M. HUSSAIN ADIL KHATRI, J. - The Petitioner is industry wise Trade Union of the Workmen employed by National Development Finance Corporation, the Respondent No.4, herein and is registered with the National Industrial Relations Commission since 28-11-1977. Respondent No.3, is also registered likewise.
On the joint application of the Petitioner and Respondent No.3, referendum was held on 16-3-1989, wherein the Petitioner was declared as elected Collective Bargaining Agent for the workmen employed by Respondent No.4.
It is the case of the Petitioner that the total number employed by Respondent No.4 is 335 out of whom 298 workmen are the members of the Petitioner Union. Out of the total number employed by Respondent No.4, in Karachi Zone, is 209 out of which 175 are the members of the Petitioner Union.
The subscription is paid by the members of the Petitioner Union through deduction from their salaries under Section 23 of the Industrial Relations Ordinance which system is known as check of system and will be referred to hereinafter as such.
The Respondent No.2, was formed as a Trade Union of the Workers of Respondent No.4, employed at Karachi only and made an application to the Respondent No.1, the Registrar of Trade Unions for the Province of Sind for its registration as such Trade Union. The Petitioner by its letter dated 18-11- 1989 raised objection to the registration of Respondent No.2 on the following grounds:-
(a) Respondent No.2 neither had, nor it could have 20% of the total number of workmen employed by Respondent No.4 as its members which is the mandatory requirement of Section 7(2) of the Ordinance.
(b) Out of the members declared by Respondent No.2, I6 workers have disclaimed the membership.
The letters of the said members to the above effect were enclosed with the aforesaid letter.
(c) The membership of such workers claimed by Respondent No.2 was in contravention of Section 3(a) of the Ordinance.
Respondent No.1, however, according to Petitioner failed to consider the aforesaid objections and issued Certificate of Registration of Respondent No.2 as a Trade Union, without giving any opportunity to the Petitioner to substantiate its contention and hearing the Petitioner.
2. The President of the Respondent No.2 Trade Union has filed the counter affidavit in which he controverted the facts as stated in the petition. It was stated that Respondent No.2 required only 40 members that being 20% of the total number of workmen employed by Respondent No.4, in Karachi, but however, they have submitted the list of 50 members to Respondent Northey disputed the authenticity of the disclaimers filed by the Petitioner. The Petitione in its affidavit in rejoinder have refuted the stand taken in the counter affidavit filed on behalf of Respondent No.2. The learned Counsel for the Petitioner has relied on Section 7(2) (b) and proviso to Section 3(a) of the Industrial Relations Ordinance which reads as under:- "7. Requirement for registration:-
(i) .......................................
(2) Withough prejudice to the provisions of sub-section (1), a trade union of workmen shall not be entitled to registration under this Ordinance-
(b) where there are to 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."
"3. Trade unions and freedom of association. Subject to the provisions contained in this Ordinance-
(a) workers, without distinction whatso-ever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join associations of their own choosing without previous authorisation; (provided that no worker shall be entitled to be a member of more than one trade union at any one time;)
The submissions of the Petitioner will be considered later on in view of the preliminary objection raised by the learned Counsel of Respondent No.2, with regard to locus standi of the Petitioner to challenge the registration of Respondent No.2.
The learned counsel of the Respondent No.2, has relied on the following cases:- National Beverage Employees Union Vs. The Registrar. Trade Unions (1986 PLC 533) wherein the learned Single Judge of this Court held that the registration of the Trade Union is directly a matter between Trade Union seeking registration and the Registrar and that another Trade Union, legally speaking, has no say in the matter and has no locus standi to raise any objection at that stage and consequently, another Trade Union will have no locus standi to challenge the registration.
The case of Khas Traders Vs. The Registrar, Trade Unions (1990 PLC 351) in which another learned Judge of this Court expressed the same view.
3. On the other hand, the learned Counsel for the petitioner has relied on the case of Fateh Mohammed Vs. The Registrar, Trade Unions & Others, reported in NLR 1989 Labour 58, in which the s&me learned Judge who decided the case of Khas Traders (Supra), has over-ruled the objection that the petition filed by a Trade Union which was also Collective Bargaining Agent, would have no locus standi to challenge the registration of another Trade Union and in the result, cancelled the registration and remanded the case to the Registrar for disposal in accordance with law. The learned Judge for the above law relied on the case of Fazal Din Vs. Lahore Improvement Trust (PLD 1 F-9 SC 223) on the proposition that if the petitioner can show to the Court that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of privileges or liberty or franchise, would have the right to maintain proceedings under the writ jurisdiction even if he cannot necessarily disclose a right in the strict juristic sense.
4. The case of Fateh Mohammed (Supra) thus disposes of the preliminary objection as the Petitioner in the present case is also a Collective Bargaining Agent and the rule laid down in the cases of National Beverage Employees Union and Khas Traders will not be attracted wherein the proceedings were challenged not by the Collective Bargaining Agent. In the former case, the objection was filed by a Trade Union and in the latter one, by the employers.
5. The learned Counsel for the Petitioner has relied on an unreported case (C.P. No.D-1161 of 1989)
Habib Bank Limited Employees Federation Vs. Full Bench of the NITC & Others, wherein objection was raised with regard to registration of Habib Bank Employees National Organization as an industry wise Trade Union on the ground that the said Trade Union did not fulfil the requirements of law to be registered as such. The Division Bench of this Court observed as under:- " In the present case, certain legal objections were brought to the notice of the Registrar and he was required to take a decision of such legal objections before passing final orders on an application of Respondent No.5 Union."
6. Accordingly, it was held that the impugned order of the N.I.R.C, whereby directions were given to the Registrar for registration of the said Union and a Certificate of Registration of the said Union were declared to be without lawful authority and to be of no legal effect.
7. The case of the Petitioner is that the members of Respondent No.2, comprises of the workmen who ar6 employed by Respondent No.4 at Karachi and the total strength of such workmen is 209.
The above fact has not been controverted by Respondent No.2. Out of the aforesaid total workmen, 175 are the members of the petitioner Union and thus only 34 workmen are such who are not the members of the Petitioner. It is stated by the Petitioner that its members subscribe to it by check of system. Therefore, prima-facie Respondent No.2, cannot have membership of more than 34 workmen. Under these circumstances, it was the bounden duty of Respondent No.1 to hear the Petitioner and verify the actual membership of Respondent No.2, in presence of the Petitioner and also to ascertain from Respondent No.4 the fact of payment of subscription by the check of system.
Since some disclaimers of some of the workmen were produced before the Respondent No.1, authenticity whereof was also being disputed, the Respondent No.1, could not have decided the veracity of the same without examining such workmen.
8. Section 3(a) of the Ordinance prohibits double membership with the result that a workman cannot at one the be a member of to or more Trade Unions and, therefore, the rival claims over the same workmen by the Petitioner and Respondent No.2, made it inevitable to hold enquiry after providing an opportunity to such members to opt for either of the Unions.
9. The establishment of Respondent No.4, has more than to Trade Unions and, therefore, the Respondent No.2, cannot be registered unless it was determined that it had the membership of one-fifth of the total number of workmen employed at Karachi by Respondent No.4. The learned Counsel of Respondent No.2, had feebly contended that since the said Respondent had been registered, it is to be inferred that it has the requisite membership. Under the facts and circumstances of this case, such an assertion cannot be accepted.
10. I do respectfully agree with the proposition laid down in the cases of National Beverage Employees Union and the Khas Traders that it is the exclusive jurisdiction of the Registrar to take a decision whether a Trade Union qualifies for registration or not and this Court cannot enter into such enquiry.
11. Consequently, the Certificate of Registration dated 23-11-1989 whereby Respondent No.2 has been registered as Trade Union by the Respondent No.1, is hereby declared without lawful authority and of no legal consequence. The matter is remanded back to the Respondent No.1, to decide the question of resistration of Respondent No.2, afresh after hearing the Petitioner. Since the controversy was based on the decisions of this Court, the parties are left to bear their own costs.