' The petitioner is registered under Companies Act, 1913 and its 100% shares are owned by the Federal Government. The petitioner has filed this Constitutional petition for declaration that the registration of respondent No, 2 as a Union under the 1.R.O. Is illegal, mala fide and without jurisdiction.
2. The relevant facts are that 14 employees of the petitioner constituted a Union under the name and style of 'Ghee Corporation of Pakistan Staff Workers Union'. The Executive Committee of the Union submitted an application before respondent No, 1 for registration of this Union. The application was granted and certificate of registration dated 9-5-1989 was issued. The petitioner when came to know of this registration moved respondent No, 1 for cancellation of its order but its efforts did not bear fruit. It is thereafter that it filed the present Constitutional petition, which was admitted to regular hearing and notices were issued to the respondents, who have entered appearance and contested the petition.
3. The learned counsel for the petitioner in support of the petition has argued that petitioner is employing two categories of employees namely `Management Cadre' and 'Non-Management Cadre/Unionised Staff'. It is submitted that the members of the respondent No, 2 belonged to the first category, therefore, were not covered by the definition of 'worker' as contained in the I.R.O. As such they could not form their Union under I.R.O. It is added that the employees of first category are not covered by Labour laws. It is submitted that the petitioner has been condemned unheard. It is maintained that it was incumbent on the respondent No, 1 to have the point of view of the petitioner before registering respondent's Union. The arguments are summed up with the submission that respondent No, 2 being the Third Union in the Ghee Corporation, therefore, it should have a membership equal to 1/5th of the total strength.
4. On the other hand, the learned counsel for respondent No, 2 raised a preliminary objection to the effect that the respondent No, 1 has granted registration certificate after full application of the mind, therefore, Constitutional petition is not competent. In this behalf, he has placed reliance on the judgment of this Court in the case of Punjab Agricultural Development and Supplies Corporation Employees Welfare Union (CBA) v. Registrar Trade Unions Bahawalpur Region, Bahawalpur, etc. 1991 PLC 38. On facts it is argued that the members of respondent No, 2 are neither employers nor they have any power of hire and fire nor they have any control over the funds of the petitioner. It is, therefore, submitted that they are covered by the definition of 'workman'. In this behalf, the learned counsel has placed reliance on the judgments in the case of Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another 1979 SCMR 304, Organisation of Karachi Port Trust Workers (A Registered Trade Union), Karachi v. Karachi Port Trust, Karachi and 2 others 1988 SCMR 922, Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another PLD 1975 Kar. 342 and General Manager, Hotel International, Lahore and others v. Bashir A. Malik etc. PLD 1986 SC 103. It is submitted that although the petitioner was not heard while granting registration to his client yet when it objected to the registration, the respondent No, 1 fully attended to its grievance. The same was found unjustified, therefore, turned down. This way the principles of natural justice were fully complied. The arguments are summed up with the submission that the respondent No, 2 was Second Union and not Third as urged by the learned counsel for the petitioner. The respondent No, 1 has adopted the arguments of the learned counsel for the respondent No, 2.
5. The learned counsel for the petitioner while replying to the preliminary objection submitted that since the order of respondent No, 1 is illegal and without jurisdiction, therefore, the same can be assailed in Constitutional jurisdiction. The learned counsel, in this behalf, has referred to judgment of this Court in the case of Mujahid Workers' Union (Regd.), Rehmania Textile Mills v. Mazdoor Union, Rehmania Textile Mills and 2 others 1987 PLC 234.
6. I have given my anxious consideration to the arguments of the parties, gone through the record, legal precedents and the relevant provisions of law. It is clear from the file and arguments of the parties that the staff employed by the petitioner is split up into two categories namely 'Management Cadre' and 'Non-Management Cadre'. Therefore, the first question for determination is whether the Assistant Managers of Grades-I and II are part of Management Cadre or Non- Management Cadre. It is clear from the documents placed on record that Assistant Managers of both the grades are part of Management Cadre. This view is confirmed when reference is made to following rules and documents:- ' Firstly, their service is governed by Ghee Corporation of Pakistan (Pvt.) Limited Service Rules and following rules will go a long way to establish this fact:- "Rule 8. Probation period/confirmation:
(a) .................................
(b)(i) The probation period for the management cadre i,e, from AM-II to G.M. Grade, will be initially for a period of six months and is extendable upto a maximum period of two years.
(b)(ii) (b)(iii)
Rule 8-A. Enquiry procedure:
(xxi) After the receipt of the reply to the show-cause notice and holding of personal hearing, if any, the competent authority may either award any of the penalties provided in the Rule 8-B or acquit the accused employee for reasons to be recorded.
Explanation: The inquiry procedure laid down above shall apply to employees in the management cadre only. Other employees will be governed under the relevant labour laws.
Rule-9. Termination of service.
(i) During probation
(a) For non-management cadre ' The services of an employee in non-management cadre may be terminated during the probation period, if he fails to show satisfactory performance during the probation period.
(b) For management cadre ' The services of an employee in the management cadre may be terminated during the probation period, without assigning any reason.
(ii) On confirmation
(a) For non-management cadre ' The services of an employee in the non-management cadre may be terminated for any reason other than misconduct by giving one month's notice on either side, or in lieu thereof by paying -a sum equal to the salary for that period.
(b) For management cadre ' The service of an employee in management cadre i,e, from AM-II to GM grade, may be terminated without assigning any reason, by giving three months notice on either side, or in lieu thereof by paying a sum equal to the salary for that period."
' Secondly, it is clear from the office memorandums dated 23-9-1987 and 30-9-1987 that the pay scales of the Executive Cadre are fixed with the prior approval of the Federal Government while the pay scales of Non-Management Cadre are fixed by the Management of the Company as is clear from office order dated 25-8-1987 appended as Annexure TY; ' Thirdly, when items Nos. 5 and 6 of the Schedule to the Service Rules are read with memorandums dated 23-9-1987 and 30-9-1987, it becomes evident that the Assistant Managers are in Grade-E-I and E-II; and )
' Fourthly, the terms and conditions including disciplinary matters of other employees are governed by Labour laws as is clear from the explanation to Rule 8-A(xxi) as reproduced above.
7. Now the next question for determination is that whether the Assistant Managers are 'workmen' for the purpose of the I.R.0? Before proceeding with this question it is relevant to refer to definition of 'workman' as given in the I.R.O. The same reads as under:- "(xxviii) "Worker" and "workman" means any person not falling within the definition of employer who is employed (including employment as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or, implied, and for tilt purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge retrenchment, lay off, or removal has led to that dispute (but does not include any person--
(a) who is employed mainly in a managerial or administrative capacity, or
(b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature)".
8. The Assistant Managers of both the grades are part of "Management Cadre", therefore, in view of the proviso (a) persons mainly employed in managerial or administrative capacity are excluded from the definition of 'worker' and 'workman'. This view is further confirmed if reference is made to Rules 8-A and 9, as reproduced above, the explanation to Rule 8-A(xxi) leaves no doubt as to their status wherein it is clearly provided that this inquiry procedure shall apply to the officials in the Management Cadre while the other employees will be governed by 'labour laws'. The officials, who have now formed their union-respondent No,2 having accepted their position as managerial staff and after enjoying safeguards, rights, privileges and benefits now cannot turn round and claim rights and privileges available to the employees of Non-Management Cadre. This way they are also estopped by their conduct to claim that they are part of Non-Management Cadre.
9. The respondent No, 1 proceeded in a hasty and illegal manner to register respondent No, 2 without hearing the petitioner, the employer. It is true that notice to the employer and union already in existence is not provided for in the relevant provisions pertaining to registration of union.
However, it is not possible to comply with the provisions of section 7(2) without associating the employer in the proceedings and the union or unions already in existence. The relevant! Provisions read as under:-- "(2) Without prejudice to the provisions of subsection (1), a trade union of workmen shall not be entitled to registration under this Ordinance--
(a) unless all its members are workmen actually engaged or employed in the industry with which the trade union is connected; and
(b) where there are two or more registered trade unions in the establishment, group of establishments or industry with which the trade union is connected, unless it has as its members not less than one-fifth of the total number of workmen employed in such establishment, group of establishments or industry, as the case may be."
10. It is clear from the clause (a) above that all members should be workmen actually engaged or employed in the industry with which the trade union is connected. It passes one's comprehension how respondent No, 1 ascertained that all the members of respondent No, 2 are 'workmen' and actually engaged or employed with the petitioner. This is a basic requirement which cannot be met without associating the employer. Now coming to the other subsection, in case there are two or more unions then the new union should have at least one-fifth total members of the 'workmen' employed in such establishment as its members. It is, therefore, statutory duty of the Registrar to find out whether there is union or unions already in existence in the establishment or the industry. It is again not possible to correctly ascertain this fact without associating at least establishment or the industry. The notice to union or unions already in existence will further facilitate the inquiry which is being conducted by the Registrar for registration of a new trade union.
11. The grant of application for registration of a Trade Union is likely to adversely affect the rights or working of establishment and union or unions already operating in the 'establishment' or 'industry', therefore, they are entitled to notice and hearing by the Registrar before the application for registration of a new Trade Union is granted. In their presence it will be difficult for any applicant for registration of a new union to mis-state, twist or withhold material facts from the Registrar. This way it will help the Registrar to conclude the matter in accordance with law. The impugned order of registration was admittedly passed c without hearing the petitioner, therefore, violative of principles of natural justice and liable to be struck down on this short ground alone.
12. The result is that this petition is allowed. The registration of respondent No, 2 is declared illegal.