P L D 1975 Karachi 320 (PLP)

DORAB PATEL, J.‑The petitioner is a Federation of Trade Unions of the employees of the National Bank of Pakistan. Its membership extends to all the provinces of the country and its Head Office is in Karachi. It was formed on 15th January, 1974 by a resolution of the representatives of the 12 Unions affiliated to it and by this resolution it also decided to apply for registration with the respondent, namely, the National Industrial Relations Commission, to which I shall refer as "the Commission". This application was made to the Commission's Registrar, and, after scrutiny, the Commission issued a certificate of registration in favour of the petitioner. The petitioner then applied to the Commission for being declared the Collective Bargaining Agent of the workmen of the National Bank of Pakistan or in the alternative for holding a referendum to elect a Collective Bargaining Agent of the National Bank's workmen. The Commission did not care to reply to the petitioner's request and instead, on 20th February, 1974, its Registrar sent a notice to the Secretary of the petitioner under section 8(10) of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the `said Ordinance") informing the petitioner that it would review its previous order granting registration to the petitioner under the said Ordinance. This review was fixed for hearing on 7th March, 1974 and on that day the petitioner was heard through its Secretary. The Senior member of the Commission, who heard this review, held that he was entitled to review the grant of the registration under section 21 of the General Clauses Act, and he cancelled the certificate of registration .granted to the petitioner on three grounds by his order dated the 8th March, 1974. These grounds were that "the resolution of the respective federating Trade Unions had not been filed in original", that "the application for registration fails to disclose that it has either been signed by the Presidents of the respective Trade Unions constituting the federation or even by any other office‑bearers specifically authorised to sign the same which shows that the requirements of section 20(3) of the said Ordinance have not been made", and lastly that the status of Mr. Farooqi (who incidentally has signed the petition on behalf of the petitioner and is its Secretary‑General) was under dispute as "the Registrar of Trade Unions, Sind, has not recorded his name as such in the record of the said Trade Union." On these three grounds the senior member of the Commission cancelled the petitioner's registration, therefore, it has come to this Court for relief in a constitutional petition.

2. Mr. Khalid M. Ishaque, for the petitioner, argued that the impugned order was both mala fide and without jurisdication, and he also challenged the validity of the three grounds in the impugned order for cancelling the petitioner's registration. On the other hand, the learned Deputy Attorney- General, who appeared on behalf of the Commission, defended, on merits, the first two grounds given in the impugned order for cancelling the petitioner's registration. He, however, was compelled to concede that the third ground was perverse, but he submitted that the Petition was barred, because the petitioner could have challenged the impugned order in an appeal under section 22‑D of the said Ordinance; and as Mr. Khalid M. Ishaque challenged the Commission's claim to review its order, the learned Deputy Attorney‑General submitted that this power was available to the Commission under section 21 of tile General Clauses Act. This submission was hardly pressed, but the learned Deputy Attorney‑General also sought to defend the Commission's jurisdiction to pass the impugned order under clause (a) of the proviso to subsection (9) of section 22‑A of the said Ordinance.

3. I would first consider the plea of the bar of jurisdiction. It is settled law that this plea is not available when the order challenged is male fide, therefore, I would first consider Mr. Khalid Ishaque s submission that the impugned order was male fide and I would set out here the circumstances on which he relied. The first is that the notice of the review purported to be under subsection (1) of section 8 of the said Ordinance. Admittedly there is no such provision in the said Ordinance. Mr. Shah Jamil Alam submitted that reference to an erroneous provision of law was not material. That is true, but the citing of a non‑existing provision reacts on the Commission's bona fides. Secondly, although the notice refers to a review, the said Ordinance does not, at least in terms, confer any such power on the Commis sion. Thirdly, the notice did not give any particulars of the grounds for the review. Fourthly' the learned Deputy Attorney‑General conceded that the record did not show why the Commission wanted to review the issue of the certificate of registration to the petitioner. Lastly, and this is most important, the third ground given in the impugned order for cancelling the petitioner's registration is not supported by any material whatsoever on the record. Bearing in mind the defects in the notice and the fact that the review was heard on 7‑3‑1974 and decided the next day, I cannot help entertaining grave doubts as to whether the petitioner was given a fair hearing. Now not only is it doubtful whether the rules of natural justice were complied with, but the more disturbing fact is that the third ground given by the Commission's member, who‑was the senior member, for cancelling the petitioner's certificate of registration is not supported by any material whatsoever on the record. In these circumstances Mr. Khalid Ishaque's allegation of male fide is not without force. But as the petition does not give any particulars of this allegation, I agree with learned Deputy Attorney‑General that the petitioner is barred by its pleadings from advancing this plea. Bat even if the petitioner is estopped from establishing male fides, I am very disturbed that one of the findings in the impugned order is not supported by any‑ material whatsoever on the record. When we drew the attention of the learned Deputy Attorney- General to this aspect of the case his only reply was that the effect of one perverse finding would not be to render otherwise proper order without jurisdiction. But the question before us is whether the petitioner should be permitted to invoke the discretionary remedy of a constitutional petition despite the availability of a statutory appeal, therefore, I have to observe that the perverse finding by the Commission's senior member, in the context discussed, can only lead to the conclusion that the impugned order is arbitrary and oppressive. And in Murree Brewery Co. Ltd. v. Pakistan (P L D 1972 S C 279) Salahuddin Ahmed, J. at page 287 observed: "The appellant has also alleged mala fide in law against the C. D. A., a statutory functionary. In the case of East & West Steamship Co. v. Pakistan this Court has held that where a Statutory functionary acts male fide or in a partial, unjust and oppressive manner the High Court in the exercise of its writ jurisdiction has power to grant relief to the aggrieved party. The learned Judge of the High Court has correctly dealt with this aspect of the question." Respectfully following this observation and bearing in mind also the fact that the petition raises an important question of law of public interest, I would allow the petitioner to invoke the discretionary remedy of a constitutional petition.

4. I have just observed that the petition raises an important question of law. This is the Commission's claim to review its orders under section 21 of the General Clauses Act and we are only concerned in this petition with the review of an order registering a Trade Union under the said Ordinance, there fore, I may point out here that a certificate of registration granted to a Trade Union is conclusive evidence of its registration and can only be cancelled in the manner prescribed in section

10. Obviously such a certificate is valuable right to a Trade Union, the moreso now as it may enable the Union concerned to become a collective bargaining agent, therefore, the petitioner's case falls tinder the observations of Sajjad Ahmad Jan, J., in Pakistan v. Mohd. Himayatullah (P L D 1969 S C 407). There, with reference to this very question, Sajjad Ahmed Jan, J., at page 412 observed: "There can hardly be any dispute with the rule as laid down in these cases that apart from provisions of section 21 of the General Clauses Act, locus poenitentiae i.e. the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights." Applying these observations to the instant case, I would hold that the Commission's claim to review its order is totally misconceived and here I have to refer to an unfortunate aspect of the case. This judgment of their Lordships is referred to in the impugned order, although the citation is erroneous. The Commission's member has, however; distinguished it on the ground that the petitioner had not acquired any right through the certificate of registration obtained by it. I am unable to understand the view thus taken, and the learned Deputy Attorney‑General did not even attempt to defend it. Instead be submitted an ingenious argument: because the impugned order was passed after notice to the petitioner, the submission was that an authority or at least a quasi judicial or administrative authority was entitled to review its Order under section 21 of the General Clauses Act, after notice to the party, concerned, and on this ground the learned counsel sought to distinguish the rule laid down by Sajjad Ahmed Jan, J., in the case cited. But the observations cited are. clear and unambiguous and do not permit any such distinction be drawn. Accordingly, this submission, whatever be its worth, can only be advanced before their Lordships. As the learned Deputy Attorney‑General was aware that we arc bound by this judgment, he did not press this submission. Instead, he relied on clause (a) of proviso to subsection (9) of section 22‑A of the said Ordinance, whilst Mr. Khalid, M. Ishaque relied on section 10, therefore, I will now examine the Provisions in the said Ordinance for the registration of Trade Unions.

5. At the outset, I have to point out that the relevant part of the said Ordinance has been amended from time to time, but the definition of a Trade Union has not been amended, and it has always included a "federation of two or more Trade Unions." Sections 6 and 7 of the said Ordinance prescribe the conditions to be fulfilled by a Trade Union seeking registration, whilst section 20 deals with the additional conditions required for the registra tion of a federation of Trade Unions, and I may pause to point out here that the first two grounds of the impugned order had reference to the provisions of this section. Reverting, however, to section 20, subsection (4) is important and reads as under: "(4) subject to subsections (1), f2) and (3), "Provisions of this Ordinance shall, so far as may be and with the necessary modifications apply to a federation of Trade Unions as they apply to. a Trade Union." Section 8 of the said Ordinance reads as follows: "

8. Registration.‑(1) The Registrar, on being satisfied that the Trade Union has complied with all the requirements of this Ordinance, shall register the Trade Union in a prescribed register and issue a registration certificate in the prescribed form within a period of fifteen days from the date of receipt of the application. In case the application is found by the Registrar to be deficient in a material respect or respects he shall communicate in writing his objections to the Trade Unions within a period of 15 days from the receipt of the application and the Trade Union shall reply thereto within a period of fifteen days from the receipt of the objections. (2) When the objections raised by the Registrar have been satisfactorily met, the "Registrar shall register the Trade Union as provided in subsection (1) and issue a certificate of registration in the prescribed form within three days of the date of the objections having been so met. In case the objections are not satisfactorily met, the Registrar may reject the application. (3) In case the application has been rejected or the Registrar has delayed disposal ' of the application beyond the period of fifteen days provided in subsection (1) or has not issued a certificate of registration within a period of three days as provided in subsection (2), as the case may be, the Trade Union may appeal to the Labour Court who for reasons to be stated in its judgment, may pass an order directing the Registrar to register the Trade Union and to issue a certificate of registration or may dismiss the appeal. (4) Notwithstanding anything in any other provision of this Ordinance, every alteration made in the constitution of a registered Trade Union "and every change of its officers shall be notified by registered past by the Trace Union to the Registrar within fifteen days of such change. (5) The Registrar may refuse to register such change or alteration if it is in contravention of any of the provisions of this Ordinance, or if it is in violation of the constitution of the Trade Union. (6) Subject to the provisions of subsection (5), every inclusion or exclusion of any constituent unit of a federation of Trade Unions shall be notified by registered post by the federation to the Registrar within fifteen days of such inclusion or exclusion. (7) In case there is a dispute in relation to the change of officers of a Trade Union, or any Trade Union is aggrieved by the refusal of the Registrar under subsection (5) any officer or member of the Trade union may appeal to the Labour Court, who shall within seven days of receipt of the application or the "appeal, as the case may be, pass an order either directing Registrar the register the change or alteration in the constitution or in the officers of the Trade Union or may, for reasons to be recorded in writing, direct the Registrar to hold fresh elections of the Union under his supervision." Section 9 prescribes that a certificate of registration issued by a Registrar to a Trade Union "shall be conclusive evidence that the Trade Union has been duly registered under this Ordinance." Section 10, in so far as it is relevant, reads as follows "

10. Cancellation of registration.‑(1) The registration of a Trade Union shall be cancelled if the Labour Court 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." Finally section 11 entitles a Trade Union to file an appeal against a decision against it under section 10.

6. I may pause here to point out that as the petitioner's certificate of registration has been "withdrawn and cancelled" by the impugned order, Mr. Khalid M. Ishaque submitted that the certificate could have been cancelled only under section 10, and even the learned Deputy Attorney -General conceded that the certificate had not been cancelled under section

10. He, however, relied on the proviso to subsection (9) of section 22‑A, therefore, I may point out that section 22‑A relates to the constitution, functions and powers of the Commission, and subsection (8) defines the functions of the Commission which include the promotion, formation and registration of Trade Unions and also extensive advisory functions. Subsection (9) reads : "(9) only industry‑wise Trade Unions, federation of such Trade Unions and federations at the national level shall be entitled to initiate proceedings, or to appear before the Commission : Provided that the Commission may also,‑ (a) of its own motion, take action with regard to any matter relating to its functions ; and (b) of its own motion, or on the application of a party, withdraw from Junior Labour Court or Labour Court any application, proceeding pr appeal relating to unfair labour practice," The words used in clause (a) are wide, and as the registration of a Trade Union is admittedly one of the functions conferred on the Commission under sub‑clause (8), the learned Deputy Attorney‑General defended the impugned order on the ground that it was action taken within the meaning of the aforesaid clause with regard to a matter admittedly relating to the Commis sion's functions.

7. The submission that the words used in the aforesaid clause are of wide import is correct, but even if the language of the clause is wide enough to cover the impugned order, the question is whether this clause was intended to supersede or supplement section

10. The learned Deputy Attorney‑General relied on the fact that the clause is to be found in a later portion of the said Ordinance, but, on the other hand, a certificate of registration is a very valuable right to a Trade Union, and the detailed provisions of section 10 for the cancellation of such a certificate manifest the Legislature's intention to protect the rights of Trade Unions. Therefore, ‑ in my humble opinion, the certificate can only be cancelled in the manner prescribed in section

10. Nor would such a construction render the aforesaid clause redundant because it would apply to the advisory functions of the Commission and other func tions for which no express provision has been made in the said Ordinance. I think I am supported, in my opinion, by a judgment of a Division Bench of this Court in Constitutional Petitions Nos. 515, 753, 528, 685, 691, 877, 854 and 1053 of 1973 where Tufail Ali A. Rehman, C. J., who pronounced the judgment of the Division Bench, with reference to the construction of the aforesaid clause observed "So far as proviso (a) is concerned it uses the words "take action" with regard to any matter relating to its functions and clause (g) of subsection (8) does indeed make it one of the functions of the Commission to deal with cases of unfair labour practice. Now the expression "take action" and "deal with" no doubt appear to be expression of wide import but are also, if I may say so with respect, of somewhat imprecise definition. I am unable to read either of them as meaning and including a power to try offences and certainly not a power to create offences and then to proceed to try them. There are various ways in which a Commission whose functions are not purely judicial and which includes even advising government in matters may be called upon to "deal with" cases or to "take action" and I should be most reluctant to hold that the power to take criminal proceedings and to punish people for offences can be conferred by expressions of such generality. I think a power of this kind must be expressly conferred and I know of no other statute which has been interpreted to confer such a power without express language."

8. The learned Deputy Attorney‑General sought to distinguish these observations on the ground that the facts in the case cited were distinguishable. It is true that the facts in the case cited were not on all fours with those in the instant case, because the question in the cases cited was whether the petitioners could be prosecuted by the Commission suo motu merely because the language of the clause under construction was very wide, and the learned Deputy Attorney‑General relied on the fact that the Commission's power to institute the prosecution, suo motu, was different from its power to cancel suo motu, a Trade Union's Certificate of Registration. No doubt the two powers are different, but is the difference material to the principle laid down in the observation cited? That principle is that the Commission's claim to institute a prosecution, suo motu, cannot be supported by the aforesaid clause, because such a power to prosecute is not to be inferred lightly. But just as the power to prosecute cannot be inferred lightly, the power to cancel a Trade Union's certificate cannot be inferred lightly, because such a certificate is a very valuable right and there is a presumption in favour of vested rights. Accordingly, by parity of reasoning, the judgment lends some support to Mr. Khalid Ishaque's submission and in all the circumstances discussed, I accept his submission that the petitioner's certificate of registration can only be cancelled under section

10. But even the learned Deputy Attorney‑General admitted that the impugned order had not been passed under this section therefore, I hold that it was without jurisdiction.

9. The only other submission of the learned Deputy Attorney‑General was that the impugned order was only for the withdrawal of the petitioner's certificate of registration and not for its cancellation. Now, as I have shown, the order expressly states that the certificate is "withdrawn and cancelled" and the mere use of the word "withdrawn" cannot alter the fact that the certificate has been cancelled by the impugned order. The order further states "The defects pointed out hereinabove may be communicated to the federation along with any other objection which the Registrar may find after further scrutiny of the case in accordance with the provisions of section 8(1) of the Ordinance. If the federation has any intention to comply with the objections, its reply must reach the Commission within fifteen days of the receipt of the objections." In view of these observations, it was feebly submitted that the order did not amount to cancellation of the petitioner's certificate of registration. I cannot accept this submission in view of the clear direction to cancel the petitioner's certificate of registration. In view of this direction, the learned Deputy Attorney‑General made an offer that the petitioner's certificate would not be cancelled if the petitioner complied with the objections contained in the first two grounds of the impugned order which I quoted in para.

1. The offer was fair, as submitted but was not accepted by the petitioner, and we cannot impose a compromise on the parties, and, on the other hand, the fact that the offer now made is fair cannot alter the direction contained in the impugned order for the cancellation of the petitioner's certificate. I am satisfied that the impugned order is for the cancellation of the said certificate, therefore, it is void and must be set aside. Accordingly, the petition is allowed as prayed with costs. MUSHTAK ALI KAZI, J.‑I agree. S. A. H. Petition allowed.