HASSAN FEROZE J.--- Through instant petition, the petitioner has assailed the order of the respondent No,2 regarding unilateral and illegal issuance of certificate of Registration of Trade Union bearing Registration No,1594/1970/10 dated 17-8-2010, in the name and style of T.N.B Liberty Power Plant Ltd. Workers Union, Mirpur Mathelo District Ghotki having members and office bearers claiming to be the employees/ workers of the petitioner's establishment.
2. Relevant facts leading to the instant petition are that the petitioner is a Limited Company incorporated under the Companies Limited Ordinance, 1984 having one power plant at Ghotki with 67 workers/employees having a registered and duly notified collective Bargaining Agent by the respondent No,2. In the month of December, 2010, the petitioner was served with a notice by National Industrial Relations Commission, Karachi informing about filing of petition under section 25(8)(g) read with section 17 of Industrial Relations Act (IRA) 2008 along with an application under Regulation 32(2)(c) of NIRC (R&P) 1973 seeking referendum. On such application the NIRC without any notice granted stay order restraining the petitioner from proceeding against the so-called employees. The petitioner further asserted that prior to the aforesaid notice, they had no knowledge about registration of Union and the matter was taken up by the petitioner on 12-1-2011 wherein serious objections were raised on the formation and registration of union consisting of outsiders and unauthorized use of the petitioner's name and LOGO. The petitioner disclosed to the respondent No,2 that the persons who have filed such application are not employees of the petitioner and are strangers and have no concern with the petitioner. The petitioner also prayed for cancellation of the Union. The respondent No,2 issued a Letter No,RDLRTU/HYD/2011/05 dated 3-1- 2011 whereby directed the petitioner to attend a meeting at the office of respondent No,2 on 12th January, 2011 at 11.30 a.m. in connection with the arrangements for holding referendum to elect Collective Bargaining Agent for the petitioner's establishment. The respondent No,2 notwithstanding the objections of the petitioner, regarding the employment status of its office bearers/members, initiated proceedings against him in violation of law. The petitioner attended the meeting am I placed his objections but the respondent No,2 did not consider the same. The petitioner also investigated and inquired about so called workers, whose names were noticed from the list filed before NIRC and came to know that they are outsiders working in different establishments having proper appointment letters duly registered with Employees Old Age Benefits Institution and getting wages on the pay roll of the other employers, which is also available on the Website of EOBI. According to the petitioner, from the documents and record of EOBI, the Union in question is quite illegal and constituted with ill motive through outsiders, who are bent upon to harass the petitioner in order to destroy the industrial peace of the establishment. The petitioner, therefore, filed this petition with following prayers:---
(a) That this Honourable Court may graciously be pleased in the interest of justice and the law set forth, to set aside and cancel the impugned certificate, issued despite objections of petitioners by the respondents in favour of outsiders by the name and style of TNB Liberty Power workers Union and further restrained suspend the proceeding for determination of CBA in the establishment of the petitioner and otherwise case of the petitioner will be prejudice. The Honourable Court may be pleased to grant any other relief as may be deem fit in the circumstances of the case.
3. The respondent No,2 contested the petition and denied the claim of the petitioner. The respondent No,2 contested the petition and assailed very maintainability of the petition. The respondent No,2 contended that the petitioner is neither aggrieved person nor any of its fundamental rights have been infringed; therefore, petition being not maintainable is liable to be dismissed. The respondent No,2 referred to section 50 of IRO which provides remedy for the petitioner to approach the Labour Court. It is further contended by the respondent No,2 that the petition is based on mixed questions of law and disputed facts which cannot be adjudicated in the writ jurisdiction. The petitioner never furnished any list of 67 employees/workers with mala fide intention and to suppress actual strength of total workmen employed therein in order to deprive them of their fundamental right of freedom of association and franchise/participation in trade union activities. The Union namely TNB Liberty Power Plan Ltd. Workers Union Mirpur Mathelo after its registration applied for determination of CBA vide application dated 25-10-2010 and upon receipt of such application, the respondent No,2 called the employer for submission of the list of workers/workmen wherein the petitioner acquiesced the jurisdiction of Registrar of Trade Unions by attending joint meeting for the purpose of holding referendum on 12-1-2011. The respondent No,2 after exercising its powers under section 9(1) of I.R.A, while registering the above union has become functus officio as the valuable rights have been created in favour of the Union. The I.R.A. provides that workers, without distinction whatsoever, are legally entitled to join a trade union of their own choice without previous authorization. The respondent No,2 prayed for dismissal of the petition.
4. The respondent No,3 also contested the petition and contended that the petition is not maintainable in law and is liable to be dismissed. They contended that the workers employed in TNB Liberty Power Ltd. Mirpur Mathelo in exercise of their constitutional right under Article 17(1) of the Constitution read with section 3 of the I.R.A. formed their trade union and same was registered after fulfillment of codal formalities. The petitioner has failed to make out any case to set aside the impugned order.
5. The respondent No,4 who was subsequently joined as respondents on the application under Order 1, Rule 10, C.P.C. The respondent No,4 contended that he entered into an agreement for rendering the work of operation and maintenance for Gas treatment plant of petitioner,.situated far from the Power Plant at Qadirpur. He further submitted that all the benefits were allowed to the employees of respondent No,3 including registration of employees with EOBI and they are falsely claiming to be the employees of the petitioner and obtained registration of their union with mala fide intention.
6. Learned counsel for the petitioner has contended that the respondent No,2 without holding any inquiry pursuant to section 6 of I.R.O., 2011 and in the light of Judgments passed by the apex courts, issued Certificate of Registration of Union, which is illegal and unlawful. He further contended that the office bearers of the respondent No,3 had filed an application before the National Industrial Commission but same was dismissed for non-prosecution. Learned counsel submitted that respondent No,3 also filed an application to the respondent No,2 for holding referendum in the petitioner's establishment, whereupon the respondent No,2 without considering the objections and even without affording an opportunity to examine the list of eligible voters allowed such application. He contended that in the judgments, the apex courts have given the right to the employer to take part in verification of voter list to ascertain the actual status of voters before holding referendum. Learned counsel argued that during pendency of petition the Labour Law has been changed and Industrial Relation Act, 2012 has been promulgated w,e,f, 14-3-2012, whereby adjudication of the grievances of the employers and employees including formation of trade unions, determination of Collective Bargaining Agent has been given to the NIRC, for the improvement of relations between employer and workman in the Islamabad Capital Territory and in trans-provisional establishments and industry. According to the learned counsel, the petitioner's head office is situated at Islamabad while Power Plant at Sindh, therefore, falls within the definition of trans-provincial establishment. Learned counsel submitted that the respondent No,2 has no jurisdiction in the matter of registration of trade union and holding referendum etc. In support of his arguments, learned counsel for the petitioner has relied upon the case of Muhammad Gul Kakar v.
P.O. Balochistan (1998 SCM R 1964) and has contended that the petition is maintainable irrespective of availability of other remedy as against the notion the courts will not entertain the petition when other remedy is available is not a rule or law barring the jurisdiction but a rule to regulate the exercise of discretion of the courts. His next reliance is on the case of Messrs Forbes Forbes Campbell & Co. (Pvt.) Ltd. v. Registrar of Trade Unions and another (1999 PLC 312) wherein it has been held that where the law does not provide any appeal to an aggrieved person from the order of judicial or quasi-judicial authority, constitutional jurisdiction of High Court can be invoked. He further contended that when the statute does not specifically give to an aggrieved person a right of hearing, the said right has to be read into the Statute. Further relying on the case of S.G. Fibre Employees Union through General Secretary v. Registrar of Trade Unions of Sindh and 5 others (2003 PLC Karachi 58), learned counsel has contended that the constitutional petition would be maintainable where the allegation was that the Registrar of trade Union has not applied his mind judiciously as to whether the trade union should be registered or not and has based on whimsical and slipshod order. Furthermore learned counsel has relied upon the case of Lucky Textile Mills through Managing Partner v. Mazdoor Union of Luck Textile Mills through General Secretary and 3 others, (2007 PLC 366 Karachi) wherein it has been held that the constitutional remedies would always be applicable where any statutory or executive functionary entrusted with responsibility for taking certain action in accordance with law, had not done so. Learned counsel also relied upon the case of Messrs Naveena Exports Ltd. v. Directorate of Labour, Government of Sindh East Division and 3 others (2010 PLC 148) and an unreported Judgment of this court in C.P.No,8 of 2009 and lastly referred to the Judgment of Honourable Supreme Court in Civil Appeal No,407 of 2013.
7. On the other hand, learned counsel for the respondent No,2 has argued; the petitioner is neither aggrieved person nor any of its fundamental rights have been infringed; therefore, petition being not maintainable is liable to be dismissed. He has referred to section 50 of I.R.O. and submitted that said section provides remedy for the petitioner to approach the Labour Court. It has further been contended by the learned counsel for respondent No,2 that the petition is based on mixed questions of law and on more specifically on facts which cannot be adjudicated in the writ jurisdiction. He further contended that the petitioner never furnished any list of 67 employees/workers and it was with mala fide intention to suppress actual strength of total workmen employed therein in order to deprive them of their fundamental right of freedom of association and franchise/participation in trade union activities. The Union namely TNB Liberty Power Plant Ltd'. Workers Union Mirpur Mathelo after its registration applied for determination of CBA vide application dated 25-10-2010 and upon receipt of such application, the respondent No,2 called the employer for submission of the list of workers/workmen wherein the petitioner offered acquiescence to the jurisdiction of Registrar of Trade Unions by attending joint meeting for the purpose of holding referendum on 12-1-2011 and 22-10-2011. The respondent No,2 after exercising its powers under section 9(1) of I.R.A registered the above union in accordance with law. The I.R.A. provides that workers, without distinction whatsoever, are legally entitled to join a Trade Union of their own choice without previous authorization of Employer.
8. Learned counsel for the respondent No,3 contended that the petition is not maintainable in law as it has been filed by an unauthorized person and without resolution of the Board of Directors of Messrs T.N.B. Liberty Power Ltd, therefore, is liable to be dismissed. He further contended that the petitioner malafidely filed present petition without making T.N.B. Liberty Power Plant Ltd. Workers Union Mirpur Mathelo in whose favour, the registration has been issued, however, subsequently, the respondent No,3 joined the proceedings of this petition by filing application under Order I, Rule 10, C.P.C. He contended that the workers of TNB Liberty Power Ltd. Mirpur Mathelo formed their trade union by exercising their constitutional right under Article 17(1) of the Constitution of Islamic Republic of Pakistan, 1973 as well as section 3 of the I.R.A. which was registered after fulfillment of the codal formalities. He contended that the remedy available to the petitioner was to approach the Labour Court instead of filing instant petition. In support of his contention, learned counsel has relied upon the case of. National Foods Limited v. Registrar of Trade Unions Government of Sindh and another (2008 PLC 260 (Karachi), wherein it has been held as follows:--- "Constitution of Pakistan (1973), Art.199. Constitutional petition. Maintainability. Filing of petition by power of attorney holder. Petitioner Company was aggrieved with the registration of trade union.
Petition was filed through a Manager who had power of attorney. Objection raised by respondents was that in absence of resolution of Board of Directors in favour of the Manager, he could not file petition. Validity. Petition was not competently filed as the power of attorney given to the Manager by petitioner being incorporated under Companies Ordinance, 1984, was of general in nature.
Manager was not specifically authorized for filing petition in High Court against respondents.
When company was instituting legal proceedings in court of law, it had to be instituted competently and by authorized agent. Petition was incompetently filed which was not maintainable. Petition was dismissed in circumstances.: Next reliance of the learned counsel for the respondent No,3 was on the case of 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 (Karachi), Prerogative to form trade union was not only that of permanent workers but all workers without any distinction could form Association or the Union in terms of S.3 of Industrial Relations Ordinance, 1969, wherein it has been held in respect of registration of Trade union that:--- "If third union was registered in an establishment it was incumbent upon Registrar of Trade Unions to hold enquiry not only from the employer but also from the unions to ascertain that the union which had applied for registration had 1/5th number of total workers employed in such establishment as this was a condition precedent for registration of third union. Second union in the establishment, however, could be registered without hearing employer. Employer could be heard only at the time of determination Df Collective Bargaining Agent in terms of S.22 of Industrial Relations Ordinance. (the underline is mine) The other reliance of the learned counsel for respondent No,3 was on the case of Messers Hakim Sons Chemical Industries (Pvt.) Limited v. The Registrar of Trade Unions (West) Government of Sindh and others (1999 SCMR 234), wherein it has been held as follows:--- "Application for registration of second trade union in the same establishment. Holding of any full- fledged enquiry by the Registrar of Trade unions, before registration of such union was not expressly provided by S.7(2) of Industrial Relations Ordinance, 1969. Registrar of Trade Unions had, prima facie, found that employees who had filed affidavits were, in fact, employed in the establishment and granted registration. Question as to whether factually the members of second trade union were employees or workers of the establishment could again be agitated by the establishment at the time of referendum for electing a Collective Bargaining Agent in terms of S.22, Industrial Relations Ordinance, 1969. If second trade union would not have the required number of workers as its members it would not be able to participate in the election of Collective Bargaining Agent. High Court, therefore, was justified in not interfering with the registration of second trade union in circumstances."
He has also relied upon case of Essa Cement Industries Workers Union v. Registrar of Trade Unions, Hyderabad Region Hyderabad and others, wherein it has been held as follows:--- "Registration of trade union by Registrar. Locus standi to challenge decision of Registrar. 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. The matter of registration is one between, a trade union applying for registration and the Registrar and others, including the pre-existing trade unions or the employer have no say in the matter. 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."
9. Mr. Mukhtiar Ahmed Khanzada learned State counsel appearing for respondent No,2 has vehemently opposed the petition being lacking in substance as required under Order XXIX, Rule 1, C.P.C. since the pleading has not been signed and verified by an unauthorized person on behalf of the petitioner thus having no locus standi to the petitioner to file such petition without specific resolution of the Company incorporated under Companies Ordinance, 1984 so also the petitioner is not aggrieved person to file the present petition as it is the inalienable right of the workers under Article 17 to form an association therefore, without availing equally efficacious remedy to approach the proper forum, this petition is not maintainable under Article 199 of the Constitution.
10. Learned counsel for the respondent No,4 supported the petitioner and contended that the workers whose Union was registered were not the employees of the petitioner, therefore, registration of the respondent No,3 is quite illegal. He further contended that due to such registration the respondent No,4 is suffering a lot, hence he supported the claim of the petitioner.
11. I have heard learned counsel for the parties and perused the available record as well as relevant provisions of law. The petitioner has challenged the registration of the respondent No,3 as registered Trade Union, however, before examining the validity of the registration of the respondent No,3, it would be appropriate to reproduce herein below relevant provisions of Industrial Relations Act, with regard to the registration of a trade union of which section 3 reads as under:--- S.3 Trade Unions and freedom of association.--- Subject to the provisions contained in this Act--
(a) Workers, without distinction whatsoever, shall have the right to establish and, subject to the rules of the organization concerned, to join associations of their own choosing without previous authorization: Provided that no worker shall be entered to be a member of more than one trade union at any one time and on joining another union the earlier membership shall automatically sand cancelled;
(b) Employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join associations of their own choosing without previous authorization;
(c) Every trade union and employers association shall frame its Own constitution and rules to elect its representatives in full freedom to organize its administration and activities and to formulate its programmes; and
(d) Workers and employers organizations shall have the right to establish and join federations and confederations and any such organizations and confederations shall have the right to affiliate with international organizations and confederations of workers and employers organization.
Section 9(1) and (2) of the Act provides registration of the Union as under:--
(1) The Registrar, on being satisfied that the trade union has complied with all requirements of this Act, shall register the trade union in a prescribed register and issue a registration certificate in the prescribed form within a period of fifteen days from the date of receipt of the application. In case the application is found by the Registrar to be deficient in a material respect he shall communicate in writing his objections to the trade union within a period of fifteen days from the date of receipt of the objections;
(2) When the objections raised by the Registrar have been satisfactorily met, the Registrar shall register the trade union as provided in subsection (1) and issue a certificate of registration in the prescribed form within three days of the date of the objections having been so met. In case the objections are not satisfactorily met, the Registrar may reject the application.
12. Perusal of the record reveals that the respondent No,2 on the application of the respondent No3, initiated proceedings regarding registration of the Union and after fulfillment of the requirements registered the same and such registration has been impugned in these proceedings. The learned counsel for the petitioner has failed to substantiate that the registration of the respondent No,3. One of the objections of the petitioner is that he was not afforded an opportunity of hearing before registration of the respondent No,3. I have in my consideration that in case of Messrs Hakimsons Chemical Industries (Pvt.) Limited, Karachi through General Manager v. Registrar of Trade Unions (West), Government of Sindh, Karachi and another (supra), this court while deciding the case regarding registration of the union observed as under;--- "Right to form a Union or an Association is a Constitutional blessing this emanating from Article 17 of the Constitution. The Courts are reluctant to read restriction which have not been introduced by the Legislature. Such reasonable restrictions could only be in the interest of sovereignty or integrity of Pakistan, pubic order or morality. The restrictions that the learned counsel appearing for the petitioner wanted me to import in the provisions of section 7(2)(a) of the I.R.O., that the employer be heard even in registration of first two unions in the establishment, I am afraid, I cannot bring such provision within the reasonable restrictions contemplated by the framers of the Constitution in Article 17. The Legislature could have placed the same embargo as has been placed in section 7(2) (b) if it would have been the will of the Legislature in relation to section 7(2) (a) as well, but Legislature has not done so. By interpreting a law the Court cannot import restriction which were not intended by the Legislature. While interpreting the law the Courts can iron out creases but cannot alter the material."
13. From the aforesaid provisions of law and dicta laid down by the superior courts, it has become crystal clear that the respondent No,2 was A not required under the law to hear the petitioner before registration of the respondent No,3/Union.
14. In case of Essa Cement. Industries Workers' Union v. Registrar of Trade Unions, Hyderabad Region Hyderabad, the Honourable Supreme Court has observed that trade union of Workmen cannot be registered by the Registrar unless he is satisfied that the conditions laid down in section 7(2) of IRO, 1969 (now section 6 of I.R.A.) have been fulfilled by the Union. Satisfaction of Registrar implies proper application of mind and therefore, the Registrar cannot act mechanically but he must first conduct an enquiry to satisfy himself as to the condition laid down in S.7(2) of the I.R.O., 1969. It has further been held that neither the employer nor 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.
15. The respondents have assailed the maintainability of this petition on the ground that it has been incompetently filed. Learned counsel for the respondent No,3 has contended that the petition has been filed without proper authorization to the person, who has filed this petition.
Learned counsel contended that for such an authorization a resolution of the petitioner company was necessary to authorize such person to file the petition and in absence of such resolution of Board of Directors, the petition is incompetent so also patent illegality of non-compliance of Order XIX, Rule 1, C.P.C. Learned counsel for the petitioner though contended that the petition has been properly and competently filed, however, he could not satisfy as to whether without specific authorization through a resolution of the Employer Company, how this C petition is competent.
Learned counsel for the respondents have also assailed the jurisdiction of this court and has referred section 50 of I.R.A. which provides that any Collective Bargaining Agent or any employer may apply to the Labour Court for the enforcement of any right guaranteed or secured to or him by or under any law or any award or settlement. According to learned counsel for respondent No,3, in case of any dispute or enforcement of right, the petitioner could approach the Labour Court instead of filing instant petition and this petition being ultra-virus to Article 199 of the Constitution of Pakistan is not sustainable under law.
16. The case-law relied upon by the learned counsel for the petitioner are not subscribing to the facts and circumstances and do not support the petitioner's case.
17. For the foregoing reasons and discussion thereon, I am of the view that the petition is not maintainable in law and has been incompetently filed. Accordingly instant petition merits no consideration and is dismissed along with listed application.