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Petitioner: M/S Rafique Ahmed & Co VS Respondent: The Registrar of Trade Union Govt Sindh & Ors
Court Name: Sindh High Court Judge(s): Muhammad Junaid Ghaffar, Zulfiqar Ali Sangi Title: M/S Rafique Ahmed & Co vs The Registrar of Trade Union Govt Sindh & Ors Case No.: C. P. No. D-457 of 2021 Date of Judgment:2021-09-23 Reported As: 2021 SHC 634 Result: Petition allowed
Judgment ORDER Muhammad Junaid Ghaf far, J. Through this petition, the petitioner has impugned order dated 25-02-2021 passed by respondent No.1 (Registrar of Trade Unions), whereby he has accepted the change of office bearers of respondent No.2 (Fauji Fertilizer Company Mazdoor Union). 2. Precisely , the facts, as stated, are that the petitioner is a contractor of Fauji Fertilizer Company Limited ("FFC" ) and is aggrieved by the above order , as it has entered into two agreements with FFC; both dated 10-02-2020, pursuant to which, the petitioner has been engaged as a contractor for loading of urea bagged product at the plant of FFC at Mirpur Mathelo and for insertion, filling and stitching of urea product into bags again at the same plant. For the present purposes, these agreements are not a matter of dispute nor has FFC been joined as a respondent. 3. Learned Counsel for the petitioner has contended that through impugned order non-workers, who had participated in the election of the respondent-Union, have been joined and accepted as office-bearers; that this unilateral action has seriously prejudiced the petitioner; that the petitioner had agitated the inclusion of 41 members as voters in the election, out of which some of them have also been elected as office-bearers, which could not have been permitted by the Registrar as they are not employees of the petitioner; that when the petitioner was handed over the assignment to work as a contractor, at the relevant time, 250 workers were working with the previous contractor and they were taken into employment on the same terms and conditions; that the Registrar despite conducting an inquiry in respect of these 41 irrelevant persons and despite the report of Labour Officer / Senior Inspector of Factories, Ghotki dated 11-02- 2021, wherein it has come on record that these 41 workers have never been employed by the petitioner , has passed the impugned order; that the objection regarding maintainability of this petition is misconceived as the petitioner has no remedy under the Sindh Industrial Relations Act, 2013 ("IRA-2013" ). In support, he has relied upon Farid Ahmad v. Pakistan Burmah-Shell Ltd. and others (1987 SCMR 1463 ), and has prayed for setting aside of the impugned order .
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4. On the other hand, Counsel for respondents No.2 to 11 has vehemently opposed the maintainability of the petition and submitted that alternate remedy ought to have been availed under Section 43 of the IRA-2013; that factual ascertainment is involved, hence, Labour Court is the appropriate forum; that respondents and these 41 workers are also employees of the petitioner as well as FFC; that the petitioner has no right to interfere in the affairs of a union, and therefore, no case is made out. In support, he has relied upon Fauji Fertilizer Company Ltd. through Factory Manager v. Natio nal Industrial Relations Commission through Chairman and others (2014 PLC 10 ). 5. Learned AAG has also supported the arguments of respondents' Counsel, and according to him, petition is not maintainable and Labour Court ought to have been approached. 6. We have heard all the learned Counsel as well as learned AAG and perused the record. 7. It appears that FFC, from time to time, engages contractors for performing various jobs within the factory premises, and in terms of IRA-2013 as well as the dicta laid down by the Hon'ble Supreme Court in the case of Fauji Fertilizer (Supra), the employees of the contractor for that matter are to be treated as employees of an establishment within the contemplation of the Labour Laws including IRA-2013 for the present purposes. The question before us to this effect is not in dispute that petitioner is an establishmen t and the union is working within the establishment and both are covered by IRA-2013. The only issue is that whether the impugned order of the Registrar is correct in law; and whether the same can be looked into by this Court in its Constitutional jurisdiction. 8. First we would like to deal with the question of maintainability of this petition. Section 9(1), (7) and (10) of IRA- 2013 are relevant, and reads as under: "9. Registration. - (1) The Registrar, on being satisfied that the trade union has complied with all the requirements of this Act, shall register the trade union in a prescribed register and issued a registration certificate in the prescribed form within a period of fifteen days from the date of receipt of the application. (7) Notwithstanding anything contained in any other provision of the Act, every alteration or change made in the constitution of a registered trade union and every proceedings of election of its office-bearers or change of its office- bearers or otherwise, the trade union, shall, by registered post, notify to the Registrar within fifteen days of such election or change for the approval of the Registrar. (10) In case there is a dispute in relation to the election of the office-bearers or change of office-bearers or alteration made in the constitution of a trade union, the Registrar or any trade union aggrieved by the refusal of the Registrar, any office-bearer or member of the trade union may file an appeal to the Labour Court, which shall within seven days of the receipt of the appeal, pass an order either directing the Registrar to register the change or alteration in the constitution or in the office-bearers of the trade union or may, for reasons to be recorded in writing, direct the Registrar to hold fresh elections of the trade union under his supervision." Perusal of the aforesaid provisions reflects that the Registrar, on being satisfied that all requirements of this Act have been fulfilled, shall register the trade union, and to this effect that the respondent No.2 is a trade union, is not in dispute. Sub-section (7) further provides that for every alteration or change in the constitution of a registered trade union and all proceedings of elections of its office-bearers and/or change of the same has to be notified within 15 days of such elections for the approval of the Registrar. Sub-section (10) further provides that in case there is a dispute in relation to the election of office-bearers or change of office-bearers or alteration made in the constitution of a trade union, the Registrar or any trade union aggrieved by the refusal of the Registrar, any office-bearer or a member of a trade union may file an appeal to the Labour Court. The present matter is in respect of election of the office-bearers and so also acceptance of change of office-bearers of the union, whereas, there are only two parties who can avail the remedy of appeal; one is the Registrar and the other is any trade union, and that too could only be in case of refusal by the Registrar to record, change and/or accept elections of the office-bearers. The Petitioner- Company / any establishment apparently has been left out consciously or has been deprived the right of such appeal; hence, cannot approach the Labour Court for any remedy by way of an appeal in terms of the aforesaid provision. Whereas, it has nexus with and a direct effect of the change in office bearers and its acceptance after such elections. If the office bearers are not employees under the law; then they cannot be the office bearers of the Union so as to enter into any negotiation with the Petitioner. In that case, we are of the view that the petition is very
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much maintainable and the petitioner cannot be non-suited on this ground. Under the erstwhile Industrial Relations Ordinance, 1969, while dealing with a similar objection regarding maintainability of a petition against an order of the Registrar and on availing remedy in terms of section 10 and 11 of the said Ordinance a learned Single Judge of this Court in the case Messrs Forbes Forbes Campbell & Co. (Pvt.) Ltd. v. Registrar of Trade Unions and another (1999 PLC 312) has been pleased to repel the same by holding that employer could not invoke section 10 or 11 ibid against an order of the Registrar as it had no participation in registration of a Union; however, a petition cannot be dismissed merely on this ground that a certificate issued to a Union could only be cancelled having recourse to s.10 of the Ordinance. The relevant finding reads as under; As regards the issue of jurisdiction, it would be seen that section 10 of the I.R.O. provides for the cancellation of the registration of a Trade Union if the Labour Court so directs upon a complaint in writing made by the Registrar in the circumstances provided for in said section . Section 10 has to be read with the prece ding sections of the I.R.O. most significantly sections 5 to 7, which provide for the application for registration as a Trade Union and the requirements thereof and section 8, which provides for the process of registration culminating in the issuance of a certificate of registration as a trade union under section 9. In none of these sectio ns does the Employer have any participation either in an active or passive role as the entire matter is between the workers and the Registrar . Consequently , in my opinion the Petition cannot merely be dismissed on the ground that the certificate issued by the Registrar can only be cancelled by having recourse to section 10, as the Employee i.e. Petitioner in the present case cannot invoke the provision of section 10 of the I.R.O. or for that matter sectio n 11, which provides for appeals emanating from section 10. In this regard reference can be made to the case of Quetta Municipal Authority v. Registrar Trade Union and 3 others and Bata Shoe Company (Pak) Ltd. v. Registrar of Trade Union of Sindh and 2 others (supra). Regarding the cases cited at Bar by Mr. S. Ishtiaq Ali Kanhorvi, learned counsel for Respondent No.2, it would be seen that as far as Muhammad Shakeel v. Registrar of Indus try wise Trade Union (supra) is concerned, the facts thereof were different as there the Petitioner after initiating parallel proceedings under section 10 of the I. R. O. has invoked the writ jurisdiction of the Lahore High Court seeking the same relief i.e. cancellation of the registration of the Pakistan WAPDA Hydro Electric Central Labour Union through the Registrar . Accordingly , a learned Single Judge of the Lahore High Court came to the conclusion that in the circumstances of the case, the Petition was not maintainable. The principle of law laid down in Ali Sher and 2 others v. Registrar of Trade Union Sindh and 7 others (which is the other case relied upon by Mr. Kanhorvi) also does not advance the respondent No.2's case as to non-maintainability of the Petition as there a learned Single Judge of this Court came to the conclusion that under section 10 of the I.R.O. cancellation of the Registrars Certificate could only be ordered by Labour Court on a complaint by the Registrar himself and that the Registrar's obligation which was discretionary could not enforced through a writ petition. Again there the Employees were asserting their rights and not the Employer as in the present case. It is a well settled principle which does not need elucidation that where the law does not provide for any appeal to an aggrieved person from the order of a judicial or quasi judicial authority , the writ jurisdiction of the High Court can always be invoked. As regards the case Messrs Pakland Cement Ltd. etc. v. the Registrar of Trade Unions etc. (supra) it may be observed that a` learned Single Judge of this Court came to the conclusion that the question whether or not a person was a worker within the definition of that term as provided in section 2 (xxviii) of the I.R.O. was question of fact and hence declined to interfere in writ jurisdiction on this basis. In that case the petitioners has again challenged the registration of the Respondent Trade Union on the basis that the persons who had formed said Union were not employed by the petitioners as they were inter alia their ex- employees. In my view this case is also distinguishable from the facts of the present case as in the latter case apparently the material was sufficient on the record on the basis of which the Regis trar came to the conclusion that the respondent workers qualified to be treated as such as per definition of that term provided in section 2(xxviii) of the I.R.O. In the present case as per the parawise comments filed by the Registrar it appears that apart from the workers representations there was nothing from the Petitioners' side except their letters denying that the seamen were employed by them, which apparentl y the seamen could not controvert. In this regard reference can be made to Abdul Razzaq v . Messrs Ahsan Sons Ltd and 2 others ( 1992 SCMR 505 ).
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As regards the issue whether or not the petitioner is an aggrieved person, it would be seen that upon registration of the Respondent Union certain results would flow not the least of which would be the recognition of the Seamen as workers of the petitioner with the further consequence of tile enforcement of their rights provided under the I.R.O. In these circumstances, it cannot be said that the petitioner would not be effected by the impugned registration and hence debarred from invoking the Consti tutional jurisdiction of this Court. Accordi ngly, in my view the Petitioner's squarely fit into the meaning of the term "aggrieved" person" and have the right to file this petition in the circumstances of the case. 9. Following the same principle again under the erstwhile Industrial Relations Ordinance, 1969, the very Registration of a Trade Union came for scrutiny before a learned Single Judge of this Court in the case of S.G. Fibre Employees' Union through General Secretary v. Registrar of Trade Unions, Government of Sindh and 5 others (2003 PLC 58) and it was held that when there is allegation that the Registrar had failed to apply its mind judicially while registering a Union, a petition would be maintainable. It was further held that Constitutional remedies would be available where any statutory or executive authority entrusted with responsibility for taking certain action in accordance with law had not done so. And lastly it was held that what was justiciable was the question whether Registrar of Trade Union had exercised his mind judicially while issuing Registration to the Union. The relevant finding of the Court is as under . 29. A perusal of the foregoing decisions would, therefore, show that a petition would always be maintainable where the allegation was that the Registrar of Trade Unions had not applied his mind judiciously as to whether the trade union should be registered or not and had passed a whimsical and slipshod order . This would be in consonance with the well-established principle that Constitutional remedies would always be available where any statutory or executive functionary entrusted with responsibility for taking certain action in accordance with law has not done so. As held in Essa Cement Factory Workers Union v. Registrar . Trade Unions, Hyderabad Region (supra) even disputed facts are not immune from scrutiny by the High Court in exercise of its Constitutional jurisdiction and when it was not possible for the Court itself to hold an inquiry in this regard, the matter can be referred to the Registrar for further inquiry . 10. It is also pertinent to observe that under the Industrial Relations Act, 2012, ("IRA 2012") which is applicable on all trans provincial organizations and companies, section 12 thereof is analogous to the present provision under discussion i.e. section 9 (10) of IRA-2013 as above. In like manner , in proceedings culminating under Section 9(6) of IRA 2012, an appeal has been provide d under Section 12 ibid; however , such right of appeal is provided only to (i) a trade union (ii) members of a trade union and (iii) an officer of a trade union. It is not provided to an employer or an establishment where the trade union functions. A learned Judge of the Islamabad High Court has dealt with an identical issued under IRA 2012 in the case of National Electric Power Regulatory Authority v. Registrar of Trade Unions, N.I.R.C. ( 2015 PLC 148 ) and has been pleased to hold that:- "12. Next, whether any alternate remedy was available to NEPRA under the Act of 2012? section 12 provides for an appeal against the orders/decisions of the respondent No.1 i.e. the Registrar . The right of appeal is restricted to a trade union, its members or an officer. An 'officer' is defined in section 2(xxii). Section 12, therefore, does not provide a right of appeal to an employer even if the order is without jurisdiction. Section 58 provides for appeals against orders passed by any Bench of the Commission, and not to matters relating to the registration of a trade union passed by the respondent under the Act of 2012. However , in the present case, NEPRA has been able to make out a case of the impugned proceedings and orders being without jurisdiction and coram non-judice. Any act without jurisdiction is a nullity in law and, therefore, the same is open to judicial review in exercise of the powers vested in this Court under Article 199 of the Constitution. The Supreme Court has held in case of Essa Cement Industries Workers' Union v. Registrar of Trade Unions, Hyderabad Region, Hyderabad and 4 others [1998 PLC 500] that jurisdictional facts are not immune from the scrutiny of the High Court in the exercise of its jurisdiction under Article 199 of the Constitution. It has already been held that the impugned orders are without jurisdiction and coram non-judice, and since an efficacious alternate remedy was not available to the petitioner , therefore, the petition is maintainable under Article 199 of the Constitution."1
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11. Similar view has been expressed in the case of Shell Pakistan Limited v Registrar Trade Union (2020 PLC 57). As to reliance on section 43 of the IRA-20 13, by the learned Counsel for the Respondent-Union, the same also appears to be misconceived, as section 43 is in respect of any grievance or enforcement of any right guaranteed or secured to the Collective Bargaining Agent or any employer by or under any law or any award or settlement. The issue in had does not fall into any of such circumstances; hence, reliance on the same is of no avail. In view of such position the objection regarding maintainability of the petition stands overruled. 12. Insofar as the impugned order is concerned, it would be advantageous to refer to the said order , which reads as under: "This is with reference to the letters dated 30.12.2020 received from Chairman Election Committee whereby intimation of change /election of office bearers of Fauji Fertilizers Co. Mazdoor Union Mirpur Mathelo was given to this office and applications as made by the M/s. Rafique Ahmed & Co. Contactor of Fauji Fertilizers Company Mirpur Mathelo District Ghotki were also received in this office on 29.12.2020 and 26.01.2021 thereby raised objections on the above said change / election of office bearers that 250 employees on his payroll which are also members of Fauji Fertilizers Co. Mazdoor Union Mirpur Mathelo as their monthly subscription fund for the said union has been deducted but 41 irrelevant persons have participated in the proceeding of said election in violation of the law as they are not employees employed by him nor members of the union. The matter has been taken into consideration and Labour Officer (Factories) Ghotki was directed to conduct inquiry as to ascertain the veracity of claim as alleged in letters dated 04.02.2012 made by General Secretary of the union and by M/s. Rafique Ahmed & Co. Contra ctor Fauji Fertilizers Co. Mirpur Mathelo vide its letters dated 29.12.2020 and 26.01.2021. The Labour Officer (Factories) Ghotki submitted inquiry report vide letter dated 11.02.2021 thereby reported that during the inquiry it is observed from the payroll and other record that M/s. Rafiq Ahmed & Company has 250 workers whereas, 41 workers are employ ees of M/s. Shah Din Sons & Co. and they have never been employed by M/s. Rafiq Ahmed & Co. The record provided by the claiming General Secretary Mr. Noor Ahmed Siyal showing 292 members of the union. On scrutiny of documents attached with the above referred intimation of change/election; contents of applications dated 29.12.2020 and 26.01.2021 made by M/s. Rafique Ahmed & Co. Contract or of Fauji Fertilizers Company Mirpur Mathelo District Ghotki; contents of letters of General Secretary of the union vide dated 04.02.2012 and 17.02.2021 and record of Fauji Fertilizers Co. Mazdoor Union Mirpur Mathelo, it reveals that similar objection as to the membership of said 41 workers and their participation in the election of office bearers of Fauji Fertilizers Company Mazdoor Union Mirpur Mathelo which was held on 28.02.2018 was raised by the M/s. Qadri & Co. Daharki who had agreement as contractor with M/s. Fauji Fertilizers Co. Mirpur Mathelo at that time consequent upon said change / election of office bearers of the union was rejected by this office vide order dated 25.05.2018. Being aggrieved and dissatisfied with the rejection of the change / election of office bearers vide this office order dated 25.05.2018, the representatives of the Fauji Fertilizers Co. Mazdoor Union Mirpur Mathelo had filed an Election Appeal No.04 of 2018 under Section 9(7) of the Sindh Industrial Relations Act, 2013 before Honourable Sindh Labour Court No. VII, Sukkur . The Honourable Labour Court was set aside the impugned order (rejection order / letter dated 25.05.2018) issued by this office with direction to respondent No.1 (Registrar of Trade Unions, Hyderabad) to accept the change of office bearers vide its detailed judgment dated 16.01.2019 wherein Hon'ble Court was discussed and decided the issues including issue of 41 workers as these 41 workers are the members of the trade union who has contested the election and they have every right to vote of their favourite trade union. It is not out of context to mention here that being aggrieved with the judgment dated 16.01.2019 passed by the Learned Sindh Labour Court No. VII, Sukkur the management of M/s. Qadri & Co. Daharki had filed a Constitution Petition No.S-30 of 2019 before the Honourable High Court of Sindh Bench at Sukkur and the said Constitution Petition was pleased to disposed of by the Honourable High Court vide its order dated 10.12.2020 in terms of the arguments advanced by the Counsel of petitioner and respondent Nos. 1 to 8 counsel and statement filed by the Counsel on behalf of the respondent Nos.1 to 8.2
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In view of the above, the change/election of following office bearers of Fauji Fertili zers Co. Mazdoor Union, Mirpur Mathelo made through secret ballot held on 28.12.2020 as communicated by the Chairman Election Committee vide its letter dated 30.12.2020, is hereby accepted as found in accordance with the provisions of the constitution of Fauji Fertilizers Co. Mazdoor Union Mirpur Mathelo and the law . S.NO. NAME DESIGNATION 1. Mr. Moaj Ali. President. 2. Mr. Gul Muhammad Bhutto. Senior Vice President. 3. Mr. Ikhlaque Ahmed Lashari Vice President. 4. Mr. Noor Ahmed Siyal. General Secretary . 5. Mr. Fiaz Ahmed Buriro. Joint Secretary . 6. Mr. Allah Dino Mahar . Finance Secretary . 7. Mr. Moor Ali Sameejo. Office Secretary . 8. Mr. Muhammad Ameen Mahar.Information Secretary. Perusal of the aforesaid order reflects that the Registrar on the complaint of the petitioner that only 250 employees are on their payroll, who are also members of the union in question and are paying monthly subscription fund, but 41 irrelevant persons have participated in the election, whereas, they are not employees of the petitioner nor could be members of the union, directed the Labour Officer, Ghotki to conduct an inquiry so as to ascertain the veracity of the claim as alleged in the letter dated 04-02-2012 filed by the Secretary of the Union and letters dated 29 12- 2020 and 26-01-2020 filed by the petitioner / contractor. The Labour Officer furnished his inquiry report dated 11- 02-2021, and the said report reads as under: "With reference to your good office letter as quoted above, the undersigned has conducted the inquiry in detail and submitting the facts as under: a. Statement of M/s Rafique Ahmed & Co.........Annexure "1" b. Statement of M/s Claiming General Secretary Annexure "2" Mr. Noor Ahmed Sial a. Statement of M/s Rafique Ahmed & Co. After gone through the statement of M/s Rafique Ahmed & Co. and record provided by him, it is observed from the payroll and other record that M/S Rafique Ahmed & Co. has 250 workers…
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