1977 PLP 13 (PLC)

3. The first question to see will be as to under what circumstances the registration certificate issued to a Trade Union under section 9 of the Industrial Relations Ordinance can be cancelled? It is true that the word used in the order is "withdrawal" of certificate, but obviously it meant cancellation. There is a procedure prescribed for the same in section 10 of the said Ordinance, which reads as under: - "

10. Cancellation of Registration.- (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 any of 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, or (iv) dissolved itself or has ceased to exist. (2) Where any person who is disqualified under section 7-A from being elected as, or from being, an Officer of a trade Union is elected as an officer of a registered Trade Union, the registration of that Union shall be cancelled if the Labour Court, upon a complaint in writing made in this behalf by the Registrar so directs."

4. Suffice it to say that there was no direction from a Labour Court to the Registrar. It is not necessary, in the circumstances to refer to the case of Service Hospital Employees' Union v. Registrar, Trade Unions, Lahore (1), which is based on a decision in a writ petition filed before the Lahore High Court, as there is a judgment of a Division Bench of ours in National Bank of Pakistan Peoples' Federation v. National Industrial Relations Commission, Islamabad (2) wherein it has been clearly held that a certificate of registration granted to a Trade Union can only be cancelled in a manner prescribed in section 10 of the said Ordinance.

5. What is more the learned Registrar of Trade Unions chose to withdraw the registration certificate on the basis of some orders passed by the Labour Courts, including an order of the Labour Appellate Tribunal. He seems to have been oblivious of the observations of this Court in the case of A. F. Ferguson and Co. v. The Vth. Sind Labour Court, Karachi and another (3), which was decided earlier in 1973. Looking to the' definition of 'industry', there can be no manner of doubt that a hospital is an 'industry'. The decisions, referred to in the impugned order earlier, however excluded organizations of a charitable, or, of a non-pro fit nature from the category of industry. In the precedent case, almost the entire gamut of cases from Indian jurisdiction came up for consideration, and the view of the Indian Supreme Court in State of Bombay and another v. The Hospital Mazdoor Sabha and another (4), which held the field for a decade, (1) 1975 P L C 100 (2) P L D 1975 Kar. 320 (3) 1974 P L C 98 (4) AIR 1960 S C 610 was preferred, as against the contrary view in Managment of Safdar Jung Hospital v. Kuldip Singh Sethi and others (1). These cases from the Indian jurisdiction dealt with the interpretation of the word `industry', as to be found in the Industrial Disputes Act, 1947, which hardly had the wide amplitude of the definition of the word 'industry', as to be found in our Industrial Relations Ordinance, 1969. The contention, that quid pro quo was necessary for bringing an activity under section 2 (j) of the Industrial Disputes Act, was repelled in the former case in the following words: "It has been urged before us that though profit motive may not be essential, it is nevertheless necessary that the person who carries on the activity should receive some consideration in return; and it is only if the test of quid pro quo in satisfied that an activity should be treated as an undertaking. Though this argument is put in a slightly different form, in substance it is really based on the idea that profit motive is necessary to make any activity an undertaking analogous to trade or business. If the absence of profit motive is immaterial why should an activity be excluded from section 2 (j) merely because the person responsible for the conduct of the activity expects no considera tion, does not want any quid pro quo and is actuated by philanthropic or charitable motive? In our opinion, in deciding the question as to whether any activity in question is an undertaking under section 2 (j) the doctrine of quid pro quo can have no application." The same view was reiterated in The University of Delhi and another v. Ram Nath and others (2). The Industrial Relations Ordinance, 1969, could hardly countenance any different construction. It is true that the activities of the respondent Hospital are of a charitable nature. But the scheme of the Ordinance also is of a beneficial nature-to ameliorate the conditions of the workman in general. Wherever the Government wanted to provide B protection and cover, it has done expressly, as in the case of any person, employed in the police, or any of the Defence Service of Pakistan and any service or installations connected with or incidental to the Armed Forces of Pakistan, including an Ordnance Factory, etc., as to be found in sub section (3) of section h of the said Ordinance.

6. Otherwise too, the learned Registrar should have chosen to remember that no order to the prejudice of the petitioners should have been passed without giving them due hearing. The rule of audi alteram partem is so firmly entrenched in our legal jurisprudence that no liberties can any morel be taken with the same. That, by itself, is enough to quash the impugned order.

7. It was, however, contended by Mr. A. K. Brobi that, if the registra tion of the petitioner-Union was not under section 8 of the Ordinance it had to be totally ignored. Support was sought from the ratio laid down in Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others (3) and Wall Muhammad and others v. Sakhi Muhammad and others (4). There is no quarrel with the proposition of law referred to. But what are the facts on which this argument has been propped? The first is that the respondent No. 2 was a charitable institution, and the Ordinance had no applicability. That has already been dealt with. The second ground was that four out of five office-bearers of the petitioner, including the General Secretary and the President, were already dismissed from service before the (1) A I R 1970SC1407 (2) A I R 1963SC1873 (3) PLD 1973SC230 (4) P L D 1974 SC10C alleged elections of the Union for the year 1974 were held, while only twenty five per cent of the posts could be tiled by non-employees. This assertion has been made in the counter-affidavit dated 4-2-1975 tiled by Lt. Col. (Recd.) A.L.D. Cunha, Executive Director of the answering respondent. These facts have been controverted in the affidavit in rejoinder dated 12-5-1975 filed by Muhammad Hameed Khan, the General Secretary, in paragraphs 5 and 6, it makes out that petitions for their reinstatement were pending, and that the dismissal of Muhammad Suilaiman took place during the pendency of the present petition. According to it, the only person, who was an outsider, was one Mr. Kohistani. Thus, facts disputed will be involved, which cannot be gone into in these proceedings under the writ jurisdiction. Otherwise too, these events do not relate to the point of time when the registration took place in 1971. So there is no force in this contention either. (See the case of A. F. Ferguson & Co. referred to earlier).

8. It was also contended that, to begin with, the petition was filed in the name of the Union, and, then later on, as an after thought, the words "through the General Secretary" came to be added in ink. The situation, therefore, had been retrieved. It is, however, said that the petitioners forgot to use their pen when the amended petition was filed. This lapse on the part of the petitioners may not be commendable, but the verification again is by the General Secretary in express terms. Nothing will, therefore, turn on the same, being a continuation of the earlier proceedings.

9. There was a further argument that, according to the Constitu tion of the petitioner-Union, only the President, or, the Managing Committee was authorised to institute any proceedings, and the instant petition, otherwise too, was at the instance of the General Secretary. The reply was that be had been so authorised by a resolution passed by the Managing Committee. A copy of the resolution-dated 3-8-1974 has been placed on the record. It is further said that, though a written statement had been filed under the signature of the respondent No. 1, there was no plea that the amendment in the Constitution was not communicated to him. There was no rebuttal by him in regard to the amendment even after the affidavit-in-rejoinder had been filed. So even this contention must fail.

10. I am, therefore, of the opinion that the impugned order is not in the exercise of lawful authority, and therefore of no legal consequence. As a result, it is hereby quashed, and the petition is allowed. However, the parties will bear their own costs. Petition allowed.