1. ' MRS. QAISER MAL, J.--- Petitioner has invoked constitutional jurisdiction against the respondent seeking following reliefs:--
(I) Investigations/verifications made by the respondent No,2 leading to the registration of the respondent No,1 are illegal, void and not in accordance with the provisions of section 9(I), I.R.O., 1969 and other provisions of I.R.O., 2002.
(II) The order of the respondent No,2 forming the basis of registration of the respondent No,1 is illegal, void, arbitrary issued/passed illegally without jurisdiction and non-existent in the eyes of the law.
(III) To order the initiation of CBA proceedings in violation of I.R.O. 2002 on the application of the respondent No,1 are illegal, the same be quashed.
(IV) To pass such other order or orders or grant such other relief or reliefs as may be deemed fit and proper in the circumstances of the case.
2. ' Succinctly facts leading to the case are that petitioner is a partnership firm having three units in Federal "B" Area and SITE Karachi where the employees are engaged in Textile and Garments Industries enumerated as under:--
(I) Unit No,1 at Plot No,L/8, Block 21, Federal "B" Area, Karachi having common Head Office also there which constitutes in two parts viz.
(a) "Textile" employing 375 workers, beside officers.
(b) "Garment" employing 800 workers, beside officers.
(II) Unit No,3 of Textile situated at Plot No,A-8/C, SITE, Karachi employing 650 workers, beside officers.
3. ' According to the petitioner one registered trade union office is set up in Unit No,1 known as "Peoples Union of Lucky Textile Mills", another trade unit is set up in Unit No,2 under the name and style of "Luck Textile Mills Employee Union" whereas in the third unit trade union in the name of "Lucky Textile Mills Workers Union and Hard Workers Union of Lucky Textile Mills" are set forth duly registered under Industrial Relations Ordinance, 1969. Controversy arose upon the repealment of Industrial Relations Ordinance, 1969, replaced by industrial Relations Ordinance, 2002 as all the registered trade unions are deemed to be registered under Industrial Relations Ordinance, 2002.
4. Another union under the name of Lucky Textile Mills Mehnatkash Union applied for its registration with the respondent No,2 on 5-1-2003 which was rejected. The same set of office-bearers of Mehnatkash Union manipulated fabricated documents, malafidely set up a union, respondent No,1 (The Mazdoor Union of Lucky Textile Mills Unit 2), while their application was pending before the respondent No,2 which was objected to by the petitioners, respondent No,1 submitted application, dated 10-3-2003 and 11-3-2003 proceeded to Registrar respondent No,2 on 20-2-2003. It is pleaded that the respondent No,1 excluding other unions in collusion with respondent No,3 had illegally initiated CBA proceedings. Petitioners being aggrieved of arbitrary and illegal registration of respondent No,1 by the respondent No,2 consequent upon arbitrary initiation of CBA proceedings of respondent No,3 in the written objection has taken the stand that Lucky Textile Mills Mehnatkush Union applied for registration on 5-1-2003 which was rejected, application was found to be deficient in material, later due diligence and verification of the facts respondents Nos.2 and 3 had issued registration certificate of the respondent No, 1 . Respondent No,2 submitted an application under section 20 of. Ordinance, 2002 for determination of CBA in the establishment of Lucky Textile Mills Unit No,2.
5. The respondent No,3, Deputy District Officer Trade Unions Directorate of Labour in parawise comments has contended that Lucky Textile Mills had independent and registered Labour Unions in various establishments. The respondent No,1 Union of the same management situated at Plot No,L- 8, Block 21, Federal "B" Area had applied for registration of the Union which was rejected, later another application A was moved and registration of respondent No,1 was allowed on 20-3-2003.
6. At present there are two unions registered in the establishment one of the registered union being the respondent No,1 which has proceeded with the move for determination of CBA in the establishment at Federal "B" Area Karachi, CBA application was provided 'in accordance with law based upon 1/3rd membership requirement for holding 'secret ballot and in case respondent No,1 does not enjoy the support of majority of workers it will lose the secret ballot, petitioners management is not justified for unwarranted action by way of filing present petition.
7. ' I have heard Mr. S.M. Yaqoob learned counsel for petitioner and Mr. Ghulam Sarwar Chandio learned counsel for respondent, perused the record.
8. ' It is contended by Mr. S.M. Yaqoob that no remedy is available to the employer against illegal registration of trade union and enunciation of CBA certified in the establishment, petitioner has invoked the writ jurisdiction. By virtue of section 12 of Ordinance, 2002 Registrar of Trade Unions is empowered to cancel registration of the unions if certain conditions have not been fulfilled as well as Labour Court can proceed to cancel the registration. The 'petitioner has resorted to file detailed objections before the respondent No,2. It is further contended that for the purpose of provisions of sections 6(1)(d), 6(2)(a) and 6(2)(b) of Ordinance, 2002 the record ;could be checked by the respondent No,2 before registration about the number of workmen employed in the establishment.
9. Objections raised by the employer when CBA was formed were considered in the cases mentioned hereinbelow:--
(1) Hakim sons Chemical Industries v. RTU 1999 SCM R 2398, Ghee Corporation of Pakistan v. The Registrar Trade Union 1991 PLC 207 and (3) Essa Chemical Industries Workers Union v. Registrar of Trade Unions, Hyderabad Region, Hyderabad and 4 others 1998 PLC 500.
10. ' It is urged that by virtue of section 80(2)(a) Ordinance, 2002 Union already registered under repealed Ordinance, 1969 shall be deemed to be registered therefore, four registered trade unions in Units Nos.1, 2 and 3 are still registered and subsisting trade unions. It is urged that office-bearers of respondent No,1 on 9-3-2003 could not hold general meeting and resort to withdraw the application for registration of union as no worker can simultaneously be member of more than one trade union.
11. ' Mr. Ghulam Sarwar Chandio learned counsel for respondent No,1 has contended that inquiry conducted by the respondent No,2 was inconformity with law, employees in the election proceedings shall be registered in case of any illegality, respondents Nos.2 and 3 can resort to take an action. It is next urged that the registration granted to the respondent No,1 union cannot be cancelled in the writ jurisdiction, as alternate remedy is available to the petitioner by virtue of corresponding section 7(2) of Ordinance, 1969 and section 9 of Ordinance, 2002.
12. ' As regard to the maintainability of the petition on the allegation that the respondent No,2 did not apply his mind judiciously as to whether the trade unions should be registered or not. It is well- established principle laid down in G.S. Fibre Employees Union v. Registrar of Trade Unions 2003 PLC (Karachi) 58 that constitutional remedies would always be applicable where any statutory or executive functionary entrusted with responsibility for taking certain action in accordance with law has not done so. In the case of Essa Cement Industries Workers k Union (supra) rule enunciated is whether the Register has applied his mind judiciously where the inquiry in question in fact has been carried out.
13. ' It was held that neither the employer nor the trade union already exists in the same establishment can claim locus standi to challenge the decision of the Registrar under section 8 of the IRO summarily on the ground that no opportunity of hearing was provided to them or their objections raised before the Registrar were not considered before such decision. In case of Holidays Inn Workers Union v. The Registrar of Trade Unions (supra) it was held that Registration of Trade Unions being an act of which was neither mechanical or automatic required suggestion on the part of the Registrar as to the observance of the requirement of IRO. Such satisfaction although being a state of mind yet the same should be reflected in the act itself and should be objective, otherwise it would be exposed to scrutiny under the powers of judicial review per Article 199 of the Constitution.
14. The aforesaid judgment was cited with approval in case of Essa Cement Industries Workers Union (supra).
15. ' On the basis of petitioner's allegation that the Registrar of Trade Unions had not applied his mind judiciously, as to whether the Trade Unions should be registered or not proceed to pass a slipshod order. The petition is maintainable in law where the principle is established for constitutional remedies.
16. ' It is an admitted position that the first application moved by the respondent No,1 was rejected by the respondent No,2 upon verification of contents. The petitioner's contention regarding investigation carried out by the respondent No,2 leading to the registration of the respondent No,1 as well as the order of respondent No,2, confirming the basis of respondent No,1 being arbitrary illegal without jurisdiction and CBA proceedings are in violation of Ordinance, 2002. The objections of the respondent No,3 required a test as to whether 1/5th number of workers were its member before passing the impugned order. The respondent No,2 being statutory authority was required to discharge its legal position. Respondent No,2 had proceeded to register the respondent No,1 vide registration No,317 dated 20-3-2003 of Ordinance, 2002 as was conveyed by the respondent No,3 to the General Secretary of the respondent No,
1. By a slipshod order as no reasoning is attached thereto nor there appears to be an inquiry conducted by him with 1/5th members of the establishment workers in support of the respondent No,1. The grievance of the petitioner is that respondents Nos.2 and 3 did not care to verify the number of workers employed in the establishment nor this requirement was fulfilled by the respondent No,1 in gross violation of the law, respondent No,1 union was illegally registered. Since no speaking order is available on record therefore, impugned registration is set aside with a direction to the respondent No,2 to conduct an impartial inquiry into the matter and then proceed to pass a speaking order.
17. ' Reverting to the other objections pertaining to the referendum it is evident that there are more than one registered trade unions in the establishment and the Registrar shall upon an application made in this behalf by any such union, having not less than 1/5th of the total employees of the establishment hold a secret ballot for determination as to which one of the union shall be CBA of the Establishment.
18. ' For the foregoing reasons impugned registration awarded to respondent No,1 stands set aside/cancelled, matter is remanded back to the Registrar of Trade Unions to consider the application afresh and conduct impartial inquiry in the matter then proceed to pass appropriate order. The Registrar is further directed upon receiving an application from any Registered Trade Union of the petitioner for election of CBA he should determine 1/5th majority of the unions before proceeding in accordance with law. Consequently petition stands allowed in above terms with no orders as to cost.