' NISAR MUHAMMAD SHAIKH, J.--- By this common judgment, the two connected matters i,e, C.P No,S-245 of 2008 and H.C.A No,205 of 2009 (arising out of dismissal of C.P. No,S-282 of 2008), shall stand decided/disposed of as both these matters are between the same parties litigating on the same subject matter being a certificate of registration of a Trade Union of the workmenin the establishment of Thatta Cement Company Ltd. Issued by the Registrar, Trade Unions (respondent No,1) in favour of respondent No,2 Union.
2. Relevant facts in brief, are that M/s. Thatta Cement Company Ltd. (hereinafter referred to as the Company) filed the present C.P No,S-245 of 2008 on 13-11-2008 stating that they are registered under the Companies Ordinance, 1984 and the entire process of their business, except quality control, maintenance and standard of products, marketing and sales of cement, has been outsourced to independent contractors who are running their own establishment in their own names and also employ their own workers and exercise full control over the same. But, some workers of the said contractors formed a Trade Union in the name and style of Thatta Cement Company Limited Peoples Workers Union (hereinafter mention as the Workers Union). It is alleged that this Union which was formed secretly and in violation of relevant provisions of Industrial Relations Ordinance, 2002 could not be formed in the name of the Company for want of such relationship and therefore, non-association of the Company before processing application for registration and without verifying the facts as to the employment/nonemployment, tantamounts to non-exercise of due diligence by the respondent No,1/Registrar, Trade Unions before granting/issuing the impugned certificate of registration dated 21-10-2008 to the respondent No,2 Workers Union. The petitioner-company apprised the Registrar of the legal and factual position and in the woke of exchange of correspondence, the respondent No,2 Workers Union applied on 28-10-2010 for certification as Collective Bargaining Agent. The Registrar then issued a letter to the Company for submission of list of workers to ascertain 1/3rd membership of the Union. This letter was replied by the Company with objection of lack of relationship between the parties but the Registrar, without holding any inquiry and making a complaint under section 12 of the IRQ, 2002 for cancellation of the registration of respondent No,2 Workers Union, maintained vide his letter dated 7-11-2008 that the same has been granted in accordance with provisions of law. The petitioner- company therefore prayed in their petition that the impugned certificate of registration dated 21- 10-2008 and the said letter/order dated 7-11-2008 may be declared as incompetent, without jurisdiction and of no legal effect.
3. Whereas the Thatta Cement Company Employees Union (hereinafter called as the Employees Union) which was joined on 22-12-2008 in the above petition as respondent No,3, also filed a separate petition being C.P. No,S-282 of 2008 on the same day i,e, 22-12-2008, stating therein that their Trade Union named above, was registered by respondent No, 1/Registrar, Trade Unions vide registration certificate dated 28-10-2008 for the workers actually employed by the Company, while the respondent No,2 Workers Union consists of all its members who are actually engaged by different contractors and not by the Company. It was alleged that the respondent No,2 'Workers Union got its registration by misrepresentation and fraud, and the Employees Union being the single union in the company/establishment, after its registration, submitted a letter dated 11-11- 2008 together with a list of its members to the Registrar for issuance of collective bargaining certificate but he did not respond to it being under the influence and pressure of respondent No,2 Workers Union. The petitioner Employees Union therefore, prayed in their petition that the registration of the respondent No,2 Workers Union may be declared as null and void and further to direct the respondent No,1/Registrar, Trade Unions to issue collective bargaining certificate to the petitioner Employees Union being the only one union having more than 1/3rd of the total members of workmen employed by the Company,.
4. On the other hand, the respondent No,2 Workers Union, in its written statement filed in the present C.P No,S-245 of 2008, pleaded that this petition is not maintainable in law and the petitioner- company has not come with clean hands and that the employer who is not an aggrieved party in the registration of union, did not file the papers/agreements of contractors in this Court or before the Registrar of Trade Unions though they relied upon such paper arrangement. It was stated that the Registrar decided the status of the members of the Workers Union holding that all they are actually .Employed in connection with manufacturing process of cement and that the Company did not dispute the employment of the members of this Union in their establishment as workmen to manufacture the cement but now, they claim that the members of this Union are employed by their contractors. It was further stated that this Workers Union applied for collective bargaining certificate and upon registration of another Union applied for holding referendum and the Registrar demanded the list of workmen employed in the establishment but the Company failed to supply the same, though it was the right of workmen to cast their votes in the referendum. It was further stated that excepting petitioners' establishment, there is no other establishment registered under the Factories Act, 1934 and that they are required under Standing Order 2-A of Ordinance, 1968 to issue appointment letters to all workmen but they did not issue the same and now they cannot claim any advantage of non-compliance of their statutory obligation/liabilities. It was alleged that this petition is filed malafidely to avoid determination of CBA to represent the workers employed in the establishment. While denying the allegations of petitioner-company regarding the contract employment, they stated that all the workers/members of this Union were employed permanently by the management of the Company on permanent job and they performed the work in connection with manufacturing process. It was further stated that certificate of registration was rightly issued to Workers Union and the employer has no right to challenge it, nor it is the requirement of law to associate the employer at the time of registration of Union. It was alleged that the Company then got registered their pocket Union, which then applied for CBA certificate but when the Workers Union applied for referendum, the Company failed to supply list of workmen though more than 400 workers are employed on permanent job but the company raised objections malafidely to delay the determination of CBA and thus they are saving millions every year.
5. Whereas the respondent No, 1/Registrar of Trade Unions, submitted in his statement/comments that he registered the respondent No,2 Workers Union in accordance with sections 3 to 8 of IRO, 2002 and the respondent No,2 has also applied for determination of CBA and that the letter dated 7-11-2008 (annexure 'K') was issued by him on the basis of available record with due diligence. He further stated that the rejection of the request of petitioner- company was lawful and there is no requirement of law to hold an inquiry before registration of a Trade Union and that there was no cogent reason to move application under section 12 of IRO, 2002 for cancellation of respondent No,2 Union.
6. In support of their respective claims, the parties also filed various documents in both petitions, which were ordered to be heard together. However, the C.P No,S-282 of 2008 was heard and decided and was dismissed with cost of Rs,50,000 while C.P No,S-245 of 2008 was dismissed for non- prosecution, vide such orders passed by learned Single Judge on the same day i,e, 22-6- 2009. The order passed in CP No,S-282 of 2008 has been impugned in the present H.C.A No,205 of 2009. Whereas the C.P No,S-245 of 2008 which was dismissed for non-prosecution was restored on 27-7-2009 and subsequently, such petition was ordered to be taken up along with the present appeal.
7. We have heard learned counsel for the parties and perused relevant record including the R&Ps of C.P. No,S-282 of 2008 as well as of the Registrar, Trade Unions (who is respondent No,1 in the petitions as well as appeal).
8. Mr. Muhammad Cacique Qurush, learned counsel for the Workers Union (respondent No,2 in all matters) contended that the present Intra-Court Appeal is liable to be dismissed being incompetent on account of the bar contained in the proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972 as the impugned order dated 22-6-2009 was passed in a Constitutional Petition under Article 199 of the Constitution, which had arisen out of the proceedings commenced before the Registrar of Trade Unions on the application of respondent No,2 for registration of their Trade Union and the order for grant of such certificate of registration of Trade Union, issued by respondent No,1/Registrar on 21-10-2008 in favour of respondent No,2 Union, was an original order passed in such proceedings, in which the right of appeal, was provided under section 9(5) of IRO, 2002 and therefore, this Intra-Court Appeal is not maintainable. In support of his contention, the learned counsel placed reliance on the cases of (1) Workers Union of PIA, Institute of Planetaria, Karachi v. Fida Muhammad Khan and another (unreported Civil Appeal No,365/1993 decided by Hon'ble Supreme Court of Pakistan on 18-11-1997) and (2) Abdul Sattar v. Messrs S.G.S. Pakistan (Pvt.) Ltd. And another (decided by a Division Bench of this Court on 29-9-2010, now reported as PLD 2011 Sindh 40).
9. A perusal of the above case-law, reveals that the same is also applicable irrespective of the fact that the right of appeal is provided to one party or to both or such right has been availed or not.
This, no doubt, supports the above contention of learned counsel for respondent No,2 Union, which could not be controverted even by Mr. Shahenshah Hussain, learned counsel for the appellant- Employees Union and he simply said in this regard that the point of maintainability of High Court Appeal is not relevant as this appeal has been consolidated with the present C.P No,S-245 of 2008 and the points relating to the registration of respondent No,2 Union are the same involved in both these matters. But, it appears that the said law point, involved in this appeal, is identical to the unreported case/Civil Appeal No,365 of 1993 (supra) in which also, the learned counsel Mr. Shahenshah Hussain had appeared before Hon'ble Supreme Court on behalf of a Trade Union.
Whereas Mr. Chaudhry Muhammad Ashraf Khan, learned counsel for the Company, who himself had raised the same legal plea in the case reported as 2011 PLC 40 (supra), did not oppose such legal position, saying that even if this appeal is not maintainable, then C.P No,S-245 of 2008 filed by the Company, is maintainable for decision on merits.
10. In view of the above position of law, which could not be denied by any of the learned advocates, no further dilatation is required on the point of non- maintainability of the present H.C.A No,205 of 2009, and therefore the same, in view of the bar contained in the proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972, is hereby dismissed being incompetent.
11. Now, on account of dismissal of H.C.A No,205 of 2009, the impugned order dated 22-6-2009 passed in C.P No,S-282 of 2008, holds the field. The parties, in such decided petition as well as in the present petition (C.P No,S-245 of 2008) are the same and the subject matter, in both these petitions, is also the same i,e, registration of respondent No,2 as a Trade Union of the workmen in the establishment of the Company and such sole issue stood determined vide order dated 22-6- 2009 passed in detail in C.P No,S-282 of 2008, wherein at page 11, it was observed by learned Single Judge that "factual controversy regarding the status of members of respondent No,2 Union is amply clarified from the order of respondent No,1 (Registrar, Trade Unions) dated 5-1-2009." In order to postulate this aspect of the case, the said order dated 5-1-2009 of the Registrar was also reproduced fully, the last paras of which are reproduced below:--- "In view of the above, the members of the Thatta Cement Co. Peoples Workers Union, Thatta are employees of M/s. Thatta Cement Co. Thatta and their names are to be included in the voters list to be prepared for determination of Collective Bargaining Agent along with the members of Thatta Cement Employees Union Thatta.
' The Assistant Director Labour (Trade Unions) will prepare voter list on the above lines and hold the referendum in accordance with the provisions of the law in M/s. Thatta Cement Co. Thatta."
' Whereas the concluding paras of the final order dated 22-6-2009, passed in C.P No,S-282 of 2008, are as under:- "The record and proceedings of the case reveal that all this exercise was undertaken by the petitioner with the ulterior and mala fide motive of dragging the respondent No,2 into litigation and thereby derailing the fair union practices in the Establishment of respondent No,3. It is for this reason that while dismissing this petition, cost of Rs,50,000 was also imposed on petitioner, which shall be deposited by them with the Additional Registrar of this Court within one month from the date of this order.
'Foregoing are the reasons of the short order passed today in this petition in open Court."
12. It is thus clear from the above that vital issue of the registration of the respondent No,2 Workers Union has already been determined and the same is no more in the field after dismissal of H.C.A No,205 of 2009 as it was the same union's registration that was challenged in both petitions, one was filed by the Company being petitioner in the present C.P No,S-245 of 2008 and the other was filed by the Employees Union being petitioner in C.P No,S-282 of 2008, and on its dismissal, the H.C.A No,205 of 2009 was filed by such petitioner/appellant Employees Union. In this connection, it appears from the order sheet dated 12-2-2010 of such appeal that Mr. Chaudhry Muhammad Ashraf Khan (learned counsel for petitioner-company in present C.P No,S-245 of 2008) had also admitted that this petition has been filed challenging the registration of respondent No,2 as a Union in its establishment and in the Appeal No,205 of 2009 (arising out of C.P No,S-282 of 2008) filed by another union of the same establishment, the same challenge has been thrown. It was also observed in the final order dated 22-6-2009 that the petitioner Employees Union has filed the Petition (C.P No,S-282 of 2008) regarding the same grievance against the registration of respondent No,2 (Workers Union) for which the present petitioner-the Company has already brought controversy before this Court in the form of C.P No,S245 of 2008.
13. Now, since the grant of the certificate dated 21-10-2008 in respect of registration of respondent No,2 Workers Union, issued by the Registrar, Trade Unions (respondent No,1), stood maintained on dismissal of C.P No,S-282 of 2008 and the appeal filed against such decision has also been dismissed, therefore, such grant of the same registration certificate, cannot be cancelled or set aside by now, in this constitutional petition, especially when there appears no exceptional circumstance, reasonable ground or justification even, to revive/reverse such earlier decision by taking contrary view or giving conflicting finding on the same subject matter. Since the trial does not commence in constitutional jurisdiction, as it happens in exercise of ordinary original jurisdiction, therefore, no fresh inquiry in the matter can be conducted in detail by recording evidence etc. Thus, by way of the decision recorded earlier in exercise of constitutional jurisdiction, the cause has already been determined between the same parties and we find no reason to repeat the same here again, especially when the general principles of res judicata are also attracted to this petition which is not an appeal.
14. In view of the above, the present petition being C.P. No,S-245 of 2008 is also dismissed, with cost.
Consequently, the interim orders passed earlier, stand recalled.