' MUHAMMAD ATHER SAEED, J.---Since the concerned parties were presnt before us at the Katcha Peshi stage and their respective counsel appeared to be fully prepared to proceed with the matter, we decided to admit the petition and take up its final hearing.
1. The admitted facts appear to be that the petitioner-company is the owner and operator of a chain of hotels known as Pearl Continental Hotels at Karachi, Lahore, Rawalpindi, Peshawar and Bhurban. In 1997 the respective registered Trade Unions of workers in the first four hotels decided to form themselves into a Federation of Trade Unions under the Industrial Relations Ordinance, 1969 (1969 Ordinance) and applied for registration as such to the Respondent No,2. On 18-11-1997, Respondent No,2 directed notices to the office-bearers of the four Trade Unions to place before him the decisions of the respective Unions to join the Federation and also ordered notice to the employer for 6-12-1997. It seems that separate notices were not issued to the management of each of the four hotels, but notice was duly served upon the petitioner.
2. Nevertheless while representatives of all the four Trade Unions appeared before the Respondent No,2 the petitioner did not appear despite notice. The respondent No,2 examined the proceedings of general body meetings of all the Unions and after considering the report of the Deputy Registrar, directed to hold enquiry to the effect that all legal formalities were complied with and being satisfied that the requirements prescribed for registration were fulfilled, ordered registration of the Respondent No,3 on 6-12-1997.
3. Three days thereafter, however, the petitioner through one Shakeel Ahmed, General Manager, Pearl Continental Hotel Rawalpindi, moved an application for setting aside the order dated 6-12- 1997 on the ground that it had been passed without notice. Notice of the application was issued to the Union and by an interim order dated 6-1-1998 respondents were restrained from undertaking any trade union activity on their platform. The matter somehow remained dormant for sometime till the application moved on behalf of the petitioner was dismissed by a learned Member of the National Industrial Relations Commission exercising powers of the respondent No,2 by an order dated 18-9-2001 and the restrictive order passed earlier was also withdrawn. The appeal against aforesaid order was preferred by the petitioner before the respondent No,1 which was pending when the I.R.O., 1969 was repealed and I.R.O. 2002 was promulgated and came into effect from 26- 10-2002. This appeal was later dismissed on 25-7-2005. The petitioner appears to be aggrieved by the aforesaid order passed in appeal.
4. The main argument which was advanced before the respondent appellate authorities by the petitioner was that initially order of registration granted on 6-12-1997 was granted without issuance of notice to the petitioner/employer and the order granting such registration was not a speaking order but had been passed by the Registrar without applying his mind.
5. The Full Bench of the learned NIRC/respondent No,1 in this the appeal of the petitioner, inter alia, for the following reason.
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1. A trade union after having been registered acquires a substantive right which cannot be taken away merely on the ground that the employer was not consulted while dealing with the application for registration."
6. Mr. Mehmood Abdul Ghani, learned counsel for the petitioner, argued that the registration of the Respondent No,3 granted on 6-12-1997 was illegal and invalid as such registration had been granted contrary to law and was of no legal effect. He further argued that the registration had been granted without notice to the employer and the Chairman/RITU did not apply his mind and did not pass a speaking order while granting registration. He supplemented his contention by saying that even if it is assumed that an attempt was made to serve the notice to the employer, the attempt was made to serve notice only to Pakistan Services Ltd. And not to Pearl Continental Hotel (Rawalpindi), Pearl Continental Hotel (Karachi), Pearl Continental Hotel (Peshawar) and Pearl Continental Hotel Lahore and Bhurban who were actually the employers of the Members of Respondent No,3, and it was necessary to serve notice to all these Hotels before granting registration to Respondents No,3.
7. The next argument advanced by the learned counsel for the petitioner was that during the pendency of the appeal before Respondent No,1, I.R.O. 1969 was repealed and I.R.O. 2002 was promulgated and came into force on 26th October, 2002 and, therefore, the Respondent No,1, while deciding the case on merits, should have taken notice of this change in law and should have given effect to the provisions of I.R.O. 2002 and not to the provisions of I.R.O.
1969. He further argued that appeal is a continuation of the original proceedings and till the final disposal of the appeal it cannot be said that the matter is a closed and shut matter and, therefore, will not be governed by the provisions of new law. This point was not taken up for argument before any of the appellate forums, who have confirmed the order of registration of respondent No,3, but since it was a point of law we allowed the learned counsel for the petitioner to present his arguments on this point.
8. The learned counsel submitted that under I.R.O. 1969 "Trade Union" was defined in subsection
(XXVI) of section 2, which reads as under:-- "2. In this Ordinance, unless there is anything repugnant in the subject or context---
(xxvi) "trade union" means any combination of workmen or employees formed primarily for the purpose of regulating the relations between workmen and 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;"
' He pointed out that under I.R.O., 2002 trade union was defined in subsection (XXIV) of Section 2 which reads as under:- "trade union" means any combination of workers formed primarily for the purpose of furthering and defending the interests and rights of workers in any industry or establishment and includes an industry-wise federation of two or more collective bargaining agent unions and a federation at the national level of ten or more collective bargaining agent unions; and According to the learned counsel there is significant difference between the definition of trade union under the now repealed I. R.O. 1969 and the new I.R.O. He submits that under the new law the "Trade Union" means any combination of workers and includes an industry-wise Federation of two or more CBAs and a Federation at national level of ten or more CBAs. According to him, the claim of Respondent No,3 to be a Federation at national level is incorrect because they do not have any union from Balochistan as their member and, therefore, the basic and fundamental constituent of a Federation at national level on the basis of ten or more registered trade unions atleast from each province was missing. In support of the above contention, the learned counsel for the petitioner relied upon the following cases:--
(1) Messrs Forbes Campbell & Co. (Pvt.) Ltd. v. Registrar of Trade Unions and another 1999 (PLC 312 Karachi).
(2) Pakistan Engineering Council v. Registrar, Trade Union and another (1998 PLC 477 Lahore).
(3) The Pakistan Telecom Company Lions Staff Union v. The National Industrial Relations Commission (1999 PLC 320 Lahore).
(4) Ghee Corporation of Pakistan v. Registrar, Trade Unions and another (1991 PLC 207 Lahore).
(5) Idara-e-Kissan v. Registrar of Trade Union, Lahore and another (1995 PLC 134 Lahore).
(6) Habib Sugar Mills Ltd. v. Registrar of Trade Unions, Government of Sindh and another (2001 PLC 441 Karachi).
(7) S.G. Fibre Employees' Union v. Registrar of Trade Unions, Government of Sindh and 5 others (2003 PLC 58 Karachi).
(8) Messrs Hinopak Motors Limited v. Chairman Sindh .Labour Appellate Tribunal and others (2000 PLC 89 Karachi).
(9) Messrs Tank Steel and Re-Rolling Mills (Pvt.) Ltd. Dera Ismail Khan and others (PLD 1996 SC 77).
(10) Ranjha and others v. Mst. Zahrai Begum and others (2004 SCM R 734).
9. Mr. Ch. Rasheed Ahmed, learned counsel for Respondent No,3, stated that the employer has no locus standi to challenge the registration of a trade union, which is a matter between the Registrar and the trade union and the employer is not a party to this proceeding nor does any provision of the I.R.O. 1969 and I.R.O. 2002 authorize the employer to challenge the registration of trade union before any forum. He further argued that the registration of trade union can only be cancelled under section 10(1) of I.R.O. 1969 and section 12(1) of the I.R.O. 2002 and even under these sections only the Labour Court, on a complaint of the Registrar pointing out certain contraventions committed by the trade union, can direct that the registration may be cancelled. He drew our attention to section 80 of the I.R.O. 2002, which is titled "Repeals + Savings". The learned counsel for the respondent No,3 pointed out that under sub-clause (a) of clause 2 of this section every trade union existing immediately before the commencement of I.R.O. 2002, which was under the repealed Ordinance, shall be deemed to be registered under the new Ordinance and its constitution shall continue in force until altered or rescinded. He further pointed out that the definition of the trade union in the repealed Ordinance included a Federation of two or more trade unions and, therefore, he stated that a Federation, which was registered under the repealed Ordinance has been specifically saved by sub-clause (a) of Clause (2) of section 80 of the new Ordinance and shall be deemed to have been registered under the Ordinance. In support of his arguments, the learned counsel for the Respondent relied on the following cases:
(1) Essa Cement Industries Workers' Union v. Registrar of Trade Unions, Hyderabad Region and 4 others (1998 SCM R 1964).
(2) Messrs Hakimsons Chemical Industries (Pvt.) Ltd. v. The Registrar of Trade Unions (West)
Government of Sindh, Karachi and another (1999 SCMR 235).
(3) Telegraph Stores and Workshop Workmen Union, Kotri v. Registrar, Trade Union, Hyderabad Region Hyderabad and 4 others (1995 PLC 47).
(4) Messrs Plasticrafters (Pvt.) Ltd v. Registrar of Trade Unions and 3 others (1999 PLC 263).
10. We have examined the case in the light of facts and grounds set out in the petition , the impugned orders, the arguments of the learned counsel for the parties and the case-law relied on by them.
11. All the case-laws relied on by the learned counsel for the petitioner in support of his contention that employer is a necessary party to the process of registration of trade union are judgments of the Single Judges of this Court and the Lahore High Court and are not binding on us Even otherwise, the matter has been set at rest by the judgment of the Honourable Supreme Court of Pakistan in the case of Essa Cement Industries Workers' Union v. Registrar of Trade Unions, Hyderabad Region and 4 others (1998 SCM R 1964) in which the Honourable Supreme Court has conclusively held that the matter of registration is one between trade union applying for the registration and the registrar and others including the employer has no concern in the matter. They further held that the employer cannot claim any locus standi A to challenge the decision of the registrar merely on the ground that no opportunity of hearing was provided to it or an objection raised by it before the registrar was not considered before such decision. The judgment of the Honourable Supreme Court is binding on us. The other cases relied on by the learned counsel for the petitioner pertain to the satisfaction of the registrar and the passing of a speaking order.
Whereas the learned counsel has relied upon a couple of cases in support of his contention that if there is a discrepancy between the earlier Act and the new Act the earlier Act shall stand repealed.
12. In view of the judgment of the Honourable Supreme Court, the contention of the learned counsel for the petitioner regarding alleged non-issuance of notice cannot be sustained. The learned counsel for the petitioner has conceded that though a notice was issued to the petitioner, but at incomplete address and no separate notices were issued to the four hotels which according to him was a requirement. Surprisingly, however, these four hotels, which are owned by the petitioner, have not been impleaded as petitioners in this petition. Even otherwise, the question whether a notice was issued to the employer is a question of fact and finding on this point has already been given by the appellate authorities that a notice was issued to the employer for attending the registration proceedings, but the employer was called absent and the registration proceedings were finalized in his absence. This being a finding of fact cannot be adjudicated by this Court in its constitutional jurisdiction.
13. We have examined the order dated 6-12-1997, and we are of the opinion that it is a speaking order and the requirements of section 7 of the I.R.O. 1969 were met when the Registrar had deputed his subordinate to hold an enquiry, who had reported that the requirements have been met and the Registrar after being satisfied had granted the registration, therefore, the appellate authorities had rightly decided this question in favour of the Respondents.
14. We would now take up the arguments of the learned counsel of the petitioner that since during the pendency of the appeal before the N.I.R.C., I.R.O. 1969 was repealed and I.R.O. 2002 was promulgated in its place, the appellate authority should have taken notice of the promulgation of the new ordinance and should have considered whether the registration trade union fell within the ambit of section 2 (XXIX) of the new Ordinance and since there was a significant difference between sections 2 (XXVI) of the repealed Ordinance and 2 (XXIX) of the new Ordinance and since admittedly the Respondent trade union was not qualified under section 2 (XXIX) of the new I.R.O., the registration certificate should have been withdrawn. There is no cavil to the proposition that appeal is a continuation of the original proceedings and the Court should take notice of the change/amendment in law while deciding the appeals, but in this case this principle of law will not be applicable not only because of the provisions of sub-clause (a) of clause 2 of section 80 of I.R.O 2002, which 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, 1897 (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; ' But, also because the Respondent/Federation Trade Union had been conclusively registered before coming in force of the I.R.O. 2002 and even the restrictive order passed earlier was withdrawn before the promulgation of the new Ordinance. The Respondent No,3, therefore, had acquired a vested right, which could not have been taken away by applying the provisions of I.R.O.
2002 retrospectively.
15. In this context, reliance is placed on the judgment of the Honourable Supreme Court in the case of Malik Gul Hassan and Co. And 5 others v. Allied Bank of Pakistan (1996 SCM R 237) in which the Honourable Supreme Court held as under:-- "7. It is well-settled principle of interpretation of statute that where a statute effects a substantive right, it operates prospectively unless 'by express enactment or necessary intendment' retrospective operation has been given. Muhammad Ishaq v. State PLD 1956 SC (Pak) 256 and State v. Muhammad Jamil, PLD 1965 SC 681. This principle was affirmed in Abdul Rehman v.
Settlement Commissioner (PLD 1966 SC 362). However, statute, which is procedural in nature, operates retrospectively unless it affects an existing right on the date of .Promulgation or causes injustice or prejudice to a substantive right----"
16. This principle was also highlighted in the judgment of the Honourable Supreme Court in the case of 'Trinity Private-School and another v. Mumtaz H. Hidayatullah and others (1997 SCM R 494)'.
In this case, the Honourable Supreme Court reiterated this principle by holding that it is a settled principle that when any provision is repealed and replaced by another provision then unless the intention is clear such amendment will not affect the vested right.
17. In this context, clause-B of section 6 of General Clauses Act is also relevant, which reads as under:-- "6. Effect of appeal: where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereinafter to be made, then, unless a different intention appears, the appeal shall not:--
(a) ---------------------------------------------------------------------------------
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or"
18. A perusal of the provisions of I.R.O. 2002 makes it clear that no intention has been expressed to apply the provisions retrospectively. On the other hand the registration of a trade union has been specifically saved by sub-clause-a of clause 2 of section 80, which has already been reproduced above.
19. We are, therefore, of the opinion that the registration of the Respondent trade union could not be cancelled on this ground also.
20. The above are the reasons in support of our short order passed on 25-10-2005 dismissing the above petition.