' SHAHID ANWAR BAJWA, J.--- The facts of the petition are that petitioner is a Company incorporated under the Companies Ordinance, 1984 and is running textile factories and is engaged in manufacturing and export of textile goods. Somewhere in the last quarter of 2006 some workers including office bearers of respondent No,3 left their employment by way of resignation and thus severed their bonds of relationship of employee and employer. However on instigation of some Trade Union Leaders they managed to form and prepare false declarations to the fact of alleged formation of trade union and they applied to Registrar Trade Unions for registration of. Trade Union.
The Registrar rejected the application for registration. Being aggrieved by the order of the Registrar Trade Unions an appeal was filed under section 9(5) of the Industrial Relations Ordinance, 2002.
Appeal was accepted with direction to the Registrar to decide the application for registration of the Trade Union afresh. It is stated by the petitioner that he did not know as to what happened thereafter but on 19-2-2009 General Secretary of respondent No,3 informed the petitioner with a copy of Registration Certificate dated 28-1-2009 that the Union has been registered. Immediately upon hearing it the petitioner wrote to the Registrar of Trade Unions on 19-3-2009 stating that none of the office bearers and members of the Union are actually employed by the petitioner..It was also stated that out of seven office-bearers of the Union one is a professional Trade Union Leader who had never been in employment of the petitioner's organization; one was a probationer whose employment was terminated during the period of probation and the remaining had left employment of their own free will in November/December, 2006. Since no action was taken, it is claimed, on this letter of the petitioner, this petition was filed.
2. Mr. Rafiullah learned counsel for the petitioner stated that none of the office-bearers of the Union being an employee of the petitioner's establishment falls within the definition of worker as defined in section 2(xxix) of the Industrial Relation Act, 2008. Learned counsel further submitted that it was duty of the Registrar, when he received application for registration to inform the employer and registration of a Union without such information and notice to the employer would be violative of the intent and spirit of the Industrial Laws.
3. On the other hand Mr. Khalid Imran, learned counsel for respondent No,3 made the following submissions:---
(1) That petition is not maintainable. In this regard he relied upon Essa Cement Industries Workers'
Union v. Registrar of Trade Unions, Hyderabad Region, Hyderabad and 4 others, 1998 PLC 500 and Agriculture Workers' Union, Balochistan v. The Registrar of Trade Unions, Balochistan, Quetta and others 1997 SCM R 66. The employer has no role whatsoever in the registration of a Trade Union and has no locus-standi to maintain the petition.
(2) That an application under section 25(8)(g) was filed before the Member NIRC and on 18-12- 2006 the Honourable Member had passed an order restraining the present petitioner from dismissing, terminating or taking any adverse action in respect of the employment of the petitioners (before NIRC) till the next date. Therefore, the controversy is sub judice before National Industrial Relations Commission.
(3) That the Labour Court vide order dated 31-10-2008 had remanded the matter to the Registrar Trade Unions to decide question of registration afresh. Order of the Labour Court' has not been assailed: Therefore the petitioner is barred from challenging fresh registration of the respondent No,3.
(4) The matter involves adjudication of factual controversy and factual controversies cannot be decided in exercise of Constitution jurisdiction. He relied upon Hinopak Motors v. Chairman Sindh Labour Appellate Tribunal and others 2008 PLC 89.
(5) If the petitioners are aggrieved by registration of the Union they. Can approach the Labour Court under sections 11 and 12 of the Industrial Relations Act, 2008.
(6) Mr. Khalid Imran, submitted that since question of removal from employment/resignation of office bearers of respondent No,3 is sub judice before Member, NIRC they fall within the definition of workmen as defined in section 2(xxix) of Industrial Relations Act, 2008. In this regard he relied upon un-reported judgment of the Supreme Court in case of Muhammad Ali and others v. Presiding Officer, Sindh Labour Court No,1 and others, Civil Appeal No,K-12 of 1984 decided on 15-4-1984.
4. Exercising his right of reply learned Advocate for the petitioner stated that controversy whether the petitioners had resigned or their employment had been terminated is not sub judice before the learned Member NIRC. Relying upon Karachi Customs Agents Group through President and 3 others v. Registrar of Trade Unions, Sindh 2005 PLC 51 and S.G. Fibers Employees Union v. RTU Government of Sindh and 5 others 2003 PLC 58, learned counsel contended that the writ petition is maintainable. He further submitted that since he was party in the Labour Appeal before Vth Sindh Labour Court, he has a right to maintain this petition.
5. I have considered the submissions made by the learned counsel. I have gone through the record as well as the case-law cited at the bar.
6. Can an employer maintain a Constitutional petition against registration of a Trade Union. This short question, due to tangled web of case-law spread over late 30 or so, cannot be adequately replied by a short answer. The reasons are far weightier than mere passage of certain number orbital rounds of earth around that yonder burning star: they touch upon the very, foundation of right of association. Article 17 of the Constitution of Islamic Republic of Pakistan provides as under:- -- "(17) Freedom of association.--- (1) Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality."
7. In the contest of applicability of this Article to workers and value thereof, a very significant judgment was delivered by a Single Bench of Lahore High Court in Union of Civil Aviation Employees, Lahore and another v. Civil Aviation Authority, Islamabad, through its Director General and 3 others PLD 1993 Lah.
306. In this judgment it was observed as under:--- "(13) Article 17 of the Constitution enshrines in itself one of the most important fundamental rights guaranteed by the Constitution. Although freedom of association has always been given due weight and importance but it has assumed greater significance and proportion in modern times of political awareness and industrialization. Lord Denning in his book "Road to Justice" (1955 Edition) at page 98 explains that "If men are ever to break the bonds of oppression or servitude, they must be free to meet and discuss their grievances and to work out in unison a plan of action to set things right."
(14) The impact of this right on society can well be assessed by taking into account the role which voluntary associations are playing today. Robson in "Justice and Administration Law", 3rd Edition at page 317 states that:--- "The association and co-operation of human beings in voluntary groups is one of the most important facts of social development. As life becomes more highly organized and complex, the groups formed by men and women associating freely for particular purposes increase in number, size, power and adversity. In England today, for example, it is impossible even to enumerate 'the countless thousands of voluntary associations which exist for one purpose or another...Taken in the aggregate, the voluntary associations, with membership rolls running into many millions and a huge accumulation of property, present a formidable array of power; and their activities extend into almost every field of human activity--economic, professional religious, educational, political, scientific, athletic, artistic, social and one known not what else."
(15) The importance of this right can also be visualized from the fact that it has been given due recognition by the comity of nations in its different charters and declarations. Two important documents in this behalf are the Universal Declaration of Human Rights of 1948, Article 20 of which states that everyone has the right to freedom of peaceful assembly and association; the other document being the International Covenant on Civil and Political Rights, 1966, Article 22 of which is to the similar effect. It has been said that right to form association is greatest bulwark against power in any form.
(16) Article 17 of the Constitution assures and guarantees to all citizens a right to form not only an 'association' but also a `union'. The two expressions namely, 'association' and 'union' have by now acquired definite meanings. As association is generally understood to be a combination of persons for a common purpose for which it is established. It may be a combination of persons to further the cause of art, literature, religion, sports , politics, or academic interest. It may also be for caste and community interest. In Wills' Constitutional Law, it is stated that an association, according to Cole is 'any group of persons pursuing a common purpose or system or the aggregation of purposes ' by a course of co-operative action, extending beyond a single act and for this purpose agreeing together upon certain methods of procedure and laying down in however rudimentary form, rules of common action. In Ballentine's Law Dictionary (Third Edition) at page 102 an association is defined as 'a collection of persons, who have joined together for a certain object which may be for the benefit of the members or the improvement, welfare or advantage of public of some scientific, charitable or similar purposes.
(17) Although union is also a combination of persons formed to further their interest but it is generally understood as being associated with particular groups, especially labour and trade. In Ballentine's Law Dictionary (Third Edition) at page 1317, the `union' has been defined as under:--- "Union, A labour union 21 am J Rev ed Lab $ 13.A trade union, Tracy v. Banker, 170 Mass 266, 49 NE
308. Consolidation or merger, especially of churches. 45 AM J Ist Reli Soc $78.
' According to Black's Law Dictionary (5th Edition) at page 1374, union is 'an organization of workers formed for the purposes of negotiating with employers on matters of wages, seniority, working conditions and like."
(18) It will be appreciated that Article 17 of the Constitution not only assures the right to form an association but in addition to that it also specifically/guarantees the right of formation of a union. It is well-established principle of interpretation of constitutional documents that each and every word has to be given due meaning. The use of word 'union' in addition to 'association' is clearly indicative of the importance which the Constitution attaches to the right of the workmen to form themselves into a trade union. The rationale for doing so is not difficult to understand,. Though freedom to form political parties has been held to be a highest right vesting in an individual, the right to form a union is equally important, more so in a country like ours where we are ushering into an era of industrialization and it is of utmost importance that the relation between the employers and the workers remains smooth or free from turbulence. The maintenance of industrial peace in the country is, therefore, of utmost importance. One of the methods for achieving this objective is collective bargaining between the representatives of the workmen of the employers, which can best be done by the union of workmen. It was so observed by the American Supreme Court in National Labour Relations Board v. Truck Drivers Local Union (1956) 353 U.S.
87. In New Standard Engineering Co. Ltd. v. NL Abhyankar and another AIR 1978 SC 982, it was opined that collective bargaining is the best guarantee for industrial peace."
8. The question whether what role if any does the employer have in the matter of registration of Trade Union and if a Trade Union has been registered whether the employer can maintain a constitutional petition against such registration has been a subject of numerous decisions by the High Court and the Supreme Court. While answering such question one must not lose sight of moorings of Article 17 of the Constitution: any role permitted or allowed to anyone other than the Registrar has to be treated with circumspection because if other (essentially interested in curtailing the existence of such a union) are allowed a role, a say or an interference in the process of registration, at the end of the day if may amount to shutting the doors in the face of the union itself. However since every freedom has to be enjoyed in accordance with the law and every right granted by a statute has to be within the confines, constraints and conditionalties of that law, statutory functionaries cannot be allowed to become mechanical, whimsical and capricious. A path has to be delineated by a Court between these two competing pulls.
9. A brief look at he case-law may be instructive in this regard.
(i) Essa Cement Industries Workers' Union v. Registrar of Trade Unions, Hyderabad Region, Hyderabad and 4 others 1998 PLC 500. This is a judgment by the Supreme Court. The petitioner Union was registered and was declared Collective Bargaining Agent. Respondent No,2 applied for registration. When the petitioner Union came to know of this application it raised objections both in terms of 7(2)(b) of I.R.O. (corresponding to section 6(2)(b) of the Industrial Relations Act, 2008 and which subsection requires that third union in the establishment shall not be entitled to registration unless it has at least 1/5 of the workmen employed in the establishment etc. As its members) as well as to the office bearers of respondent No,2. Nevertheless the respondents were registered as the fourth Union. Order of the Registrar was challenged in writ petition in the Sindh High Court which was dismissed. It was held by the High Court that the petitioner raised disputed questions of fact which could not be challenged in exercise of constitutional jurisdiction. The matter was taken to the Supreme Court. The Supreme Court held that Registrar cannot act mechanically and he must first conduct inquiry to satisfy himself as to meeting of the conditions laid down in section 7 of I.R.O.
Thereafter, it was held that question whether a proper inquiry was held or not was 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.
Thereafter it was observed that no hard and fast rule had been laid down in respect of I.R.O., 1969, directing the manner in which inquiry is to be conducted by the Registrar under section 7, but nothing 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. Bata Shoe Company's case (contra) was referred so was Holiday Inn Workers' Union's case (Contra) and National Beverage Employees' Union's case (Contra) were referred. Thereafter it was held that, "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.
(ii) Abdul Jamil v. Registrar Trade Unions, West Pakistan, Lahore and another PLD 1971 Lah.
220. (Lahore High Court, D.B). Registrar of Trade Unions registered a Supervisory Staff Union. One of the supervisors challenged the registration as being without lawful authority and of no legal effect.
It was held that the Ordinance directed both the manner and the remedy and since the remedy is available, writ petition was held not maintainable. The remedy referred appears to be complaint to the Labour Court under section 10 of the I.R.O.
1969.
(iii) Bata Shoe Co. (Pakistan) Ltd., Karachi v. Registrar of Trade Unions of Sindh and 2 others PLD 1978 Kar.
567. Union was registered in 1972. Change of name was sought. Registrar refused to accede to change of name holding that an Association of Officers cannot become Union of employees simply by making an amendment in the Constitution. Union went in appeal to the Labour Court which allowed the appeal. The matter went to the High Court. The relevant observations appear in paras.8 and 9 in the following words:- "(8) There is still another aspect of the matter to which my attention was invited by Mr. Ali Ahmad Fazeel, the learned counsel for the respondent that the petitioner has no locus standi to file the present petition for it was not a party to the proceedings before the lower Courts. The learned counsel invited my attention to the following passage from the Extraordinary Legal Remedies by Ferris at page 199:--- "174-175.--As a general rule certiorari will not issue at the instance of one not named as a party to the proceeding in which the judgment or order sought to be reviewed was entered. Where one not a party seeks to use certiorari, he must show that the decision sought to be reviewed is directed against him or his property in the sense that the enforcement of the decision would involve special immediate and in its effect a direct injury to his interests. But if petitioner is a party in substance though not in form, he may have the writ. It is not necessary that he be a party to the record, but only that he be interested in the subject matter upon which the record acts."
(9) The afore-said passage was approved by the Supreme Court of Pakistan in Tariq Transport Co., Lahore v. The Sargodha Bhera Bus Service and others (1). As observed by me earlier there is no immediate or direct injury caused by the impugned order to the interests of the petitioner. I am fortified in this view by a decision of the Lahore High Court reported in Abdul Jamil v. Registrar of Trade Unions, West Pakistan and another (2). This was a reverse case in which registration of a staff Union of supervisors as a Trade Union of employers was challenged on the ground that, its members were workmen and the Court declined to interfere on the ground that among others, that such a dispute can be resolved when an industrial dispute is raised by the rival Trade Union who claimed to represent workmen, in proceedings under the Ordinance itself."
(iv) National Beverage Employees' Union v. Registrar of Trade Unions, Government of Sindh and 2 others 1986 PLC 533. The bone of contention was section 7(2)(b) of the I.R.O.1969. It was the fourth Union which sought registration. Since this is a sort of seminal case, and one of the first ones on the point in issue, the relevant para. Is reproduced as under:--- "I am, therefore, of the view that petitioner has no locus standi and the relevant law does not afford any legal right to the petitioner to make a complaint in respect of registration of another Trade Union except that if there was any contravention of relevant legal provisions, the same could have been brought to the notice of the Registrar. Apart from that no legal right of the petitioner has been infringed as such it cannot file this Constitutional Petition because it has no locus standi. Moreover, this extraordinary writ jurisdiction is not to be invoked to embark upon factual enquiries or disputes with regard to facts. In this petition allegation is made that same workers are members of more than one Union. In the affidavit filed on behalf of Registrar this allegation is denied and it is further stated that those two persons mentioned in that they were genuine members of respondent No,2 and in consequence their names were cancelled from the list of National Beverage Mazdoor Union.
In any case this is a question of fact, which cannot be gone into writ petition."
(v) Messrs Khas Traders v. Registrar Trade Unions and another 1990 PLC 351 (Single Bench--Sindh High Court). This writ petition was filed by the employer against registration of the Trade Union.
Challenge of the employer was that office bearers were outsiders. Another challenge was that the Trade Union did not meet the requirement of 1/5th members under section 7(2)(b) of the I.R.O. 1969 (corresponding to Section 6(2)(b) of the I.R.A. 2008). The Court High first held that petitioner- employer did not send letter (in respect of its objections to registration) to the Registrar of Trade Unions within time and then it held that registration certificate was conclusive evidence of registration. Writ petition was dismissed. Abdul Jamil's case and Bata Shoe Company's case were referred to on the question of maintainability of writ petition. In conclusion it was held: "A registered Trade Union of workmen has as such no role vis-a-vis the employer under I.R.O. An Industrial Disputes under section 43 of the Ordinance can only be raised by Collective Bargaining Agent. No doubt, when a registered Trade Union under section 22 of the Ordinance (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 preempt employer from raising appropriate objection as to its legality or that its members are not workmen." It was also held that employer has no locus- standi to challenge registration of a Trade Union.
(vi) Ghee Corporation of Pakistan v. Registrar, Trade Unions and another 1991 PLC 207 (Lahore High Court, S.B). Registration of the Trade Union was challenged by the employer on the ground that persons forming the Union included those who did not fall within definition of workman as contained in the I.R.O.
1969. It was held that it was not possible to comply with the provisions of section 7(2) of the I.R.O.
1969 without associating in proceedings the employer and union or unions already in existence. It was held that the notice of application for registration will facilitate the inquiry in this regard.
(vii) National Development Finance corporation Staff Union (Pakistan) through General Secretary v.
Registrar of Trade Unions, Government of d and 3 others 1991 PLC 841. The bone of contention in this case again conformance to provisions of soction 7(2)(b) of the I.R.O.
1969. The Court agreed with the position in National Bank and Messrs Khas Traders' cases that it is exclusive jurisdiction of Registrar to take a decision whether a Trade Union would qualify for registration or not and High Court could not enter into such inquiry. However, since establishment had already more than two Trade Unions, the registration of a Trade Union was cancelled in constitutional jurisdiction.
(viii) Holiday Inn Workers' Union v. Registrar Trade Unions and 2 others 1992 PLC 3. It was contended that provisions of section 7(2)(b) had been overlooked. It was held while relying upon Abdul Jamil and Bata Shoe Company cases that matter of registrations 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. It was further held that law relating to Trade Unions has to be liberally and beneficially construed. However, since grievance of the petitioner Union was rejected by the Registrar without affording any hearing to it and without even adequately considering its point of view, the petition was allowed.
(ix) Government of Balochistan, Livestock Department v. Livestock Employees Union, Balochistan and 2 others 1993 PLC 13. A Trade Union was formed by Veterinary Assistants, Stock Assistants and Technical Staff of Livestock Department and another union by Beldars. The unions applied for registration and registration was declined by the Registrar. Appeals were filed by the Trade Unions before Labour Court which were accepted by the Court and Registrar was directed to register the Unions. Registration of the Unions was challenged by the Government of Balochistan and it was pleased that the members of the Union are government servants and therefore, are not we and therefore registration of the Union was without lawful authority and of no legal effect. The High Court held that the Registrar had not applied his mind to the point in issue and no notice was given to the concerned department of the government. The High Court further held that holding by the Labour Court that such employees were workmen was without authority. Registration Certificate was therefore, cancelled.
(x) Messrs Pakland Cement Limited, Karachi v. Registrar of Trade Unions, Karachi and 8 others 1994 PLC 177 (Single Bench of Sindh High Court). Registration was challenged by the employer on the ground that office bearers were not employees of the respondent's establishment. It was held that "at the stage of registration of Trade Union the employer does not come into directly and issue mostly remained confined between Trade Union and the Registrar." However, the petition was dismissed because disputed question whether the office bearers were workmen or not could not be decided in writ jurisdiction.
(xi) Burewala Textile Mills Limited, Burewala v. Registrar, Trade Unions, Multan and 3 others 1994 PLC
323. (Lahore High Court, D.B.). Registration of Trade Union was challenged by the employer in writ petition which writ petition was dismissed. Thereafter High Court Appeal (called Intra Court Appeal in Lahore) was filed. It was alleged that the Union had been registered in violation of sections 6 and 7 of the I.R.O., 1969. It was held that law does not expressly provide for right of management to join the proceedings before the Registrar but for the purpose of section 7(2) of the Ordinance, for necessary information and verification of the strength of workers, their classes and categories with identification and ancillary matters, the management may be joined in the proceedings. The management undoubtedly can question membership of the Trade Union of a person who is not employed. It was thereafter held that management is not essentially to be associated in the proceedings except for the purpose of identification. It was further observed that an employer can question legality of registration of a Trade Union at the time of it becoming Collective Bargaining Agent.
(xii) In Idara-e-Kissan v. Registrar of Trade Unions Lahore and others 1995 PLC 134, it was contended that Idara-e-Kissan is not an industry and consequently registration granted by the Registrar Trade Unions was without lawful authority and of no legal effect. The High Court held that Idara-e-Kissan is an industry and thereafter accepted the writ petition and cancelled Certificate of Registration.
The Registrar was directed to hear the employer before deciding the matter before him."
(xiii) Messrs Euro Ceramics Limited v. Registrar Trade Unions and others 1996 PLC 45 (Balochistan High Court D.B.). Office-bearers of the Union were claimed to be employees of contractor and therefore, registration of the Union was challenged by the employer. It was held by the High Court that "so far, employer is concerned, he does not come into picture at the time of registration of Union therefore, no right of hearing can be extended to him."
(xiv) B.S. Magnetic (Pvt.) Ltd., Karachi v. Sindh Labour Court No,5 and 2 others 1997 PLC 556. (Single Bench Sindh High Court). In this case registration of Trade Union was declined by the Registrar and an appeal was filed in the Labour Court. In appeal Labour Court directed Registrar to register the Trade Union. Order of the Labour Court was challenged by the employer in constitutional petition. It was held that since to be dealt with in accordance with law is inalienable right of any citizen anu therefore any citizen who feels that he has not been dealt with in accordance with the law has right to invoke jurisdiction of the High Court. When the Union applied for registration and employer received information he wrote to the Registrar pointing out defects to him. On such pointation an inquiry was conducted and the Registrar refused registration. Such order of refusal was assailed in the Labour Court and the appellant was allowed to appear as Intervenor to contest the appeal. It was held by the High Court that since the appellant had been allowed to appear before the Labour Court he had right to maintain constitutional petition. Since order was held to have been passed without proper heed to the facts, the matter was remanded to the Registrar to hold proper inquiry and decide.
(xv) Messrs Hakimsons Chemical Industries. (Pvt.) Limited, Karachi through General Manager v.
Registrar of Trade Unions (West), Government of Sindh, Karachi and another 1997 PLC 746 (Single Bench, Sindh High Court). Certificate of registration of second Union was impugned by the employer in this petition on the ground that members of the Union were not employees of the petitioner's company as their services had been terminated earlier. Bata Shoe Company's case (supra) was referred. It was held that association of employer was necessary for determining the Collective Bargaining Agent. It was held that the employer had no right to be heard when the Trade Union is being registered.
(xvi) Messrs Hakim and Sons Chemicals v. Registrar of Trade Marks 1998 PLC 122 (D.B. Sindh High Court). This was a High Court Appeal. It was held that, "employer was not required to be associated or participate in any inquiry or investigation which was to be undertaken by Registrar for verification of certain facts relevant for registration of Trade Union". It was also held that after registration of Trade Union theemployer could approach the Registrar for cancellation of registration of Trade Union. This was held to be adequate remedy and Constitutional petition was held to be not maintainable because the appellants before "invoking the Constitutional jurisdiction of this Court did not exhaust the alternate, efficacious remedy available to them under the I.R.O."
(xvii) Pakistan Engineering Council v. Registrar, Trade Unions and another 1998 PLC 477. (Lahore High Court, S.B.) A Trade Union as registered for Pakistan Engineering Council and against such registration writ petition was filed. The High Court held that Engineering Council does not fall within the definition of industry and thereafter held that since scope of section 10 of I.R.O.1969 is restricted as' it is only the Registrar who can make a complaint and no one else and where the Registrar is not convinced with the claim of employer since he would certainly not make any complaint to Labour Court employer would be left with no remedy and therefore, the constitutional petition would be maintainable. It was further observed relying upon Ghee Corporation of Pakistan's case (supra) that even where a notice is not specifically provided in any statute before taking an action it is to be read in every law and consequently it was held that the employer should be associated.
(xviii) Hinopak Motors Limited v. Chairman, Sindh Labour Appellate Tribunal and others 2000 PLC 89.
(Sindh High Court D.B). Order of the Registrar Trade 'Unions were held to be a judicial pronouncement.
(xix) Habib Sugar Mills Ltd., through Manager v. Registrar of Trade Unions, Government of Sindh and another 2001 PLC 441. (Sindh High Court, Single Bench). Although there is no discussion regarding maintainability of Constitutional Petition in this judgment, registration of the Union was quashed for being violation of section 7 of the I.R.O. 1969 on a Constitutional petition filed by the employer.
(xx) S.A. Brother (Pvt.) Ltd. Through General Manager v. Registrar Trade Unions, Islamabad 2002 PLC 102 (Single Bench Lahore High Court). Registration certificate and Collective Bargaining Agent Certificate of the Union were challenged by the employer. After referring to Messrs Khohinoor Tea (Pvt.) Limited's case and Ghee Corporation's case which had laid down that joining of the employer in proceedings for registration of a Trade Union was necessary it was observed that both judgments have been given in the background of their peculiar facts. Thereafter Essa Cement's case was referred to the effect that employer has no locus-standi to challenge registration certificate only on the ground that it had not been joined in the proceedings.
(xxi) S.G. Fibers Employees Union v. RTU Government of Sindh and 5 others 2003 PLC 58. Trade Union had been registered and what the eniployer has questioned was that thorough probe for the purpose of section 7(2)(b) of I.R.O. 1969 had not been conducted. Writ petitions were filed to quash registration of the Unions. Almost the entire case-law was referred to in this judgment. It was held that the Registrar must pass a speaking order. Reference was made to Essa Cement's case and it was observed that when the High Court itself could not hold inquiry it can refer the matter to the Registrar for further inquiry. It was further held that fact that Registrar has registered the Union "could not seal the fact of registration permanently" The registration certificate was cancelled and matter was remanded to the Registrar to consider the application for registration afresh and thereafter pass a speaking order.
(xxii) Messrs Karachi Customs Agents Group through President and 3 others v. Registrar of Trade Unions, Sindh 2005 PLC 51. (Sindh High Court, S.B.). Since Registrar of Trade Unions had not properly dealt with the objection raised by the employer writ petition was allowed. However, earlier to this writ petition, another writ petition had been disposed of with consent of the parties that Registrar would consider the objections raised by the employer. Therefore, it has to be seen in its peculiar circumstances.
(xxiii) Pakistan Services Limited v. Full Bench NIRC 2006 PLC 288. It was observed that matter of registration is one between Trade Union applying for registration and Registrar and others including the employers has no concerned. Essa Cement's case was referred.
(xxiv) Lucky Textile Mills, through Managing Partner v. Mazdoor Union of Lucky Textile Mills, through General Secretary and 3 others 2007 PLC 366 (Sindh High Court S.B.) after observing that constitutional remedies would always be available where any action taken had not been in accordance with the law. S.G. Fiber's case was relied upon.
(xxv)Wall's Employees Union, Lever Brothers now Uni-Lever Brothers v. Registrar of Trade Unions, District Kasur and 2. Others 2007 PLC 521. It was held that the employer or any other Trade Union had no locus-standi to maintain a grievance merely because the objection raised by it has not been attended to by the Registrar of Trade Unions. Essa Cement's (supra) case was relied upon.
10. The principles that seem deducible from the above case-law appear to be as follows:---
(i) Law relating to Trade Unions has 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 Unions are one fact 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 Dispute 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 preempt 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.
11. A Court interpreting a law, given the cornucopia to facts, should not second guess wisdom of the Legislature in enacting the law. Rather it should make a sincere attempt at discovering the wisdom beyond the legislative enactment. One may not like to articulate it, but one fact is obvious in the domain of Industrial Relations: since Trade Unions by their very nature do impose certain restrictions, and if no restriction at least certain ifnpediments, on managerial freedom to decide and to act, it is mere often than not, difficult for the management to accept the Union. Nip it in the bud has been old, time tested strategy. It is probably to obviate against such situation that the Legislature provided that registration be an affair between the Trade Union and the Registrar and others be it employer or a competing Union have nothing to do with this registration business.
Thereafter stage comes when a Trade Union applies for certification as Collective Bargaining Agent. If one looks at the scheme of law from I.R.O. 1969 to I.R.A. 2008 one common string running through all of them has been that unless it is certified as a Collective Bargaining Agent, a Trade Union cannot represent workers in the establishment, not even its own members. If anything it remains an impotent imbecile till it is certified as Collective Bargaining Agent. That is why the employer right to impugn registration etc. Is there only when the Trade Union aspires to don the mantle of Collective Bargaining Agent. That is why the Courts have repeatedly held that at the stage when Collective Bargaining Agent is to be determined employer has full right to challenge even the registration during the process for determination Collective Bargaining Agent and once that process has started, everything become open for the Court to scrutinize. Between registration and certification as Collective Bargaining Agent many steps have to be taken and many hurdles have to be crossed by the Union; for example 1/3rd of workers should be its members. Till it achieves that one third, it may be a nagging brat for other Union, nibbling perennially at their membership but is of no legal bother to the employee. Registration may be a secret affair but determination of Collective Bargaining Agent is an open show which must be played with knowledge of, in presence of and with the cooperation of the employer, So even if where there is defect in the registration, may be the Law maker wanted a grace period, or a period of consolidation, a period to gather strange, a period for convincing the workers so that it remove any defect and cure any irregularity before it launches itself for a challenge to stand at the pedestal of Collective Bargaining Agent.
' In this case all that happened is Registrar has registered a Trade Union nothing further had taken place. Therefore this writ petition is not maintainable and is dismissed in limine with listed applications.