' SHAHID ANWAR BAJWA, J.--- This writ petition has been filed by Messrs Dreamworld Family Resort.
Arrayed as Respondent No,2 is Dreamworld Family Resort Peoples Workers Union. It was stated in the petition that petitioner is a project of Dreamworld Limited, which is a company incorporated under the Companies Ordinance, 1984. It was further stated that Dreamworld Family Resort a club and therefore does not fall within the definition of industry as defined in the Industrial Relations Ordinance, 2002. It was stated in the petition that the petitioner employed workers for providing recreational facilities to its members. Some workers were proceeded against for misconduct and they filed a case before the National Industrial Relations Commission, which case is pending as Case No,4A(38) of 2008-K. It was further stated that on 28-5-2008 the workers who had filed petition before the NIRC were dismissed after due disciplinary process. Letters of dismissal are dated 28-5-2008 and they are stated to have been sent through registered post on the same day.
An application for registration of Trade Union was filed. When the application was filed, Registrar of Trade Unions wrote letter on 2-6-2008 to the employer requiring the employer to provide information regarding name, parentage, department etc., in respect of each member/Office Bearer of the Union. On 6-6-2008 a letter was written by the petitioner to the Registrar Trade Unions (Respondent No,1) wherein firstly it was stated that the petitioner establishment is not industry as defined in the I.R.O. 2002 and thereafter it was stated that members as well as office-bearers had been proceeded against and were dismissed for misconduct on 28-5-2008. Therefore, formation of the Union was ab inito, void and illegal. It is not out of place to mention that in the letter written on 2-6-2008 it had stated that application for registration of Trade Union was received on 26-5- 2008. On 11-6-2008 Registrar wrote to the employer and pointed out to him provisions of section 1(4)(a) to (g) and stated that since name of the club is not stated in the above subsection therefore the petitioner's establishment is "industry" as defined in the Industrial Relations Ordinance, 2002. This letter was replied to and ultimately on 17-6-2008 Registration Certification was issued to the union which registration certificate has been impugned in this petition.
2 Learned counsel for the petitioner made the following submissions:---
(1) Learned counsel referred to the definition of 'establishment' contained in section 2(xi) and definition of 'industry' contained in section 2(xvii) of the I.R.O, 2002 and relying upon Managing Committee, Punjab Club, Lahore v. Registrar, Trade Unions Lahore Region, Lahore and another, 1993 PLC 543, Rawalpindi Club, Rawalpindi v. Registrar of Trade Unions and 2 others, 1989 PLC 760 and Syed Shahid Abbas and 36 others v. The Chenab Club (Guarantee) Limited, Faisalabad through its President and another, 2008 PLC 58 and Aftab A. Chaudhry, Chairman Managing Committee Punjab Club, Lahore v. Registrar of Trade Unions, Lahore Region, Lahore and another, 1996 PLC 87 contended that activity of the club does not fall within the definition of industry.
(2) That even those organization which do not fall within the scope of exempt in section 1(4)(a) to
(g) of the I.R.O, 2002 will be covered by the Ordinance only if they fall within the definition of industry and establishment as contained in the Ordinance of 2002.
(3) That under section 6(2)(a) read with section (6)(1)(d) all the members of the union must be in the employment of the establishment and at least 75% of the office-bearers must be in the employment of the establishment. Employment of all the office-bearers who constituted all the membership of the union was terminated vide letters dated 28-5-2006 which were sent by registered post on the same day and therefore, they are no longer employees and therefore no longer workmen and therefore no longer entitled to be member of the union in question.
3. Mr. Muhammad Ashraf Hussain Rizvi, learned counsel for respondent No,2 made the following submissions:---
(1) That the petitioner club is part of a company and is making profit as indicated from its annual accounts for the year 2007 and 2008. It has itself declared that it has received the best business association award.
(2) Reliance on Chenab Club's case is misplaced because that case in turn relied upon Islamabad Club v. Punjab Labour Court No,2 and others PLD 1980 SC 307, in which a contrary finding had been given by the Supreme Court. It had been held in that case that a club is a commercial establishment as defined in the Industrial and Commercial Employment (Standing Orders)
Ordinance 1968.
(3) That once a Trade Union had been registered its registration cannot be challenged in writ petition.
(4) In any case employer has no role in the process of registration of Trade Union. Learned counsel relied upon a plethora of case-law on this point which I shall refer in due place.
(5) That it is clear that letter dated 28-5-2009 is dismissal letter. This is a question of fact whether letter was sent or not. Even if it is assumed that the letter was sent it does not mean that it was received also on the same day. These are in any case questions of fact which cannot be decided in constitutional jurisdiction.
4. Learned State counsel supported the impugned order. While exercising his right of reply learned counsel for the employer submitted that employer has role in the registration of Trade Union and he also relied upon plethora of case law to which again I shall refer in their due place.
5. I have heard learned counsel and considered such submissions made by the learned counsel and have gone through the record.
6. I will first take up question of maintainability of the petition. As stated above, both the learned counsel relied upon a galaxy of case law. All of them (except two) were considered by this Court in International Textile Ltd. v. Registrar of Trade Union and 3 others C.P. No,S-75 of 2009 decided by this Court on 16-1-2009. 'In conclusion it was held as under:---
(10) The principles that seem deducible from the above case-law appear to be as follows:---
(i) Law relating to Trade Unions to be liberally and beneficially construed. This principle must irrigate every vein of industrial and labour law and much more so in case of laws relating to Trade Unions because Trade Union are one facet and just one sprout of freedom of association which right is enshrined in Article 17 of our Constitution.
(ii) The Registrar cannot act mechanically and he must first conduct inquiry to satisfy himself as to meeting of various conditions and requirements laid down in respect of Registration by the Industrial Relations Act, 2008.
(iii) The question whether a proper inquiry was held or not is a jurisdictional fact which can be gone into by High Court in exercise of Constitutional jurisdiction and even if it was not possible for the High Court to itself embark upon an enquiry in that regard, the matter could be referred to relevant Authority for further inquiry of the matter or to the Registrar for further inquiry. However no hard and fast rule had been laid down in respect of directing the manner in which inquiry is to be conducted by the Registrar.
(iv) Nothing contained in the Industrial Relations Act prevents the registrar from seeking assistance either from the employer concerned or the union or unions formed by the workmen in the same establishment. However, the Registrar is not duty bound to seek assistance either of the employer or such unions.
(v) Matter of registration is always between the union applying for registration and the Registrar and others including pre-existing registered Trade Unions and employers would have no say in the matter.
(vi) Neither the employer nor a Trade Union already existing in the same establishment, can claim locus standi 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.
(vii) If a Trade Union is registered there is no immediate or direct injury caused by the order of registration to the employer or other Trade Union or unions. Since being an aggrieved party is the pre-requisite and condition precedent for maintaining a constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, neither the employer nor any other union or unions can be, at least, in law considered aggrieved person so as to hold them entitled to maintain a grievance petition against mere act of registration of a Trade Union. However they have a right to bring any contravention of relevant legal provisions to the notice of the Registrar. Apart from that no legal right of the employer or any other union or unions is infringed by the act of registration.
(viii) An Industrial Disputes under the provisions of the Act of 2008 can only be raised by Collective Bargaining Agent. No doubt a registered Trade Union under section 24 of the Act can aspire to become a Collective Bargaining Agent but not without notice to the employer and when that occasion arises, the employer can certainly raise the objection as to the legality of the registration of the Union...And mere registration of Trade Union will not pre-empt employer from raising appropriate objection as to its legality or that its members are not workmen. Thus both the employer as well other union or unions have locus standi to challenge registration of a Trade Union but at the time Registrar initiates steps for determination of collective bargaining agent. They cannot do so at any earlier stage. At that stage when challenge is raised all legal objections including objection as to applicability of the Act of 1968 as well as to legality of registration of the Trade Union.
7. First case not referred in that judgment is Atlas Autos Group Labour Union through General Secretary v. Registrar of Industry-Wise Trade Unions and another, 2000 PLC 93. Facts were that upon application for registration of Trade Union, objections were filed by rival Trade Union. Registrar issued notice to the objector. When the objector did not turn up even during second opportunity, Registration ordered that Union be registered. Entry regarding registration was made and formal certificate was put up to Registrar for signatures. However Registrar instead of signing the certificate observed that an application for adjournment had been received from the objector, set aside ex parte order and ordered that application for registration be listed for hearing. This order was challenged in writ petition. The Division Bench observed that "we are doubtful whether Respondent No,1 after having passed a clear order that a formal certificate be issued still retained the power to recall such an order" and then noted the other contention that " an Authority passing quasi judicial functions had...The power to recall exparte orders passed by it" held that in view of Essa Cement Industries Workers Union v. Registrar of Trade Unions, 1998 PLC 500 that rival Trade Union had no locus standi to maintain constitutional petition. Second is unreported case of United Workers Union Al Abbas Sugar Mills Ltd. (CBA) v. Registrar of Trade Union and 3 others C.P. No,S-22 of 2008 decided by this Court. It was a constitutional petition by a Trade Union against registration of third union allegedly in violation of requirements laid down in section 7(2)(b) of the Industrial Relations Ordinance, 2008. On the question of maintainability of petition it was held as under:--- "Coming to the objection raised by the learned counsel for respondent No,3 as to the locus standi of the petitioner to file and maintain the instant petition, no doubt the apex Court in the case of Essa Cement Industries Union (supra) has concluded that neither the employer nor the Trade Union already existing in the same establishment can claim locus standi 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 Registrar was not considered before such decision. However, at the same time it was held that registration of a Trade Union may be cancelled in case it has contravened or has been registered in contravention of any of the provisions of the Industrial Relations Ordinance, as it would be beyond the competence of the Registrar to pass such order and such act are not immune from scrutiny of high Court in exercise of its constitutional jurisdiction. It is also by now well settled proposition of law that constitutional remedies are always available where any statutory or executive Authority entrusted with responsibility for taking certain action in accordance with law has not done so."
8. There cannot be any cavil with the proposition of jaw propounded in this Authority. But the aspect that was not argued was that how a Trade Union (or for that matter even an employer) can be aggrieved by mere act of registration of a Trade Union. One of the essential requirements for maintenance of writs in the nature of certiorari, mandamus or prohibition is that application (or as is called, petition) must be by an aggrieved person. Grievance has been defined in Black's Law Dictionary as follow: "In Labour law a complaint filed by an employee, or by his or her union representative, regarding working conditions and for resolution of which there is procedural machinery provided in the union contract. An injury, injustice or wrong which gives ground for complaint because it is unjust, discriminatory and oppressive." A grievance has been defined in Words and Phrases, Permanent Edition, Volume 6 as under: "A grievance is an injury or wrong done which gives ground for complaint because it is unjust and oppressive, and a "party aggrieved" is one who suffers from injustice. "Persons aggrieved" are those who suffer from special injury different from that which affects them and the public generally." As has been held by this Court in Bata Shoe Company (Pakistan) Ltd. v. Registrar of Trade Unions of Sindh and 2 others PLD 1978 Kar.
567 and a number of authorities thereafter neither the employer nor a registered Trade Union can be an aggrieved person by mere act of registration of a Trade Union. Therefore this writ petition is held to be not maintainable and is liable to be dismissed.
9. In view of extensive arguments led by the learned Counsel on the point whether club is an industry or not, it may be appropriate to say a few words on this aspect of the controversy. One of the first case in respect of a club is case of Islamabad Club v. Punjab Labour Court No,2 and others, PLD 1980 SC 207. Respondent was employed as a bar Clerk in the Club. After charge sheet for misconduct and inquiry he was dismissed from service on 29-7-1975. His grievance petition was dismissed by the Labour Court and so was the appeal by the Tribunal. However the High Court after holding that employee was not given notice of all the charges found against him by the Inquiry Officer. The Club went to the Supreme Court and question before the Supreme Court was whether the Industrial and Commercial Employment (Standing Orders) Ordinance was applicable to the Club and answer of the Supreme Court was in the affirmative. It is to be noticed that question of applicability of the Industrial Relations Ordinance was not at all raised or involved in this case.
9-A Next in chronological order is the case of Rawalpindi Club, Rawalpindi v. Registrar of Trade Unions and 2 others, 1989 PLC 760 by Single Bench of Lahore High Court. In this case the learned judge first analysed definition of industry without any reference to activities of a club and concluded as under:--- "The following rules emerge laying down the test for determination of a fact whether a human activity or human enterprise is industry or not: "The following rules emerge laying down the test for determination of a fact whether a human activity or human enterprise is industry or not:
(i) That the word 'industry, business, trade, manufacture are not to be given dictionary meanings.
These words are of a wide reach and no hard and fast rules can be laid down as to whether an activity or enterprise is industry or not.
(ii) 'Industry' is a systematic human activity or enterprise in which labour is employed by the employer for the purpose of conducting business as a mean of livelihood earning profit or for rendering material service to the community with the active participation of the workman. In this activity labour and service is provided by workman while the capital is provided by the employer.
(iii) The human activity must not be casual or for recreation. It must not be for a pleasure. It must be carried out by the workmen and employer for the purpose indicated above.
(vi) The human activity is carried out by the workmen at the behest of their masters who are to undertake the take of organization and are to provide the necessary means for carrying out the activities.
(v) The earning of the profits in this activity is not essential. It may even provide material service to the community in an organized manner."
9-B Thereafter his lordship referred to Memorandum of Association if the club (it is a company incorporated under the Companies Act, 1913) and then constitution of its Executive Committee and then held as under:--- "Club provides recreational facilities. It has tennis courts,cricket ground and provides arrangement for indoor games, billiard room, card room and also some residential facilities. It had a large membership and the activities of the club which related to the facilities for pleasure, and amusement of its members although the outside members can come in order to enjoy these facilities but they can only come at the invitation of the members, therefore, it can be safely said that the activities of the club are neither analogous to trade, business, calling nor they provide any service to the community.
"From examination of the Constitution of the Club, membership and the facilities, it provides to its members, it can be said without any contradiction that it is a member club. The activities of the Club are exclusively for the pleasure and recreation of its own members. It does not undertake any human activity which may fall within the ambit of business, trade, manufacture, calling , services, employment or occupation. I am, therefore, of a clear view that it cannot be treated as an 'industry' and the Registrar Trade Unions, therefore, had no jurisdiction to entertain this application or register a union of workmen of this Club as a Union under the Ordinance."
9-C Thereafter the Court held that the club is incidental to and connected with the armed forces of Pakistan and therefore the Industrial Relations Ordinance is not applicable to it. This narration, in my view makes it clear that in this case nature of activities of club were brought into focus and no pro and contra arguments on this point were led.
10. The next case is Managing Committee the Punjab Club Lahore v. The Registrar or Trade Unions, Lahore Region, Lahore and another, 1993 PLC 543. It was claimed by the club (which is a society registered under the Societies Registration Act, 1860) they came to know about registration of the Trade Union only when a charter of demands was received by them. It was pleased that the club does not fall within definition of industry as given in section 2(xiv) of the Industrial Relations Ordinance, 1969. The learned judge referred to definition of club in Black's Law Dictionary, Ballentine's Law Dictionary, American Jurisprudence, Halsbury's laws of England, Corpus Juris Secundum, Aiyar's Judicial Dictionary, Stroud's Judicial Dictionary and thereafter held as under:--- "On the analysis of the definitions, it will appear that a 'club' is generally understood not as a commercial or industrial organization but is in the nature of a second home to its members. It is especially so in the case of a private club. The income which the club generates is from contributions of its members and is not outcome of any business activity. The services being rendered by a club are confined to its members and are more in the nature of those which are enjoyed by a person in his own house. No services are rendered by a `club' to the public in general and to the community at large or even a section thereof. It is therefore, difficult to agree with. M.
Asghar Malik Advocate that merely because material services are being provided by a club it should be considered as an industry."
11. 1996 PLC 87 is the same judgment as 1993 PLC 543, albeit under a different heading. The last judgment in the series is Syed Shahid Abbas and 36 others v. The Chenab Club (Guarantee)
Limited, Faisalabad through its President and another, 2008 PLC 58. This judgment has merely relied upon Punjab Club's case (Supra) and as has been rightly argued by Mr. Rizvi has, it is said with respects, misconstrued dicta of the Supreme Court in Islamabad Club's case (supra).
12. The above narration shows that as far as Pakistani jurisdiction is concerned, the question whether a club falls within definition of Industry' or not has yet been really thrashed out. As far as, Indian jurisdiction is concerned Secretary Madras Gymkhana Club Employees' Union, The Management of the Gymkhana Club, AIR 1968 SC 554 contains as exhaustive discussion on this question. The relevant part is as under:--- "(30) This ends discussion of what is an industry. We are not in a position to consider whether the Madras Gymkhana Club fulfills the tests laid down by this Court and accepted here by us. In support of the claim on behalf of the employees Union, our attention was drawn to two decisions of the Calcutta High Court relating to the Bengal Club Ltd. v. Santi Ranjan Somaddar AIR 1958 Cal. 545 and Royal Calcutta Golf Club Manzoor Union v. State of West Bengal, AIR 1956 Cal.
550. Both decisions are by a learned Single Judge. They were cases of incorporated companies running clubs for profit and as business. There are however, observations which are clearly obiter, that even a nonproprietary member's club is an industry. Founding itself on those observations the Union contends that the club in the present case must also be treated as an industry. In fine the claim is based on the following consideration: (a) that the club is organized as an industry is organized on a vast scale with multifarious activities, (b) that facilities of accommodation, catering sale of alcoholic and non-alcoholic beverages, games etc. Are provided,(c) that the club runs parties at which guests are freely entertained and (d) that the club has established reciprocal arrangements with other clubs for its members. In our opinion none of these considerations is sufficient to establish that the club is an industry within the Industrial Disputes Act.
(31) We cannot go by the size of the club or the largeness of its membership or the number or extent of these activities. We have to consider the essential character of the Club activity in relation to the definition of industry. As we said before the definition is in two parts. The first part which we called the denotation or the meaning of the word shows what an industry really is and the second part contains the extended connotation to indicate who be considered an integral part of the industry on the side of employees. Beginning with the second part, it may at once be conceded that the activity of the club is conducted with the aid of employees who follow callings or avocations. Therefore if the activity of the employees is within the realm of industry, the answer must be in favour of the Union. But taking the first part of the definition it may also be said that the club does not follow a trade or business. Its activity cannot be described as manufacture and the running of clubs is not the calling of the members or its managing committee. The only question is, is it an undertaking?
(32) Here the appearances are somewhat against the club. It is not of any consequence that there is no profit motive because that is considered immaterial. It is also true that the affairs of the club are organized in the way business is organized, and that there is production of material and other services and in a limited way production of material goods mainly in the catering department. But these circumstances are not truly representative in the case of the club because the services are to the members themselves for their own pleasure and amusement and the material goods are for their consumption. In other words, the club exists for its members. No doubt occasionally strangers also take benefit from its services but they can only do so on invitation of members. No one outside the list of members has the advantage of these services as of right. Nor can these privileges be bought. In fact they are available only to members or through members.
(33) If today the club were to stop entry of outsiders, no essential change in its character vis-a-vis the members would take place. In other words, the circumstances that guests are admitted irrelevant to determine if the club is an industry. Even with the admission of guests being open the club remains the same, that is to say, a member's self-serving institution. No doubt the material needs or wants of a section of the community is catered for but that is not enough. This must be done as part of trade or business or as an undertaking analogues to trade or business. This element is completely missing in a members' club.
(34) It is contended that, although there is no incorporation as such the club has attained an existence distinct from its members. It may be said that members come and members go but the club goes on for ever. That is true in a sense. We are not concerned with members who go out. The club belongs to members for the time being on its list of members and that is what matters. Those members can deal with the club as they like. Therefore, the club is identified with its members at a given point of time. Thus it cannot be said that the club has an existence apart from the members.
(35) It is said that the case of the club is indistinguishable from the Hospital case. That case is one which may be said to be on the verge. There are reasons to think that it took the extreme view of an industry. We need not pause to consider the Hospital case because the case of a members' club is beyond even the confines established by that case. In our judgment the Madras Gymkhana Club being a members' club is not an industry and the Tribunal was right in so declaring.
(36) The appeal fails and is dismissed but we make no order about costs."
13. It may not be out of place to mention that Madras Gymkhana's case has been specially overruled by the Supreme Court of India in Banglore Water Supply's case (AIR 1978 SC 548) and the Supreme Court of Pakistan in Agricultural Workers Union Baluchistan v. The Registrar of Trade Union Quetta and others, 1997 SCM R 66, has specifically approved dicta of the Supreme Court of India in Banglore Water Supply's by observing "I therefore respectfully feel inclined to agree with the interpretation of word 'industry' by the Indian Supreme Court in Nagpur Corporation and Banglore Water Supply's Case."
14. Therefore, as far as the question whether club falls within the definition of 'Industry" is concerned field is still open, the question still begs an answer, the umpires should be still out in the field and I would say stumps have not been drawn. Let it be done in an appropriate case because this petition can be disposed of on the ground of maintainability. The Constitutional Petition is therefore dismissed.