' The appellant, who claims that he was employed in the respondent Mills as a Jobber, submitted a grievance petition before the learned VIth Labour Court, on 9th January, 1980, claiming that on his return from medical leave on 9th December, 1979, the respondent mills refused to take him back on duty and illegally locked him out, despite the fact that he had produced medical certificate of his illness.
2. The learned Labour Court held that the appellant's grievance petition was not maintainable as the appellant was not a workman for the purposes of the Standing Orders. It may be pointed out that this Tribunal, in the case of Johnson & Johnson Ltd. v. Zubair Ahmad, decided on 10th October, 1979, had held that a person who had been dismissed, discharged or his services were otherwise terminated by the employer and who felt aggrieved by such dismissal, discharge or termination of services, could only file a grievance petition under the provision of clause (3) of Standing Order 12 read with section 25-A, I. R.
0. In other words, when a person is required to be a workman for the purposes of the Standing Orders.
3. An examination of the evidence given by the appellant himself before the learned Labour Court makes it quite clear that the nature of his duties does not come within the purview of manual or clerical work, skilled or unskilled, and consequently, the learned Labour Court rightly held that the appellant was not a workman for the purposes of the Standing Orders and hence, he was not entitled to file and maintain a grievance petition. In his evidence he has given the nature of his duties as follows :- "As jobber my duty was to train workers only. I used to sign-register of production only-production by workers of a shift. I used to supervise the work of workers in a shift. I had brought my workers which were employed by respondent. I used to receive applications for leave of workers and after signing it used to send to respondent for sanction. It is not correct that I used to sanction leave but used to send applications for entry in relevant register. About 30 persons were working under me in a shift."
4. In view of the above statement of the appellant where he has admitted that be used to supervise the work of workers in a shift and that about 30 persons were working under him, it is not possible to agree with the contention of Mr. Rafiq Ahmad that the appellant is a workman entitled to maintain a grievance petition. I would accordingly concur in the view taken by the learned Labour Court and dismiss the appeal in limine. Appeal dismissed.
1981 PLC 873 (Labour Appellate Tribunal Sind] Persent Z. A. Channa, Appellate Tribunal MEHBOOB KHAN GHORI AND ANOTHER versus GENERAL SECRETARY, HYDERABAD AGENCIES EMPLOYEES' UNION Appeal No, HYD-593 of 1979, heard on 22nd September, 1980.
Inustrial Relations Ordinance (XXIII of 1969)- -- S. 10 (3) read with General Clauses Act (X of 1897), S. 21-Powers of Registrar-Order regarding cancellation of registration-Cannot be withdrawn or cancelled by Registrar. [pp. 874, 875] A & B Shahbaz Khan v. State PLD 1956 FC 46; G. L. Bhatta Charia v. State PLD 1964 SC 503 ; Pakistan v.
Muhammad Himayatullah Khan PLD 1969 SC 407 and Collector, Central Excise and Land Custom v, Azizuddin Ltd. PLD 1970 SC 439 rel. Muhammad Ibrahim Soomro for Appellants. Respondent in person, Date of bearing: 22nd September, 1980.
' By an order, dated 16th September, 1978, the two appellants, who had approached the Registrar, Trade Unions, in this behalf, were informed by the Assistant Director, Labour (Registration), Hyderabad, on behalf of the Registrar, that the registration of the Hyderabad Agencies Employees'
Union has been cancelled by the Registrar. However, by a subsequent letter, dated 19th September, 1978, the Registrar informed the two appellants that as the General Secretary of the Union had produced evidence indicating that the said Union was functioning, the order of cancellation of reg:3tration of the Union has been withdrawn and the Union should be deemed to be functioning.
The appellants challenged this order before the learned VIth Labour Court which has taken the view that the Registrar was competent, in view of the provisions of section 21, General Clauses Act, 1897, to withdraw his order cancelling the registration of the union and restore its registration. The appellants have accordingly come to this Tribunal in appeal.
2. The only issue falling for consideration in the instant case is whether the Registrar is competent to willidraw or cancel an order made by him under subsection (3) of section 10,
1. R.
0. The said subsection reads as follows :- "(3) The registration of a Trade Union shall be cancelled by the Registrar if, after holding such inquiry as he deems fit, he finds that such Trade Union has dissolved itself or has ceased to exist."
3. Mr. Muhammad Ibrahim Soomo, the learned counsel for the appellants, submitted two-fold arguments in support of his contention that the Registrar is not competent to withdraw an order cancelling tin registration of a Union made under section 10(3), I. R.
0. His first ground in support of this contention was that as an express provision has been made in the Statute for filing of an appeal against the cancellation of registration of a union by the Registrar, it is only the appellate authority which has the powers to set aside or cancel that order and it would result in an anomaly if on the one hand the appellate Court exercises its powers under section 12, I. R.
0., and in so doing it may well upheld that order, and on the other hand the Registrar, in purported exercise of powers under section 21, General Clauses Act, or on the general principle that an authority passing an order is competent to withdraw or vary the same, withdraws his orders cancelling the registration of the union. The learned counsel further submitted that even if it be assumed that the Registrar has powers under section 21, General Clauses Act, to withdraw an order made by him under section 10 (3),
1. R.
0., since the orders canceling the registration of the Union were communicated to the appellants and had taken effect the same could not be withdrawn in exercise of the power under section 21. I am inclined to agree with the twin submissions of the learned counsel.
4. Section 21 of the General Clauses Act, 1897, only embodies a rule of construction which should be applied if the construction cannot be arrived at or determined with reference to the context or the subject matter of the statute. In other words, if a contrary provision is contained in the statute or can reasonably be inferred, the provisions of section 21, General Clauses Act, will not apply. Since a specific provision has been made in section 11, I. R. O., for appeal against the orders of the Registrar concelling the registration of a Trade Union, the Legislative intent indicated is that it is only by way of appeal that the orders of the Registrar in this behalf can be challenged and not that the Registrar himself can withdraw those orders.
5. A mere fundamental objection to the withdrawal by the Registrar of the orders cancelling the registration of the Union is that section 21, General Clauses Act, is limited in its application to cases where the orders sought to be withdrawn, amended or varied have not taken effect or have not created any legal right or liability. The scope of section 21, General Clauses Act, has been examined by the Federal Court and the Supreme Court at some length in the following reported cases :-
(I) Shahbaz Khan v. State PLD 1956 FC 46.
(ii) G. L. Bhatta Charia V. State PLD 1964 SC 503.
(iii) Pakistan v. Muhammad Himayatullah Khan PLD 1969 SC 407.
(iv) Collector, Centre Excise and Land Custom v. Azizuddin Ltd. PLD 1979 SC 403,
6. The ratio decidendi in all these cases is that if an effect to or it has resulted in the crantion of or the vesting then there is no scope for locus poenitentiae. Order is given of any rights.
7. In Himayatu la/i's case, Sajjad Ahmed, J.,observed as follows :- "There can hardly be any dispute with the tulle that apart from the provisions of section 21 of the General Clauses Act, locus poenitentiae, i. e. The power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of these rights."
8. In Bhatta Chariya's case. Cornelius, C. J., considered the question when an order for the remission of a sentence becomes effective. He held that an order of the Provincial Government unconditionally remitting the sentence of the prisoner by 4 years became effective upon the receipt of the order by the Jail Superintendent, as he was obliged to give effect to it.
9. In the instant case, all that the Registrar was required to do under subsection (3) of section 10, I. R.
0., was to pass an order cancelling the registration of the Union and communicate the same to the parties. This was admittedly done. Whether the order was right or wrong and whether it was passed after due enquiry or upon sufficient material are not relevant factors for the purposes of determining whether the order has taken legal effect. Once an order has been passed cancelling the registration of a Union and it is communicated to the parties, it creates rights and liabilities under the I. R. O. And other laws dealing with the rights and liabilities of Trade Union and the C. B. As.
The office bearers of such union forthwith lose the protection of section 47 (2), I. R.
0. In the instant case, the union whose registration was cancelled was the C. B. A., and hence it had a number of rights, functions and duties to perform under the I. R.
0., which it could no longer enforce or perform after the cancellation of its registration, In fact the cancellation of the registration of the Union means its legal demise for in law it will cease to exist.
Such being the position, the order of cancellation of registration was not capable of being withdrawn under section 21, General Clauses Act, specially in view of the provisions in section 11 of I.
R.
0., for filing of appeal against the said order. As section 11 prescribes no period for filing of an appeal to the Labour Court against the order of the Registrar cancelling the registration of a union, it would appear to be still open to the. Union to challenge the orders of cancellation by way of an appeal to the Labour Court.
10. The upshot of the above discussion is that the orders of the learned Labour Court upholding the orders of the Registrar withdrawing his earlier orders of cancellation of registration of the Union are set aside and the appeal is allowed.