1. ' This Constitutional Petition calls in question the legality of order dated 12th November, 1981 of the Sind Labour Court No, V in Appeal No, 4 of 1981 filed by respondent No, 3 under section 8 (7) of the Industrial Relations Ordinance, 1959. Petitioner No, 1 is a registered Trade Union certified as Collective Bargaining Agent for the workers employed/engaged by the handling agents of foodgrains at Karachi port, T. P. X., Landi and Pipri Godowns, Petitioner No, 2 is the elected President of the aforesaid Union known as Pakistan Wherehouse Carrier Workers' Union.
2. ' It is the case of the petitioners that respondent No, 3 is neither a worker nor member, nor office- bearer of the Petitioner No, 1 but claims to be as such. The Constitution of the petitioners Union had been drawn up as required under section 7 of the Industrial Relations Ordinance, 1969 (Ordinance No, XXIII of 1969) hereinafter referred to as the Ordinance) and as required by section 23 of the Constitution an Election Commission was constituted. General Election was held on 7th August, 1981 and result of the Election was communicated to the Registrar, Trade Unions by letter dated 9th August, 1981 who accepted the change of office-bearers of the Union by his letter dated 19th of the same month. It is the case of the petitioners that the acceptance of the change of office-bearers was not challenged and disputed by any member or o co-bearer of the Union. However, respondent No, 3 addressed a letter dated 19th September, 1981 to respondent No, 2 on the subject of change of office-bearers alleging that in a general body meeting held on 18th September, 1981 a vote of no-confidence was passed against the office-bearers of the Union and that election of office-bearers was held on the very same day after suspending section 23 of the Constitution of the Union. The Registrar Trade Unions in his letter dated 22nd October, 1981 rejected the request for acceptance of the change of office-bearers on the ground : firstly that it was reported that persons participating in the general body meeting held on 18th September, 1981 did not form two-thirds of the total number of members of the Union as required by clause 9 of the Constitution for a vote of no confidence against the office-bearers, and the Registrar had no means to satisfy himself whether all persons participating in the meeting were members of the Union. Secondly, the Registrar pointed out that elections of the office-bearers held on 18th September, 1981 were not conducted in accordance with the provisions of section 23 of the Constitution. Thirdly, the claim about suspension of the aforesaid section 23 of the Constitution was without any legal validity as none of the clauses of the Constitution could be done away with without amending the same in accordance with the provisions of the Ordinance.
3. ' Respondent No, 3 filed an appeal under section 8 (7) of the Ordinance challenging the order passed by Respondent No, 2 before respondent No, 1, namely the Sind Labour Court No, V at Karachi to which Petitioner No, 2 filed legal objections inter alia that the Sind Labour Court No, 1 had jurisdiction in the matter and not Sind Labour Court No, V before whom the appeal had been filed.
4. Respondent No, 1 by the impugned order dated 12th November, 1981 held that the Court bad jurisdiction and directed Registrar to hold fresh election of the Union under his supervision.
5. ' The impugned order is assailed inter alia on the following grounds :
(1) That the respondent No, 1 had no territorial jurisdiction to hear the appeal as neither cause of action had arisen within its jurisdiction nor the office of the Registrar of Trade Unions, nor again the office of the Trade Unions were within the jurisdiction of the Court and Sind Labour Court No, 1 had the territorial jurisdiction.
(2) That appeal under section 8 (1) of the Ordinance is competent only when the same is submitted by a member or office-bearer of the Trade Union] and respondent No, 3 was not competent to do so.
(3) That the impugned order is not a speaking order as the reasons for directing the Registrar to hold fresh elections of the Trade Union have not been recorded in writing as provided by section 8(7) of the Ordinance.
(4) That the impugned order was passed without hearing the General Secretary of the Union and the other office-bearers who were necessary parties.
6. ' With regard to ground No, 1 namely with that the order of Labour Court is coram non judice, the establishment and jurisdiction of Labour Courts is provided for in section 35 of the Ordinance. The section provides that Provincial Government may by notification in the official Gazette establish as many Labour Courts as it considers necessary and where it establishes more than one Labour Court, shall specify in the notification the territorial limits within which or the industry or classes of cases in respect of which each one of them shall exercise jurisdiction under the Ordinance.
7. ' With regard to powers and functions of a Labour Court subsection (5) of section 35 aforesaid enumerates the same. Under the subsection Labour Court shall exercise and perform inter alia such powers and functions as are or may be conferred upon or assigned to it by or under the Ordinance or any other law.
8. ' Section 8(7) of the Ordinance reads as under :- "(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 subsection (5) any officer or member of the Trade Union may appeal to the Labour Court, who shall within 7 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 officers of the Trade Union or may, for reasons to be recorded in writing, direct the Registrar to hold fresh election of the Union under his supervision."
9. ' Thus the power of hearing appeal against the order of the Registrar has been given to the Labour Court in respect of refusal to register the change or alteration in the officers of the Trade Union and, therefore, the aforesaid power is conferred and assigned upon the Labour Court under the Ordinance.
10. Mr. Shaikh Haider, the learned counsel for the petitioner has referred to Notification No, SOG(LAB)-1- 33/76(LC) dated the 28th January, 1976 of the Government of Sind, Labour and Transport Department, under which in supersession of all previous notifications issued in that behalf the Government was pleased to direct about the territorial limits of the Labour Courts in the Province and a perusal of the same makes it clear that the area comprising of New Town Police Station is within the territorial limits of Labour Court No, 1 at Karachi. It is further pointed out by the learned counsel that the impugned order of the Registrar of Trade Unions was issued by him from his office at 520, Taipur House, Business Recorder Road, Karachi, which is in the territorial jurisdiction of the New Town Police Station. It has further been argued that the legal plea about territorial jurisdiction being that of Labour Court No, 1 and not of Labour Court No, 5 was taken in written legal objections filed by the petitioners before the Sind Labour Court No, 5 (respondent No, I herein) but the same was erroneously rejected by respondent 1 in the impugned order. A perusal of the impugned order shows that at Page 6 thereof the learned Presiding Officer of Labour Court No, 5 dealt with the contention as under :- "The most important point agitated before me as with regard to the jurisdiction of this Court. It is correct that the impugned order shows the address of respondent No, I on Business Recorder Road, Karachi which is not within the jurisdiction of this Court but the summons on respondent No, 1 has been served on the address shown in the Memo. Of Appeal which is within the jurisdiction of this Court. Under the circumstances, I am satisfied that this Court has jurisdiction as the entire case is dealt with at the address shown in the Memo. Of Appeal but it is also correct that impugned order has not been passed within the jurisdiction of this Court."
11. A perusal of the relevant extract quoted above from the impugned order would show that the finding with regard to territorial jurisdiction of Labour Court No, V is based on altogether wrong premises. It is true that there is one Registrar of Trade Unions who nevertheless has different Sub Offices in different parts of the City in which the business of the locality is transacted by him and therefore if the argument of the learned Labour Court is accepted fixing the territorial jurisdiction of the various Labour Courts working at Karachi by the Government of Sind in exercise of powers under section 35 of the Ordinance would be meaningless. The learned Presiding Officer of Labour Court No, 5, after stating in so many words that the place of business shown in the impugned order is no within the territorial jurisdiction of Labour Court No, 1, tried to justify assuming of the jurisdiction on merely the fact that the same Registrar of Trade Unions was functioning at his Head. Office which was within the territorial jurisdiction of his Court. I have therefore, no hesitation in coming to the conclusion that the respondent No 1 had no jurisdiction to pass the impugned order.
12. ' With regard to ground No 2 stated above, a perusal of section 8 of the Ordinance and particularly that of subsection (7) thereof would show that in the case there is a dispute in relation to the change of officers of the Trade Unions or any Trade Union is aggrieved by the refusal of the Registrar under subsection (5), any officer or member of the Trade Union may appeal to the Labour Court. The question as to who is member or officer of the Union can be decided only by reference to the Constitution of the Pakistan Warehouse Carriers Workers' Union framed under section 7 of the Ordinance which makes it a condition precedent for registration of a Trade Union that the Constitution thereof should provide for matters enumerated therein. Section 7-B of the Ordinance inter alia provides that every registered Trade Union shall maintain a register of members showing particulars of subscription paid by each member. Section 5 of the Constitution of the Petitioner- Union provides that every worker working in any capacity with the agent authroised by the Government to handle the food grain etc. At Keamari, T.P.X. Landhi and Pipri Government's Food- grains Godowns and for transit of foodgrains in respect thereof, can become member of the Union on making an application on the prescribed form to the President or General Secretary together with admission fees, and that admission to the Union shall be decided by the Managing Committee. In case admission is refused the worker can make an appeal to the general body whose decision shall be final. Rule 4 of the Industrial Relations (Sind) Rules, 1973 provides for maintenance of registers of members, account books, minute book etc. And lays down that an application for membership of a Trade Union shall be in prescribed form. In the Memo. Of Appeal filed before respondent No, 1 there is no assertion that respondent No, 3 is a member of the Trade Union. Mr. M. L. Shahani, the learned counsel for respondent 3, contended that the respondent could be an office-bearer as clause (d) of section 7(1) of the Ordinance provides that the number of persons forming the executive of a Trade Union shall include not less than 75 per cent from amongst the workmen actually engaged or employed in the establishment or establishments or the industry from which the Trade Union has been formed and therefore 25 per cent of the office- bearers could be outsiders. Developing his argument he further contended that even if it is held that the impugned order is illegal due to the want of jurisdiction of respondent No, 1, since substantial justice has been done and fresh elections have been ordered giving a fair chance to each of the two parties to contest the election and who has the backing of the majority, the impugned order should not be quashed in discretionary exercise of constitutional jurisdiction. He cited a number of authorities on the point which need not be discussed for the purpose of this decision, as there can be no cavil with the proposition except that in the instant case it cannot be said that substantial justice can be done by ordering the Registrar to hold fresh elections.
13. ' Incidentally, the discussion of the question whether the impugned order could be considered to have done substantial justice will include the decision of the third ground, namely, whether the impugned order is a speaking order legally and properly passed as provided by section 8(7) of the Ordinance. To recapitulate the facts, a meeting of the general body of the Union was held on 7th August, 1981 and the office-bearers were elected. The result of the election was communicated to the Registrar of Trade Unions by letter dated 9th August, 1981 who accepted the change of office- bearers by his letter dated 19th of the same month. The aforesaid election was not challenged or disputed but respondent No, 3 wrote a letter dated 19th September, 1981 that is hardly after a month of holding the election, that on 18th September, 1981 vote of no-confidence was passed against the office-bearers of the Union and further that on the same day a new election of office bearers was held and asking the Registrar to accept the change. Unless the proceedings allegedly held in the general body meeting of 18th September, 1981 are considered to be legal and proper respondent No, 3 can under no stretch of imagination be considered to be an office, bearer, and therefore competent to challenge the order of the Registrar of Trade Unions dated 2ad October, 1981 rejecting the acceptance of the change of office-bearers on the grounds which will be discussed hereafter.
14. ' Section 5 of the Constitution of the Trade Union provides for election of workers' participation in management. The section provides as under : - "S.
5. Election of Workers' participation in Management.--The general body meeting representations to the workers' participation in Management Shall be for a period of two years amongst all the workers engaged in the work concerned with this Union through secret ballot in accordance with section 28 of the Industrial Relations Ordinance, 1969/72."
15. ' Section 8 of the Constitution provides that the term of officer of Managing Committee shall be for two years. Section 19 of the Constitution provides that any office-bearer of the Union, any member of the Managing Committee or any ordinary member of the Union may be removed from his post or membership as the case may be by adopting a no-confidence motion against such officer or officers or member or members by two-third majority of a general body meeting of the Union.
16. ' With regard to election, the Constitution in section 23 thereof provides that only bona fide members of the Union having pa' -1 all Union's fees will be allowed to participate in election of the Managing Committee and further that the Managing Committee shall constitute an Election Commission of three persons one month in advance of the election. The Election Commission shall invite nominations on prescribed forms certified by the Treasurer and the General Secretary regarding Union's dues etc. Scrutinise and publish a list of candidates provisionally after withdrawal if any prepare the final list of candidates and also prepare the ballot papers and hold elections through secret ballot in general body meeting.
17. ' Proceedings of the alleged general body meeting on 18th September. 1981 and the election of the office-bearers was, therefore, in clear violation of the aforesaid sections of the Constitution, specially section 23 thereof.
18. ' Section 25 of the Constitution makes provision about amendment of rules of the Union and in such a case 15 days' notice is necessary and the amendment of the rules shall be valid only on the approval of two-thirds majority of the total members present in the meeting. The provisions of section 25 are based on well-established legal principles. It may here be stated that section 14 of the Ordinance provides for incorporation of registered Trade Union which shall be a body corporate. As already stated, it is a prerequisite for registration that a Trade Union should have a Constitution which provides for the matters enumerated in the section and therefore the amendment of any of the provisions of the Constitution is a matter of serious concern for the Trade Union which is a body corporate. Mr. Shaikh Haider, the learned counsel for the petitioners, has referred to the subject of rules of Trade Unions and their amendment as appearing in para. 612 of part 5, section 1, Volume 38 of Halsbury's Laws of England Third. Edition) appearing at page 354 wherein it is stated that amendments-of the rules of Trade Unions must be made in strict accordance, with the rules. The provisions of section 25 of the Constitution therefore had to be strictly adhered to for suspending the provisions of section 23 of the Constitution which deals with such an important matter as the elections. It may here be observed that elections are by secret ballot but in the general body meeting held on 18th September, 1981 admittedly the vote was by show of hands.
19. ' The proceedings of the alleged general body meeting on 18th September, 1981 and the election of office-bearers was therefore in clear violation of the aforesaid sections of the Constitution.
20. ' A perusal of the record shows that the order rejecting acceptance of the change by the Registrar of Trade Unions was passed after examining the request in the light of provisions of the Ordinance as well as the Constitution of the Union and after hearing all parties on the validity of the change was found doubtful mainly due to the reports received by the Registrar of Trade Unions, The Registrar gave the following reasons for rejecting the request for change of office-bearers :
(1) That on report received from police authorities and a representative of Labour Directorate the number of persons participating in the general body meeting did not form two-thirds of the total number of members of the Union.
(2) That the elections of office-bearers were not conducted in accordance with the provisions of section 23 of the Constitution, and
(3) That the claim with regard to the suspending under section 23 of the Constitution was without validity as those provisions could be done away only after amending the Constitution and getting the amendment registered by the Registrar.
21. Respondent No, 1 in the impugned order has not given a finding that the reasons given by the Registrar were factually wrong. Under provisions of section 8 (7) of the Ordinance the respondent No, 1 should have given in writing the reasons for directing the Registrar to hold fresh elections under his supervision. However, in the impugned order the only reason given is that it would appear fair if the parties were given an opportunity to elect the real representative body who enjoys the confidence of the majority. The aforesaid reason cannot be considered to be adequate for passing the impugned order. The learned Labour Court No, V should have taken into consideration the provisions of law and also the provisions of the Constitution of the Trade Union framing of which has been made mandatory under the Ordinance and which alone could serve the best interest of the workers. The provisions of the Constitution which have been discussed above provide checks on interference in the affairs of the Union by rank outsiders and also provide orderly method for the running of affairs of the Union which could only be considered as in their interest and for their benefit. Consideration should also have been given to the safeguards provided by the Constitution in favour of office-bearers as enunciated in section 18 thereof which inter alia provides that any of the office-bearers of the Union or members of the Managing Committee may be removed by the general body two-third majority for committing fraud or having acted against the interest of the Union provided he has been given adequate time to defend himself.
22. Under the circumstances, the impugned order which was passed without jurisdiction and which was otherwise not in accordance with the' law cannot be allowed to remain in effect. The writ petition is accordingly allowed and the impugned . However, since interpretation of the law was involved in this case, no order is being passed as to costs.