Through instant petition, the petitioner has assailed order dated 05th April 2011 passed by the Respondent No, 1.
2. It is contended by the learned counsel for the petitioner that C.P. Nos. S-08 of 2009 and 128 of 2009 were decided by this Court by order dated 21.03.2011, whereby directing the Respondent No, 1 to conduct impartial inquiry in the matter and determine whether the Respondent No, 1 is union comprising on members employed by the petitioner; whether the Respondent No, 3 secured highest votes in secret balloting in accordance with law. Though, both the petitions were decided by consent, inspite of that the Respondent No, 1 failed to exercise his domain within the spirit of order passed by this Court as well the impugned order is in negation of Section 6(d) and Section 2 of Industrial Relations Ordinance, 2002 (hereinafter referred as I.R.O). He further contended that no required inquiry was effected by the Respondent No, 1 under the mandatory provisions of 9 of I.R.O; Respondent No, 2 acted in slipshod manner, thus petitioner, having no other remedy, has filed this petition as from the face of it, impugned order is illegal, unjustified and abintio void. In support of his contention, he has relied upon the case of United Workers Union Al Abbas Sugar Mills Ltd. (C.B.A) through General Secretary V. Registrar of Trade Unions, Govt. Of Sindh and 3 others (2010 P.L.0 8), Export Processing Cones vs. Registrar of Trade Unions and another (2004 PLC 217), Lucky Textile Mills through Managing Partner vs. Mazdoor Union of Lucky Textile Mills through General Secretary and 3 others (2007 PLC 366), Habib Sugar Mills Ltd. Through Manager vs. Registrar of Trade Unions, Govt.
Of Sindh and another (2001 P.L.0 441) and Essa Cement Industries Workers Union vs. Registrar of Trade Unions Hyderabad Region Hyderabad and 4 others.
3. Learned counsel for the Respondent No, 3 contended that the impugned order is in accordance with law; Respondent No, 3 pursuant to directions of this Court conducted inquiry on 01.04.2011 and heard all relevant persons, thereafter passed such order therefore, in any manner this writ petition is not maintainable against the impugned order. He further contends that employer has no role to claim objection for registration of one union; objections can be raised by another union of workers.
Learned counsel for the Respondent No, 3 relied upon 2006 CLC 288, 2013 YLR 1580, 2008 P Cr. L J 1309, 2009 SCM R 1066, 2010 M LD 523).
4. Learned Assistant A.G. On Court notice raised objection regarding maintainability of this petition on the plea that Civil Procedure Code is applicable in these proceedings, candidly the petitioner has filed petition against functionary of provincial Government but has not joined the province as party, therefore, this petition is not maintainable. In support of his contention he has relied upon 1999 SCM R 16.
5. Heard learned counsel for respective parties and scanned the material available on record.
6. Before addressing the plea (s) agitated by respective parties, it is worth to add here that a petition will be competent where there is a question of law; involvement of fundamental rights; or procedure illegality causing serious prejudice to one but it would neither be a substitution to other available legal remedy nor it (constitutional jurisdiction) will be a substitution to that of appellate jurisdiction.
7. It is an undisputed position that in earlier petition (s), this Court passed order with consent of all, including the petitioners which, prima facie, covered the complaint (s) of petitioners, including that of holding impartial inquiry. The terms, in which said petitions, were disposed off, being necessary are reproduced hereunder:--
(i) The Registrar/ Respondent No, 1 shall conduct impartial inquiry in the matter to determine whether the Respondent No, 3 is a union of workers/ members employed by the Petitioner;
(ii) Whether the Respondent No, 3 secured highest votes in the secret balloting in accordance with law; The Registrar shall issue notice to the Petitioner. And Respondent Nos. 2 & 3 to attend the inquiry; The Registrar shall also provide ample opportunity of hearing to the petitioner. Respondents No, 2 & 3 with an opportunity to place on the record, all the relevant documents in support of their contention.
The Registrar shall conclude the inquiry within 15 days time without any further delay or excuse.
In ease the Registrar comes to the conclusion that the Respondent No, 3 had been wrongly registered and its workers/ members are not found to be the employees of the Petitioner, the Registrar shall initiate proper proceedings for cancellation of trade union registration in accordance with law.
8. In pursuance of such comprehensive instructions (terms disposing of the petitions), the matter was processed by the Respondent No, 1 resulting into passing the order, which has been impugned through instant petition. At this juncture, it is also pertinent to refer the relevant portion of impugned order as under:- "Pursuant 'to the directions contained in above orders passed by the Honourable High Court of Sindh Hyderabad all concerned parties including contractor were called alongwith record, relevant documents in support of their contention in the inquiry on 01.04.2011 vide this office letter dated 28.03.2011.
The parties were heard at length and comments alongwith photocopies of relevant documents in support of their contention have been produced by the parties. Statement of the following persons who present in the inquiry were also recorded.
1 Syed Irshad Ali Shah Deputy General Manager Faran Suger Mills Ltd, Shaikh Bhirkio 2 Mr. Ali Nawaz Pitafi Assistant Manager Personal R.R.
Services Karachi.
3 Mr. Zaheer Baig General Secretary, Peoples Mazdoor Union Faran sugar Mills Shaikh Bhirkio.
4 Mr. Dadu Khan General Secretry, R.R. Services Contractor Faran Sugar Mills Shaikh Bhirkio.
Presently the evidence on record as produced by the management of M/s. Faran Sugar Mills Ltd.
Shaikh Bhirkio and R.R. Services shows that services of 426 workers are terminated under GHS Scheme in the year 2003, at present no worker on pay roll of the Mills and 395 workers reemployed through contractor having issued contract letters, making payment to EOBI education cess and income tax, pay slips/wages sheet for the month of February, 2011, duty/attendance card, leave register and agreements in between the management of M/s. Faran Sugar Mills Ltd. Shaikh Bhirkio arid the contractor namely R.R. Services Karachi contrary to this the General Secretary of Peoples Mazdoor Union Faran Sugar Mills Ltd. Shaikh Bhirkio produced the copies of Balance sheet/ Annual report 2009, explanation and appreciatiOn letters, gate pass, petrol slips, dispensary slips, blood group card, store issuance requisition, reports relating to production, juice tank, molasses, hourly formation of Mill house issued and prepared on the books and letter heads of M/s. Faran Sugar Mills Ltd. Shaikh Bhirkio with contention that the worker to be shows to be employees of contractor is to camouflage the intention of the management for curtailment of rights of formation of union by workers and to deprive the workers to their rights and further contended that the workers claimed to be employed through the contractor are actually employees of M/s. Faran Sugar Mills Ltd,. Shaikh Bhirkio working inside the mills on the machinery owned by the employer of the Mills for production of sugar under administrative control of the management of M/s. Faran Sugar Mills Ltd.
Shaikh Bhirkio as all the administrative correspondence and supervision of work are made by management of M/s. Faran Sugar Mills Ltd. Shaikh Bhirkio and not by the alleged contractor. The General Secretary Peoples Mazdoor Union Shaikh Bhirkio further stated that union cannot produce the appointment letters and pay slips as the same have not been issued' to the workers by the management and the duty/attendance cards, wages sheets have been stamped by R.R. Services after the order dated 21.03.2011 passed by the Honourable High Court of Sindh Hyderabad as previously duty/attendance cards issued to the workers have no stamp or name of establishment or it. The General Secretary produced the some copies of duty /attendance cards issued to the workers in the years 2009 and 2011 in support of his contention showing no name of the establishment on it.
9. Perusal of above, it is manifest that in compliance of the order passed in earlier petition (s) the Respondent No, 1 conducted inquiry in the matter with regard to determination of Respondent No, 3 on various grounds i,e:
(i) whether such union is of workers employed by the petitioner;
(ii) whether Respondent No, 3 has secured highest votes in secret balloting;
10. It appears from the record that while determining said question (s), the direction to provide ample opportunity of hearing to parties, including petitioner, was complied with by the Respondent No, 3, as same is evident from order, impugned. Further, it is manifest that impugned order covers all points raised by learned counsel for petitioner and directions of this Court. This seems to have served the purposes of the order, so passed in earlier petition (s) which included conducting of inquiry, as well object of Section 9 of the I.R.O which insists due diligence and verification of facts.
11. Be as it may, the instant petition has been insisted on grounds of improper compliance of instruction (s) of order passed in earlier petitions albeit the order, impugned, speaks otherwise. The Ordinance vests jurisdiction and authority with the Respondent No, 1 to deal with the issue of registration of a trade union. The petitioner could, competently, challenge proceeding for such purpose of order but only by establishing, prima facie, departure of required procedure but cannot maintain a petition by bringing dispute(s), requiring factual determination or determination by some appellate authority. Besides, the order, impugned, shows that the Respondent No, 1 even responded to factual controversy because the order also reflects that there was referendum held on 15.03.2011 in which 262 workers tasted their votes and Respondent No, 3 secured highest number of votes i,e. 252, whereas the Respondent No, 2 secured only 09 votes.
12. At this moment, it would be conductive to refer the case law relied by learned counsel for the petitioner. In case of United Working Union Al Abbas Sugar Mills (supra), issue was dispute between two unions and this Court decided that only constitutional jurisdiction is always available to the petitioners where statutory functionary was entrusted with responsibility for taking certain actions in accordance with law has not done so.
In case Of Habib Sugar Mills (supra) it is observed that authority has to act in accordance with law and no one is allowed to commit departure from the procedure provided under the law.
In case of Export Processing Zones vs. Registrar of Trade Unions and another (supra), also similar proposition was recorded.
13. In the said cases the petition was maintained only to extent of requirement of law which demands a thing to be done by an authority should be in accordance with law and procedure whereas in present matter, there appears no departure from required procedure when the petitioner enjoyed opportunity of hearing within spirit of directions, so issued in earlier petitions.
In case of Lucky Textile Mills (supra), relied by learned counsel for the petitioner, it is held as under:- "Validity-Registrar of Trade Unions being statutory entity was required to discharged its legal position--NO speaking order being available on record, impugned order was set aside with direction to the Registrar to conduct an impartial inquiry into the matter and then proceed to pass a speaking order. Impugned registration awarded to the union was set aside/ cancelled, mater was remanded-to Registrar Trade unions to consider application afresh and conduct impartial inquiry in the matter and then proceed to pass appropriate order accordingly."
In above case too, the order was set-aside, being not-speaking as it is well settled law that an authority exercising a jurisdiction would not only pass an order but 'speaking order' which would not be fulfilled if there is a departure from mandatory requirement of law or reasons to conclusion are lacking. This also does not help the case of petitioner when order, impugned, otherwise appears to be passed properly within four corners of instructions, so issued in earlier petitions.
In case of Essa Cement Industries Workers Union (supra), it has been held as under:- "Neither the employee 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."
14. Without prejudice to the above, learned Assistant A.G has raised objection with regard to maintainability of the petition on non joining Province of Sindh as party. In support of his contention he has relied upon case of Haji Abdul Aziz (supra), wherein it is held that u/S. 79, CPC and Article 174 of the Constitution of Islamic Republic of Pakistan, it is requirement of law that in every suit filed by or against the Government, authority of Government would be that province.
15. In view of the proposition as laid down in the above Judgments, I am of the considered view that the petitioner has failed to make out a case by establishing that authority (Respondent No, 1), while passing impugned order, departed from any mandatory requirement of law, particularly when the order impugned specifically shows to have been passed within four corners of instructions/ directions, issued in earlier petition, which included conducting of inquiry as enshrined under Section 9 of the Ordinance nor it can be opined that Respondent No, 1 traveled beyond his jurisdiction. Consequently, instant petition merits no consideration and same is dismissed.