' ZIA PERWAZ, J.---The Appellant is aggrieved by and dissatisfied with the order dated 13-8-2001, passed by learned Sindh Labour Court No,V at Karachi in Application No,6 of 2000, whereby the Appeal under section 8(3) of the Industrial Relations Ordinance, 1969 (since repealed) filed by the appellant against the order dated 13-4-2000 rejecting the application for the registration of Moonlite (Pak) Ltd. Mazdoor Union was rejected by the Registrar of Trade Unions the appellant has preferred this appeal under section 48(3) of the Industrial Relations Ordinance, 2000.
2. Brief facts of the case are that in pursuance to a general body meeting stated to have been held on 20-12-2000, the appellant union was resolved to be formed. It is claimed that the meeting was attended by 81 workers and after completion of the requisite formalities an application dated 22-2- 2000 seeking registration of the union under the name and style of "Moonlite (Pak) Limited Mazdoor Union, Karachi, "was moved accompanied by a membership list of 81 workers. The application was rejected vide order dated 13-4-2000. The appellant approached the Vth Sindh Labour Court, Karachi by way of Appeal No,6 of 2000 under section 8(3) of the Industrial Relations Ordinance, 1969 (since repealed) which was also dismissed. Hence, the appellant has preferred this appeal.
3. The present appeal, against the order dated 13-8-2001, was preferred by presenting the memo.
Of appeal before this Court on 7-7-2004 along with an application under section 5 of the Limitation Act, being CMA No,2403/04, seeking condonation of delay in filing the appeal. On 13-9-2004, it was ordered that this CMA would be heard along with the main appeal.
4. While the Appeal was still pending, an application under section 15 I.R.O., 2002 read with Order I, rule 10, CPC, was moved by Moon-lite Pak Limited Employee's Union, seeking to be joined as a party to the proceedings. The learned counsel for the appellant candidly stated that he gave his no objection to the grant of the same and therefore the matter was fixed for regular hearing.
5. On 18-1-2005 the appeal was fixed for regular hearing along with CMA No,2403/04 when none was present on behalf of the appellant and was dismissed for non-prosecution. The appellant moved CMA No,336/05 seeking recall of the order dated 18-1-2005 and restoration of the appeal to its original position. On 2-5-2005, by consent of the counsel for the parties it was ordered that the restoration application (CMA No,336/05) would also be heard along with the main case.
6. As regards the application for restoration of the appeal is concerned the learned counsel, in the affidavit in support of this application, has stated that he was busy before the Division Bench headed by the Hon'ble Chief Justice and another Division Bench comprising Mr. Justice (now the Hon'ble Chief Justice) Sabihuddin Ahmed and Mr. Justice Khilji Arif Hussain. So far as the absence of the appellant is concerned, the learned counsel stated that his client lives in Gulshan-e-Hadeed and it is not possible for him to appear before the Court during the early hours.
7. Mr. Ashraf Hussain Rizvi, learned counsel for the Intervenor, has vehemently opposed the application for restoration. He contended that in case the counsel for the appellant was busy before another Bench, it was incumbent upon the appellant to be present in Court when the case was called. He has referred to certain case-law.
8. As regards the application under section 5 of the Limitation Act is concerned, the learned counsel for the appellant stated that after dismissal of his appeal by the Labour Court a Revision under section 37(3) of the repealed I.R.O. Was filed before the Sindh Labour Appellate Tribunal.
During the pendency of the Revision, the I.R.O. 1969 was repealed and the new I.R.O., 2002 was promulgated. Since the word "Revision" had been removed from the new I.R.O. 2002, all the Revisions pending before the Tribunal were sent back to relevant Courts. This, according to the learned counsel for the appellant, caused the delay.
9. Mr. Ashraf Hussain Rizvi, learned counsel for the Intervenor, has also opposed this application and submit that the appeal has been filed beyond the period of limitation and is liable to be dismissed as such.
10. In support of his case on merits, Mr. Shoa-un-Nabi, learned counsel for the appellant argued that the appellant complied with all the provisions of the repealed I.R.O. In respect of registration of a trade union as required under sections 6 and 7 thereof. He argued that initially an application for registration of trade union was moved accompanied by membership list of 81 workers and the application was followed by an additional list of 70 members submitted along with affidavits and other requisite documents in the office of Joint Director Labour, West Division Karachi. It is further claimed that in addition to the aforesaid listed 148 workers, personally filed their respective affidavits, there were three additional members who joined the Union, their names were also included in the membership list thus making the total number of the members of the proposed union as 151. The learned counsel contends that if there was any deficiency in the application moved by the appellant, the respondent No,1 Registrar of Trade Unions was required to communicate such objection as to appellant before passing of an order. He further contends that the application was dismissed through a non-speaking order passed in ignorance of law.
Therefore, the learned counsel submits that the same is liable to be set aside. In support of his contention the learned counsel placed reliance on the case of S.G. Fibre Employees' Union v.
Registrar of Trade Unions and others (2003 PLC 58). He has also contended that registration of a trade union is a matter strictly between trade union seeking registration and the Registrar and no other union has any say in the matter. He relied on the case of National Beverage Employees' Union v. Registrar, Trade Unions and others (1986 PLC 533). The next contention is that there is no other labour union in the establishment and therefore, the appellant was entitled to registration of the trade union.
11. Mr. Ashraf Hussain Rizvi, learned counsel for the Intervenor, has vehemently opposed this appeal.
His first objection pertains to the maintainability of the present proceedings under section 48(3) of the I.R.O.
2002. He submits that provisions of section 48 (3) of the I.R.O., 2002 confer suo motu powers on the High Court to call for the record of any case or proceedings, on its own motion at any time, for the purpose of satisfying itself as to the correctness or propriety of such order. He has placed reliance on the case of Abdul Majid Shaida v. Mst. Noor Jehan and another (PLD 1967 SC 221), Jannat Textile Mills Limited v. Sindh Labour Appellate Tribunal (PLD 1979 Kar. 725), and an unreported recent order dated 19-10-2004 passed in Labour Revision Application No,14/2004.
12. There is no cavil with the proposition that the section 48 (3) of the I.R.O. 2002, does not give any party a right to approach the High Court for review of any case. Sub-section (3) of section 48 of the I.R.O., 2002 reads as under:-- "48. Appeal to the High Court. -(1)------------------- (2)...................................................
(3) The High Court may, on its own motion, at any time, call for the record of any case or proceedings under this Ordinance in which a Labour Court within its jurisdiction has passed an order, for the purpose of satisfying itself as to the correctness, legality or propriety of such order, and may pass such order, in relation thereto as it thinks fit: ' Provided..... "
13. As may be seen, sub-section (3) of section 48 commences with the words "The High Court may on its own motion call for record of any case" (emphasis is supplied). Thus, it is abundantly clear that the powers conferred on this Court under section 48(3) of the I.R.O., 2002, are distinct from the remedies available to the parties under section 47(3) of the I.R.O., 2002 which provides for an appeal to the High Court by any party aggrieved by an Award or Decision under subsection (1) thereof or on an application under section 33 or a sentence passed in an offence tried by the Labour Court under clause (c) of subsection (4) of section 44 of the I.R.O., 2002 or powers conferred under section 48(1) of the I.R.O., 2002, which provides for an appeal against an award or decision under section 46 or 33 or a sentence passed under, clause (c) of sub section (4) of section 44 of the I.R.O., 2002. The impugned order does not fall in any of the above categories. The provisions of sub-section (3) of section 48 of the I.R.O., 2002 specifically mention of the exercise of suo motu powers. In the unreported order dated 19-10-2004 passed in Labour Revision Application No,14 of 2004 (Jabees Employees Union v. Registrar of Trade Unions, Sindh and another), wherein after reference to provisions of section 48(2) of I.R.O. 2000, it has been held that "the provision referred to above is analogous to the provision of section 38(3a) of I.R.O., (now repealed) and similar question came up before Division Bench of this Court whether a party can invoke the suo motu Revisional Power of the then Tribunal now High Court in M/s. General Textile Mill Limited v. Sindh Labour Appellate Tribunal (PLD 1979 Kar. 725), wherein a distinction as drawn between "Suo Motu exercise of revisional power" and "exercise of revisional power on application by a party". The learned Members of the Division Bench held that no right is given to the party to submit revision application to the Tribunal (now High Court) in terms of the provision referred to above and the Revision Application, being not maintainable, was dismissed.
14. In view of this discussion, this appeal is not maintainable and is liable to be dismissed on this ground alone. However, an important question of law is raised, therefore, the learned counsel were heard on merits as well.
15. Mr. Rizvi, learned counsel for the Intervenor, submitted that the mandatory requirement for filing of an application for registration of a trade union is the filing of a membership list containing requisite number of members at the time of filing of the application for registration. Such mandatory requirement cannot be flouted by filing the membership list in piecemeal which is opposed to the clear wording of section 6(9)(iv) of the IRO, 1969.
16. Mr. Shoa-un-Nabi, learned counsel for the appellant, vehemently contended that if there was any deficiency in the application for registration, under section 8(1) of the repealed I.R.O., it was incumbent upon the Registrar to have written to the appellant within 15 days from the receipt of the application.
17. The controversy pertains to an action in pursuance to the provisions of section 6(a)(iv), section 7(2)(b) and section 8(1) of repealed I.R.O. Relevant parts of the Sections attracted to the case section read as under: "6. Every application for registration of a Trade Union shall be made to the Registrar and shall be accompanied by.---
(a) a statement showing-
(1) ..
(ii) .
(iv) ..
(iv) statement of total paid membership.
(v) .............................
' Section 7(2)(b) of the repealed I.R.O. Reads as under: "7. (1)
(2) Without prejudice to the provisions of subsection (1) a trade union of workmen shall not be entitled to registration under this ordinance.
(a)................................
(b) Where there are two or more registered trade unions in the establishment, group of establishments or industry with which the trade union is connected, unless it has as its members not less than one-fifth of the total member of workmen employed in such establishment, group of establishments or industry, as the case may be."
Section 8(1) of the repealed I.R.O. Reads as under:-- "8(1) In case the application is found by the Registrar to be deficient in a material respect or respects he shall communicate in writing his objections to the trade union within a period of fifteen days from the receipt of the application and the trade union shall reply thereto within a period of fifteen days from the receipt of the objections."
18. Provisions of section 6(a)(iv) of the repealed I.R.O. Specifically provides that every application for 'registration of a trade union shall be accompanied by a statement of total paid membership. And section 7(2)(b) of the repealed I.R.O. Stipulates that a trade union shall not be entitled to registration unless it has its members not less than one-fifth of the total member of workmen employed in such establishments, group of establishments or industry. If these provisions are read in juxtaposition then it transpires that it is a mandatory requirement that every application for registration of a trade union shall accompany a statement of its total paid membership and that the membership must not be less than one-fifth of the total workmen employed in such establishment.
19. So far as the provisions of section 8(1) of the repealed I.R.O. Are concerned, it provides that in case the application is found by the Registrar to be deficient in a material respect or respects he shall communicate in writing his objections to the trade union within a period of fifteen days from the receipt of the application and the trade union shall reply thereto within a period of fifteen days from the receipt of the objections. It is to be seen whether non-compliance with the requirement of section 7(2)(b) of the repealed I.R.O. Is a deficiency as contemplated under section 8(1) of the repealed I.R.O. Or it is a disqualification.
20. As per the averments made in paras. 2 and 3 of the memo. Of Appeal, a general body meeting of the workers of Moonlite (Pakistan) Limited, Karachi was held on 20-2-2000 which was attended by 81 workers. The application for registration made to the Registrar was also accompanied by a list of 81 members which was in accordance with the number of workers who attended the inaugural meeting of the union. Since the appellant union was the third union in the establishment, the management was asked to submit list of their workers and the other two unions were also asked to submit list of their members. From the list furnished by the management it transpired that a total of 453 workers are working in the establishment. The only question which arises for consideration is whether the subsequent list of the additional members formed part of the application for registration already filed and whether the respondent. No,1 acted with irregularity in rejecting the same.
21. Admittedly, a total number of 81 workers attended the meeting held on 20-2-2000, the membership of the appellant union was far short of the required one-fifth of the total strength of the workers in the establishment. As regards the second list of 70 members it may be stated that there is no provision for providing a second list it was not incumbent upon the Registrar, Trade Unions, to communicate in writing to the appellant for rectification of the deficiency. It is well settled that when an act is required to be done in a particular manner under any law, the act should be done in the prescribed manner or not at all. It was in fact a disqualification and not a deficiency.
22. Learned counsel for the appellant was allowed sufficient time to satisfy this Court on the point whether the Registrar could ignore the clear provisions of section 6(a)(iv) of the repealed I.R.O, which speaks of "statement" and nor "statements" of total paid membership, and accept the subsequent list of membership submitted along with affidavits and other documents. In spite of opportunity provided to him, the learned counsel was unable to produce any case-law in support of his contention.
23. As regards his second objection that the order is a non-speaking order, it would suffice to reproduce the short order dated 13-4-2000, which reads as under:- "This is to inform you that original membership list of 81 workers submitted by you along with your application dated 22-2-2000 do not qualify for 1/5th membership as required under the provisions of section 7(2)(b) of the I.R.O. 1969 on the basis of list of workers submitted by the management.
Your present application which originally claiming 81 membership therefore could not be considered for registration and has accordingly been rejected by the Registrar of Trade Unions Sindh Karachi. You may however submit a fresh application if you so desire along with proper membership and other required documents so that it may be considered for necessary action."
24. This order specifically shows the reason for rejection of the application. It cannot be termed as a non-speaking order as it gives the reasons to rejection of the appellant's application for registration. It has been specifically stated that the appellant, on the basis of the list of membership attached with the application for registration, do not qualify one-fifth membership as required under the provisions of section 7(2)(b) of the repealed I.R.O. On the basis of the list of workers submitted by the Management. It is not disputed that the number of workers at that point of time was 453 and it is also not disputed that the statement of membership attached with the application for registration showed the names of 81 members which does not constitute compliance of the provisions of section 7(2)(b) of the repealed I.R.O. Therefore, in view of the above, it cannot be said that the order dated 13-4-2000 was a nonspeaking order.
25. The contentions of the learned counsel for the appellant that there was no other labour union in the establishment is not tenable being contrary to facts on record. In case there was no other trade union in the establishment he was not called upon to give his no objection to the grant of this application. As regards the observation made in the case of National Beverage Employee's Union (supra), it states that the matter of registration of a trade union is a matter between the trade union seeking registration and the Registrar.
26. In view of the above discussion, the impugned order is upheld and appeal is dismissed together with the pending applications.