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Petitioner: HAJI KHAN BHATTI VS Respondent: (Dr.) MUNIR AHMAD MUGHAL, REGISTRAR And Other
Court Name: Lahore High Court Judge(s): Irshad Hasan Khan Title: HAJI KHAN BHATTI vs (Dr.) MUNIR AHMAD MUGHAL, REGISTRAR And Other Case No.: Writ Petition No. 2066 of 1992 Date of Judgment:1992-04-14 Reported As: (K.L.R 1992 Labour & Service Cases 261) Result: N/A
JUDGMENT
JUDGMENT IRSHAD HASAN KHAN, J.-This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan calls in question the order dated the 27th of February, 1992, passed by the Registrar, Industry-Wise Trade Union/Member, National Industrial Relations Commission, respondent, No. 1 herein, whereby in exercise of the power conferred on him under section 8 (4) of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance) the change of office bearers of Pakistan Telecommunication Lions Staff Union was provisionally approved as a stop gap arrangement till the general elections of the Union were held under the supervision of the Registrar of the National Industrial Relations Commission and the order dated 43.1992 passed by respondent No. 1, whereby the application of the petitioner for recalling the said order was dismissed. 2. Pakistan Telecommunication Lions Staff Union is registered as Industry-Wise Trade Union (hereinafter called the Union) with the National Industrial Relations Commission (hereinafter called the Commission) and is also the Collective Bargaining Agent. The elections to the Union were held on 21.4.1989 for a period of two years as required by Article 15 of the Constitution of the Union. Section 7 (1) (i) of the Ordinance also provides the manner of elections of officers by the general body of the trade union and the term, not exceeding two years, for which an officer may hold office upon this election or re- election. The result of the elections were communicated to the Senior Member/Commission with powers of he Registrar of the Industry-Wise Trade Union (hereinafter called the Registrar) who vide his order dated 19.6.1989 directed that the said election shall be registered. In consequence, requisite changes of the officers of the Union were made.
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Subsequently, one Haji Muhammad Younas, claiming to be the elected President of the union, appeared before the Registrar and sought re-opening of the matter, in consequence whereof, the Registrar vide his order dated 21.6.1989 recalled his previous order dated 19.6.1989 for effecting changes in the names of office bearers of the Union. The petitioner assailed this order by means of writ petition No. 6145/89 inter alia contending therein that the Registrar/Senior Member- Commission had no authority to rescind his order dated 19.6.1989 and his subsequent order dated 21.6.1989 purporting to recall or review the said order was without jurisdiction and of no legal effect. The learned Single Judge of this Court by his judgment dated 25.2.1992, held that once the Registrar in exercise of the power conferred on him under sub-section (4) of section 8 of the Ordinance gives effect to the change or alteration, as the case may be, the party aggrieved thereby can prefer an appeal against the same. 3. The case of the petitioner is that in consequence of order dated 25.2.1992 passed in writ petition No. 6145/89, the registration of the petitioner Union made in pursuance of the order dated 19.6.1989 passed by the Registrar Member-Commission holds the field. However, when the petitioner went to Islamabad to inform the Commission of the order passed by the High Court, the Registrar of the Commission informed the petitioner that respondent No. 1 has passed some order against him on 27.2.1992. The petitioner, therefore, immediately rushed down to Lahore without acquiring the fill information about the Order which the Registrar of the Commission refused to disclose to him. The petitioner made an application dated 1.3.1992 before the Learned Member- Commission/Registrar which reads thus:- "That the W.P.No. 6145/1989 filed by the petitioner was allowed by the learned High Court on 25.2.1992. As a result whereof Registration PTLSU with the petitioner as President as done by order dated 19.6.1989 became alive. 2. That it is learnt some sort of petition was filed with fabricated ground that no confidence had been passed against the petitioner and as such changes may be effected under section 8 of the I.R.O. 3. That it is submitted all these proceedings were fake and fraudulent. Indeed a fraud has been committed on the learned Tribunal. No meeting was held and no confidence vote was passed perpetrated on the learned tribunal. 4. That since the order whereby changes were allowed to take place is likely to be circulated throughout Pakistan to the great prejudice of the petitioner and the Union, therefore, it is requested that before filling the detailed petition the learned Deputy Registrar be directed not to circulate the order". 4. On the said application, respondent No. 1 suspended the operation of the order dated 27.2.1992, whereby the changes of office bearers of the Union were provisionally approved till the general elections of the Union. In the- meantime, the petitioner claimed to have obtained certified copies of the relevant documents, It transpired that Muhammad Hanif Sain, respondent No. 3 herein, submitted an application to respondent No. 1, inter alia stating therein that a meeting had been held on the 5th of January, 1992 wherein the Executive Council/Executive Body has passed a vote of no confidence thereby ousting the petitioner, as President of the. Union, the General Secretary and other office bearers and in their place, amongst others, respondents No. 2 and 3 had been appointed as President and General Secretary, respectively. On these premises, changes were
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sought to be effected in the name of office bearers of the Union under section 8 of the Ordinance. The impugned order dated 27.2.1992 was passed by respondent No. 1, after hearing applicant/respondent No. 3 and Haji Muhammad Yunus in the absence of the petitioner and after considering the departmental note of Mr. Muhammad Hussain, Registrar of the Commission. The relevant portion of the said note reads thus:- "Notices for personal hearing have been sent on 22.2.1992 to all the persons who have allegedly been expelled as per intimation under consideration as desired by the learned RITU........................................................................... The history of the union whose change is under consideration is also not different. All its elections were invariably held much after the schedules. The facilities CBA have also become major source of their internal disputes. The last election which were not in the were held by two factions i.e. One led by Haji Khan Bhatti, while the other led by Haji Muhammad Younas. With this change which is under consideration a third group has emerged. The tenure of the last disputed election has also exhausted and thus both the groups have even otherwise become functus officio. Even the third group emerging on account of expulsion of Mr. Haji Khan Bhatti and others has not been elected properly, and thus union has factually become dormant or rendered a non entity in the eyes of law. In view of the above facts I am constrained to suggest that all sets of office bearers of the various groups be prohibited from functioning as such and enjoying the facilities. The elections be directed to be held under the supervision of the Commission through a Deputy Registrar. He may be authorised to take possession of the record after its inspection to avert controversies on the list of voters etc. Thereafter the file be consolidated with case 7 (13) 92 filed by one Haji Mohammad Hanif, the Divisional President of PTSLU for holding of elections etc." 5. The petitioner moved an application before .Respondent No. 1 for reviewing his order but the same was dismissed on 4.3.1992 on the ground that he had no jurisdiction to recall his order dated 27.2.1990 when the same has already been acted upon and certain rights have accrued in pursuance thereto. 6. Mr. Bashir Zafar, learned counsel for the petitioner argued that the impugned order dated 27.2.1992 was passed ex parte and without issuing any notice to the petitioner and providing him an opportunity of being heard and therefore, being violative of the principles of natural justice, is void ab initio and the entire proceedings before respondent No. 1 were coram non judice. He further argued that a vote of no confidence was passed against the petitioner and other elected members of the Union by the executive body, which was not competent to do so, in that, only the general council could pass vote of no confidence under Article 12 of the Constitution of the Union and as such respondent No. 1 had no jurisdiction to register the changes. It was asserted that the impugned order dated 27.2.1992 was obtained by respondent No. 3 by concealment of material facts, which tantamount to practising fraud upon respondent No. 1 and therefore, though a tribunal of limited or special jurisdiction, he had the power to remit, recall or review ah order obtained from him by fraud. In support of this proposition, reliance was placed on the case of Chief Settlement Commissioner v. Muhammad Fazil Khan (PLD 1975 SC 331), wherein it was held that even a tribunal of limited or special jurisdiction has jurisdiction to suo motu recall or review an order obtained from it by fraud.
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7. Learned counsel for respondents No. 2 and 3 raised the following contentions:- (i) that before passing the impugned order dated 27.2.1992, notices were issued by the, Registrar' of the Commission to the petitioner for appearance on 27.2.1992, which fact is duly recorded in the proceedings of the Registrar of the Commission and forms part of the impugned order. The petitioner had the opportunity to appear and put across his view point before respondent No. 1. He having failed to do so, cannot be permitted to complain that the impugned order was passed in violation of the principles of natural justice; (ii) reliance was placed on Atiq-ur-Rehman v. Muhammad Ibrahim (PLD 1983 SC 182), Raja Habib Ahmad Khan v. The Income-Tax Officer, Hazara Circle, Abbottabad 1972 SCM R 631), Allah Ditta v. Malik Ijaz Hussain (1986 SCM R 959), Chief Administrator of Auqaf v. Muhammad Ramzan (PLD 1991 S.C. 102), Hasan Din Chishti v. Chief Engineer, WAPDA (1970 SCM R 58), Messrs Gul Ahmed Textile Mills Ltd. v. The Collector of Customs (Appraisement), Karachi (1990 M LD 126), Munir Ahmad Munir v. The Province of Punjab Through the Secretary Home Department (1987 P.S.C. 82), Divisional Superintendent, Pakistan Railways Rawalpindi v. Muhammad Aslam (1986 SCM R 1607) and M/s Punjab Club v. Employees Old Age Benefit Institution (NLR 1990 Labour 110), to contend that an alternate remedy by way of appeal before the Full Bench of the Commission under section 22-D of the Ordinance is available against the impugned order dated 27.2.1992 and therefore, the writ petition is not maintainable; (iii) reliance was placed on Hussain Bakhsh v. Settlement Commissioner (PLD 1970 SC 1), National Bank of Pakistan Peoples Federation v. National Industrial Relations Commission (PLJ 1975 Karachi 85), Muzaffar Ali v. Muhammad Shaft (PLD 1981 SC 94), Mst. Maqsoodan Bibi v. Mst. Bhano (PLD 1965 (W.P.) Lahore 183) and unreported judgment in writ petition No. 6145 of i985, to contend that right to claim review of any decision of a court of law, like the right of appeal is a substantive right and not a matter of mere procedure. Here an order passed under section 8 (4) of the Ordinance is not open to review under any provision of law and, therefore, the same could not be reviewed/recalled on any ground whatsoever; (iv) that the impugned order dated 27.2.1992 is inherently just .Because only stop-gap arrangement has been made in holding election under official arrangement of the Registrar to avoid further controversy and conflicts between the parties inter se. This is particularly just in view of the fact that term for which the office bearers were previously elected has expired long ago; (v) that on 15.12.1991, respondents No. 2 and 3 alongwith 54 others made an application to the petitioner requisitioning a meeting of the entire executive committee in order to call in question the conduct of 14 office bearers, including office bearers and members of the executive, committee, including the petitioner. The petitioner did not requisite the meeting. .Consequently, the requisitionists requisitioned the meeting under the constitution of the Union for 6.2.1992 and in that meeting a resolution was passed removing the President whose conduct had been called into question including the petitioner and in their places other persons were appointed under Article 15 of the Constitution. On these premises, it was argued that the petitioner is not entitled to discretionary relief because he has not held the elections within the and his conduct shows that he is only interested in extending his term by not holding the election on one pretext or the other: (vi) that the petitioner has taken contradictory pleas, in that, in writ petition No. 6145 of 1965, the petitioner took the plea that the Registrar had no jurisdiction to recall his order, whereas, in this writ
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petition a contrary position has-been taken. Reliance was also placed on Sh. Gulzar Ali and Co. Ltd v. Special Judge, Special Court of Banking (1990 PSC 1243) and A.R. Khan v. P.N. Boga (PLD 1987 SC 107), to contend that a party cannot be permitted to approbate and reprobate in the same breath, and (vii) that the impugned order dated 27.2.1992 was in the nature of an administrative order and since having taken legal effect was not liable to be withdrawn even under the provisions of section 21 of the General Clauses Act. Reliance was placed on Pakistan v. Muhammad Himayatullah Famkhi (PLD 1969 SC 407). 8. I have heard the learned counsel for the parties, examined the material available on record and perused the case law cited by them. There is no cavil with the proposition canvassed by learned counsel for respondents, as explained in the case law cited by them vide para 7 () ante, that where a statute creates rights and also provides a machinery for enforcement of that right, the party complaining of a breach of the statute must first avail himself of the remedy provided by the statute for such breach before he approaches the High Court by means of a constitutional petition. This principle is now well settled. The constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan could not be treated as a substitute for an appeal or review. In the instant case, a vote of no confidence was allegedly passed against the petitioner and other office bearers, in consequence whereof the petitioner and others were removed from their respective offices and in their places respondents No. 2 and 3 and others were appointed. An application was, therefore, made to the Registrar to register the changes. The application was accepted vide impugned order dated 27.2.1992, by making changes as prayed for provisionally till the holding of fresh election. Section 8 of the Ordinance reads thus:- "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.......................... (2) ................................. (3) ................................. (4) Notwithstanding anything contained 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 post by the trade union to the regit 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 sub-section (3), 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 sub-section (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 appeal, as the case may be, pass an order either directing the registrar to register
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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". It would, therefore, be seen that in case there is a dispute in relation to the change of the officers of a trade union, the removed office holder may prefer an appeal to the labour court. Refer Syed Muzaffar Hussain Shah v. Registrar Trade Unions, Rawalpindi (PLJ 1979 Lah. 361), wherein it was held that appeal is provided under section 8 (7) of the Ordinance in case of a dispute in relation to a change of officers of trade union or refusal on the part of the Registrar to register the change under section 8 (5). Here one of the learned members of the Commission has passed the impugned order in relation to industry-wise trade union by virtue of the powers conferred upon him under clause (b) of sub-section (3) of section 22B of the Ordinance and, therefore, appeal against the impugned order would lie not to the Labour Court but to the Full Bench of the Commission under section 22D of the Ordinance. For facility of reference, sections 22-B (iii) (b) and 22-D may be reproduced. It read as under:- 22-B (hi) (b) "in relation to industry-wise trade unions, federations of such trade unions, federations at the national level and cases referred to the Commission, perform such functions and exercise such powers as are performed and exercised by a Registrar, a Labour Court or a Tribunal in relation to trade unions and federations of trade unions within a Province. And for this purpose, any reference in this Ordinance to a/Registrar", *****" Labour Court", or, as the case may be, "Tribunal" shall be deemed to be a reference to the appropriate Bench of the Commission to which such functions are assigned: Provided that, in the performance of those functions 'and in the exercise of those powers, the Benches shall, unless otherwise provided . In this Ordinance, follow the procedure laid down in the regulations to be made under section 22-F". 22-D Appeals.-(1) Notwithstanding anything contained in this Ordinance, or in any other law for the the being in force, any person aggrieved by an award or decision given or a sentence or order determining and certifying a collective bargaining unit passed by any Bench of the Commission, other than a Full Bench, may, within thirty days of such award, decision or sentence or order, prefer an appeal to the Commission. (2) An appeal preferred to the Commission under sub-section (1) shall be disposed of by the Full Bench of the Commission, which shall,-- (a) if the appeal is from an order determining and certifying a collective bargaining unit, have the power to confirm, set aside, vary or modify - such an order; and (b) If the appeal relates to any other matter, have the same power in relation to the appeal as the Labour Court, the Tribunal or the High Court, as the case may be, would have and if the matter to which the appeal relates were a matter in relation to which an appeal can be preferred to the Labour Court, the Tribunal or the High Court." In this case, the impugned order has been passed by the Registrar under section 8 (4) in relation to industry wise trade union and, therefore, while exercising his powers and performing his functions
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as such, he shall be deemed to have exercised the power of a Labour Court under clause (b) sub- section (3) of section 22-B of the Ordinance, therefore, the Labour Court cannot hear an appeal against the order which is passed by any Bench of the Commission as Labour Court. In such a case, the decision given by a Bench of the Commission is appealable before Full Bench of the Commission as provided under section 22-D. 9. The question still needs to be determined is whether notwithstanding availability of a right of appeal against the impugned order, the present writ petition is maintainable in the facts and circumstances of this case. In Habib Ahmad Khan v. The Income Tax Officer, Hazara Circle Abbottabad (PLD 1964 SC 143), it was held that the special jurisdiction under Article 98 of the Constitution of 1962, could not be treated as a substitute for an appeal or revision; it was only an extraordinary remedy available in extraordinary circumstances, where the order sought to be challenged was wholly without jurisdiction. In Murree Brewery Co. Ltd. v. Pakistan through Secretary to Government of Pakistan Works Division (PLD 1972 SC 27), following the principle enunciated in it. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty (PLD 1961 SC 119), it was held that the rule that High Court will not entertain a writ petition when any other appropriate remedy is yet available, is not a rule of law barring jurisdiction but a rule by which court regulates its own jurisdiction and one of the well recognised exceptions of the general rule is a case where the order is void on the ground that it was wholly without authority. In Income Tax Officer, Central Circle- III, Karachi v. Eruck Maneckji and others (1991 SCM R 1447), the principle laid down in Murree Brewery (Supra) was reiterated. It was held that where Income Tax Officer has acted in arbitrary or Oppressive manner against the respondent, a writ is maintainable notwithstanding that the revision petition was competent under section 18-A of the Income Tax Act (XI of 1992). Also refer Sind Employees Social Security Institution v. Dr. Mumtaz Ali Taj and others (PLD 1975 SC 450), wherein it was held that "where defects of jurisdiction are apparent on face of the record, certiorari jurisdiction of High Court would at once be attracted". In this case as well, the dictum laid down in Murree Brewery (supra) and it. Col. Nawabzada Muhammad Amir Khan (supra) was followed. Clearly, cases of absence or excess of jurisdiction stand on a different footing and are an exception to the general rule that where the statute creates a right, a party complaining of the breach of the statute must first avail himself the remedy of appeal before approaching the High Court by means of a constitutional petition. Refer The Tariq Transport Company, Lahore v. The Sargodha-Bhera Bus Service, Sargodha (PL%) 1958 SC (Pak) 437). 10. The question to be determined in the instant case is whether proceedings before respondent No. 1 were coram non judice. Mr. Muhammad Hussain Chaudhry Registrar of the Commission, in his office note dated 23.2.1992 stated that notices for personal hearing were sent on 22.2.1992 to all the persons, who had already been expelled as desired by the learned Member of the Commission. It is true that there is, to start with a presumption of regularity attached to all official acts and until that presumption is rebutted, the action cannot be challenged merely upon vague allegations. Having regard to this proposition of law, even if it is presumed that the notices were sent to the petitioner and other office bearers of the union, that by itself would not satisfy the requirement of the rules of natural justice. It was the duty of the Learned member of the Commission to ascertain that the petitioner and other persons, to whom- the notices were purported to be sent by the Registrar have been duly served and this he did not discharge. He has not stated in the impugned order that the petitioner was absent despite his service and in the absence of such a finding, it could not be said that the notice was duly served upon the petitioner, but he absented himself from appearing when the case was fixed for hearing. There was, therefore, violation of the principle of natural justice which has rendered the proceedings coram non judice. Refer Muhammad Swaleh v. Messrs United
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Grain & Fodder Agencies (PLD 1964 S.C. 97). Also refer Manager, Jammu & Kashmir, State Property in Pakistan v. Khuda Yar (PLD 1975 SC 678), wherein the expression "called on for hearing" as used in Order XL1, rule 7 CPC was explained, holding that it was the duty of the Presiding Officer to ascertain that the respondent had been duly served and where he did not discharge…
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