' ZIA PERWAZ, J.---The petitioners, who themselves are two duly registered Trade Unions working at Port Muhammad Bin Qasim, are aggrieved by the issuance of the Registration Certificate dated 14- 5-2003 by Respondent No,
1. Registrar of Trade Unions in favour of Respondent No,2, Port Muhammad Bin Qasim Dock Workers Union.
2. Brief facts of the case are that petitioner No,1 is a trade union ofregistered Dock Workers at Port Muhammad Bin Qasim (hereinafter"PQM") and is also the current certified Collective Bargaining Agent while the petitioner No,2 is also a trade union of the same nature but collective Bargaining Agent for the preceding term. Apart from these two trade unions, there are about seven registered trade unions of the registered dock workers of PQM. According to the list issued by the Cargo Handling Companies and certified by the Registrar of Trade Unions, there are about 1757 registered dock workers. For determination of the CBA for the years 2000-2002, 123 members of the Mutahidda Tally Staff Union were allowed to vote thus making a total of 1880 registered dock workers. When the petitioners learned about an application dated 15-3-2003 for registration of another trade union, i.e, Respondent No,2. Claiming membership of about 400 workers, they approached the Respondent No,1 and filed objections dated 12-4-2003 and 15-4-2003, respectively. Stating that the membership claimed by the Respondent No,2 was based on bogus, fake and forged papers. In response to the letter dated 22-4-2003, the petitioners attended the office of the Respondent No,1 on 26-4-2003 along with workers/members whose declarations had been submitted earlier by Respondent No,2 along with their application for registration as a trade union. On 3-5-2003, the said workers again attended the office of the Respondent No,1 and disowned membership of the proposed trade union, i.e, RespondentNo,2. The District Officer Labour-IV, Government of Sindh,Directorate of the Registrar of Trade Unions, vide his letter dated 13-5-2003, also informed the Registrar of Trade Unions about the above aspect of the matter and requested him that "without ascertaining the facts the registration application of trade union may not be considered". Lastly, the petitioner No,1 addressed letter 14-5-2003 to the Respondent No,
1. Requesting rejection of the registration application of the Respondent No,2. However, in spite of the above facts, Registration Certificate dated 14-5-2003 was issued by the Respondent No,1 in favour of Respondent No,2. The Petitioners, being aggrieved byregistration of Respondent No,2 as a trade union, have approached this Court through the present Petition.
3. Mr. Ashraf. HussainRizvi, learned counsel for the petitioners has contended that the Registration was void and beyond the scope of powers conferred upon the Registrar as the same has been issued with respect of a group of establishments. The learned counsel has placed emphasis on the definition of group of establishments is that in view of the definition of group of establishments as envisaged under provisions of subsection (xiii) of section 2 of the I.R.O., 2002. His second contention is that the Registrar even otherwise acted contrary to the provisions of law in entertaining the application for registration of trade union in violatibns of the provisions of section 6(2)(b) of the I.R.O.Which provides for membership of not less than one-fourth of the total number of workman employed in the group of establishments concerned. His next contention is that admittedly the number of workers in the group of establishments was 1880 out of which the respondent No,2 had claimed only membership of 421 workers. On scrutiny by the Registrar, 42 persons disowned their membership consequently the membership was reduced to 379 only and the certificate of registration was violative of the express provisions of law. He contended that the registration of petitioners as CBA and trade unions if protected in pursuance of section 80 of the I.R.O., 2002. In support of his contentions, he has relied on an unreported Judgment in Labour. Appeal No,330 of 2004 (Moonlite (Pak) Mazdoor Union Karachi v. Registrar, Trade Unions and another).
4. Mr. Rafiullah, learned counsel for the Respondent No,2 contended that the case of Respondent No,2 cannot be singled out for the purpose of application of the provisions of subsection (xiii) of section 2 of the I.R.O., 2002. He submitted that the law, as it was prior to the amendment and the provisions of section 80 of the I.R.O., 2002, as well as the effect'of the amendment of the law by virtue of the definition of the terms "group of establishments" adopted by the Legislature under sub-section (xiii) of section 2 of the I.R.O., 2002 requires interpretation. His next contention is that petitioners Nos.1 and 2 have also ceased to exist as registered unions for the group of establishments as the very existence of such group of establishments being owned by different owners has now been done away with under the new legislation. He proceeded to argue that the conditions prescribed under the new Legislature are attracted to all the cases and the present Petitioners have also ceased to exist due to operation of law. In support of his contentions, he has placed reliance on the case of Public Sanitation Agency Employees Welfare Union v. Registrar, Trade Unions (2003 PLC 386) and Karachi Port and Dock Wokers Union v. Government of Pakistan (2004 PLC 252).
5. I have heard the learned counsel have gone through the record of the case and the case-law cited before me.
6. The first question which requires consideration is the interpretation of the provisions of section 2(xiii) of the I.R.O. And section 80 of the I.R.O., 2002 and the same are reproduced hereunder:--
2. Definitions:--In this Ordinance unless there is anything repugnant in the subject or context,--
(i) to (xii) "Not relevant"
(xiii)"group of establishments" means establishments belonging to the same employer and the same industry.
' Section 80 of the I.R.O. Reads as under:-- "80.Repeal and savings.---(1) The Industrial Relations Ordinance, 1969 (XXIII of 1969) is hereby repealed.
(2) Notwithstanding the repeal of the Industrial Relations Ordinance 1969 (XXIII of 1969), hereinafter to be called the repealed Ordinance, and without prejudice to the provisions of sections 6 and 24 of the General Clauses Act, 1987 (X of 1897)--
(a) every trade union existing immediately before the Commencement of this Ordinance, which was registered under the repealed Ordinance shall be deemed to be registered under this Ordinance and its constitution shall continue in force until altered or rescinded;
(b) anything done, rules made, notification or order issued, officer appointed, Court constituted, notice given, proceedings commenced or other actions under the repealed Ordinance shall be.
Deemed to have been done, made, issued, appointed, constituted, given, commenced or taken, as the case may be, under the corresponding provisions of this Ordinance; and
(c) any document referring to the repealed Ordinance relating to industrial relations shall be construed as referring to the corresponding provisions of this Ordinance;
(d) the appeals pending in the Labour Appellate Tribunals shall stand transferred to the respective High Courts from the date of commencement of this Ordinance and it shall not be necessary for the High Court to recall any witness or to record any evidence that may have been recorded".
7. These provisions are required to be interpreted in the light of the definition of group of establishments as adopted prior to the enforcement of I.R.O., 2002, to arrive at conclusion in this regard.
8. Admittedly, the position prevailing prior to enactment of I.R.O.2002 was that group of establishments was defined to mean "group of establishments" owned by one of more employers.
The Hon'ble Supreme Court in the Civil Appeals Nos.779 and 780 of 1992 (Seaboard Services and others v. Registrar of Trade Unions and others), discussed this issue in detail. In this case the leave was specifically granted to consider the question. "Whether a trade union of the workers of several companies and firms having independent and separate entities can be certified as aCBA for all such companies/firms? AjmalMian, J. (as he then was) observed in para. 5 of the judgment, referring to Civil Appeals Nos.324 to 328 of 1993, observed that the same disposed of through a common judgment authored by SaadSaood Jan, J, and quoted with approval paras. 6 to .8 thereof.
It would be advantageous to produce the same paras, hereunder:- "6. It may be stated at the very outset that in the. Ordinance there is no express restriction of the nature canvassed by the learned counsel and his whole argument is based upon certain inferences drawn from the aforementioned provisions of the Ordinance. It is to be observed that if the intention of the Ordinance had been that only such Trade Unions should be registered which had a common employer it is unlikely that it would not have made an express provisions to that effect and left the matter to mere inferences. On the other hand, there are clear indications in the Ordinance exhibiting a contrary intention in this regard. Thus, in section 2 (xxvi) the term "Trade Union" has been defined as follows:-- "Trade Union" means any combination of workmen or employers formed primarily for the purpose of regulating the relations between workmen and the employers or workmen and workmen or employers and employers or for imposing restrictive conditions on the conduct of any trade or business and includes a federation of two or more trade unions; ' The word 'any' preceding the expression 'combination of workmen' in this subsection is clearly intended to enlarge its content. It is difficult to read into it any restriction of the nature that in order to qualify to be a trade union, the combination must have a common employer.
7. Under section 6 of the Industrial Relations Ordinance a trade union desiring to be registered under the Ordinance is required to file a statement before the Registrar of Trade Unions. As provided in clause (iva), the statement is to mention the name of the establishment or group of establishments or the industry to which the trade union relates. Learned counsel for the appellants argued that without giving the name of the establishment a trade union could not be registered and if there was a common trade union for a number of establishments with different owners it would just 'not be possible for it to comply with this requirement. It is difficult to accept this contentions, for, this sub-clause itself suggests that the membership of a trade union need not necessarily be confined, to a single establishment but that a common trade unioncan be formed for a group ofestablishments or in relation to an industry. The further contention of the learned counsel that the expression 'group of establishments' as occurring in this clause refers to only such combinations of establishments as are owned by or managed by a common employer is unacceptable for it, without any justification, unnecessarily narrows its scope. In my opinion, the Full Bench of the Industrial Relations Commission was right in taking the view that the said expression was of much wide connotation and that it was not restricted to such establishments as had a common employer. See in re: Application of Pakistan Spencers Employees Union (1977 PLC 20).
Further in the clause the word 'industry' also occurs. This word has been defined by section 2(xiv) of the Industrial Relations Ordinance to mean any business, trade, manufacture; calling, service,employment or occupation. A combination of workmenorganized on the basis of industry can hardly be expected to be of a kind wherein all the constituents thereof are employed by one organization.
8. The learned counsel also referred to section 7(1)(d) of the Ordinance which reads as follows:-- "The number of persons forming the executive which shall not exceed the prescribed limit and shall include not less than seventy-five per cent.From amongst the workmen actually engaged or employed in the establishment or establishments or the industry from which the trade union has been formed.
' The contention of the learned counsel was that if a single trade union for differently owned establishments could be allowed to be registered a situation could arise where workmen belonging to a larger establishment could be in absolute majority in the executive in relation to the workmen employed by the smaller establishments. In such a situation the larger establishment could persuade its workmen on the executive to create conditions which would put the comparatively smaller establishments at a disadvantage. This contention is again without substance. It does not place restrictions on the formation of trade unions merely for the reason that its executive could possibly use its position to benefit one establishment at the cost of another. It is also unlikely that the employees of the smaller establishment suffering from the decision of the executive would continue to associate themselves with a trade union which was acting against the interest of their own employers."
9. Thus, it would be seen that in the repealed Ordinance there was no such restriction that in a group of establishments all the I establishments are to be owned by one owner.
10. The enactment amending the law is to determine the mischief that has been curbed by the Legislature by inserting such provision of law. In the instant case the definition of "group of establishments" had been crystallized firmly by the earlier pronouncement of the Hon'ble Supreme Court and the Legislature was fully aware of the implications thereof. The present enactment is the result of prolonged consideration of, not only the Legislature but also involving employers and representatives of the workers and is the outcome of detailed examination of the various aspects involved in the field of the employer-employee relationship. It appears that it was under these circumstances that the legislation was effected in a manner so as to define the "group of establishments" to mean only such establishments as were owned by a single employer and the earlier definition forged after prolonged deliberations in Court have been done away with.
11. Subsection (C) of section 80 specifically provides that any document referring to repealed Ordinance relating to industrial relations shall be construed as referring to the corresponding provisions of this Ordinance. The corresponding provision in this Ordinance is section 2(xiii) which is required to be referred to. Any reference to the term "group of establishments" is therefore to be construed in the manner as set forth in the amended definition otherwise the same would come in conflict with the provisions of section 80(c).
12. The next point requiring consideration would be the effect of such legislation on the existing union. In this regard, the amendment in law providing for representation has been examined in the case of Water and Sanitation Agency Employees Union and Karachi Dock Workers Association (Supra). Although the specific issued involved in this case was not attracted in those cases the argument as to the scope and application of section 80 was relevant which is also involved in the instant case. Section 80 of the I.R.O., 2002 specifically provides for every trade union existing immediately before the commencement of this Ordinance, which was registered under the repealed Ordinance shall be deemed to be registered under this Ordinance and its constitution shall continue in force until altered or rescinded. It is a beneficial section and has to be construed in favour of the beneficiaries. However, such benefit is restricted only to the extent as to which taw has not been amended by a specific provision directly touching the subject. In the instant case, the question of "ground of establishments" has been specifically defined and the provisions of section 80(a) cannot be attracted to the extent of such definition which provides for reference to the section of I.R.O. 2002 which prevails as a result thereof. The conclusion that can be drawn isthat the provisions of subsection (xiii) of section 2 of the Ordinance shall prevail and not as interpreted in the earlier pronouncements keeping in view the principle laid down in the two cases cited above, The same will apply to the present case and as such the Petitioners as well as the Respondent No,2 cease to exist with respect to a group of establishments being in conflict with that defined and hit by section 2(xiii) of the Ordinance by operation of law after promulgation of the I.R.O., 2002.
13. Going to the second point the matter has also been considered and the question of membership has also been considered in the unreported judgment in Labour Appeal No,330 of 2004 (supra) and Mr. Ashraf HussainRizvi has placed emphasis on the same. The principles laid down therein are also attracted to the present case.
14. In view of the above discussion there is no alternative but to hold that the Petitioners Nos.1 and 2 and the Respondent No,2 cease to exist by virtue of enactment of law being violative of the provisions of section 2(xiii) of the I.R.O., 2002. As group of establishments owned by different employers is no longer recognized by law the registration of a trade union with respect to such a group is now beyond the scope of the powers and jurisdiction of the Registrar of Trade Unions.
15. The petition stands disposed of in the above terms together with the pending applications.