WAJIHUDDIN AHMED, J.- The principal grievance of the petitioner in this constitutional petition is that the respondent No. 2-union was improperly granted registration by the Registrar of Trade Unions, Sind, on 17.6.1986, at S the when the petitioner and the respondent No.3-unions were already registered in the same establishment namely, "The Holiday Inn Hotel" the respondent No. 3 itself having been registered on 2.6.1986. In allowing registration of the respondent No. 2-union in such state of facts, it is claimed, the requirements of Section 7(2)(b) of the Industrial Relations Ordinance, 1969, were over-looked and by passed. Aggrieved, the petitioner Union lodged a. Written objection, which the respondent No. 1-registrar is said to have summarily dismissed on insufficient grounds and without hearing the petitioner-union.
2. It is an admitted position at all ends that the petitioner and the respondent No.3-unions were already registered in the same establishment when the respondent No. 2-union was accorded registration on 17.6.1986. It equally clearly follows as a proposition of law that, under Section 7(2)(b) of the Industrial Relations Ordinance, 1969, where there already subsist two or more registered trade unions in an establishment, group of establishments or industry with which the trade union, seeking registration, is in fact connected, such union shall not be entitled to registration under the Ordinance unless it has, as its members, not less then one-fifth of the total number of workmen employed in such establishment, group of establishments or Industry, as the case may be. The case of the respondent No. 1 -registrar and that of the respondent No. 2-union, however, is that the requirement, as to the strength of membership in Section 7(2)(b) ibid was amply fulfilled before the respondent No. 2 was permitted registration and that the caveat of the petitioner is not only totally unfounded but even Mala Fide.
3. Two propositions, each of law, immediately crop up in the face of such a dispute firstly, as has been repeatedly held in this Court, registration of a trade union, under Section 8 of the Industrial Relations Ordinance, is to be affected only if the Registrar is satisfied that the trade union, seeking registration, has complied with all the requirements of the Ordinance and secondly, if upon registration, grievance is made in the relevant quarters that such registration has not followed due process of law and the requirements of the Ordinance remain unsatisfied, the registrar, in view of Section 10 of the same Ordinance, making him the sole authority to lodge a complaint regarding improper registration, is to exercise his mind and can come to a conclusion, affirmatively or negatively, whether a case for complaint under the provision of law mentioned is or is not made out.
4. On the first question, the at of registration of a trade union, under Section 8 of the Industrial Relations Ordinance, is neither mechanical nor automatic, it requires satisfaction on the part of the registrar as to the observance ol the requirements of the Ordinance. Satisfaction under the section, undoubtedly, refers to a state of mind but registration being a conscious at, due satisfaction, inherent in it, should be reflected in the at itself. Registration, therefore, ought to satisfy the test of objectivity. If not, it may well be exposed to scrutiny in the exercise of powers of judicial review under Article 199 of the Constitution. The proposition is so well established that it hardly needs any authority. However, for ready reference, two decisions of this Court in Habib Bank Ltd. Employees Federation, Pakistan Vs. N.I.R.C, (C.P.D-1161 of 1989) and United Bank Ltd. Labour Union Vs. The Registrar of Trade Unions (C.P.S-32 of 1990) may be cited.
5. None the less, and this bring second question, it is not to be overlooked that once registration is affected the matter travels even beyond the exclusive control of the Registrar, Trade Unions. At such stage, on being duly moved or even SUO MOTO, if the registrar discovers that the registration of a union had been affected in contravention of law or was other wise wanting in the mandatory (as distinguished from trite or-formal) requirements fixed by the Ordinance, the registrar can only file a complaint before the relevant Labour Court, soliciting cancellation of the registration. To lodge such complaint, though, is a matter exclusively within the jurisdiction of the registrar.
However, a grievance or objection, urging him to lodge such a complaint, again, is not a matter to be lightly or summarily dismissed. Conscious application of mind, yet again, is implicit in such matters. Appropriate enquiry has to be conducted and a finding, one way or the other, is to be given which, if in the affirmative, a complaint under section 10 aforesaid would lie and may be warranted but if in the negative the objection or caveat would be liable to rejection. Upon failure, if any, on the part of the registrar to at in accordance with law constitutional remedies may become invocable. it would be useful to reproduce here some excerpts from my judgments in two sets of cases as indicated below:-- (S.N.H. Industries (Pvt) Ltd. Vs. Registrar of Trade Unions: Constitutional Petitions Nos. S.I of 1991 to S-4 of 1991)
"I do not propose to decide any of these questions. Relevant facts would come up before the Registrar in due course of law. It is not disputed here that the Communication dated 31.12.1990 from the petitioner to the respondent No. 1-Registrar has not been disposed of by him, The way or the other. Likewise, it is also not disputed that the matter of determination of the Collective Bargaining Agent is also pending before the respondent No. 1-Registrar. In the event the union was registered in contravention of the requirements of law, the Registrar is the exclusive authority under Section 10 of the I.R.O., to file a complaint before the Labour Court and thereupon the matter rests with the Labour Court to decide, according to the prescribed law and procedure. However, in so far as the filing of such complaint under Section 10 is concerned such can be filed by the Registrar either Suo Moto or on the basis of credible information received by him from any relevant source. One such sourse may be the employer."
(Hilali Corporation (Pvt) Ltd. Vs. Registrar Trade Unions: Constitutional Petitions S-16 of 1990 to S-24 of 1990)
"However, what the Learned counsel for the petitioners maintain is supportable on another premise and that is an obligation in any officer performing public functions to be alive towards a proper and lawful discharge of his. Public responsibilities and in the event something is being asked to be done, which lawfully can be done, to take not of any material which can duly and lawfully be noticed, even if the requirements of form are not satisfied. On principle it is, unless expressly prohibited, the substance of a dispute which has to be addressed. In context was the abovesaid letter of the petitioner in Const. Petition No. S-16/1990 and the Registrar was called upon to apply his mind to the questions raised therein. For such purpose even if a hearing was not accorded at least a formal determination ought to have been made and communicated to the relevant petitioner, permitting the latter to chart out its line of action accordingly. Still, the matter need not rest there.
Even if the Registrar, for some reason, did not duly advert to the questions raised before him during the period preceding the registration, there also exists another power in him to file a complaint under Section 10 of the Industrial Relations Ordinance, if lawfully warranted. For this the petitioners or all or any of them could again move the Registrar of Trade Unions and in the event it be found that the objections raised satisfy the mandates and requirements of law a complaint can be filed attracting the opinion expressed in the quoted case (C.P. S.I/1991 to 4/1991. Such a course is still open to the petitioner in each one of these Petitions and to this position, at law, Mr. S. Sarfraz Ahmed, the learned Addl. Advocate General, also subscribes."
6. Thus it would emerge that, failing the registrar's due satisfaction under Section 8 of the Industrial Relations Ordinance and on occasions, where warranted, in spite of it, each relatable to the pre- registration the-frame, the matter can be re-opened and re-examined in an appropriate action brought before the registrar himself. Upon refusal of relief, where permitted by law and subject to appeal, if any, powers of judicial review can be invoked. Relief at either level may be the same. If registration has been illegally refused the error can be rectified or directed to be rectified. In cases of unlawful registration of a trade union, it can lawfully be considered whether a case for complaint, at the end of the registrar, in accordance with Section 10 of Industrial Relations Ordinance, is made out. If so, such complaint may be opted for at the level of the registrar himself.
If not, a direction in Constitutional Jurisdiction may issue to take necessary steps in accordance with law. Here, a fallacy requires to be clarified. It has erroneously been brought out that S. Haider Ali Pirzada, J., in KHAS TRADERS VS. REGISTRAR TRADE UNIONS, 1990 PLC 351, has been of the view that an employer cannot appropriately move the registrar for seeking cancellation of registration in terms of Section 10 ibid. ABDUL JAMIL Vs. REGISTRAR OF TRADE UNIONS, PLD 1971 Lah. 220, and BATA SHOE CO (PAK) LTD. VS REGISTRAR OF TRADE UNIONS, PLD 1978 Kar. 567 lay down that he can and both these precedents have been followed by the learned judge in the case of KHAS TRADERS Supra. However, of remains to be emphasised that- the matter of registration is always one between the union, applying for registration and the Registrar and others, including the pre- existing registered unions and the employer have, essentially, no say in the matter. Section 8 of the Ordinance makes it more than manifest and even a the schedule is postulated on the subject.
Grievance can arise only after registration and then too in cases evidencing palpable illegalities (NATIONAL BEVERAGE EMPLOYEES UNION VS. REGISTRAR, 1986 PLC 533, and ALI SHER VS. EGISTRAR TRADE UNIONS, SIND, 1983 PLC 171).
7. This brings us, directly, to the caveat of the petitioner. The grievance again is twofold: One, the registration of the respondent No. 2-trade union attracted the provisions of Section 7(2)(b) of the Industrial Relations Ordinance and it was incumbent upon such union to establish that it did not have on its rolls less than one-fifth of the total number of workmen employed in the relevant establishment. The cut-out date for such purpose would, of cause, be the date of registration of the union. In other words, any subsequent inductions into membership would be of no relevance. Two, in case the requirement of one-fifth such membership was satisfied, another requirement viz: that of the proviso to Section 3(a), as inserted by Act XI of 1976 namely, that no worker shall be entitled to be a member of more than one Trade Union at any one the may also have to be adverted to. As bare statements of law little exception can be taken to these contentions.
8. On both the aforesaid counts, however, the argument from the side of respondent No. 2-union is that the requirements were more than amply fulfilled. It may have been so. Still the respondent No. 1-registrar, on being called upon to do so, was required to examine such questions dispassionately and, if necessary, after according due hearing to all concerned, including the union in dispute. Not merely this, he, as to the first limb of the grievance, as has been urged here, may also have had to examine and verify, in accordance with the Section 2(XXVIII) of the Ordinance, whether or not, those claimed to be on the rolls of respondent: No. 2-union qualified as workers or workmen within the meanings of the definition clause (XXVIH) in Section 2 of the Industrial Relations Ordinance. To put is conversely, even if no more than for the purposes of Section 7(2)(b) of the Ordinance, non workers had to be excluded. On the second aspect of the matter namely, the alleged dual membership of some of the workmen, to ensure that terms in the proviso to Section 3(a) did not remain unfulfilled, it would be sufficient if a workman, alleged to be enjoying dual membership, was restricted to the membership acquired subsequently in the unless he maintained that such subsequent membership was never sought for or acquired by him wherefor the earlier membership may have remained valid and subsisting,' in either event the worker's inclination and volition being preferred, as against any prospect of disenfranchising him, which does not seem to be readily permissible, being in negation of the spirit behind and intention of the labour law. It has, therefore, rightly been urged from the side of the respondents, relying upon Ali Sher Vs. Registrar Trade Unions. Sind. 1983 PLC 171. Karachi Road Transport Workers' Union Vs. Registrar Trade Unions.
1983 PLC 417 and National Beverages Employees' Union Vs. Registrar Trade Unions. 1986 PLC 533.
That dual membership, if any, did not disqualify a workman from being considered to be validly a member of a trade union. This has to be so. While Section 3(a), in its newly added proviso, prohibits dual membership, such does not prescribe penalities for dual membership and it may plausibly be said that lacking penalities the provision loses its mandatory character. However, I do not think that the question is crucial. Law pertaining to workmen and their Trade Unions has to be liberally and beneficially construed. It is common-place that workmen infrequently change their loyalities with reference to trade unions, depending upon their satisfaction with the performance of such unions or even upon bare whims and fancies. Resignation from a Trade Union need not be in writing for if that were so workmen may potentially be pinned down to a specified trade union on a simple awoval of the trade union concerned that a particular workman never tendered his resignation to it. It would thus seem that even verbal resignation should suffice and besides the subsequent membership of a trade union may itself implicitly involve an earlier resignation from previous membership of another union. If, therefore, a worker maintains that, at a given point of the, he was member of a specific union, having disowned membership of another such union, his word, unless proved palpably to be false, is to be accepted.
9. Having said as much, I think, on the facts of this case, the petition is to be allowed, though only partly, for the simple reason that the respondent No. 1-registrar, in spite of weighty questions being pressed, rejected the grievance of the petitioner-union without according any hearing to it and without even adequately considering its point of view so as to determine whether or not a case fit for initiating action by way of complaint under section 10 of the I.R.O, arose. The refusal of the registrar, therefore, has to be disregarded, even if no more than in its present form. The caveat of the petitioner-union, in the result, shall be deemed to be pending before the respondent No. 1.
10. These were the reasons for which, through a short order this petition was allowed, though in the context of holding an enquiry covered by prayer (ii) alone. However, another aspect of the matter, which was attached from the side of the petitioner pertained to voters list. I am afraid that question is not open in this petition. Such has already been dealt with in another proceeding and the.
Decision therein has become final. The judgment of this Court in Holiday Inn Peonies Democratic Workers' Union V/s Registrar Trade Unions. 1988 PLC 739. Refers on the point.
11. Before parting with the subject a vital matter remains to be addressed and a caution has to be administered. Constitutional Jurisdiction of this Court is discretionary in nature. Such discretion is always judicious. It is to be exercised only in aid of justice and never as an instrument of or to perpetuate injustice. Here, I refer to the strong exception, taken from the side of the two respondent- unions as to the Bona Fides of the petitioner in pursuing its remedy first before the Registrar of Trade Unions and then in this Court. It has been contended, and Ex Facie not without force, that the sole objective of this exercise has been and is to preclude the determination of the Collective Bargaining Agent in the relevant establishment by side-tracking and short-circuiting that issue.
The apprehension, in the circumstances, could be well founded but normally it should be irrelevant.
Unfortunately, though, because of a painfully long pendency and, perhaps, an un-necessary stay in this petition it has become more than relevant. The proceedings for determination of the Collective Bargaining Agent resultantly, stood effectively thwarted during the prolonged pendency of the petition. However, as things came to pass, this could not be helped. As soon as the state of affairs was brought to my notice the petition was accorded due priority and was disposed of through a short order passed in the Court. Be that as it may, the position, at law, remains that even if the registration of the particular trade union seeking referendum, is Prima Facie open to exception or otherwise untenable that circumstance cannot and should not come in the way of blocking a referendum for the determination of the Collective Bargaining Agent. To claim a referendum, if one is called for, is the right of the workers and law appropriately safe-guards it. In the event the union, which is found and declared to be the Collective Bargaining Agent is, ultimately, subjected to a cancellation of registration, Section 22 of the Industrial Relations Ordinance, per sub Section (10) thereof takes care of that situation and with the cancellation of registration, not just the union but the Collective Bargaining Agent itself ceases as such Agent. Let, therefore, it be made clear that, under no circumstances, the aforesaid exercise shall be permitted, upon the partial grant of this petition, to, in any way, come in the way of determination of the Collective Bargaining Agent, referendum wherefor must proceed forthwith without any let or hindrance.
12. In the foregoing terms this petition is disposed of. R & P to be returned immediately. Stay granted, as an interim measure, stands vacated. Office to ensure that, in the daily cause list, cases in which early hearing has been ordered, as was done in this petition on 31.1.1988, are distinctly so marked.