' This petition is directed against the letter dated 3-1-2003 issued by respondent No,1 whereby he rejected the application of petitioners and declined to initiate proceedings against respondent No,2 Trade Union, under section 10 of I.R.O., 1969, for cancellation of their registration.
2. Precisely the facts of the case are that respondent No,2 Trade Union was registered in the year 1973 and was declared C.B.A. Ofdifferent Contractors/Gangs in terms of certificate dated 27-2-1983.
3. Previously a petition bearing C.P. No,S-206 of 2002 was filedby the petitioner thereby challenging the propriety of registration of Respondent No,2 Trade Union. It was pleaded therein that the matter regarding cancellation of the Trade Union was pending before the Registrar, Trade Union, Sindh.
During the pendency of such matter a letter dated 2-4-2002 issued by the Conciliator to the petitioner was without lawful authority. The above titled petition was however disposed of vide Consent order dated 4-11-2002, whereby the Registrar, Trade Union was directed to consider and decide application of the petitioner moved for cancellation of registration of respondent No,2 Union, within a period of two months.
4. Respondent No,2, in pursuance of the order of this Court,proceeded with the matter, and found that the request made in the application was not tenable and thus he rejected the same vide order dated 3-1-2003. Hence this petition.
5. Pre-admission notice to the respondents was ordered on 17-2-2003. In pursuance of the said notice a Counter Affidavit was filed on behalf of respondent No,2 annexing therewith photostat copies of certain documents including the office note the of Office of the Registrar of Trade Unions.
' Parawise comments were also filed on behalf of respondent No,1 Plus photostat copies of certain documents were placed on record.
6. It was mainly contended by learned counsel for the petitionersthat the union was registered in contravention of the relevant provisions of I.R.O., 1969 as it was registered for only 16 (Sixteen)
Contractors (Jamadars), C.B.A. Certificate was issued to the said Trade Union without examining its legality. It was next argued that the impugned letter dated 3-1-2003 was invalid, inasmuch as that the objections raised by the petitioners' vide their application dated August 27, 2001, September, 4, 2001 and November 21, 2001, were rejected without due consideration and proper application of mind.
7. On the other hand it was contended on behalf of respondent No,2 that the petitioners had already challenged the registration of the Union before learned Vth Sindh Labour Court on the same grounds, but the contention of the petitioners was repelled vide orders dated 13-5-1991 and 5-1-1992. Learned Sindh Labour Appellate Tribunal also dismissed the appeal vide order dated 3-5- 1992, thus the order of learned Labour Court was affirmed. Since the order passed by Labour Appellate Tribunal was not challenged, the same attained finality. It was next contended that the respondent No,2 Union was registered somewhere in 1973 and was declared C.B.A. In 1983. The petitioners had been continuously entering into settlements/agreements with respondent No,2 since then. It was argued that the petitioners thus acquiesced in and were estopped from raising any objections. It was further argued that it was only the Registrar who was competent to determine as to whether the proceedings be initiated against a union for its cancellation or not. It was next contended that a detailed inquiry was conducted in pursuance of the orders of this Court but since no violation of law was noticed by the Registrar therefore the application moved by the petitioners was rightly rejected.
8. Respondent No,1 repeated almost the same points in their comments as argued on behalf of respondent No,2. It was pleaded that the union was registered almost 30 years back and was performing itsduties as C.B.A. Since 1983, it was representing 280 members. It was further pleaded that the petitioner had been entering into bilateral negotiations with respondent No,2 and had also signed agreements with the office-bearers of the said union from time to time. It was next pleaded that respondent No,1 would not be in a position to plead case for cancellation of registration of respondent No,2 as no justification was found by them for moving such an application before Labour Court.
9. While exercising right of reply it was contended by learned counsel, for petitioner that the learned Labour Court or learned Labour Appellate Tribunal did not reject the plea of the petitioner on merits and as such those decisions were no bar. It was pleaded that in case a trade union was registered and/or if it was existing and functioning in contravention of the provisions of law, cancellation thereof could be sought at any moment.
10. Learned counsel for petitioners and respondent No,2 relied upon a number of authorities, in support of their respective contentions, common between them being the case of Essa Cement Industries v. Registrar Trade Union Hyderabad and four others, 1998 PLC 500.
11. The arguments advanced at the bar by the respective counsel have been appreciated, the case-law relied upon by them has been anxiously considered and the material placed on record has been thoroughly examined.
12. It seems that the matter was initiated by the petitioners through their letter dated August 27, 2001, urging therein for cancellation of registration of respondent No,2 Union, alleging that formation and registration of respondent No,2 Union and issuance of C.B.A. Certificate to it was illegal as it was registered in contravention of I.R.O. 1969, even otherwise it had ceased to exist, inter alia on the following grounds:-- "1. That admittedly Karachi By Road Workers Union, Karachi was formed and registered on 20th March, 1973, in respect of sixteen (16) Jamadars (Contractors) out of which, Malik Khan, Abdul Rasheed, Taj Muhammad (i) and Shaikh Noor Muhammad had already expired whereas Muhammad Shah, Mohammad Sharif, Ali Ahmed, Abdul Qadir, Taj Muhammad (ii) Abdul Sattar, Khan Muhammad and SherGul are not in existence and/or not associated with the By Road Work and whereas Dilbar Khan was itself remained president of the said Union, and now he has no concern with the said union. Consequently, only one vizShabbir Khan is performing work asJamadar (Contractor) in his own capacity. Consequently, the said union consisted of the 16 Jamadars (Contractors) having become non-existent for the reasons mentioned above, the Karachi By Road Workers Union has ceased to exist and liable to cancellation under section 10(3) of I.R.O.
1969.
2. That as the Karachi By Road Workers Union was formed and registered on the basis of 16 Jamadars (Contractors) which names were given by the said union at that point of time, being non-existent and is otherwise a trade union of the said Jamadars (Contractors), the said union cannot represent any other establishment for which it was neither formed nor got registration and as such the same is liable to be cancelled."
13. The above representation of the petitioners seems to have been turned down by the respondent No,1 vide order dated 2-4-2002, issued and signed by Deputy District Officer (T.U.), necessary contents whereof are reproduced hereunder: "The matter in question i.e, cancellation of the union has been thoroughly examined and found that the objections raised in your representation bears no legal weight, sound footing and concrete substance. As such the said application filed with no action. The Karachi By Road Workers Union was registered in March, 1973 and certified as CBA in Feb, 1983, the record of the office reveals that the management and CBA Union have concluded the several mutual amicable settlements for the benefits of the workers of the union. The last/latest agreement expired on 31-12-2001. In wake of these agreements there is no single friction of doubt that the management clearly admits the legal status and existence of CBA union.
' The above representation of cancellation of union was sent to the union for written comments. The General Secretary of the union has submitted detailed reply vide letter dated 15-10-2001.
' Your contention for not paying attention to the matter is also baseless. This office has vividly replied vide letter dated 26-1-2002 to your letters wherein informed that no proceedings for cancellation of union was ever pending before RTU.
' In light of the above since your representation for cancellation of union bears no legal substance and grounds as such the same filed with no action."
14. Petitioners being dissatisfied by the in-action on the part of respondent No,1 invoked the Constitutional jurisdiction of this Court through C.P. No,S-206 of 2002 which was disposed of by the consent order dated 4-11-2002, operative part whereof is reproduced hereunder:-- "Both the learned counsel state that the petition can be disposed of if a direction is issued to the respondent No,1, the Registrar of Trade Union, Sindh regarding the disposal of the application for the cancellation of registration of respondent No,2, Union. Accordingly the respondent No, 1/Registrar of Trade Union is directed to consider and decide the application of petitioner for cancellation of the respondent No,2/Union within the period of two months. The respondent No,1 will also decide the question as to whether during the pendency of the application for the cancellation of registration of respondent No,2. Union, such union can perform its function and proceed with the conciliation proceeding. The petition is disposed of in the above term."
15. At this juncture, it appears appropriate to point out that through the letter dated 2-4-2002, it was categorically denied by respondent No,1 (Registrar) that "no proceedings for cancellation of Union was ever pending before RTU". Yet both the learned counsel appearing for the petitioner and the respondent No,1 admitted before this Court that an application was pending before the Registrar, and that the petition can be disposed of if the Registrar is directed to dispose of the same. Thus the conduct on the part of respondent No,1 was either biased or irresponsible, but certainly it was not fair.
16. Pursuant to the above consent orders, the matter was taken up by the Registrar Trade Union and the plea of the petitioner was rejected vide order dated 3-1-2003, in the following terms:-- "Having heard the parties concerned considering report of dealing officers, I find no reason to deviate from earlier judicial pronouncements in this behalf. Accordingly demand raised by M/s. Karachi Customs Agents Group being not tenable, is hereby rejected."
17. The plea of the respondents that :the matter was adjudicated by learned Labour Court and by learned Sindh Labour Appellate Tribunal is untenable. By the order dated 13-5-1991 preliminary objections were disposed of and it was observed by the learned Labour Court that, "the remedy for the applicant groups is to approach the concerned authority for redress of their grievances i.e, cancellation of the registration of union or their existence as CBA. Their objections regarding theformation of union and CBA of the workmen who according to the applicant are their employees could have been appreciated by the Registrar of Trade Union, but surely Labour Court is not the proper forum where the applicants are agitating through a miscellaneous application for grant of stay or declaration of the status of the members of Union. The Labour Court is not a Civil Court in strictosenso."
18. The Labour Court while disposing of the main application under section 34 of the I.R.O. 1969, in its order dated 5-1-1992 made the following observation:-- "The remedy available to the applicants before the Registrar of Trade Unions under the provisions of I.R.O., 1969, though available was not availed by them. Thus it can be safely said that they have approached this Court without exhausting the remedy available to them by law. Thus this Court at this stage cannot and would not direct the Respondent No,3 for approaching this Court for cancellation- of the registration of the respondent No,1 This prayer of the applicants apparently appears to be misconceived and not maintainable in law."
19. Learned Labour Appellate Tribunal by its decision dated 3-5-1992 passed in appeal No, Kar-30 of 1992 observed as under:- "There is also a plethora of judicial pronouncements that is not a function of the Labour Court to direct the Registrar and that the complaint for the cancellation has to be filed by the Registrar himself before the Labour Court."
' In support of the above contention learned Labour Appellate Tribunal cited number of authorities.
20. Perusal of the above observation would make it abundantly clear that the learned Labour Court and the Labour Appellate Tribunal took a view that it was beyond the purview and competence of Labour Court to direct the Registrar to file an application for cancellation of registration of a Trade Union. Further that the petitioners/applicants may seek such remedy by moving such application before the Registrar. By any stretch of imagination it cannot be held that the plea of the petitioners was rejected on merits. Since the Tribunal below found the matter beyond their competence they rightly refrained from assuming the jurisdiction. There is no cavil to the proposition advanced by the learned Labour Court and consequently affirmed by Labour Appellate Tribunal.
21. The contention that the respondent No,2 Union was registered 30 years back and the same was enjoying the status of CBA and that petitioners had entered into bilateral negotiations with the said Union and finally executing settlement agreements with them would not by itself extend legality to a Trade Union, if otherwise the same was registered and/or the same was in existence and/orwas functioning in contravention of the law.
22. Perusal of the impugned letter leads one to conclude that the Registrar while rejecting the representation of the petitioners heavily and considerably relied upon the above said "judicial pronouncements" as referred therein. Thus the view taken by Respondent No,1 was illusory and patently misleading, more particularly when the decisions given by the Labour Court and Labour Appellate Tribunal were delivered somewhere in the years 1991 and 1992, while the representation was moved before Respondent No,1 in August, 2001, and by consent of the parties, the Registrar was directed by this Court vide order dated 4-11-2002 to consider and decide thesaid application.
23. Needless to state'that theirLordships of Hon'ble Supreme Court of Pakistan in Essa Cement Industries Workers Union, 1998 PLC 500, were pleased to hold that, "no-doubt the High Court in the exercise of its Constitutional jurisdiction may order the Registrar to seek such directions from the Labour Court, as required by section 10, but the same would depend upon the circumstances of each case." Thus this Court is not divested of ordering the Registrar to move an application to the Labour Court for cancellation of a Trade Union, if in case the circumstances so warranted.
24. However, the crucial questions at the moment which need to be dilated upon in the instant case is to see as to whether the objections raised by the petitioners in their letter dated August 27,2001, were properly attended to by the Registrar and that the order was passed by him after scrutinizing the documents, and with independent application of mind. On scrutiny of the material placed on record, it can be said with certainty that the plain answer to these questions would be in negative. It was quite strange to notice that the office note which was the basis of the order passed by the Registrar was not produced along with comments filed on behalf of the Registrar but the same was produced along with counter affidavit furnished by the respondent Trade Union. This fact would thus provide reasons to believe that both the respondents were flocking together.
Nevertheless, on perusal of the office note submitted to the Registrar it transpires that after perusing the noting, Respondent No,1 passed order dated 3-1-2003 thereon, concluding tiara.
Whereof reads as under:-- "The Karachi Customs Agents Group has already lost its case at the judicial forums. Its present demand under consideration is mere repetition of its earlier demand already dismissed bythe competent Courts of law. Both factually and legally the demand is absolute devoid of any merit and, therefore, I reject it."
25. Keeping in view the facts and circumstances discussed herein-above, bare perusal of the above mentioned order passed by Respondent No,1 on the noting, leaves no room for doubt to arrive at a conclusion that despite clear cut directions of this Court as elaborated in the consent order, learned Registrar Trade Union did not properly deal with the objections Nos.1 and 2 raised by the petitioners in their representation. Thus the Registrar failed to perform his functions and did not dispose of the matter justly, fairly and properly, which under the law he was required to.
26. It hardly needs to be stressed that it had been the consistent view of the superior Courts that the Forums vested with quasi-judicial authority connected with adjudication or determination of entitlement must be vigilant and cautious while exercising their powers and should avoid passing orders without properly scrutinizing the files. Reference can conveniently be made to Obedullah and 2 others v. Inspector General, Frontier Corps, Quetta, 1997 SCM R 1833.
27. For the foregoing reasons the petition is admitted and is disposed of as such along with, CMA No,256 of 2003, which is also fixed for hearing. The impugned order/letter dated 3-1-2003 of Respondent No,1 is declared to be without lawful authority and is hereby quashed.
' Consequently the representation/application filed by the petitioners dated August 27, 2001 shall be deemed to be pending before the Respondent No,1 Registrar.
' The Registrar Trade Unions shall pass a fresh proper and speaking order after proper application of mind within 30 days of the receipt of copy of this order, after hearing the parties and considering the documents and any evidence produced before him.
28. There can hardly be two opinions that the labour disputes require to be disposed of with utmost promptitude and all possibilities should be explored to minimize the litigation in order to avert dejection, yet it has to be fully ensured that the causes are decided justly and lawfully and the justice must be seen to have been done, so that no party should feel prejudiced.
' In the given circumstances no option is left except to pass order in the above terms.