' The brief facts leading to the present writ petition are as follows:- The petitioner claims to be the President of the Pakistan Tele Communication Lines Staff Union, having its registered Head Office at 52-Main Bazar, Gowalmandi, Opposite Ganda Engine, Lahore, as a result of the elections held on 21-4-1989. As required under the law, the result of the said elections, held on 21-4-1989 as stated above, was communicated to respondent No, 2, namely, the Senior Member, National Industrial Relations Commission with powers of the Registrar of Trade Unions, Industrywise, Islamabad. The said respondent No, 2, vide his order dated 19-6-1989 directed that the result of the said elections shall be registered. Consequently, the Deputy Registrar of respondent No, 2 informed respondent No, 4, Haji Muhammad Zafar, Secretary General of the Staff Union in question of the requisite changes having been made in compliance with the said order dated 19-6-1989 of respondent No,
2. Resultantly, the Director General of the Pakistan Telegraph and Telephone Department i,e, the parent department of the Staff Union in question, also gave recognition to the newly elected office-bearers and issued the ciruclar to that effect on 20-6-1989 to all the authorities subordinate to him, throughout Pakistan. However, it is contended herein, that on 21-6-1989 Haji Muhammad Younas, respondent No, 3 approached respondent No, 2 and prevailed upon him through an oral request to reopen the matter as a result of which the said respondent No, 2 vide his order dated 21-6-1989 recalled the order dated 19-6-1989, and directed the parties to appear before him on 17-7-1989 for producing evidence in support of their respective claims. It may be pointed out that the said respondent No, 3, Haji Muhammad Younas also claimed to be the newly elected President of the Staff Union in question, termed as being fake by the present petitioner. It is further contended herein that the review/recall order dated 21-6-1989 by respondent No, 2 was passed without either summoning or affording an opportunity of being heard to the petitioner or the newly elected Union, and void ab initio as being opposed to principles of natural justice and for being coram non judice.
2. Therefore, the said order dated 21-6-1989 was challenged by way of Writ Petition No, 3766/1989 at the Principal Seat. The said writ petition came up for hearing a number of times before my learned brother, Zia Mehmood Mirza, J. But remained at the motion stage and ultimately was ordered to be heard alongwith the present writ petition. Whereas another Writ Petition No,305/89 was filed before the Rawalpindi Bench (now bearing Writ Petition No, 4454/1989) of the Principal Seat, which was admitted to regular hearing vide order 28-6-1989 by my learned brother, Gul Zarin Kiani, J. Taking into consideration, inter alia, the point that the Registrar, Trade Unions had no powers of review vide order dated 21-6-1989 by respondent No, 2 herein and assuming that he had, it could not be exercised without hearing the petitioner who was clearly a beneficiary of an earlier order passed by him on 19-6-1989. Subsequently, vide order dated 10-7-1989, passed in the said writ petition, by my learned brother, Muhammad Afzal Lone, J. As he then was, directing the matter to be placed before the honourable Chief Justice for appropriate orders for the two writ petitions to be heard together.
It was further observed in the said order by his Lordship, that the application which is subjudice before the respondent/Registrar Trade Unions, preferred in the same order as impugned in the writ petition may be heard subject to the ultimate decision of the writ petition, and that it shall not preclude the parties to seek their remedy against such order under the provisions of the Industrial Relations Ordinance, if they choose to do so. The said writ Petition No, 4454/1989 was subsequently ordered to be heard along with the present writ petition. Subsequently, another Writ Petition No, 1930 of 1990 was filed by the Staff Union through Haji Muhammad Younus, respondent No,3 herein raising essentially the same matter and was ordered to be heard along with the present writ petition and the writ petition stated above, by the order dated 26-3-1990 by my learned brother, Ihsan-ul-Haq Chaudhary, J. To rule out the possibility of contradictory orders. Thereafter, the petitioner filed two applications before respondent No,2. In the first application, he raised legal objections against the order dated 21-6-1989, whereby the order dated 19-6-1989 was reviewed/recalled by the order dated 21-6-1989 stated above, and in the second the question of ante dating the case fixed for 17-7-1989. However, respondent No,2 observed, vide order dated 6-7- 1989, in respect of the said two applications that since the matter was pending before the High Court, therefore, he shall refrain-from deciding the objection himself. Whereupon, the petitioner challenged the order dated 21-6-1989 before respondent No, 1 i,e, National Industrial Relations Commission, Islamabad, through its Chairman by way of appeal under section 22-B of the Industrial Relations Ordinance. The said appeal having been assigned to the Full Bench of the N.I.R.C., was finally dismissed on 20-9-1989 on the sole ground that the points raised therein were pending adjudication before the learned High Court and that, therefore, the Full Bench did not consider it appropriate to proceed with the matter. Hence, the present writ petition impugning the said order dated 20-9-1989 by the Full Bench of the NIRC i,e, respondent No, 1 dismissing the appeal and the order dated 21-6-1989 passed by respondent No,2 of being illegal, without jurisdiction and without lawful authority and as such of no legal effect.
3. The learned counsel for the petitioner argued:-
(i) That the appeal filed under section 22-D of the I.R.O. Was a statutory right of the petitioner, which could not be abriged or limited or extinguished or taken away because of the pendency of the writ petitions on the same point. Though the pendency of the writ petitions filed by the Union or its General Secretary did not constitute a bar to the hearing of the appeal, however, if the respondent No, 1 was of the view that they had to wait for the outcome of writ petition pending in the learned High Court, the proper course was to defer or postpone the hearing. There was no legal justification in dismissing the appeal. The fact of the matter was that the legal position was to the contrary i,e, to say that the hearing of the writ petition could be postponed to wait for the result of the appeal pending before the respondent No,1. This was a clear case of failure on the part of respondent No,1 to exercise jurisdiction vested in it.
(ii) Further submitted that the appeal had been filed by the petitioner in his own right as newly elected President and Member of the Union. He was not petitioner in the writ petitions pending before the learned High Court. In this view of the matter, the right of the petitioner to invoke the jurisdiction of respondent No,1 could not be taken away. The present petitioner had moved before respondent No,1 in pursuance of his independent right.
(iii) Further assailed the impugned orders by pointing out that the orders of the learned High Court passed in Writ Petition No,305 of 1989 at Rawalpindi Bench, were also produced before respondent No,!. In these orders the learned Single Judge in Chamber had clearly observed that pendency of the writ petition did not preclude the parties to seek their remedy, under the I.R.O. In view of the dictum of the learned Single Judge in Chamber, there was hardly any justification on the part of respondent No,1 to dismiss the appeal filed by the petitioner.
(iv) Further argued for setting aside the impugned orders on the ground that the order dated 21-6- 1989 had been passed by respondent No,2 without any formal application having been filed before him. It was further added that no notice was issued either to the petitioner as newly elected President or to the General Secretary, Haji Muhammad Zafar. The order dated 21-6-1989 thus militates against principle of natural justice and as such was void ab initio.
(v) The learned counsel for the petitioner further argued that the order dated 21-6-1989 amounted to reviewing the order dated 19-6-1989. It hardly required to be emphasized that the power of review was a substantive power which no Tribunal, or Court or Authority could exercise unless it had been provided by the relevant statute. There was no provision enabling respondent No,2 either to review or recall the order passed by him on 19-6-1989. Even if he had reserved the right to recall the same, there was no basis for such a reservation. No Authority, Court or Tribunal was competent to arrogate authority to itself, which otherwise was not available under the law. This would amount to embarking upon the field of legislation which no system of judiciary permits. The only course open to the opposite party was to seek his remedy in accordance with law.
(vi) In this respect, it was pointed out that it may be noticed that the order dated 19-6-1989 was passed by respondent No,2 in the purported exercise of his powers under section 8(4) of the I.R.O.
The enquiry for effecting the change had to precede the order and not succeed the same. In other words if respondent No,2 was not satisfied before passing order dated 19-6-1989, he was competent to make enquiry but once he directed to register the change, no enquiry or recording of the evidence subsequent thereto, was competent. In this view of the matter, the proceedings before respondent No,2 was coram non judice, and that new elections had been duly registered on 19-6-1989 (Annexure `B') and these elections had been communicated to the Union and also to the department and all the fuctionaries subordinate to the department throughout Pakistan, The transaction had thus become past and closed qua respondent No,2 and as such he was not competent to reopen the same.
(vii) Once again emphasized that respondent No,3 had not filed any petition/representation/review petition before respondent No,2 and the order dated 21-6-1989, was passed on the solitary statement of respondent No,3. The whole proceedings before respondent No,2 resulting in the order dated 21-6-1989, smack of mala fides. It was also questionable whether respondent No,2 could act without any formal petition having been moved before him. The procedure adopted was unwarranted and opposed to all principles of justice. Moreover, without the written pleadings of the parties having been invited and without framing the issues, the so called enquiry and recording of the evidence was reduced to mockery and was indeed fraud on the statute.
4. On the other hand, the learned counsel for the respondent argued:
(a) that the present case was one in which two groups of the same Union claimed that they were the legitimate representatives of the Union Workers and had been duly elected as office-bearers of the Union. Both groups, now represented by the petitioner and the first respondent respectively informed the Registrar under section 8(4) of the Industrial Relations Ordinance, that they had elected new office-bearers of the Union. Both parties naturally, expected that their list of office- bearers shall be registered by the Registrar, thus conferring them with recognition.
(b) Further submitted that under section 8(5) of the I.R.O, the Registrar might refuse to register the change of office-bearers if the change was. In contravention of the I.R.O. Or the Union Constitution.
The Registrar, therefor, had a limited power to examine the legality of the proposed changes, otherwise he acted on an administrative authority who was to register the changes as notified. In this respect, pointed out that in the instant case the application for change of office bearers was submitted by the petitioner in April/May, 1989. He claimed that they had held decisions on 21-4- 1989 (para. 1(c) of writ petition). The respondent No,3 submitted their petition for registration of change on 22-12-1988. Respondent No,3 claimed that they held the elections of the Union to elect new officers on 7th and 8th December, 1988. The application of the respondent, therefore, was earlier in point of time. Some objections were raised by the office of the Registrar on the respondents' application for change of officers (annexed 'C' with W.P.) upon which the Registrar issued a show-cause notice to the answering respondent (R/2), he took up the case of the petitioner's side for consideration on 19-6-1989. On that date he passed the controversial conditional order which was now claimed to be final shorn off the condition, by the petitioner. The tenor of the order of Registrar would show that he was not convinced that the petitioner's was the legitimate case of change. It is quite clear from the facts narrated in paras. (e) & (f) above that he was conscious of the existence of the application by the respondent and in that view of the matter he knew that the case was not free from controversy. In these circumstances, he could either hold an inquiry to settle the issue and keep the registration of change pending till then or could grant the application of one party only conditionally so that the Union keeps on functioning as a C.BA. In the meantime. In this background of the case he passed the order dated 19-6-1989 conditionally allowing the change as proposed by the petitioner.
(c) Further submitted that on principle the Registrar should not have passed the order dated 19-6- 1989 without hearing the respondent. The omission to hear was, however, covered by imposing a condition which only said that if the other party appeared and raised objections or if the Registrar ultimately came to the conclusion that the proposed change was false and bogus, he would withdraw the sanction granted. The Registrar's action was taken to judicial orders which were passed subject to all just exceptions or subject to notice to other party. In any case the conditional order of 19-6-1989 was passed with jurisdiction to the extent that the Registrar, who was to be satisfied that the change being canvassed was legally and factually correct, could also take steps to achieve that objective. If, however, the condition was deemed to be ultra vires the Registrar's power, the remaining order of 19-6-1989 would become illegal and without jurisdiction as the same was passed without hearing the respondents, when it was known to all that the case was not without serious controversy.
(d) Even otherwise the Registrar has powers to reserve and alter his orders, which in the circumstances relevant to the exercise of power under section 8(4) would only be administrative in nature and not judicial. It shall be noticed that section 8(7) makes a clear distinction between the Court and the Registrar. Power to amend and withdraw orders is available under section 21 of the General Clauses Act, 1897.
5. We have heard the learned counsel for the parties at considerable length. The learned counsel had gone to a great length to make the detailed submissions as noted above. However, we are constrained to point out that the crux of the whole matter is whether or not respondent No,2/Senior Member, National Industrial Relation Commission with powers of the Registrar of Trade Unions Industry-wise, Islamabad, vide the impugned order dated 21-6-1989 had, the jurisdiction to review his own order dated 19-6-1989 passed under the provisions of subsection (4) of section 8 the Industrial Relations Ordinance, 1969. For reference it is reproduced hereunder:- "(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."
According to subsection (5) of the said section 8 of the Industrial Relations Ordinance, 1969, the Registrar may refuse to register such change or alteration if it is in contravention of any of the provisions of the Ordinance, or if it is in violation of the constitution of the trade union.
' However, once the Registrar (respondent No,2 herein) gives effect to the change or alteration as the case may be, the party aggrieved thereby can prefer an appeal against the same to the Labour Court in accordance with the provisions of subsection (7) of the said section 8 of the Industrial Relations Ordinance, 1969, stated above. For convenience the said subsection (7) is being reproduced below:- "(7) In case there is a dispute in relation to the change of officers of a trade union or any trade union is aggreived 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 seven days of reciept 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 elections of the union under his supervision."
' The learned counsel for the petitioner, as stated above, had pointed out that the Registrar/respondent No,2, has no power to review or recall any order passed under the provisions of section 8 stated above. As already stated above, the said Registrar has the power to refuse or register but has no powers to review or recall any order passed by him under the provisions of the Industrial Relations Ordinance, 1969 stated above. It could not be pointed out on behalf of the respondents that there was any provision of law that empowers the said respondent No,2 to recall or review any of his orders. It is a settled principle of law that the power to review is substantive in nature and that it has to be expressly conferred by statute on the authority/forum/Court, as the case may be, for it to exercise the same. In this respect, strength is sought from Mst. Maqsoodan Bibi v. Mst. Bhano PLD 1965 (W.P.) Lahore 183, wherein it was held as follows:- "Right of review is like a right of appeal - a substantive right and it is not available unless it is expressly conferred by a statute."
6. It was urged on behalf of the respondents, as stated above, that under the provisions of section 21 of the General Clauses Acts, 1897, respondent No,2 was competent to amend, vary or rescind his orders, as the said respondent had exercised his administrative function in rescinding the order dated 19-6-1989 by his subsequent order dated 21-6-1989. But the said contention is totally misconceived in the instant case, even if it is conceded for the arguments' sake, though it is not applicable to the present case, that the provisions of section 21 of the General Clauses Acts, 1897, were attracted hereto, the same shall be of no help to the respondents, as it is settled principle of law that the provisions of the said section 21 cannot be invoked once the earlier order has been given effect to, thus creating vested right. As held in National Bank of Pakistan Peoples Federation v.
National Industrial Relations Commission PLD 1975 Kar. 320, the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. It was further held as follows:- "But this is subject to the exception that where the rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights."
' Further strength is sought, in this respect, with reference to Shahbaz v. The Crown PLD 1956 FC 46, wherein it was laid down that power under section 21 of the General Clauses Act, 1897 could be exercised only if the order, which is said to be cancelled had not been carried into effect.
' In the instant case, the order passed by respondent No,2 on 19-6-1989 was duly given effect to by his subordinate i,e, Deputy Registrar, who had conveyed the same to respondent No,4/Secretary General of the Staff Union in question, by informing him that the requisite changes have been made in compliance with the said order dated 19-6-1989 of respondent No,2 and .Resultantly the Director-General of Pakistan Telegraph and Telephone Department i,e, the parent department of the staff union in question, had also accorded designation to the newely elected office-bearers thus registered by respondent No,2/Registrar of the trade unions and in pursuance thereto had issued a circular to that effect on 20-6-1989 to all the authorities subordinate to him throughout Pakistan. Therefore, for the aforesaid reasons there is no merit in the contention discussed above.
Here, it is emphasised again that the order dated 19-6-1989 passed by respondent No,2 could only be assailed before the Labour Court in accordance with the provisions of subsection (7) of section 8 of the Industrial Relations Ordinance, 1969, and not in any other manner.
7. Therefore, in pursuance to what has been stated above, respondent No,2 Senior Member, National Industrial Relations Commission with powers of the Registrar of Trade Unions, Industrial- wise, Islamabad, had no authority to review or rescind his order dated 19-6-1989; and that his subsequent order dated 21-6-1989 purporting to 'recall or review the said order was without jurisdiction and of no legal effect; and that consequently any action taken in pursuance to the said illegal order was also without lawful authority and of no legal effect; and that all subsequent proceedings undertaken or orders passed in pursuance to such acts or orders were void ab initio.
8. Pursuant to the above discussions, we allow the present writ petition and set aside the impugned order dated 21-6-1989 and all the proceedings undertaken in pursuance thereto or as a consequence thereof. There shall be no order as to costs.
9. However, in the peculiar circumstances of the present case, it is further observed, that the party aggrieved by the order dated 19-6-1989, if so advised, can assail the same in accordance with the provisions of subsection (7) of section 8 of the Industrial Relations Ordinance, 1969, stated above, and that the time elapsed till date shall not be a bar in that respect.
10. In Writ Petition No,4454 of 1989, Writ Petition No,3766 of 1989 and Writ Petition No,1930 of 1990 similar points of law as herein and pertaining to the same orders dated 19-6-1989 and 21-6-1989 had been raised but the said writ petitions were not prosecuted before us, therefore, the said writ petitions i,e, Writ Petition No,4454 of 1989, Writ Petition No,3766 of 1989 and Writ Petition No,1930 of 1990, are hereby dismissed.