1. SAJJAD ALI SHAH, J.--- Through this petition the petitioner a trade union of workers with the status of Collective Bargaining Agent (C.B.A.) has called in question the registration of respondent No,3 as third Trade Union in the Establishment of respondent No,4.
2. ' At joint request of the learned counsel for the respective parties this petition has been taken up for final hearing.
3. Briefly, the petitioner and respondent No,2 were the Trade Unions of Workers in an Establishment known as Al-Abbas Sugar Mills Ltd., Mirwah Gorchani Mirpurkhas. The Establishments of Messrs Al- Abbas Sugar Mills Ltd. And Messrs Al-Abbas Industries Thatta were merged and after merger the two Establishments were named as Messrs Al-Abbas Sugar Mills Limited, Mirwah Gorchani District Mirpurkhas Unit-I and Dhabeji Unit-II. The merged Establishment applied for the change of the name which was allowed by respondent No,1 on 25-9-2008.
4. ' The record reflects that the respondent No,3 on 16-9-2008 had applied for registration as a Trade Union of Workers of Messrs Al-Abbas Industries and while such application was pending said merger was recorded by respondent No,1, therefore, the respondent No,3 on 4-10-2008 moved an application for the change of its name from Messrs Al-Abbas Industries Mehnatkash Union Dhabeji to "Messrs Al-Abbas Sugar Mills Ltd., Mehnatkash Union Dhabeji along with changed constitution etc." which application was allowed on 6-10-2008 and the respondent No,1 on the very date granted certificate and registration, which has been called in question through instant petition.
5. ' Mr. Choudhry Muhammad Ashraf learned counsel for petitioner has contended that after merger of the two Establishments no inquiry, whatsoever, was conducted by the respondent No,1 to satisfy itself that the respondent No,3 has fulfilled all the requirements as envisaged under the Industrial Relations Act of 2008 (hereinafter to be referred the said Act), therefore, the registration of the respondent No,3 as third Trade Union of the merged Establishment is liable to be set aside/quashed. It was next contended that the Establishment as defined under the provisions of the said Act means and includes all its departments and branches whether situated' in the same place or in different places, therefore, after merger of both Establishments, it formed one Establishment and since there were two existing Trade Unions in the Establishment, therefore, third Trade Union in terms of clause (B) of subsection (2) of section 6 of the said Act could only be registered in case it had not less than one fifth of the total number of workers employed in such Establishment whereas it is an admitted position that the respondent No,3 had only 39 members out of 594 workers, therefore, its registration is liable to be quashed/set aside.
6. ' On the other hand Mr. Ghulam Sarwar Chandio, learned counsel for respondent No,3 has contended that in accordance with the dicta laid down by the apex Court and this Court in the cases of Essa Cement Industries Workers' Union v. Registrar of Trade Unions, Hyderabad Region Hyderabad 1998 SCM R 1964 and Pakistan Services Limited v. Full Bench National Industrial Relations Commission and others 2006 PLC 288 neither the Employer nor an existing Trade Union in the same Establishment have the locus standi to challenge the decision of the Registrar for registering a new Trade Union and therefore, the instant petition is not maintainable and is liable to be dismissed.
7. ' In reply Mr. Choudhry Rasheed Ahmed has placed reliance on the judgment of this Court in the case National Beverage Employees Onion v. Registrar, Trade Union Government of Sindh 1986 PLC 533 and S.G. Fibre Employees Union v. Registrar of Trade Union, Government of Sindh 2003, PLC 58 and pleaded that constitutional remedy is always available where statutory or executive functionary entrusted with responsibility for taking certain action in accordance with law had not done so.
8. ' Mr. Muhammad Saulat Rizvi, learned counsel for respondent No,2 has adopted contentions of Mr. Choudhry Rasheed Ahmed.
9. ' I have heard the learned counsel for the respective parties and have perused the record.
10. ' A perusal of record reflects that respondent No,3 on 16th September, 2008 applied for registration as trade Union of Workers of Messrs Al-Abbas Industries Dhabeji Thatta and since by that time merger was neither in the knowledge of workers nor any change was recorded in the record of respondent No, 1 . Therefore, the respondent No,1 in order to satisfy itself as to whether the respondent No,3 fulfils the legal requirement for registration as a new Trade Union addressed a letter dated 20-9-2008 to the Management of Messrs Al-Abbas Industries, Dhabeji, District Thatta, directing them to supply a list of their employees/workers by 25th September, 2008. The record further reflects that the merger was recorded in the office of Directorate of Labour Sindh on 25-9- 2008, by issuance of a certificate reflecting the name of the merged Establishment as Messrs Al- Abbas Sugar Mills Limited, Meerwah, Gorchani, District Mirpurkhas, Unit-I and Dhabeji Unit-II and therefore, instead of Messrs Al-Abbas Industries Dhabeji, District Thatta, which by that time ceased to exist Messrs Al-Abbas Sugar Mills Limited vide its letter dated 25th September, 2008, informed the Labour Officer Factories that both the Establishments have been merged and the total strength of the workers is 594. It was further informed that two Trade Unions of labourers were already existing in the Establishment. Upon realizing the fact of merger, the respondent No,3 also on 4-10- 2008 filed an application before the respondent No,1 seeking change of its name from Messrs Al- Abbas Industries Mehnatkash Union Dhabeji to Messrs Al-Abbas Sugar Mills Mehnatkash Union. The respondent No,1 consequently allowed the change of name on the same day and without holding any inquiry to satisfy itself as to whether the new Trade Union fulfil the conditions as laid down in "said Act" registered it as Trade Union of Workers of Messrs Al-Abbas Sugar Mills, Ltd., Dhabeji, District Thatta.
11. It is also evident from the record that it was well within the knowledge of the respondent No,1 before registering the respondent No,3 as Trade Union of Workers of respondent No,4 that there are already two Trade Unions of Workers and the respondent No,3 is being registered as third Union of workers in the establishment of respondent No,4.
12. ' The term establishment has been defined under clause (ix) of section 2 of the said "Act" as follows:--- "establishment" means any office, firm, factory, society, undertaking, company, shop, premises or enterprise, which employs workmen directly or through a contractor for the purpose of carrying on any business or industry and includes all its departments and branches, whether situated in same place or in different places and except in section 30 includes a collective bargaining unit, if any constituted by an establishment or group of establishments;--- A perusal of above provision leave no doubt that after merger both units formed one establishment, therefore, it was incumbent upon the respondent No,1 to have satisfied itself as to whether the respondent No,3 met all the requirement of registration under the "Said Act" which the respondent No,1 admittedly failed to conduct. The respondent No,1 further committed a gross illegality by registration of respondent No,3 as Trade Union of workers of Messrs Al-Abbas Sugar Mills Ltd., Dhabeji, Thatta on the basis of inquiry conducted from Messrs Al-Abbas Industries Dhabeji Thatta. The record further reflects that the respondent No,1 was fully aware that the respondent No,3 was being registered as 3rd Trade Union of workers of Messrs of Al-Abbas Sugar Mills Ltd., which had a total number of 594 workers therefore, in terms of clause (b) of subsection (2) of section 6 of the "Said Act" the respondent No,3 could not have been registered unless it had as its members not less than one fifth of the total number of workers employed in such ID establishment.
13. ' 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 Workers' 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 to 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 functionary entrusted with responsibility for taking certain action in accordance with law has not done so.
14. ' In the instant case after scrutinizing the record I am convinced that the respondent No,3 was registered as third Trade Union by the Registrar without conducting any inquiry to see as to whether the respondent No,3 had fulfilled the requirements as envisaged under Industrial Relations Act, 2008, a condition precedent for such registration and further that registration of the respondent No,3 as third Trade Union was in gross violation of clause (b) of subsection (2) of section 6 of the "said Act" therefore, the instant petition is allowed and the certificate of registration dated 6-10-2008 issued to the respondent No,3 as third Trade Union of Messrs Al-Abbas Sugar Mills Limited Dhabeji Unit-II is hereby quashed.