' GHULAM NAUMAN SHAIKH (MEMBER).--- This petition under section 49(4)(e) read with sections 63, 64 of the I.R.O., 2002 and Regulation 32(2)(c) of NIRC(P&F) Regulations, 1973 along with application under Regulation 32(2)(c) of NIRC(P&F) Regulations, 1973 supported by affidavit is filed by the petitioner union against the respondents.
2. The facts of the case as stated in the petition are that the petitioner union is CBA in the establishment of the respondent No,l. Another union Pearl Continental Hotel Employees Union, Karachi has moved an application under section 20(2) of the I.R.O., 2002 to the respondent No,5 to hold the referendum for determination of CBA in the establishment No,1. Industrial dispute also is pending before area conciliator. It is submitted that the petitioner union and the management of the respondent No,1 have strained relations and several proceedings are pending in the Courts of law. Respondents Nos. 2 and 3 are employees of the respondent No,1, _whereas the respondent No,4 is dismissed employee of the respondent No,1, whose case for reinstatement is pending before the Labour Court No,1, Karachi. It is alleged that respondents Nos. 2 to 4 at the behest of the respondent No,1 with collusion of the respondent No,5 had submitted an application for registration of third union, namely, Pearl Continental Hotel Hard Workers Union so as to get registered a pocket union and sabotage the referendum proceedings. It is submitted that the said third union does not qualify for the registration for want of pre-requisites. It is alleged that the respondent No,2 proposed General Secretary of Pearl Continental Hotel Hard Workers Union is civil servant employed as Police Constable in Sindh Police, as well as he is employed in Hotel since about 10 years, as such he is in double employment, which is a misconduct. It is alleged that the respondent No,2 is pressurizinng the members and office-bearers of the petitioner union to join newly proposed union and is obtaining forced resignations from the members of the petitioner union.
Members of the petitioner union complained to the union, which has protested to the management of the respondent No,1 as well as to the Registrar of Trade Unions, Sindh, Karachi but they did not listen. It is submitted that the respondent No,2 is General Secretary and the respondent No,4 is Social Secretary and the respondent No,3 is an active member of newly proposed union and all the respondents with collusion with each other are committing acts of unfair labour practice and are obtaining resignations from the members of petitioner union by putting force on them for joining the newly formed union of the respondents Nos. 2 to 4. It is prayed that the acts of respondents be declared as acts of unfair labour practice on the part of respondents, to restrain the respondents Nos. 1 to 4 from committing further acts of the unfair labour practice by tendering threats and take resignations from the members and office-bearers of the petitioner union and force them to join the newly proposed union and may further be pleased to restrain the respondent No,5 to carry on the proceedings initiated by the respondent No,2 incompetently- being a police man and/or to take an appropriate action which deems fit and proper under-the circumstances of the case.
3. On presentation of the petitioner ad interim prohibitory order was passed on 20-9-2003, whereby the Registrar of Trade Union Sindh, Karachi was directed not to register the trade union, of which application has been submitted by the respondents Nos. 2 to 4 and respondent No,1 was further directed not to compel the members and workers and office- B bearers of the petitioner union to resign from their union and to join the union of the respondent No,2 Hafeez-ur-Rehman till the next date, which after filing of comments and counter affidavit by the respondents and rejoinder by the petitioner, was confirmed-by order, dated 14-1-2004 by this Bench of Commission.
4. The respondent No,1 filed reply statement with preliminary legal objections on main petition. The legal objections raised by the respondent No,1 are that the petitioner union has not been certified as CBA, as earlier certificate of CBA was issued in 1970 in favour of Intercontinental Hotel Workers Union.. Thereafter no secret ballot has been held and no CBA certificate has been issued to the petitioner union. The CBA is valid only for two years and the said status of the petitioner union as CBA expired after two years. As such the petitioner union cannot claim the status of CBA thereafter.
The next legal objection of the respondents is that no injunction can be issued against the Registrar of Trade Unions, Sindh, Karachi, being a public functionary, to restrain him from performing his public functions, as such the petition is not maintainable. It is submitted that the Registrar of Trade Unions, Sindh, Karachi has filed application under section 10 of the I.R.O., 1969 before the Labour Court No,5 Karachi for cancellation of registration of the petitioner union and till same is decided, the petitioner union cannot initiate the 'proceedings. Respondent No,1 denied the allegation of petitioner union that relations of the petitioner union and the respondent No,1 are strained. It is submitted that the management of the respondent No,1 has been insisting the petitioner union to get a valid CBA certificate after secret ballot in accordance with law. The respondent No,1 has denied the allegation of the petitioner union, regarding its collusion with the respondents Nos. 2 to 4 and the respondent No,5 and moving of application for registration of third union, namely, Pearl.
Continental Hotel Hard Workers Union at its instance. It is submitted that it is for the Registrar of Trade Unions, who is to be satisfied after exercise of due diligence and verification of the facts that the trade union has complied with all the requirements of the provisions of I.R.O., 2002, and he alone is to determine if the union is to be registered. It is submitted that the respondent No,2 is employed as a Waiter with the respondent No,1 since last 10 years and the question whether he is in double employment is outside the ambit of section 49(4)(e) of the I.R.O., 2002. Respondent No,1 denied forcing the members of the petitioner union to resign to join the newly formed union.
Respondent No,1 denied to have committed any unfair labour practice or intend to commit any act of unfair labour practice. It is denied that any signatures have been obtained forcibly in the Hotel premises. It is submitted that Pearl Continental Hotel Karachi Workers Union and Pearl Continental Hotel Karachi Employees Union are more or less two faces of one coin though separately registered. No sooner a third union, namely, Pearl Continental Hotel Hard Workers Union was formed and applied for registration, these two unions including the petitioner union, started ringing alarm bells, as they are apprehending that if this union is registered and a secret ballot is conducted in which they, the earlier two unions are liable to be defeated as to file present petition to restrain respondent No,5 to perform his duty who is public functionary.
5. Respondents Nos. 2, 3 and 4 filed comments with preliminary legal objections, regarding maintainability of the petition. It is submitted that the petitioner union has no cause of action to file the petition, as the workers of respondent No,1 have legal right guaranteed to them to form any trade union under section 3(a) of the I.R.O., 2002 and to join any trade union of their own choice within the establishment. The petitioner union has no locus standi to interfere in the matter of registration of a trade union, which has been formed in the respondent No,1 establishment. No injunction can be passed against the Registrar of Trade Unions, Sindh, Karachi, who is a public functionary under section 56 of Specific Relief Act, 1877. No specific act of unfair labour practice has been mentioned by the petitioner in the petition. The Registrar of Trade Unions has moved application under section 10 of the I.R.O., 1969 for cancellation of registration of the petitioner union, which is pending before the Labour Court No,5, Karachi, as such the petitioner has no locus standi to file the present petition, which is not maintainable. Respondent No,2 was bona fide and paid member of the petitioner union since, 1995 and at that time the petitioner union did not raise any objection. The allegations in the petition are false and denied. It is submitted that the respondent No,3 is dismissed worker and his case is pending before the Labour Court No,5, Karachi, as such he is deemed to be a worker. They have denied to have any collusion with the respondents Nos. 1 and
5. It is stated that they are office-bearers of newly formed trade union, namely, Pearl Continental Hotel Hard Workers Union and the application for its registration is pending since 16-8-2003. It is submitted that it is sole discretion of the Registrar of Trade Unions either to cancel or register the trade union. The allegations of the petitioner union about forcing their members to resign from the petitioner union and to join newly formed trade union are denied. The respondents Nos. 2, 3 and 4 also denied that any act of unfair labour practice is committed. It is submitted that no specific instance has been mentioned. It is submitted that present petition has been filed with mala fide intention to restrain the Registrar from performing his lawful functions and to blackmail the respondent No,1 and to forelock the formation and the registration of trade union, so as to deprive the workers from their legal right to form a trade union, which is conferred on them under section 3(a) of the I.R.O., 2002.
6. Respondent No,5 filed legal objections on maintainability of the petition. It is submitted that this Commission has no jurisdiction to entertain the petition against the matter of registration of Trade Union, which is purely within the domain and competence of the Registrar of Trade Unions, who is competent to decide. It is submitted that proceedings for registration of trade union in the establishment of the respondent No,1 by the Registrar of Trade Union does not amount to unfair labour practice, as such this Commission has no jurisdiction. It is submitted that this Hon'ble Commission is not Appellate Authority against the decision of Registrar of Trade Unions. It is submitted that the respondent No,5 is a public functionary, as such it cannot be restrained from performing his lawful duties. The only grievance to the petitioner union, which appears from the perusal of the entire petition is that Pearl Continental Hotel Hard Workers Union may not be granted registration certificate. It is submitted that the registration of trade union can be challenged before appellate forum and not before this Commission. The respondent No,5 has denied the allegations of the petitioner union levelled in the petition.
7. Ch. Latif Saghar, Advocate for the petitioner union filed reply on legal objections of respondent No,5, stating therein that the petition' has been correctly filed under section 49(4)(e) read with sections 63/64 of the I.R.O., 2002 read with Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973, as such the objections of the respondent No,5 are not based on correct appreciation of provisions of law. It is submitted that it is not a simple case of registration, but involves acts of unfair labour practice. Respondent No,2 is a civil servant employed as constable in Police Department, as such he does not qualify to be member or office-bearer of the union under the provision of I.R.O., 2002. It is submitted that the respondent No,2 with collusion of the respondent No,5 is threatening, intimidating, coercing and pressurizing the office-bearers and members of the petitioner union to disassociate from the petitioner union and to join newly formed pocket union of the respondent No,1, and the application for its registration is under the process before the Registrar of Trade Unions. Sindh, Karachi. It is submitted that monthly pay bill of the Police Constable, of Malir Town, Karachi for the month of August, 2003, showing respondent No,2 at Serial No,167 was filed with affidavit-in-rejoinder. It is submitted that the respondent No,5 is subordinate of Registrar of Trade Unions, Sindh, Karachi and is acting on behalf of the Registrar of Trade Unions, as such he has been correctly made party.
8. Mr. Khalid Imran, Advocate for respondent No,2 filed a statement on 31-3-2005 that the respondent No,2 has applied to the Registrar of Trade Unions, Sindh, Karachi to withdraw the application for registration of Pearl Continental Hotel Hard Workers Union, of which the respondents Nos. 2 to 4 are office-bearers, as such in view of withdrawal application no cause of grievance is continuing to the petitioner union and along with statment copy of application for withdrawal of the application for. Registration of the trade union, dated 15-2-2005 is filed. Ch. Latif Saghar, Advocate for petitioner filed objections on this statement, stating therein that the petition has not become infructuous. It is submitted that there are two parts of proceedings under the law vested to this Honourable Commission. (1) the act of unfair labour practice already committed which has to be determined by this Honourable Commission and (2) the apprehended act to be restrained under the law. The first part of the jurisdiction of this Honourable Commission yet remain to be determined by this Commission, for which affidavit-in-evidence has been filed. Regarding jurisdiction of this Commission about apprehended acts of unfair labour practice, to this effect the prima facie case has been made out and this Honourable Commission has been pleased to confirm the stay order. Merely filing of withdrawal of application for registration of the trade union by the respondent No,2, will not make the petition as infructuous and the matter requires evidence of the parties to be recorded.
9. I have heard arguments of Ch. Latif Saghar, learned Advocate for the petitioner, Mr. Faisal Mahmood Ghani, learned Advocate for respondent No,1 and Mr. Khalid Imran, learned Advocate for the respondent No,2 on statement filed by Mr. Khalid Imran, Advocate for the respondent No,2 that since the respondent No,2 has made application for withdrawal of registration application of Pearl Continental Hotel Hard Workers Union, dated 15-2-2005 annexed with statement and Registrar of Trade Unions, Sindh, Karachi also has disposed of the application for registration of Pearl Continental Hotel Hard Workers Union as having been withdrawn, photo copy of order/letter, dated 21-6-2005 he has placed on record, no cause of action continues to the petitioner union.
10. Mr. Khalid Imran, learned Advocate for the respondent No,2 has contended that the petitioner union has filed this petition with main object and prayer that Pearl Continental Hotel Hard Workers Union, for the registration whereof the respondent No,2 had made an application may not be registered by the Registrar of Trade Unions, Sindh. Since the respondent No,2 had made application, dated 15-2-2005 to the Registrar of Trade Unions, Sindh, Karachi for withdrawal of the application for registration of the union and the application for registration of Pearl Continental Hotel Hard Workers Union has beta disposed of as withdrawn by the Registrar of Trade Unions, Sindh vide letter, dated 21-6-2005, no cause of action survives to the petitioner union, as such the petition has become infructuous and tenets of justice demands that unnecessary litigation shall be buried. It is submitted that prayer made by the petitioner cannot be granted as the respondent No,2 has withdrawn his application for registration of Pearl Continental Hotel Hard Workers Union and the application for registration of the said union has been disposed of as withdrawn by the Registrar of Trade Unions, Sindh, Karachi.
11. Ch. Latif Saghar, learned Advocate for the petitioner union has contended that the petitioner union has filed legal objections on the statement filed by Advocate for the respondent No,2. It is submitted that stay order has been confirmed and affidavit-in-evidence has been filed by the petitioner union and this Bench of Commission cannot review the order of confirmation. It - is submitted that the statement filed by Advocate for the respondent No,2 may be disposed of with the main petition after recording evidence.
12. Mr. Faisal Mahmood Ghani, learned Advocate for the respondent No,1 submitted that the respondent No,2 has withdrawn the application for registration of Pearl Continental Hotel Hard Workers Union and the Registrar of Trade Unions, Sindh, Karachi has disposed of the application for registration of the trade union filed by respondent No,2 as withdrawn, as such the proceedings of the present petition have become infructuous. He also contended that no injunction can be granted against a public functionary by this Commission. In support of his contention he has placed his reliance on a judgment of Honourable High Court of Sindh in case of Syed Mushtaque Hussain Shah v. Riaz Muhammad Hazarvi and another reported in PLD 1978 Kar.
612.
13. Mr. Khalid Imran, learned Advocate for the respondent No,2 in reply to the arguments of Ch.Latif Saghar, learned Advocate for the petitioner union has contended that the order, dated 14-1-2004, whereby stay order was confirmed itself speaks that observations are tentative in nature. After disposal of application for registration of Pearl Continental Hotel Hard Workers Union filed by the respondent No,2 by the Registrar of Trade Unions, Sindh, Karachi as withdrawn, no cause of action exists to the petitioner union.
14. I have considered arguments of Mr. Khalid Imran, learned Advocate for the respondent No,2, Ch.Latif Saghar, learned Advocate for the petitioner union and Mr. Faisal Mahmood Ghani, learned Advocate for the respondent No,1 and have gone through the petition, reply statement filed by the respondents, statement filed by Mr. Khalid Imran, Advocate for the respondent No,2 to dispose of the petition as infructuous and objections filed by Ch. Latif Saghar, Advocate for the petitioner union.
15. In the present petition the prayer of the petitioner union is to restrain the respondents Nos.1 to 4 from committing further acts of unfair labour practice by tendering threats. And take resignations from members and office-bearers of the petitioner union and force them to join the newly proposed union and may further be pleased to restrain the respondent No,5 to carry on the proceedings initiated by the respondent No,2. Through statement, dated 31-3-2005 Advocate for respondent No,2 has annexed an application, dated 15-2-2005, which was moved by the respondent No,2 as General Secretary and President of Pearl Continental Hotel Hard Workers Union to the Registrar of Trade Unions, Sindh, Karachi, for withdrawal of application for registration of Pearl Continental Hotel Hard Workers Union, which was accepted by the Registrar of Trade Unions, Sindh, Karachi and vide letter, dated 21-6-2005 he disposed off the application for registration of Pearl Continental Hotel Hard Workers Union as having been withdrawn.
Thereafter no cause of action survives to the petitioner union to proceed with this petition.
Therefore, it shall be futile exercise to record the evidence of the parties, as even after recording the evidence the prayer as is made in the petition cannot be granted. In view of the fact that application for registration of Pearl Continental Hotel Hard Workers Union has been disposed of as having been withdrawn by the Registrar of Trade Unions, Sindh, Karachi vide his order, dated 21-6- 2005, therefore, the petition having become infructuous as the cause of action does not survive, it is hereby dismissed.
' Announced in open Court.