' MOHAMMAD AZAM KHAN, CJ. -- The titled appeals with the leave of the Court arise out of the judgment of the High Court dated 24th July, 2013. Common questions of law are involved in both the appeals, therefore, these are being disposed of through single judgment.
2. UBL Progressive Employees Union was registered by the Registrar, Trade Unions on 10th September, 2011. Office bearers of the Unions were registered by the Registrar, Trade Union on 18th October, 2011 (C.B.A.) collective bargaining agent certificate in favour of the said Union was issued on 31st October, 2011 and the script of office bearers was issued on 18th October, 2011. United Bank Limited challenged the said order of the Registrar through a writ petition filed on 1st October, 2012 after a period of more than one year for being issued without lawful authority. After necessary proceeding, the learned, High Court quashed the orders passed by the Registrar and the Deputy Registrar being without lawful authority and of no legal effect through the impugned judgment dated 24th July, 2013. Both the parties have challenged the said judgment.
3. Mr. Muhammad Idrees Mughal, Advocate, the counsel for United Bank Limited, submitted that the Azad Jammu & Kashmir Industrial Relations Ordinance, 1974 (hereinafter to be referred as I.R.O.) is not applicable in the present case. United Bank is a banking company. The Azad Jammu & Kashmir Legislative Assembly has no jurisdiction to enact laws for the territories of Pakistan. The I.R.O. Has been issued by the Azad Jammu & Kashmir, therefore, it is not applicable on banking companies.
The learned counsel forcefully argued that after 18th Amendment in the Constitution of Islamic Republic of Pakistan, 1973 new Industrial Relations Act, 2012 (I.R.A.) has been enacted on 13th April, 2012 and after promulgation of new Industrial Relations Act, the banks are being governed by the said Act. The I.R.O. Has no concern with the banking companies. The learned counsel submitted that the banking companies are licenced by the State Bank of Pakistan and the banks working under the licence of the State Bank of Pakistan are not amenable to the AJ&K Laws. In I.R.A., trans- provincial companies and multi-national companies are not amenable to the jurisdiction of the Labour Courts. The learned counsel referred to unreported judgments of Pakistan titled Telecommunication Company Limited Vs. Member, NIRC and others (Civil Appeal No, 407/2013 decided on 17th February, 2012), State Bank of Pakistan Vs. Presiding Officer Labour Court (Civil Appeal No, 1150/2012, decided on 13th February, 2013) and Air League of PIAC Employees Vs. Federation of Pakistan (Constitutional Petition No, 24 of 2011, decided on 2.6.2011). The learned counsel also referred to the cases titled Commissioner Income Tax, Muzaffarabad and others Vs. Altaf Ahmed Mir, AVP, NBP, RHQ, Muzaffarabad and others (PLJ 2002 (AJ&K) SC 101) and Said Muhammad and 4 others Vs. Custodian Evacuee Property, Azad Jammu & Kashmir, Muzaffarabad and 8 others (PLD 2006 Supreme Court (AJ&K) 1).
' In the case titled Said Muhammad and 4 others Vs. Custodian of Evacuee Property, Azad Jammu & Kashmir, Muzaffarabad and 8 others (PLD 2006 Supreme Court (AJ&K) 1), while deciding the writ petition, the High Court failed to resolve the preliminary objection raised by the respondents. This Court observed that without first having the wisdom of the High Court in the matter it is not appropriate for this Court to decide the question involved in the case. The case was remanded.
' In the case titled Commissioner Income Tax, Muzaffarabad and others Vs. Altaf Ahmed Mir, AVP, NBP, RHQ, Muzaffarabad and others (PLJ 2002 SC (AJ&K) 101), it was observed by this Court that banks established by the Government of Pakistan are neither acting in connection with the affairs of the State of Azad Jammu & Kashmir nor the same are under the control of the Azad Jammu & Kashmir or the AJ&K Council, therefore, the writ cannot be issued against the management of such banks under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act.
' In appeal titled Pakistan Telecommunication Company Limited Vs. Member, NIRC and others (Civil Appeal No, 407/2013, decided on 17th February, 2014), the controversy involved was relating to I.R.A., 2012.
' In the case titled State Bank of Pakistan Vs. Presiding Officer, Labour Court (Civil Appeal No, 1150/2012, decided on 13th February, 2013), the matter raised before the Court was regarding the implementation of the judgment of the Labour Court. The case was decided through consolidated judgment and in other appeals the matter involved relating to the validity of I.R.O., 2008.
' In case titled Air League of PlAC Employees Vs. Federation of Pakistan (Constitutional Petition No, 24 of 2011, decided on 2.6.2011), the question involved was that what is the status of I.R.O., 2008 by virtue of Article 270AA added through 18th Amendment introduced in the Constitution of Islamic Republic of Pakistan.
4. While controverting the arguments of the learned counsel for the United Bank Ltd., Mr. Zaffar Hussain Mirza, Advocate, the counsel for UBL Progressive Employees Union and others, submitted that the appeal filed by the United Bank Limited is not competent because the, writ petition filed by the United Bank has been accepted. The appeal has only been filed for academic discussion. It merits dismissal. The learned counsel submitted that the judgment of the High Court is against law and the record. The writ petition is not maintainable because alternate remedy by way of application is available against the registration process. Under Section 10 of I.R.O., the Registrar has power to register a Trade Union and issue certificate under Section 12 of the said Ordinance and under Section 13, the Registrar may file complaint in the Labour Court for cancellation of the registration of Union. The learned counsel submitted that finding recorded by the High Court that the officers of the Bank cannot be the members or office bearers of the Union, is against law. It is not a designation rather it is the nature of the duties assigned, which determines whether a person is a workman or not.
5. Mr. Riaz Tabassum, Advocate, the counsel for UBL Progressive Employees Union argued that alternate remedy for cancellation of registration of Union is available to the bank. In presence of alternate remedy the writ petition is not maintainable. The learned counsel relied upon case: law reported as Burewala Textile Mills Limited, Burewala Vs. Registrar, Trade Unions, Multan and 3 others (1994 PLC 323), Kohinoor Tea Company Pvt. Ltd. Vs. Director of Labour and others (2001 PLC 367) and Agriculture Workers' Union Balochistan Vs. The Registrar of Trade Unions, Balochistan, Quetta and others (1997 SCMR 66).
' In the case titled Burewala Textile Mills Limited, Burewala Vs. Registrar, Trade Unions, Multan and 3 others (1994 PLC 323), the Lahore High Court observed that the employer is authorized to object to the registration of Union before the Registrar and the Registrar is empowered to move the Labour Court for cancellation of the registration of labour union.
' In the case titled Kohinoor Tea-Company Pvt. Ltd. Vs. Director of Labour and others (2001 PLC 367), the Karachi High Court observed that writ petition for cancellation of registration of trade union is not maintainable. The question can only be determined by the Labour Court on a complaint by the Registrar.
' In the case titled Agriculture Workers' Union Balochistan Vs. The Registrar of Trade Unions, Balochistan, Quetta and others (1997 SCMR 66), it was observed by the Supreme Court of Pakistan that question relating to nature of the duties and function performed by the employees of Municipal Corporation was the question of fact which requires evidence and same cannot be determined satisfactorily in the proceedings under Article 199 of the Constitution of Pakistan especially when an alternate procedure for such determination is provided under Section 10 of I.R.O., 1969. The Supreme Court in the circumstances, recalled the writ issued by the High Court against the registration of trade union.
6. Raja lmtiaz Ahmed, Advocate, the counsel for respondents No, 1 and 2 in appeal titled United Bank Vs. Registrar Trade Union and others, submitted that the judgment of the High Court is not maintainable. Respondent No, 3 falls in the definition of worker and workman. He referred to Section 2(28) of I.R.O. And argued that the status of worker and workman can be determined from the nature of the duties and not from the designation. The learned counsel relied upon the case reported as Shoukat Usman, Ex-Officer Grade-I, UBL Muzaffarabad Vs. United Bank Limited through its President Head Office of Bank Karachi and 6 others (PLJ 2011 SC (AJ&K) 1).
' In case titled Shoukat Usman, Ex-Officer Grade-I, UBL, Muzaffarabad Vs. United Bank Limited through its President Head Office of Bank, Karachi and 6 others (PLJ 2011 SC (AJ&K) 1), the matter before the Court was in relation to the amendment of Section 2-A of Federal Service Tribunals Act, 1973, and filing of civil suit by an officer of the Bank against the termination order. It is not a matter under I.R.O.
7. We have heard the learned counsel for the parties and also perused the record. United Bank challenged the registration of UBL Progressive Employees Union Azad Jammu & Kashmir, registration of office bearers and C.B.A. Certificate issued in favour of the said union. The question of application of I.R.O., on the banks established under the licence of the State Bank of Pakistan and working in the Azad Jammu & Kashmir has also been raised. I.R.O., was enforced in the Azad Jammu & Kashmir on 3rd June, 1974. The Azad Jammu & Kashmir Interim Constitution Act, 1974 was promulgated on 24th August, 1974. The I.R.O. Was in existence prior to the promulgation of the Azad Jammu & Kashmir Interim Constitution Act, 1974 and Section 51 of Azad Jammu & Kashmir Interim Constitution Act, 1974 postulates that all laws which immediately before the commencement of this Act, were in force in Azad Jammu & Kashmir shall continue to remain in force until altered, repealed or amended by an act of the appropriate authority subject to the provisions of this Act.
Explanation to Section 51 prescribes that the laws in this section included Ordinance, Orders, Rules, Bye-laws, Regulations and any notification and other legal instruments having the force of law. The I.R.O., was enforced at the time of promulgation of Interim Constitution Act, 1974, therefore, it is applicable on all the industrial and commercial entities. It is even applicable to the persons who are employed as workmen by the departments. UBL is admittedly a banking company governed by the Banking Companies Ordinance, 1962. The said Ordinance has been adapted by the Azad Jammu & Kashmir Council by Extension of Laws Act, 1980. In the light of the provisions of the said Ordinance, the bank has been registered as a company under the Companies Ordinance, 1984 as a foreign company in the Azad Jammu & Kashmir and is engaged in banking business in the territorial limits of the Azad Jammu & Kashmir. The banks are amenable to all the laws enforced in Azad Jammu & Kashmir like any other person. The question of applicability of I.R.O. Raised by the counsel for the appellant, United Bank Ltd. Came under consideration of this Court in a previous case titled Muhammad Farid Sulehria and another Vs. Labour Court and others (Civil Appeal No, 88/2008, decided on 1st October, 2012). It was observed by this Court as under:- "The above-referred judgment of the Supreme Court of Pakistan recorded in Mubeen-usSalam's case (supra) was not brought into the notice of the High Court while deciding the writ petition. This aspect of the case that a 'worker' or 'workman' as defined in Factories Act, 1934 or the Workman's Compensation Act, 1923 has been expressly excluded from the definition of 'civil servant' as defined in the Civil Servants Act, 1973, was not considered by this Court while deciding the cases reported as United Bank Limited Employees Union through its President and General Secretary at Muzaffarabad and 4 others Vs. United Bank Limited through its President, etc. (PLJ 2000 SC (AJ&K)
181). Genuine Rights Commission through Munir Ahmed Farooqi, Advocate and others Vs. Federal Government through Chief Secretary, Islamabad and 11 others (PLD 2006 High Court (AJ&K) 1) and subsequent cases decided on the strength of these authorities. The view expressed in the case reported as 2004 SCR 341 is not correct, therefore, is distinguishable. While applying the law laid down in Mubeen-us-Salam's case, it is held that appellant No, 1 is a workman. He does not fall within the definition of civil servant. The Labour Court has jurisdiction in the matter. The judgment of the High Court dated 11.4.2008 is not sustainable. The appeal is accepted. The judgment of the High Court dated 11.4.2008 is set aside with no order as to the costs."
' In the cases reported as United Bank Limited Employees Union through its President and General Secretary at Muzaffarabad and 4 others Vs. United Bank Limited through its President, etc. (PLJ 2000 SC (AJ&K) 181) and Zulfiqar Ali Maffick Vs. Zonal Chief Habib Bank Limited and 6 others (2004 SCR 341) the jurisdiction of Labour Court was not challenged by the banks functioning in the Azad Jammu & Kashmir. The judgment delivered in Muhammad Farid Sulehria's case (supra) lays down the correct law. All the banks functioning in the Azad Jammu & Kashmir are amenable to I.R.O.
8. The contention of the learned counsel for the United Bank that after introduction of 18th Amendment in the Constitution of Pakistan, 1973, new I.R.A., has been enacted, therefore, the banks will be governed under the provisions of the said Act, is misconceived. The laws of Pakistan are only applicable in the territory of Pakistan unless adapted by the Azad Jammu & Kashmir Assembly or AJ&K Council. Any of the provisions contained in I.R.A. Has no relevancy for determining the industrial disputes arising in Azad Jammu & Kashmir. All the industrial disputes in the Azad Jammu & Kashmir have to be raised and resolved in the light of the provision contained in I.R.O.
9. The I.R.O., 1974 provides a scheme for registration and cancellation of Trade Unions. The preamble of I.R.O. Provides that the Ordinance is being promulgated for the formation of Trade Union, the regulation of relations between employers and workmen and the avoidance and settlement of any differences or disputes arising between them. Section 3 of I.R.O. Provides for establishment of a trade Union and right to the workers to join association of their own choice. An application for registration of Trade Union may be filed under Section 5 of I.R.O. To the Registrar.
Section 6 provides the requirements for filing an application for registration of Trade Union, with the statement including, apart from others, the title, names, age, address and occupation of the officer of the Trade Union and Section 7 provides the requirements of registration. Section 7 is reproduced as under:-- "7. Requirements of registration. -- (1) A trade union shall not be entitled to registration under this Ordinance unless the Constitution thereof provides for the following matters, namely:--
(a) the name and address of the trade union;
(b) the objects for which the trade union has been formed;
(c) the purposes for which the general funds of the union shall be applicable;
(d) the number of persons forming the executive shall be from amongst the workmen actually engaged or employed in the establishment or the industry for which the trade union has been formed;
(e) the conditions under which a member shall be entitled to any benefit assured by the constitution of the trade union and under which may fine or forfeiture may be imposed on him;
(f) the maintenance of a list of the members of the trade union and of adequate facilities for the inspection thereof by the officers and members of the trade union;
(g) the manner in which the constitution shall be amended, varied or rescinded;
(h) the safe custody of the funds of trade union, its annual audit, the manner of audit and adequate facilities for inspection of the account books by the officers and members of trade union;
(i) the manner in which the trade union may be dissolved;
(j) the manner of election of officer by the general body of the trade union and the term, not exceeding two years, for which an officer may hold office upon his election or re-election;
(k) the procedure for expressing vote of confidence in any officer of the trade union; and
(I) the meeting of the executive and of the general body of the trade union, so that the executive shall meet at least once in every three months and the general body at least once every year.
(2) Without prejudice to the provisions of sub-section (1), a trade union of workmen shall not be entitled to registration under this Ordinance unless all its members are workmen actually engaged or employed in the industry with which the trade union is connected."
' From the plain reading of Section 7, it appears that a Trade Union is not entitled for registration without providing the details mentioned in sub-section (1). The provisions of the section appears to be mandatory and sub-section (2) of Section 7 denotes that only a workman actually employed can be a member of Trade Union. If any of the members of the union is not a workman, such Trade Union cannot be registered.
10. Section 10 of I.R.O. Vests powers in the Registrar for registration of a Trade Union. We deem it appropriate to reproduce Section 10, which reads as under:- "10. Registration. -- (1) The Registrar, on being satisfied that the trade union has complied with all the requirements of this Ordinance, 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 or respects he shall communicate in writing his objections to the trade union within a period of fifteen days from the receipt of the application and the trade union shall reply thereto within a period of fifteen days from the 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 sub-section (1) and issue a certificate of registration in the prescribed form within three days of the objections having been so met. In case the objections are not satisfactorily met, the Registrar may reject the application.
(3) In case the application has been rejected or the Registrar has delayed disposal of the application beyond the period of fifteen days provided in sub-section (1) or has not issued a certificate of registration within a period of three days as provided in sub-section (2), as the case may be, the trade union may appeal to the Labour Court who for reasons to be stated in its judgment may pass an order directing the Registrar to register the trade union and to issue a certificate of registration or may dismiss the appeal.
(4) Notwithstanding anything contained in any other provision of this Ordinance, every alteration made in the constitution of a registered trade union and every change of its officers shall be notified by registered post by the trade union to the Registrar within fifteen days of such change.
(5) The Registrar may refuse to register such change or alteration if it is in contravention of any of the provisions of this Ordinance or if it is in violation of the constitution of the trade union.
(6) Subject to the provisions of sub-section (5), every inclusion or exclusion of any constituent unit of a federation of trade unions shall be notified by registered post by the federation to the Registrar within fifteen days of such inclusion or exclusion.
(7) In case there is a dispute in relation to the change of officers of a trade union, or any trade union is aggrieved by the refusal of the Registrar under sub-section (5), any officer or member of the trade union may appeal to the Labour Court who shall within seven days of receipt of the application or appeal, as the case may be, pass an order either directing the Registrar to register the change or alteration in the constitution or in the officer of the trade union or may, for reasons to be recorded in writing, direct the Registrar to hold fresh elections of the union under his supervision."
' A bare reading of the above provision shows that Registrar shall satisfy itself that the trade union has complied with all the requirements of the Ordinance and after being satisfied he shall register the trade union and issue a certificate within 15 days from the filing of the application and if he is not satisfied or he thinks that the application is deficient, he shall communicate in writing his objections on registration of the same to the trade union and under sub-section (2) if objections have been satisfactorily met by the Union, he shall register the same but if the objections are not met then the Registrar may reject the application and under subsection (3), the union shall have a right to file an appeal to the Labour Court. It is evident from the scheme of Section 10 of I.R.O. That it is the duty of the Registrar that before issuing registration certificate, he shall satisfy himself that the application is complete in all respects and it fulfils all the requirements of I.R.O. The question whether all the members and office bearers of the union are workmen or not, is a question of fact, which has also to be determined by the Registrar. If the Registrar refuses to register a trade union or fails to issue certificate then the trade union may file an appeal in the Labour Court. There is a concept of only one appeal against the non-registration of the Union. There appears no concept of appeal before the Labour Court against the registration of Union and employer has no right to file appeal against the registration of trade union.
11. Section 13 of I.R.O., 1974 specifically provides for cancellation of registration. The same is reproduced as under:- "13. Cancellation of registration. -- (1) The registration of a trade union shall be cancelled if the Labour Court so directs upon a complaint in writing made by the Registrar that the trade union has:-
(i) contravened any of the provisions of this Ordinance, or the rules; or
(ii) contravened any of the provisions of its constitution; or
(iii) made in its constitution any provision which is inconsistent with this Ordinance or the rules; or
(iv) dissolved itself or has ceased to exist.
(2) Where any person who is disqualified under Section 8 from being elected as, or from being, an officer of a trade union is elected as an officer of a registered trade union, the, registration of that union shall be cancelled if the Labour Court, upon a complaint in writing made in this behalf by the Registrar, so direct."
' The language of Section 13 appears to be mandatory, providing that the Labour Court shall cancel the registration of a trade union when the complaint is made in writing by the Registrar on any of the grounds mentioned in sub-section (1) or sub-section (2). Clause (i) of sub-section (1) in clear terms provides that if a trade union contravenes any of the provisions of Ordinance or rules, its registration shall be cancelled by the Labour Court on a complaint filed by the Registrar in this respect. The fact of registration of union reflects that the Registrar has registered the same after theing satisfied that the application is correct. But, if later on a fact comes in the notice of the Registrar from any source or is brought in his notice by the employer that the facts enlisted in the application for registration of the union made under Sections 6 and 7 are incorrect or does not fulfill the requirements of the sections, then he shall make an inquiry into the facts and if reaches to the conclusion that in the application some facts were mis-staed or some of the office bearers are not workmen or the registration is violative of the provisions of I.R.O., which attracts the provision of Section 13, then the Registrar may make a complaint to the Labour Court in writing for cancellation of registration of trade union. There appears no role of employer at the time of registration of trade union but the Registrar may make an inquiry from the employer in respect of the members and the employer may also object on the facts enlisted in the application for registration. In a case titled Burewala Textile Mills Limited, Burewala Vs. Registrar, Trade Unions, Mu/tan and 3 others (1994 PLC 323), it was observed by the Lahore High Court as under:- "6. While disposing of the preliminary objection that the appellant being not authorized to object the registration of Trade Union, was not competent to file the writ petition and that the Registrar being empowered under Section 10 to move the Labour Court for registration in case Trade Union has been registered in contravention of any of the provision of law on the subject, the I.C.A. Is not competent. We are of the view that it is the legal duty of the Registrar and the Labour Court to ensure due compliance of provision of law relating to the registration of Trade Union and in case of contravention of any of the provisions of the Industrial Relations Ordinance, 1969 and rules framed thereunder, the alternate remedy having been provided under Section 10 of the Ordinance is to be availed by the Registrar suo motu or upon an application moved by the employer or a rival Trade Union as the case may be. The question whether the members of respondent No, 4 were workman or not and they were not employees of Mill being a question of fact can be agitated before the Labour Court by moving the Registrar to proceed in the matter and could not be subject-matter of the proceedings under Article 199 of the Constitution. The law also provide an appeal against cancellation of registration of a Trade Union under Section 10 of the Ordinance. Undoubtedly, the management of the rival Trade Union is not authorized to invoke the jurisdiction of Labour Court for cancellation of registration but the Registrar on their application in suitable cases cannot refuse from taking necessary steps under the law in his discretion. However, the legality of order of registration of Trade Union, if challenged on any ground other than those mentioned under Section 10 of the Ordinance for the purpose of lodging complaint by the Registrar, the writ petition shall be competent and in that case there being no remedy of appeal, revision or review available under the law, Intra-Court Appeal shall not be debarred."
12. The provisions relating to the registration of Trade Union and cancellation from Sections 6 to 13 of the I.R.O., are pari-materia to the provisions contained in Sections 5 to 10 of Industrial Relations Ordinance, 1969 of Pakistan. The law settled on the point by the superior Courts of Pakistan, is fully applicable in the cases relating to I.R.O. As has been observed hereinabove that there is no direct role of employer at the time of registration of Trade Union but an employer has a right to object at the time of registration of Union that any fact contained in the application is not correct or it contravenes the provisions of Ordinance, therefore, Union cannot be registered and if a union has already been registered then too the employer has right to file an application to the Registrar that the registration of union is against the provisions of I.R.O. And the Registrar after holding an inquiry, if reaches to the conclusion that the registration application is against the provisions of I.R.O., then he may file a complaint before the Labour Court for cancellation of the registration. This is an appropriate and efficacious remedy which is available to the employer. In presence of the said remedy, the writ petition is not maintainable. The proposition has been dealt with by the Supreme Court of Pakistan in a case titled Agriculture Workers' Union, Balochistan Vs. The Registrar of Trade Unions, Balochistan, Quetta and others (1997 SCMR 66) as under:-- "5. In view of the preceding discussion, we are of the opinion that respondent No, 1 was not justified in declining to entertain the request of appellants for registration as a Trade Union on account of the order of this Court dated 7.10.1992 declining leave to appeal against the order of the High Court dated 14.7.1992 on the petition of the appellants. As pointed out by us earlier, the observations of the learned High. Court of Balochistan in C.P. 90/1992 which left open to the appellants to approach afresh to respondent No, 1 for their registration as a Trade Union under the Ordinance if they could satisfy respondent No, 1 that their members though employed in a Government Department, fell within the category of worker/workman as defined in the Factories Act, 1934 and Workmen's Compensation Act, 1923, was neither interfered with nor set aside and therefore, the respondent No, 1 ought to have held enquiry in the light of observations of the High Court to determine whether, the appellants qualified for registration as a Trade Union or not."
' It was further observed at page 89 as under:- "25. In the case before me, the admitted position is that appellant was registered as a Trade Union of Workers in the year 1983. The procedure for cancellation of registration of a Trade Union if it is registered in contravention of any of the provisions of the I.R.O. Is provided in Section 10 of I.R.O. No such proceedings were ever taken or initiated. The registration of appellant was cancelled in the Constitution petition filed directly by respondent No, 1, before the Balochsitan High Court. There is nothing on record to show that the members of appellants who were employees of respondent No, 1 were performing or were connected with the performance of any of the regal functions of the Corporation so as to disentitle the appellants to get itself registered as a Trade Union of Workers. In any case, the question relating to the nature of duties and functions performed by the employees of respondent No, 1 who formed themselves into a Trade Union, was a question of fact which required evidence, and, therefore, the same could not be determined satisfactorily in the proceedings under Article 199 of the Constitution, especially when an alternate procedure for such determination was provided for under the I.R.O. I accordingly accept the appeal and recall the writ issued by the High Court in the above case. There will be no order as to cost."
' From the survey of case-law, it can safely be concluded that the employer has a right to agitate the matter before the Registrar that the facts enlisted in the registration application are incorrect which offend the provisions of I.R.O. And on the basis of facts he shall hold an inquiry and file a complaint before the Labour Court for cancellation of the registration of Trade Union.
13. The appellant, United Bank Ltd., alleged in the writ petition that some officers of grade III, II and I, had got registered an association by the 'Registrar Trade Unions and on the application of United Bank Ltd., the Registrar Trade Unions cancelled the same. Later on, the instant Trade Union was registered by the Registrar. It has been alleged in the writ petition that some of the office bearers or officers do not fall in the category of workman. A prayer was made for cancellation of the registration of the Trade Union on this ground. A perusal of the whole writ petition reveals that no document for proving the fact that the nature of duties of the office bearers of Union is such that they cannot be termed as workmen, is annexed with the writ petition. The respondents in written statement specially averred that they fall in the category of workman due to the nature of their duties. This contention was not controverted by filing replication. The Supreme Court of Pakistan in a number of cases has observed that the question whether an employee falls in the category of workman or not, cannot be determined from the designation rather it has to be determined from the nature of the duties he performs. It requires detailed inquiry by the Registrar Trade Unions to determine whether from the nature of the duties the office bearer or member of Union falls in the category of workman or not. Without any record, it is not possible for this Court or the High Court to determine and resolve the question. In the case titled National Bank of Pakistan Vs. Punjab Labour Court No, 5, Faisalabad and 2 others (1993 SCMR 672), it was held by the Supreme Court of Pakistan as under:- "14. We may also refer to a recent judgment of this Court in the case of Abdul Razzaq Vs. Messrs lhsan Sons Limited and 2 others (1992 PLC 424), in which one of us (Ajmal Mian, J.) was a Member of the Bench, and in which the definitions of "workman" given in Section 2(i) of the Standing Orders Ordinance and Section 2(xxviii) of the I.R.O., were considered and compared with, and the distinction existing between the two definitions were highlighted and the following test laid down by this Court in the case of General Manager, Hotel Intercontinental, Lahore and another v. Bashir A.
Malik and others (PLD 1986 SC 103), was adopted:--
11. The test for determining the question whether an employee is a workman within the meaning of various statutes in the field of Labour legislation is well-settled. The consensus of judicial opinion seems to be that it is the nature of the work done by the employee that would be essential and fundamental consideration for determining the question and not his designation which is not conclusive. The question to be examined is whether manual or clerical work is incidental to the main work or a substantial part of it, so that, the fact that a person employed in a supervisory capacity does some manual or clerical work as ancillary or incidental to such employment has been held not to bring him within the ambit of the definition. The main features, the pith and substance of his employment must be manual or clerical before the definition is attracted."
15. The question whether a person is a workman within the purview of clause (xxxviii) of Section 2 of the I.R.O., can be determined not on the basis of the designation of his post, but on the basis of the duties which he was performing."
(Underlining is ours)
' Similarly, in another case reported as Qaisar and others Vs. Muhammad Shafaqat Sharif (2012 SCMR 743) it has been held as under:-- "....The case of the petitioner is that Labour Court had not jurisdiction to hear the case and that respondent was not a workman, therefore, impugned judgment is liable to be set aside. We have considered the submissions made by learned counsel for the petitioners with care and find that contentions raised by learned counsel have no force. The evidence on record shows that respondent was a worker and Labour Court had jurisdiction to hear the case. The judgment dated 18.11.2008 shows that learned High Court has decided the appeal brought by petitioners after appraisal of entire material available on record. Para No, 4 of the said judgment reads as under:- "The tenor of the impugned order reflects that the questions raised in the present appeal were also raised before the Labour Court. It is clear from the record that the respondent was never charge- sheeted nor any inquiry was conducted against him, therefore, he was not provided sufficient right to defend himself. The respondent had categorically stated in his grievance petition that he was performing functions as a process production supervisor, this plea was not controverted, he also affirmed the same in his statement as P.W.1 pleading specifically that he performed his functions and duty manually, there is no deep cross-examination on the same. The appellant witnesses R.W.1 and R.W.2 did appear before the Labour Court but could not controvert the claim of the respondent emphatically. Thedocumentary evidence tendered by the parties especially Exhs.R1, R3, R9 and R11 to R17 were considered by the Labour Court and disregarded in view of the conflicting statement of R.W.1 who conceded in cross-examination that they were mere token of final sanction of leave. The definition of workman as interpreted in PLC 1999 SC 231 clearly hold that the word workman in the statute is not dependent upon his designation but on the nature of his duty. In view of clear and categorical statement of the respondent in this context and no emphatic denial by the appellants, the same clearly means that the respondent is a workman. And therefore, jurisdiction was correctly exercised by the Labour Court."
14. The record reveals that an association of officers was registered by the Registrar. The United Bank Ltd. moved an application for cancellation of the said association on the ground that association has been formed and get registered by the officers. They do not fall in the category of workman. It was specifically averred in the said application which forms part of the High Court's file at page 45 that "in terms of Section 25 of the said I.R.O., the C.B.A. Certificate can only be issued after following due process to a Trade Union of Workmen". What transpires from the above application is that the United Bank accepted the jurisdiction of the Registrar that he has power to register a Trade Union of workmen. After taking this position the Bank is estopped from taking a position that I.R.O. is not applicable on Banks being established under the licence of State Bank of Pakistan. This Court has observed in a case reported as Azad Government and 3 others Vs. Mrs. Jamshed Naqvi and 2 others (2012 SCR 13) as under:-- "12. All the aforesaid documents sufficiently prove that the respondent herself was instrumental in moving the summaries for her contract appointment. Acquiescence and estoppels are two recognized modes on the basis of which equitable relief by way of writ cannot be granted. In a case reported as Abdul Qadir Vs. Abdul Karim and 4 others (2000 SCR 97) it was observed as under:-- "....We may add that acquiescence and estoppels are two recognized grounds in presence of which jurisdiction based on equity cannot be exercised in favour of a litigant. A common example may be found in the writ jurisdiction of the High Court which is equitable in nature and no relief is granted to a litigant if he himself is instrumental in the making of an order or if he acquiesces in it. He is not allowed to turn round and challenge it. Equitable jurisdiction cannot also be exercised in favour of a litigant with objectionable conduct. If any authority is needed on this point we may refer to the judgment of this Court reported as Muhammad Sharif Vs. Muhammad Manzoor and others (1993 SCR 92) and the case titled Ghulam Mustafa Vs. Azad Government and 2 others (1996 SCR 7)."
13.The appellants herein have filed a copy of notification dated 18th January, 2013 as annexure RB, alongwith the written statement in the High Court, whereby the Prime Minister has rejected the proposal for contract appointment of petitioner, respondent herein, as Managing ' Director, AJ&K Teachers Foundation. From the record it is amply proved that the respondent herself moved application for contract appointment. After being unsuccessful in obtaining desired results, she filed writ petition. By her conduct she is stopped from filing the writ petition. The same was liable to be dismissed on the ground of estoppels and acquiescence."
' The same proposition has also been dealt with by this Court in a case titled Ehsan-ur-Rehman and 10 others Vs. Arshad Ali Khan and 5 others, reported as 2012 PLC (CS) 795 as under:-- "...The matter of acquiescence and estoppel has since long been settled by this Court in different cases. It has been held by this Court in a number of cases that if a person participates in the proceedings and remains unsuccessful in getting the desired result, later on he cannot turn round and challenge the proceedings on the ground that the same were not conducted by the legally constituted body. In a case titled Malik Khalid Mehmood Vs. Abdul Majeed Butt and 4 others (1997 MLD 2921) it was held as under:-- '...it was then argued by Raja Hassan Akhtar that when the allotment order in favour of respondent No, 1 was issued the relevant rules authorizing the allotment of plot had not yet been enforced. This point was argued before the High Court and was repelled by placing reliance on a notification issued on 25th of February, 1988 whereby Mirpur Development Authority in respect of encroachments of land were made applicable to Municipal Committee Dadyal. The learned counsel for the appellant submitted before us that the view taken by the High Court was not correct. We need not decide this question because it is well-settled that the appellant is estopped from raising this point. Admittedly, the appellant himself applied on the prescribed form to the Municipal Committee that his possession over the disputed piece of land may be regularized in his favour. After having been unsuccessful in his attempt to secure a favourable order he cannot be allowed to turn round to say that the functionaries of the Municipal Committee did not have the authority to regularize encroachment."
' This view is further supported by a case reported as Engineer Muhammad Khalid Vs. The University of AJ&K and 8 others (2004 SCR 467).
15.As stated hereinabove that United Bank Ltd. had moved an application for cancellation of an association earlier registered by the Registrar Trade Unions and on the application the registration of said Union was cancelled as such the Bank may file similar application before the Registrar for initiating inquiry and making complaint to the Labour Court for cancellation of registration of Trade Union.
' The result of the above discussion is that in presence of alternate remedy writ petition was not maintainable. The appeal filed by the United Bank Ltd. is dismissed and that of the UBL Progressive Employees Union is accepted. Resultantly, the Writ Petition No, 1912/2012 is dismissed with no order as to costs.