the rules. For the purposes of the Act, the Council maintains a fund consisting of fees, grants, donations and subscriptions. The Council is also empowered to make bye-laws to carry out the purposes of the Act. Under these legislative powers the Council has framed the Construction and Operation of Engineering Works Bye-Laws, 1987. The purpose of these Bye Laws is to regulate the construction work in Pakistan through the recognised engineers. In this connection, the Council issues licences to construction contractors and charges fee for issuance of such licences or refusal thereof. The Council owns certain properties which for the time being are not in use of the Council and, therefore, have been given on rent. Nevertheless all the receipts from these sources are credited to the fund maintained by the Council under the Act and are spent for the welfare of the engineers and the staff of the Council. It is in no way involved in any business or commercial activity for earning profit. In support of his contentions, learned counsel for the petitioner referred to A.F. Ferguson & Co. v. The Sindh Labour Court and another (PLD 1985 SC 429), wherein the Supreme Court had held that a firm of chartered accountants having large number of staff does not fall within the definition of "industry" as given in section 2(xiv) of the Industrial Relations Ordinance. Likewise, he referred to the case of Aftab A. Chaudhary, Chairman, Managing Committee, Punjab Club, Lahore v. The Registrar, Trade Unions, Lahore and another (1996 PLC 87), wherein this Court had held that the Punjab Club was not an "industry" within the meaning of section 2(xiv) (ibid) and the employees were not entitled to registration of their union under section 7(2) of the Industrial Relations Ordinance, 1969. In the Controller, Stationery and Forms, Government of Pakistan v. The Registrar, Trade Unions, Sindh and others (PLD 1991 SC 353), the Supreme Court was also pleased to hold that the provisions of Industrial Relations Ordinance, 1969, were not applicable to the workmen employed by the Stationery and Forms Department, Government of Pakistan, nor their union could act as collective bargaining agent thereof.

7. For facility of reference, it would be appropriate to reproduce the provisions relating to "establishment" and "industry" as defined in section 2(ix) and (xiv) of the Industrial Relations Ordinance, 1969:

"' establishment' means any office, firm, industrial unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying on any industry; and except in section 22-EE, includes a collective bargaining unit, if any, constituted under the section in any establishment or group of establishment." "industry' means any business, trade, manufacture, calling, service, employment or occupation."

8. The functions of the Pakistan Engineering Council as enumerated in the Pakistan Engineering Council Act, 1976 (V of 1976), do not bring the Council within the fold of "establishment" or "industry" as defined in the aforesaid Ordinance. The main purpose for constitution of the Engineering Council is to regulate the engineering profession and to maintain its standards. It is a body which causes registration of engineers, whether professional or consulting specified their courses, accord recognition to engineering institutions for the purpose of registration of the engineers, so that the engineers qualified from the recognised universities or institutions, whether national or foreign could be registered and allowed to perform their professional duties in the countries. The purpose of grant of licences to construction engineers is also to regulate the functions of construction industry but in no way the Engineering Council is itself an industry. The collection of membership fee from the engineers or licence fee from the engineers or licence fee from the construction contractors or giving of its property on rent is not only for earning profit, but is to raise funds for the welfare and upkeep of the engineering standard in Pakistan: It is nobody's case that the fees or rents collected by the Council is distributed amongst its members i.e., the engineers as income or profit. Such fees and rents are actually credited to the Fund as assets of the Council. In view thereof, since the Pakistan Engineering Council is neither the "establishment" nor "industry" all these persons employed by it which are "workmen" within the meaning of Industrial Relations Ordinance, 1969, are not entitled to get registration of their union under the provisions of the Ordinance.

9. The Certificate of Registration granted by the Registrar of Trade Unions (respondent No. 1) is also legally defective as no opportunity was given to the petitioner before registration of its employees' union (respondent No.2). In this context the learned counsel for the respondents contended that for the purposes of cancellation of registration of a union, a procedure has elaborately been provided in section 10 of the Industrial Relations Ordinance, 1969. In this respect relevant extract of section 10 (ibid) is reproduced below:-- "(1) The registration of a trade union shall be cancelled if the Labour Court so directs upon a complaint, in writing made by the Registrar that the trade union has-- (i) contravened or has been registered in the provisions of this Ordinance or the rules; or (ii) contravened any of the provisions of its constitution; or (iii) made in its constitution any provision which is inconsistent with this Ordinance or the rules. " Learned counsel for respondent No.2 specifically referred to the expression "or has been registered in contravention of" used in clause (i) of subsection (1) of section 10 (ibid) claiming that even where any union is registered in contravention of any provisions of the Ordinance, it can be cancelled by the Labour Court on the complaint of the Registrar. In support of his contentions, reference was also made to Pakland Cement Limited, Karachi v. Registrar of Trade Unions, Karachi and 8 others (1994 PLC 177).

10. There is no cavil to the above proposition, but in the present case the position is altogether different. Here, the Registrar of Trade Unions who is respondent in the present petition has vehemently opposed the present Constitutional petition justifying the registration of Pakistan Engineering Council Employees' Union (respondent No.2). In fact, he has asserted that "the law does not envisage at all that before a Trade Union is registered the factum of application should be disclosed to the employer. It is fraught with serious repercussions which may operate to the grave disadvantage of the workmen". If this is the position, it cannot be expected of him that respondent No. 1 would ever make a complaint to the Labour Court for cancellation of the registration of Pakistan Engineering Council Employees Union. The scope of section 10(1)(i) of the Industrial Relations Ordinance; 1969, is restricted as it is only the Registrar who can make a complaint and no one else. Where the Registrar is not convinced of the claim of an employer, he will certainly not make any complaint to the Labour Court. In that event the employer or the aggrieved party will be left with no remedy if the relief in this context is confined to section 10(1)(i) (ibid). The said provisions would, thus, become despotic and cannot be considered as the only solution for redress of an aggrieved person or employer.

11. It is also true that section 7(2) of the Industrial Relations Ordinance, 1969, does not contain any provision of giving notice to the employer. But obviously without notice such registration would be contrary to the principle of natural justice. It is now well-settled that even where a notice is not specifically provided in any statute before taking an action, it is to be read in every law unless its issuance is specifically barred. Without association of employer, the registration of workers trade union would clearly be faulty. It was held in Ghee Corporation of Pakistan v. Registrar, Trade Unions and another (1991 PLC 207), that "it is true that notice to the employer and union already in existence is not provided for in the relevant provisions pertaining to registration of union. However, it is not possible to comply with the provisions of section 7(2) without associating the employer in the proceedings and the unions already in existence. " It was further held that all members should be workmen actually engaged or employed in the industry with which the trade union is connected. It passes one's comprehension how Registrar can ascertain the number of workmen actually engaged or employed in an industry without associating the employer. Similar principle was followed in Idara-e-Kissan v. Registrar of Trade Union, Lahore and others (1995 PLC 134).

12. It was contended by the learned counsel for respondent No. 2 that by a letter, dated the 15th November, 1995, necessary information such as number of workmen employed in the Council, their parentage, designations, etc., were sought, hence, no notice to the Pakistan Engineering Council was called for. It was also claimed that, in fact, Mr. Ellahi Bakhsh Soomro, the then Chairman, Pakistan Engineering Council, had himself administered oath of office to the members of the Pakistan Engineering Council Employees' Union. Meaning thereby that the petitioner had full knowledge of formation of the union and its registration. Therefore, at this stage, the petitioner cannot claim that it had no knowledge or necessary notice was not given to it before registration of the employees' union.

13. It is an admitted fact that the respondent No.2 was registered on the 5th of October, 1995, whereas notice seeking above information was issued on the 15th November, 1995. Likewise, the administration of oath by Mr. Ellahi Bakhsh Soomro who was also holding the portfolio of the Minister, was also a subsequent event and cannot be considered as an estoppel. Nor administration of oath by the Chairman of the Pakistan Engineering Council to the Trade Union will be regarded as a substitute for a notice. In fact, on the touchstone of the aforesaid cases of Ghee Corporation of Pakistan v. Registrar, Trade Unions and another (1991 PLC 207) and Idara-e-Kissan (1995 PLC 134), the grant of Certificate of Registration to respondent No.2, was clearly violative of the principle of audi alteram partem.

14. An objection was also raised to the maintainability of the present Constitutional petition on the ground that the petitioner should have approached the Registrar of Trade Unions under section 10 of the Industrial Relations Ordinance, 1969, for cancellation of the registration, if in the opinion of the petitioner, the Pakistan Engineering Council Employees Union was not registered in accordance with law. As discussed above, respondent No. l is vehemently contesting the present Constitutional petition. The Registrar of Trade Unions claims that Pakistan Engineering Council Employees' Union was correctly and legally accorded the registration. In the Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1972 SC 279), relying upon its earlier decision Lt.-Col. Nawabzada Muhammad Amir Khan v. Controller of Estate Duty and others (PLD 1961 SC 119), the Supreme Court had laid down "that the rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. It was further observed that one of the well-recognised exceptions to the general rule in a case where an order is attacked on the ground that it was wholly without authority." In the present case, as stated above, the Registrar of Trade Unions is opposing the Constitutional petition. It was, therefore, not expected that if the petitioner had filed a complaint, the Registrar would have ever forwarded it to the Labour Court for cancellation of the registration accorded to the Pakistan Engineering Council Employees Union. In the circumstances, it would have been a futile exercise to file a complaint to him for cancellation of the registration under the provisions of section 10 (ibid) On the analogy of aforesaid dictum of the Supreme Court, the present Constitutional petition is thus, competent.

15. In view of the above discussion, since the petitioner is neither an "establishment" nor an "industry" within the meaning of section 2(ix)(xiv) of the Industrial Relations Ordinance, 1969, and that the Pakistan Engineering Council was not given a notice to show cause or opportunity of hearing, the Certificate of Registration granted to the Pakistan Engineering Council Employees Union by respondent No. 1, dated the 5th October, 1995, is declared to be illegal, without lawful authority and of no legal effect. The writ petition is allowed accordingly with no order as to costs. A.A./P-39/L Petition accepted.