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Petitioner: NATIONAL FOODS LIMITED VS Respondent: REGISTRAR OF TRADE UNIONS, GOVERNMENT OF SINDH and another
Court Name: Sindh High Court Judge(s): Rana Muhammad Shamim Title:NATIONAL FOODS LIMITED vs REGISTRAR OF TRADE UNIONS, GOVERNMENT OF
SINDH and another Case No.: Constitutional Petition No,S-448 and C.M.A. No,3063 of 2005 Date of Judgment:2008-02-06 Reported As: 2008 PLC 260 Result: Petition dismissed Judgment ORDER ' DR. RANA MUHAMMAD SHAMIM, J.--- The petitioner being aggrieved and dissatisfied with wrongful assumption of jurisdiction by the respondent No,1, a public functionary, and his failure to perform his legal obligations as envisaged in law. 2. The facts, in brief are that one premises of National Foods Limited is located at F-133, Sindh Industrial and Trading Estate (S.I.T.E.), Karachi, where spices are grinded. At second premises F-276 S.I.T.E., Karachi, pickles are manufactured and packed whereas at factory located at F/160-C, S.I.T.E., Karachi, Salt, Jam and ketchup are manufactured and packed and grinded spices are also packed. Each of these three factories are separately registered under the Factories Act, 1934. In addition company has their warehouses at Multan, Lahore and Islamabad and also distribution outlets all over the country. One profit and loss outlets all over the country. One profit and loss account and balance sheet is prepared in the relations to all these premises. 2. That apparently on 3-8-2005 a constitution of the respondent No,2 was prepared, wherein in terms of clause 5, it was specifically mentioned that the membership of the respondent No,2, Union is restricted and confined to the employees/workmen in the factory at Plot No,F/160-C, S.I.T.E. Karachi. Six persons were shown as office-bearers of the Union. The President of the Union, Muhammad Irfan Sheikh, is shown vide Annexure "A/2" at page 39 as an "outsider". He is neither an employee of the company nor a workman in law. Gulzada was shown as Vice-President of the Union and Atta Hussain Pirzada, was shown as Joint Secretary of the Union. Both these two persons were not employed at Plot F/160-C, Site, Karachi. Lalzada, Organizing Secretary, is shown working in the Security and is not workman in law. Office-bearers of the Union were either not workmen
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and/or not employees in the premises for which the respondent No,2, Union had applied for registration. A list of office-bearers was also communicated to the petitioner vide Annexure "A/1" at page 37. Minutes under which this Union was apparently formed is annexure A/3 at page 41. 3. That no sooner this intimation was received by the petitioner from respondent No,2, the petitioner addressed a letter annexure A/4 page 49, duly received in the office of the respondent No,1 on 19- 8-2005. In this letter legal objections were raised pointing out that office-bearers of the applying Union were non-workmen and included persons who were not employees in the premises for which Union was formed and claimed to be members of the Union. Further irregularities in terms of IRO 2002 and Industrial Relations Sindh Rules 1973, were also pointed out. Objection was also raised that Lalzada, who was security guard and claimed as office-bearer, is not a workman. The total strength of the employees was 350 but only 5 persons were shown as members of the Union. There was total inactivity on the part of the respondent No,1, a public functionary in responding to the letter of petitioner, whereupon, on 5-9-2005 vide Annexure "A/5" at page 53 a reminder was sent to the Joint Director Labour, West Division. It is in reply to this letter that a letter dated 5-9-2005 at page 55 was sent intimating the petitioner that the respondent 2 Union has already been registered on 3-9-2005. 4. That in response to this registration of the Union a detailed letter was addressed on 27-9-2005 to the respondent No,1 at annexure A/6 page 57, pointing out various irregularities in formation and registration of the Union. Needless to mention that although, in this Honourable Court parawise comments and counter-affidavit have been filed, yet the respondent No,1 has not disowned receipt of this letter nor they have claimed that they have given any reply nor in any way, they have claimed that they are taking/acting on the objections and/or applying for the cancellation of the registration of the Union or still further themselves are cancelling the registration of the Union. Seven months have lapsed but as public functionary the respondent No,1 has till this date failed to take any action hence the instant petition. 5. Learned counsel for the petitioner has filed his written synopses in which he has stated that conscious of the fact that respondent No,1 as a public functionary having once registered the respondent No,2, Union himself will not order for the cancellation of the Union as it would be reflective of his conduct, the petitioner having no speedy, efficacious, adequate and alternative remedy, filed the instant petition before this Honourable Court. Apart from the objections mentioned hereinabove, it was specifically pointed out in the petition that Mr. Pir Bukhsh Jamali, who claimed to be Registrar of Trade Unions, was not notified as Registrar of Trade Unions, on the date when the application was received for the registration of the Union, as such all actions on the part of the said Mr. Pir Bukhsh Jamali, are without lawful authority and is of no. Legal effect. In addition, it was also pointed out in terms of section 9 of the Industrial Relations Ordinance, 2002 ("I.R.O., 2002") the respondent No,1 as public functionary was required to exercise "due diligence and verification of facts" before registration of the Union, as envisaged in terms of section 24A of the General Clauses Act, 1897 read with Article 2-A of the Constitution of Islamic Republic of Pakistan, 1973 and that the said public functionary was required to pass a well-reasoned and speaking order, based on his objective satisfaction before effecting registration of the Union. It was claimed by the petitioners that no speaking order has been passed by the respondent No,1 before effecting registration of the respondent No,2 Union. 6. That needless to mention, other grounds taken up in the petition were same as that discussed hereinabove. Notice of this petition/ application was given by this Honourable Court to both the respondents Nos.1 and 2 respectively but till this date respondent No,2 Union has not filed any counter-affidavit. On 5-10-2005 on behalf of the respondent No,2, it was claimed that they will not file any counter-affidavit or objections and the case would be argued. Again on 20-10-2005, the Honourable Chief Justice of this Court, before whom the case came up for hearing. It was
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mentioned in the order-sheet that counsel for the respondent No,2 has not filed any comments and the case would be proceeded, irrespective of any comments were filed. Even thereafter, till this date, no comments have been filed by the respondent No,2. As regards respondent No,1 he has filed parawise comments and in his parawise comments he had filed notification dated 31-8-2005 as annexure R/3 in which for the first time Mr. Pir Bukhsh Jamali, was notified by name as Registrar of Trade Unions. Furthermore, in parawise comments, respondent. No,2 has claimed that no speaking order was required to be passed by the Registrar of Trade Unions before effecting registration of the Union. As regards Muhammad Irfan Sheikh, the Registrar has claimed that he is an "outsider" and also has claimed that one office-bearer is allowed to be an "outsider" in terms of section 6(1)(d) of I.R.O., 1969. Rejoinder affidavit has been filed to the counter-affidavit of the respondent No,l. 7. Before proceeding further with the matter, the objection raised by the respondent No,1, and respondent No,2 (orally) as to the maintainability of the petition to be taken up. The objection of the respondents Nos.1 and 2, is that the constitutional petition is not maintainable This Honourable Court will appreciate that in terms of section 12 of I.R.O., 2002, registration of a Trade Union, once effected can only be cancelled by the Registrar of Trade Unions. He can do so suo motu if Union has dissolved itself, or has ceased to exist. Furthermore, in terms of section 12(3)(i) of I.R.O. 2002, the Registrar of Trade Unions is required to apply, to the Labour Court for the cancellation of the Registration of the Union. In other words, a functionary who is himself Registrar of Trade Unions has been empowered either to cancel the registration of a trade Union or to apply to the learned Labour Court for cancellation. The petitioner has not been given any power in law to directly apply to the learned Labour Court for the cancellation of the registration of, the Union but has to fall back to the same public functionary to perform his function. If a public functionary thereafter fails to perform his public duty, then the only remedy available to the petitioner is to seek relief from the Honourable High Court in exercise of constitutional jurisdiction. It is prayed to the Honourable High Court to direct the public functionary to perform his public duty. When statute is not sufficient to meet such situation and to provide protection writ jurisdiction of the Honourable High Court is to be invoked to come to the aid of the citizen. (2005 PCr.LJ 1626). Even in given situation when ultimately the matter has to come to the High Court, then in order to cut short the time factor, the extra- ordinary jurisdiction is exercised. (2004 PLC 354). Merely availability of alternate remedy is not the ground for holding that constitutional petition was not maintainable to interfere in a matter specially when there has been no judicial application of mind to the facts of the case (2004 SCMR 1587 at 1588). The High Court may side-step such normal remedies where pursuit of the same may, either result in abusing of process of the Court or retard the paramount interest of justice. (1999 SCMR 1707 at 1709). Also 2006 PLC 186. The expression aggrieved person has not been confined to a person having strict legal interest in the performance of a public duty. 2004 CLC 1353. Employer would be aggrieved person from registration of trade Union and would be entitled to file petition under Art. 199 to challenge registration of such Union. 1999 PLC 312. Constitutional petition would be maintainable where there are allegations that the Registrar of Trade Unions had not applied his mind judiciously as to whether Trade Union should be registered or not and had passed a whimsical and slipshod order. Likewise, remedy would be available where a statutory or executive functionary entrusted with responsibility for taking certain action in accordance with law has not done so. Non-speaking order passed by the Registrar of Trade Unions without applying his mind at all is liable to be set aside. (2003 PLC 58 at 69). Registration of Trade Union granted by Registrar without hearing objection on part of employer could not be termed to be in accordance with law. 1993 PLC 55 at 56. In terms of law, Registrar is required to file complaint for cancellation of the registration either suo motu or information laid before him. Failure on the part of the Registrar to act in accordance with law in such matter would render constitutional remedies to be inviolable
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1992 PLC 23 at 26. Where order was illegal and without jurisdiction passed on considerations other than those essentially required by the mandate of la*, recourse to appellate forum was neither absolutely necessary nor called for. Provision relating to availing of adequate and alternate remedy before invoking constitutional jurisdiction of High Court was rule of convenience and not a rule of law. (2000 PLC 376 at 382). Order of Registrar of Trade Unions being a judicial pronouncement in deciding the same principles as laid down for deciding a question or issue judicially were to be followed. (2000 PLC 89 at 94). This Honourable Court will appreciate that specific objection was taken by the petitioner in the petition that no speaking order was passed by the Registrar of Trade Unions before effecting the registration of the Union. The respondent No,1 filed parawise comments. No speaking order if passed by the Registrar of Trade Unions has been placed on record. Instead the plea taken by the respondent No,1 is that he is under no obligation to pass any speaking order: This is contrary to the principle, well-settled by Division Bench of this Honourable Court in C.P. No,D-486 of 2000. If order of a public functionary is illegal, unlawful and void direct constitutional petition can be filed. (PLD 2001 Kar. 344 at 356). Even otherwise if right of appeal is provided by statute is inadequate or is available under certain condition which has the effect of denying the right of appeal, then constitutional petition allowed to be invoked to afford relief to an aggrieved person in order to do justice. (PLD 1996 Lah. 672 at 681). Where action taken is without lawful authority and without following prescribed procedure, then alternate. Remedy of appeal, even if appeal is available, was not a bar to constitutional petition especially and all the more where appeal was to be filed before the same authority or forum against whom this injustice has been committed (1996 PLC 49 at 54). Reliance also made on 2002 SCMR 1632 at 1642. Section 24A of the General Clauses Act, 1897 specially provides that judicial or quasi-judicial functionary or authority, office or person performing public functions should pass speaking order (1998 SCMR 2419 at 2427). This doctrine has been incorporated in section 24A of General Clause Act 1897, which declares that where a statute confers a power to make any order or give any power to any authority, or office or person, it is to be exercised reasonably, fairly and justly in the advancement of the purpose of the enactment. The order or direction should reflect reasons for its making or issuance and when same is lacking the affectee may demand necessary reasons. (1998 SCMR 2268 at 2277). Impugned order is liable to be set aside on the ground that reasons have not been recorded in support of the conclusion/opinion. (2003 PLC 1492). This Honourable Court will appreciate that issuance of notice to the employer is essential before effecting registration of the Union. Reliance is placed on 1991 PLC 207 at 211, 1995 PLC 134 at 141, 1998 PLC 477 at 480, NLR 1991 Labour 118 and 1992 PLC 632 at 643. 8. High Court can direct and has power under Article 199 to order Registrar of Trade Unions to move application for cancellation of registration of Union if ,circumstances so warranted as held by the Honourable High Court in 2005 PLC 51 at 59. For resolution of question of law direct approach to High Court can be made (PLD 1997 Lah 451, PLD 1996 Lah 672). This Honourable Court will also appreciate that under section 9 of the IRO 2002, it has now specifically been provided that the Registrar has to exercise "due diligence and verification of facts." The word "verification" means "to confirm and substantiate by oath". It is interchangeable with the word "sworn". (1997 PLC 456 at 459). The word "diligence" means doing of an act with reasonable application of mind. In Stroud's Judicial Dictionary page 892, the words "due diligence" mean prudence and effort used by a reasonable person under the circumstances by reasonable application of reasons. In West's Legal Thesaurus/Dictionary page 261. "diligence" means prudence and effort that is ordinarily used by a responsible person. In Ballentine's Law Dictionary page 348, the word "diligence" means active attention to some matter in hand. In Words and Phrases legally defined by Saunders at page 120. The words "due diligence" mean obligation to exercise reasonable care meaning of these phrases
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are to be ascertained. Direct writ can be filed if guidelines are required. Reliance is placed on PLD 1997 Lah. 456. If Registrar of Trade Unions refuses to apply to Labour Court or fails to act, writ will lie. (1998 PLC 477). High Court can even direct Registrar of Trade Unions to apply to the Labour Court for cancellation. Reliance is placed on 1998 PLC 477, 1998 SCMR 1964, 1998 PLC 503 and 1998 PLC 500. Also C.P. No, S-294 of 2004 decided on 27-9-2005 and 2005 PLC 51. 9. This Honourable Court will also appreciate that if no exercise of "due diligence" has taken place, then the registration of the Union is contrary to the provisions of law. This, exercise of due diligence is only reflected in the speaking order but unfortunately in the instant case, no such speaking order has been passed. The Registrar of the Trade Unions is required to conclude that the Trade Union has not only complied with all the provisions of law before dealing with registration of the Union but still further, where the person is employed or working in unit before he claims membership and still further where unit which has applied for registration falls within the term "establishment" (C.P. No,S- 52 of 1987). Satisfaction of Registrar of Trade Unions means material on record. (1992 PLC 78). 10. The learned Registrar of Trade Unions has admitted that the President of the Union is an "outsider". There is no provision in I.R.O. 2002 for an "outsider". The law only provides that 75% of the persons holding office should be from amongst the workmen, employed in the establishment. This does not mean that the 25% should not be workmen and can be any person in this whole world. These 25% should also be in the category of "workmen" though not employed in that establishment. If this interpretation is not taken then employers will form their own Trade Union in their own establishment, holding office of the President and General Secretary of the Union, claiming 25% "outsiders quota". This will frustrate the very essence and spirit of the I.R.O., 2002. (2001 PLC 441). It may be mentioned that Honourable Supreme Court of Pakistan has since set aside this order on technical ground and remanded the case back to the High Court but the Union subsequently withdrew the name of outsider as office-bearer hence no further pronouncement in the High Court. Reason and logic of the Honourable High Court judgment may kindly be appreciated. The Honourable Supreme Court of Pakistan has not set aside the judgment on merits. If a Union has been registered in contravention of the provisions of law and rules, framed thereunder, the registration of such Union can be ordered to be set aside by the Honourable High Court in exercise of its constitutional jurisdiction and such decision has even been upheld by the Division Bench of the Honourable High Court of Sindh, in High Court Appeal No,354 of 2002 in Kohi-e-Noor Tea Co. v. Registrar, Trade Unions. In High Court Appeal No, 208 of 1998 in case Gandhara Nissan v. Registrar of Trade Unions the registration of Employees Union was cancelled, where concerned Trade Union was registered in violation to the provisions of law and rules framed thereunder. In 1991 PLC 643 at 646 also the Division Bench of Honourable High Court has ordered cancellation of registration of Union when registered in violation of law was effected. Admittedly according to Annexure "A/2", document of the Union to the Registrar of Trade Unions, are Lalzada is shown as working as Security Guard. He is not a workman in law. (PLD 1988 SC 180 at 194). 11. That yet another objection that was raised before this Honourable Court was that Pir Bukhsh Jamali who entertained the application for the registration of the Union and who was allegedly conducted enquiry before the issuance of registration certificate was not notified as Registrar of Trade Unions. On this objection in the counter-affidavit, the Registrar of Trade Unions has only filed one photocopy dated 10-5-1997 in which name of the Registrar of Trade Unions is not mentioned as having been appointed as such. Subsequently yet another photocopy of the notification dated 26-8-2004 has been filed to the effect that Pir Bukhsh Jamali, is posted as Director Labour. This notification is filed as Annexure "R/2" to respondent No,1 counter-affidavit. Finally through Annexure "R/3", a third Notification has been issued on 31-8-2005 in which it is mentioned that earlier Notification dated 27-4-2004 is being modified and Pir Bukhsh Jamali is appointed as Registrar of
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Trade Unions. This Honourable Court will appreciate that in terms of section 56 of I.R.C. , 2002 the Provincial Government by Notification in the official Gazette is empowered to appoint Registrar of Trade Unions. The word "notification" means to be known to public and not mere issuance of an order in office of the Government Authority. (2001 YLR 835). (1993 CLC 2073). For construing word "notification" reliance on the definition as given in General Clauses Act should be made and not dictionary meaning of that word is to be taken. (PLD 1964 Kar. 478). If any person holds Public Office, the High Court is competent to inquire under what authority of law he has held such office. (2002 PLC (C.S.) 1037). The respondent has not filed a copy of Gazette Notification under which Pir Bukhsh Jamali has been notified. Even otherwise, assuming for the sake of arguments that Annexure "R/3" was published in Gazette on 31-8-2005, at best Pir Bukhsh Jamali become Registrar of Trade Unions on 31-8-2005 and all proceedings conducted within meaning and contemplation of "due diligence and verification" of facts before 31-8-2005 is a nullity in law. Nothing has been filed by the respondent No, 1 in the counter-affidavit covering the period 1-9- to 3-9 to show exercise of due diligence and verification of facts. Admittedly, all proceedings that were conducted by the Pir Bukhsh Jamali or official acting on his behalf were for period prior to 31-8-2005. They cannot under the circumstances be taken as meaning exercise of " due diligence and verification" of facts in law. Subsequent, investment of jurisdiction does not cure original irregularity (1977 PLC 489, PLD 1973 Lah. 1). So also inherent disqualification or disability is not curable by any subsequent eventuality. (1998 SCMR 190 at 195). 12. This Honourable Court will also appreciate that the respondent No,1 at page No,2 parawise comments and para 2 has admitted that application for the registration of the Union was made on 4-8-2004 and was restricted and confined to F-160/C, S.I.T.E., Karachi. He has also claimed that one Assistant Director Labour Mir Muhammad Sangi, conducted "spot enquiry". No affidavit of this person is on record. According to the respondent No,1 on the complaint that was conducted, respondent No,2 submitted resignation of 2 persons who were not employees in F-160/C S.I.T:E. Karachi and replaced their names by 2 other persons. This Honourable Court will appreciate that appointment of office-bearers is to be undertaken according to the constitution of the Union. Certified copy of constitution of the Union is being placed on record. An office-bearer of the Union under Article 8 of the Constitution can be removed only by General Body by effecting of "No Confidence" passed by the majority of the members of the Union. Furthermore, election of office- bearer and member of the management committee are to be conducted under Article 11 of the Constitution by the General Body. An "outsider" under the law has no power just to remove two office-bearers and replace two other persons on his behalf. This action is in violation of law that has been ignored by the learned Registrar of Trade Unions. Reliance on 2002 TD Labour 329. This Honourable Court will also appreciate that definition of the word "establishment" under the old law and the new I.R.O., 2002 are materially different. Now the determining factor is one common balance sheet and Profit and Loss Account. There are 3 factories located at 3 places in Karachi and in addition there are warehouses at Multan, Lahore and Islamabad and also distribution outlets all over the country, which has not been denied in the counter-affidavit by respondent No,1 or 2. These all constitute one establishment. There is no provision in law to curve out portion of the establishment for formation of Union exclusively a part of that establishment. Reliance is placed on 1992 PLC 493 and Civil Appeal No,202-K of 1991 of Supreme Court and also Division Bench in PLD 1984 Kar. 292 and 2005 PLC 142. 13. Under repealed I.R.O., 1969 each branch, office premises was an establishment. Reliance placed on 1974 PLC 194, 1987 PLC 390, 1992 SCMR 505. Reliance also placed on C.P.L.A. No, 202-K of 1991. Now under I.R.O., 2002 the word "establishment" under section 2(xi) provide that all departments, branches whether situated in the same place or in different places with one common balance sheet constitute one establishment Relief is to be given noticing repealed Law newly promulgated
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law. (2005 PLC 458). The…
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