' This appeal is directed against an order of the learned IInd Labour Court, made on 5th May, 1980, dismissing an application under section 32(1-A), I. R.
0., made by the appellant union, on the ground that the said application is not maintainable as it has been made by a person whose election as General Secretary of the Union had not been accepted or registered by Registrar of Trade Unions.
2. The facts which form the background of this appeal, shortly stated, are that the appellant Union is admittedly the Collective Bargaining Agent in the respondent company. It appears that on 30th August, 1977, an election of the office-bearers of the appellant union was held in which one Muhammad Saeed, who was examined by this Tribunal in this behalf, was elected as General Secretary. The election of the office-bearers was duly notified to the Registrar, Trade Unions, by the newly-elected General Secretary, Muhammad Saeed, by his letter, dated 14th July, 1978, in pursuance of the provisions of subsection (4) of section 8, I. R.
0. It appears that the Registrar neither registered the change of office-bearers nor refused to do so, but by his letter, dated 9th November, 1977, the Registrar had required the General Secretary of the Union to produce the record of the Union relating to the elections, i. e. The minutes book, agenda file and the membership register. The said record was, however, not produced, as according to the appellant Union, the above letter was misplaced and did not reach it. However, it appears that on 30th March, 1978, fresh elections in the appellant Union were held in which Muhammad Saeed was again re-elected as the General Secretary of the Union. The fresh change of officers was notified to the Registrar by the General Secretary by his letter, dated 10th April, 1978. The change of officers was accepted by the Registrar on 11th May, 1978, and the acceptance of the change was communicated by the Registrar to the appellant union, by his letter, dated 14th July, 1978. In the meanwhile, on 30th October, 1977, the appellant Union, through its General Secretary, Muhammad Saeed, submitted an application under section 32(1-A), I. R.
0., to the learned Vth. Labour Court for adjudication in respect of the charter of demands raised by the appellant Union. The application for adjudication on the charter of demands was resisted by the respondent-Company mainly on the ground that it was made through an incompetent person as he had not been recognized as General Secretary of the appellant Union by the Registrar of Trade Union when the application was made. This contention found favour with the learned Labour Court which has dismissed the appellant union's application on this preliminary objection. In support of this decision, the learned Labour Court has relied upon the decision of my learned predecessor in the case of Usman Textile Mills Ltd. Workers Union v. Usman Textile Mills Ltd., decided on 7th February, 1979, wherein it was held that a General Secretary or other office-bearer of a union cannot act as such unless a change of office-bearers has been accepted by the Registrar, Trade Unions.
3. I have heard Mr. Ali Amjad, the learned counsel for the appellant Union, and Mr. Mahmood A.
Ghani, who appeared for the respondent-Company. Mr. Ali Amjad submitted that the provisions of subsections (4) and (5) of section 8,
1. R.
0., requiring notification of change of office-bearers to the Registrar and empowering the latter to refuse to register the change in certain circumstances should be read in conjunction with the provisions of section 3(c), L R.
0., entitling Trade Unions to elect their representatives in full freedom. Elaborating his arguments, the learned counsel contended that in the absence of any specific bar in the law in this behalf, the elected office-bearers are entitled to function notwithstanding the failure of the union to notify the names of the office-bearers to the Registrar or the refusal of the Registrar to register their names.
The learned counsel submitted that in the instant case, however, the appellant Union had admittedly notified the names of the new office-bearers to the Registrar of Trade Unions and the latter had not refused to register the change of office-bearers, but in fact had accepted the change of office-bearers on 1 1 the May, 1978, and had communicated the said acceptance by his letter, dated 14th July, 1978. It was further contended by Mr. Ali Amjad that the requirement of law was that an application under section 32(1-A). I. R.
0. Should be made by the C. B. A. And it was not disputed that it was made by the C. B. A.
4. Mr. Mahmood A. Ghani, the learned representative for the respondent Company, on the other hand contended that the pre-condition for an office-bearer of a Trade Union being entitled to function as such and to initiate proceedings on behalf of the Trade Union was that he should be registered by the Registrar, Trade Unions, as office-bearers of the union and in support of his contention he relied upon the provisions of sub sections (4) and (5) of section 8, I. R.
0., requiring notification of change of office-bearers to the Registrar and empowering the Registrar to refuse to register the change if it is in contravention of any provision of the I. R.
0., or is in violation of the constitution of the Trade Union. It was argued by Mr. Mahmood A. Ghani, that it is clear from the above provisions of law that a duty has been cast upon the Registrar to scrutinize the change of office-bearers of a union and before registering the same to satisfy himself that the change is neither in contravention of the provisions of law nor in violation of the constitution of the Trade Union itself.
5. Now as regards the contention of Mr. Ali Amjad that section 3(c) I. R.
0., entitles every Trade Union to elect its representatives in full freedom, it may be mentioned that this right has been made subject to the other provisions in the I. R.
0., while the provisions of subsection (4) of section 8 are to have effect, notwithstanding anything contained in any other provisions of the Ordinance. In other words, the provisions of this subsection and in consequence of subsection (5) are to override the provisions of section 3, I. R.
0. The question, however, still remains, what is the effect of failure to notify the change of office- bearers to the Registrar and the refusal on the part of the Registrar to register such change.
6. One view of the matter is that since the law does not specifically provide that an office-bearer of a Trade Union is not entitled to function as such until he is registered as office-bearer by the Registrar, Trade Unions nor does the law specify the effect either of failure to notify the Registrar the change of office-bearers or the refusal on the part of the Registrar to notify such change, the provision in this behalf should be considered directory and not mandatory. The Supreme Court, in the case of Manzoorul Haque v. Controlling Authority (1), while repelling the contention that a person who has not been gazetted as a Vice-Chairman or a Member of District Council is not entitled to be regarded as such, observed as follows : "It has to be pointed out at the same time that the mere existence of a provision for notification is a wholly insufficient basis for saying that the absence of a notification will stand in the way of the person whose office is to be notified. There are some provisions which simply cast a duty on the executive Government to notify the holder of an office and have no further effect. Section 17 of the Municipal Administration Ordinance and Article 26 of the Basic Democracies Orders are provisions of this character. Unless there be something in the language of a statute which shows that the person concerned will not commence to hold an office till there is a notification in the Gazette, a provision for a notification should not be interpreted as a condition precedent to the holding of an office."
7. On the other hand, it has been held by my learned predecessor in the cases reported as Mazdoor Union v. Messrs Futtehally Chemical Ltd. (2) and Workers Union v. Usman Textile Mills Ltd. (3) that the {{FOOT NOTE}}
(1) PLD 1963 SC 653 (2) 1978 PLC 472
(2) 1979 PLC 164 {{FOOT NOTE}} ' acceptance of change of General Secretary of the Trade Union by the Registrar was a condition precedent to the initiation of proceedings by him. It has also been held by my learned predecessor in the case of Employees Union v. Messrs Bukhara Hotel (1), that acceptance of change in the constitution of a Trade Union by the Registrar under section 8 was a condition precedent to the effectiveness of change and was not a mere formality. I have likewise held in the case of Sind Steel Corporation Union v. Messrs Sind Steel Corporation Ltd. (2) that where the status of a person making an application under section 34, I. R.
0. Was contested and there was no tangible evidence to show that such person was ever notified to the Registrar, Trade Unions, as General Secretary or office-bearer of a Trade Union, such person had no locus standi to file or maintain such an application and such application was not entertainable.
8. In the instant case, however, it appears to be unnecessary to examine and decide the issues whether the registration of Muhammad Saeed as General Secretary of the appellant union was a condition precedent to the maintainability of the present application and further whether the respondent company is entitled to question the election of Muhammad Saeed as the General Secretary of the appellant Union in view of the provision of subsection (7) of section 8, I. R.
0., which entitles only an office-bearer or member of a trade union to question such election, in view of the fact that admittedly Muhammad Saeed's election as General Secretary was accepted by the Registrar, Trade Unions, on 11th May, 1978 and such acceptance was communicated by the Registrar by his letter dated 14th July, 1978 Mr. Mahmood A. Ghani sought to argue that the subsequent acceptance of change of office-bearers by the Registrar and the recognition of Muhammad Saeed as the General Secretary of the appellant Union does not cure the defect of non-registration; as the application under section 32 (1-A), I. R. O., was not maintainable initially since it had not been made by a duly registered General Secretary. In my view this objection is without substance. Even if the application was originally defective in that at the time the application was made, Muhammad Saeed had not yet been duly registered as a General Secretary of the appellant Union, the irregularity and defect was cured during the course of the proceedings before the learned Labour Court, before any evidence was recorded, by acceptance of the change of the office-bearers by the Registrar. It may also be pointed out that Mr. Mahmood A. Ghani has not been able to point out any violation either of the provisions of the I. R.
0. Or the constitution of the appellant Union in the first election of Muhammad Saeed as General Secretary on 30th June, 1977.
9. In the case of Abdullah Bahi v. Ahmad Din (3), the Supreme Court, while repelling the argument that at the time that the suit was filed, it was premature and hence ought to have been dismissed, observed as follows :-- "An argument had been addressed to us that the suit was premature and should have been dismissed on that ground. The suit had been filed on 17th January, 1958 that is long before 31st December, 1959 on which date the period of the licence was to terminate. {{FOOT NOTE}}
(1) 1975 PLC 768 (2) 1980 PLC 782
(3) PLD 1964 SC 106 {{FOOT NOTE}} ' The trial Court had dismissed the suit. The Additional District Judge on appeal had decreed it on a date when the period of the licence had expired and the appellants had right to possession. It was open to the appellate Court to have decreed a suit which was premature when it was filed but the cause of action respecting which had arisen during the pendency of the suit. We would not be prepared at this stage to dismiss the suit on this technical ground and to direct the appellants to file a fresh suit. It is also urged that even in respect of a licence there should be a notice of its termination. We are unable to entertain this plea for two reasons. In the first place even the filing of a suit was sufficient termination of a licence and in the second place this plea had not been raised by the respondent though the suit was based on a licence."
10. Relying upon the above decision of the Supreme Court, a Division Bench of the Peshawar High Court, in the case of Wahabuddin and Sons v. Controller of Rents (1), repelled the objection to the maintainability of an ejectment application filed under section 17 of the Cantonment Rent Restriction Act, 1963, read with section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, based on the ground that it had been filed before the statutory period of protection of 6 years, and held that since the period of 6 years was over pending appeal in the said case, the Court could take into consideration, developments taking place during pendency of proceedings and it would be unjust to dismiss the ejectment application on the technical ground that it was filed prematurely. In the recently decided case of Ameena Begum v. Ghulam Dastagir (2), the Supreme Court while referring to the decision in the cases Abdullah Bahi and Wahabuddin and Sons, repelled the contention that an application for ejectment was incompetent since it had been filed.-before the statutory period of 6 years provided under the law, and observed that the ejectment application has been filed on the two-fold grounds that the respondent was defaulter of the payment of the rent due from him and also the landlord required the premises for his personal use, therefore, on these averments the application for the ejectment by the respondent was competent and could be entertained. The Supreme Court also took due notice of the fact that during the pendency of ejectment application, the statutory period of 6 years had elapsed.
11. If a suit or ejectment application, which was premature at the time it was filed but the cause of action matured during the pendency of the suit or the proceeding on the application, was decreed or allowed, by analogy, an application by a person, who though elected as an office-bearer was not duly registered as such by the Registrar, but during the pendency of the proceedings, he was so registered by the Registrar, would certainly, in my humble opinion, be competent and the objection on the score of non-registration of the office-bearers would not prevail. I would accordingly hold that the instant application by the General Secretary is maintainable and the proceedings cannot be held invalid on the ground that at the time that the application was made, the General Secretary had not been duly registered as such by the Registrar, Trade Unions. In coming to this conclusion, I have not found it necessary to examine the contention of Mr. All Amjad that even delay {{FOOT NOTE}}
(1) PLD 1971 SC 236 (2) PLD 1978 SC 220 {{FOOT NOTE}} ' in the registration, of change or office-bearers by the Registrar. Trade Unions, as no time has been specified within which the Registrar, is required either to register the change or to refuse to register the change of office-bearers, unlike the provisions for the registration of Trade Unions, will result in completely paralysing the working of the Trade Union for it is only through its office-bearers that a Trade Union can function. This issue as also the issue as to the competency of the employer to raise an objection to the election of an office-bearer of Workers Union, including a C. B. A., could be dealt with in an appropriate case.
12. For the reasons discussed by me above, the order of the learned Labour Court, upholding the preliminary objection of the respondent company as to the maintainability of the appellant unions application, is set aside and the case is remanded to the learned Labour Court for early decision on merits.