JUDGMENT Dorab Patel, J.--The petitioner is a Federation of Trade Unions of the employees of the National Bank of Pakistan. Its membership extends to all the provinces of the country and its Head Office is in Karachi. It was formed on 15th January^, 1974 by a resolution of the representatives of the l2 Unions affiliated to it and by this resolution it also decided to apply for registration with the respondent, namely, the National Industrial Relations Commission, to which I shall refer as "the Commission". This application was made to the Commission's Registrar, and, after scrutiny, the Commission issued a certificate of registration in favour of the petitioner. The petitioner then applied to the Commission for being declared the Collective Bargaining Agent of the workmen of the National Bank of Pakistan or in the alternative for holding a referendum to elect a Collective Bargaining Agent of the National Bank's workmen. The Commission did not care to reply to the petitioner's request and instead, on 20th February, 1974, its Registrar sent a notice to the Secretary of the petitioner under section 8(10) of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the 'said Ordinance") informing the petitioner that it would review its previous order granting registration to the petitioner under the said Ordinance. This review was fixed for hearing on 7th March, 1974 and on that day the petitioner was heard through its Secretary. The Senior member of the Commission, who heard this review, held that he was entitled to review the grant of the registration under section 21 of the General Clauses Act, and he cancelled the certificate of registration granted to the petitioner on three grounds by his order dated the 8th March, 1974.
These grounds were that ''the resolution of the respective federating Trade Unions had not been filed in original", that ''the application for registration fails to disclose that it has either been signed by the Presidents of the respective Trade Unions constituting the federation or even by any other office-bearers specifically authorised to sign the same which shows that the requirements of section 20(3) of the said Ordinance have not been made", and lastly that the status of Mr. Farooqi (who incidentally has signed the petition on behalf of the petitioner and is its Secretary-General) was under dispute as ''the Registrar of Trade Unions, Sind, has not recorded his name as such in the record of the said Trade Union." On these three grounds the senior member of the Commission cancelled the petitioner's registration, therefore, it has come to this Court for relief in a constitutional petition.
2. Mr. Khalid M. Ishaque, for the petitioner, argued that the impuged order was both mala fide and without jurisdication, and he also challenged the validity of the three grounds in the impugned order for cancelling the petitioner's registration. On the other hand, the learned Deputy Attorney- General, who appeared on behalf of the Commission, defended, on merits, the first two grounds given in the impugned order for cancelling the petitioner's registration.
He, however, was compelled to concede that the third ground was perverse, but he submitted that the Petition was barred, because the petitioner could have challenged the impugned order in an appeal under section 22-D of the said Ordinance; and as Mr. Khalid M. Ishaque challenged the Commission's claim to review its order, the learned Deputy Attorney-General submitted that this power was available to the Commission under section 21 of the General Clauses Act. This submission was hardly pressed, but the learned Deputy Attorney-General also sought to defend the Commission's jurisdiction to pass the impugned order under clause (a) of the proviso to subsection (9) of section 22-A of the said Ordinance. 3: I would first consider the plea of the bar of jurisdiction. It is settled law that this plea is not available when the order challenged is malafide, therefore, I would first consider Mr. Khalid Ishaque's submission that the impugned order was mala fide and I would set out here the circumstances on which he relied. The first is that the notice of the review purported to be under subsection (1) of section 8 of the said Ordinance. Admittedly there is no such provision in the said Ordinance. Mr. Shah Jamil Alam submitted that reference to an erroneous provision of law was not material. That is true, but the citing of a non-existing provision reacts on the Commission's bona fides. Secondly, although the notice refers to a review, the said Ordinance does not, at least in terms, confer any such power on the Commission. Thirdly, the notice did not give any particulars of the grounds for the review. Fourthly, the learned Deputy Attorney- General conceded that the record did not show why the Commission wanted to review the issue of the certificate of registraion to the petitioner. Lastly, and this is most important, the third ground given in the impugned order for cancelling the petitioner's registration is not supported by any material whatsoever on the record. Bearing in mind the defects in the notice and the fact that the review was heard on 7-3-1974 and decided the next day, I cannot help entertaining grave doubts as to whether the petitioner was given a fair hearing. Now not only is it doubtful whether the rules of natural justice were complied with, but the more disturbing fact is that the third ground given by the Commission's member, who was the senior member, for cancelling the petitioner's certificate of registration is not supported by any material whatsoever on the record. In these circumstances Mr. Khalid Ishaque's allegation of mala fide is not without force. But as the petition does not give any particulars of this allegation, I agree with learned Deputy Attorney-General that the petitioner is barred by its pleadings from advancing this plea. But even if the petitioner is estopped from establishing mala fides, I am very disturbed that one of the findings in the impugned order is not supported by any material whatsoever on the record. When we drew the attention of the learned Deputy Attorney- General to this aspect of the case his only reply was that the effect of one perverse finding would not be to render otherwise proper order without jurisdiction. But the question before us is whether the petitioner should be permitted to invoke the discretionary remedy of a constitutional petition despite the availability of a statutory appeal, therefere, I have to observe that the perverse finding by the Commission's senior member, in the context discussed, can only lead to the conclusion that the impugned order is arbitrary and oppressive. And in Murree Brewery Co. Ltd. v. Pakistan (I) Salahuddin Ahmed, J. at page 287 observed: "The appellant has also alleged mala fide in law against the C. D. A., a statutory functionary. In the case of East & West Steamship Co. v. Pakistan this Court has held that where a Statutory functionary acts mala f ide or in a partial, unjust and oppressive manner the High Court in the exercise of its writ jurisdiction has power to grant relief to the aggrieved party. The learned Judge of the High Court has correctly dealt with this aspect of the question." Respectfully following this observation and bearing in mind also the fact that the petition raises an important question Nof law of public interest, 1 would allow the petitioner to invoke the discretionary remedy of a constitutional petition.
4. I have just observed that the petition raises an important question of law. This is the Commission's claim to review its orders under section 21 of the General Clauses Act and we are only concerned in this petition with the review of an order registering a Trade Union under the said Ordinance, therefore, 1 may point out here that a certificate of registration granted to a Trade Union is conclusive evidence of its registration and can only be cancelled in the manner prescribed in section 10. Obviously such a certificate is valuable right to a Trade Union, the moreso now as it may enable the Union concerned to become a collective bargaining agent, therefore, the petitioner's case falls under the observations of Sajjad Ahmad Jan, J., in Pakistan v. Mohd. Himayatullah (1). There, with reference to this very question, Sajjad Ahmed Jan, J., at page 412 observed: "There can hardly be any dispute with the rule as laid down in these cases that apart from provisions of section 21 of the General Clauses Act, locus Poenitentiae i.e. the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. 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." Applying these observations to the instant case, I would hold that the Commission's claim to review its order is totally misconceived and here I have to refer to an unfortunate aspect of the case. This judgment of their Lordships is referred to in the impugned order, although the citation is erroneous. The Commission's member has, however, distinguished it on the ground that the petitioner had not acquired any right through the certificate of registration obtained by it. I am unable to understand the view thus taken, and the learned Deputy Attorney-General did not even attempt to defend it.
Instead he submitted an ingenious argument: because the impugned order was passed after notice to the petitioner, the submission was that an authority or at least a gwasi-judicial or administrative authority was entitled to review its Order under section 21 of the General Clauses Act, after notice to the party, concerned, and on this ground the learned counsel sought to distinguish the rule laid down by Sajjad Ahmed Jan, J., in the case cited. But the observations cited are clear and unambiguous and do not permit any such distinction be drawn. Accordingly, this submission, whatever be its worth, can only be advanced before their Lordships. As the learned Deputy Attorney-General was aware that we are bound by this judgment, he did not press this submission. Instead, he relied on clause (a) of proviso to subsection (9) of section 22-A of the said Ordinance, whilst Mr. Khalid M. Ishaque relied on section 10, therefore, I will now examine the (1) PLD 1969 SC 407 provisions in the said Ordinance for the registration of Trade Unions.
5. At the outset, I have to point out that the relevant part of the said Ordinance has been amended from time to time, but the definition of a Trade Union has not been amended, and it has always included a "federation of two or more Trade Unions." Sections 6 and 7 of the said Ordinance prescribe the conditions to be fulfilled by a Trade Union seeking registration, whilst section 20 deals with the additional conditions required for the registration of a federation of Trade Unions, and I may pause to point out here that the first two grounds of the impugned order had reference to the provisions of this section. Reverting, however, to section 20, subsection (4) is important and reads as under: "(4) subject to subsections (1), (2) and (3), "Provisions of this Ordinance shall, so far as may be and with the necessary modifications apply to a federation of Trade Unions as they apply to a Trade Union." Section 8 of the said Ordinance reads as follows: "8. Registration.--(1) The Registrar, on being satisfied that the Trade Union has complied with all the requirements of this Ordinance, shall register the Trade Union in a prescribed register and issue a registration certificate in the prescribed form with in a period of fifteen days from the date of receipt of the application. In case the application is found by the Registrar to be deficient in a material respect or respects he shall communicate in writing his objections to the Trade Unions within a period of 15 days from the receipt of the application and the Trade Union shall reply thereto within a period of fifteen days from the receipt of the objections. (2) When the objections raised by the Registrar have been satisfactorily met, the "Registrar shall register the Trade Union as provided in subsection (1) and issue a certificate of registration in the prescribed form within three days of the date of the objections having been so met. In case the objections are not satisfactorily met, the Registrar may reject the application. (3) In case the application has been rejected or the Registrar has delayed disposal of the application beyond the period of fifteen days provided in subsection (1) or has not issued a certificate of registration within a period of three days as provided in subsection (2), as the case may be, the Trade Union may appeal to the Labour Court who for reasons to be stated in its judgment, may pass an order directing the Registrar to register the Trade Union and to issue a certificate of registration or may dismiss the appeal. (4) Notwithstanding anything 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. (5) The Registrar may refuse to register such change or alteration if it is in contravention of any of the provisions of this Ordinance,! or if it is in violation of the constitution of the Trade] Union. (6) Subject to the provisions of subsection (5), every inclusion or * " " * Trade Unions shall be notified by registered post by the federation to the Registrar within fifteen days of such inclusion or exclusion. (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 seven days of receipt of the application or the "appeal, as the case may be, pass an order either directing Registrar the 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." Section 9 prescribes that a certificate of registration issued by a Registrar to a Trade Union "shall be conclusive evidence that the Trade Union has been duly registered under this Ordinance." Section 10, in so far as it is relevant, reads as follows :-- "10.
Cancellation of registration.--(1) The registration of a Trade Union shall be cancelled if the Labour Court directs upon a complaint in writing made by the Registrar that the Trade Union has-- (i) contravened any of the provisions of this Ordinance or the rules ; or (ii) contravened any of the provisions of its constitution ; or (/ii) made in its constitution any provision which is inconsistent with this Ordinance or the rules, or (iv) dissolved itself or has ceased to exist." Finally section 11 entitles a Trade Union to file an appeal against a decision against it under section 10.
6. I may pause here to point out that as the petitioner's certificate of registration has been "withdrawn and cancelled" by the impugned order, Mr. Khalid M. Ishaque submitted that the certificate could have been cancelled only under section 10, and even the learned Deputy Attorney- General conceded that the certificate had not been cancelled under section 10. He, however, relied on the proviso to subsection (9) of section 22-A, therefore, I may point out that section 22-A relates to the constitution, functions and powers of the Commission, and subsection (8) defines the functions of the Commission which include the promotion, formation and registration of Trade Unions and also extensive advisory functions. Subsection (9) reads : "(9) only industry-wise Trade Unions, federation of such Trade Unions and federations at the national level shall be entitled to initiate proceedings, or to appear before the Commission : Provided that the Commission may also,-- (a) of its own motion, take action with regard to any matter relating to its functions ; and (ib) of its own motion, or on the application of a party, withdraw from Junior Labour Court or Labour Court any application, proceeding or appeal relating to unfair labour practice." The words used in clause (a) are wide, and as the registration of a Trade Union is admittedly one of the functions conferred on the Commission under sub-clause (8), the learned Deputy Attorney-General defended the impugned order on the ground that it was action taken within the meaning of the aforesaid clause with regard to a matter admittedly relating to the Commission's functions.
7. The submission that the words used in the aforesaid clause are of wide import is correct, but even if the language of the clause is wide enough to cover the impugned order, the question is whether this clause was intended to supersede or supplement section 10. The learned Deputy Attorney-General relied on the fact that the clause is to be found in a later portion of the said Ordinance, but, on the other hand, a certificate of registration is a very valuable right to a Trade Union, and the detailed provisions of section 10 for the cancellation of such a certificate manifest the Legislature's intention to protect the rights of Trade Unions. Therefore, in my humble opinion, the certificate can only be cancelled in the manner prescribed in section 10. Nor would such a construction render the aforesaid clause redundant because it would apply to the advisory functions of the Commission and other functions for which no express provision has been made in the said Ordinance. I think I am supported, in my opinion, by a judgment of a Division Bench of this Court in where Tufail Ali A.
Rehman, C. J., who pronounced the judgment of the Division Bench, with reference to the construction of the aforesaid clause observed : "So far as proviso (a) is concerned it uses the words "take action" with regard to any matter relating to its functions and clause (g) of subsection (8) does indeed make it one of the functions of the Commission to deal with cases of unfair labour practice. Now the expression "take action" and "deal with" no doubt appear to be expression of wide import but are also, if I may say so with respect, of somewhat imprecise definition. I am unable to read either of them as meaning and including a power to try offences and certainly not a power to create offences and then to proceed to try them. There are various ways in which a Commission whose functions are not purely judicial and which includes even advising government in matters may be called upon to "deal with" cases or to "take action" and I should be most reluctant to hold that the power to take criminal proceedings and to punish people for offences can be conferred by expressions of such generality. I think a power of this kind must be expressly conferred and I know of no other statute which has been interpreted to confer such a power without express language."
8. The learned Deputy Attorney-General sought to distinguish these observations on the ground that the facts in the case cited were'distinguishable. It is true that the facts in the case cited were not on all fours with those in the instant case, because the question in the cases cited was whether the petitioners could be prosecuted by the Commission suo motu merely because the language of the clause under construction was very wide, and the learned Deputy Attorney-General relied on the fact that the Commission's power to institute the prosecution, suo motu, was different from its power to cancel suo motu, a Trade Union's Certificate of Registration. No doubt the two powers are different, but is the difference material to the principle laid down in the observation cited? That principle is that the Commission's claim to institute a prosecution, suo motu, cannot be supported by the aforesaid clause, because such a power to prosecute is not to be inferred lightly. But just as the power to prosecute cannot be inferred lightly, the power to cancel a Trade Union's certificate cannot be inferred lightly, because such a certificate is a very valuable right and there is a presumption in favour of vested rights.
Accordingly, by parity of reasoning, the judgment lends some support to Mr. Khalid Ishaque's submission and in all the circumstances discussed, I accept his submission that the petitioner's certificate of registration can only be cancelled under section 10. But even the learned Deputy Attorney-General admitted that the impugned order had not been passed under this section therefore, I hold that it was without jurisdiction.
9. The only other submission of the learned Deputy Attorney-General was that the impugned order was only for the withdrawal of the petitioner's certificate qf registration and not for its cancellation. Now, as I have shown, the order expressly states that the certificate is "withdrawn and cancelled" and the mere use of the word "withdrawn" cannot alter the fact that the certificate has been cancelled by the impugned order. The order further states : "The defects pointed out hereinabove may be communicated to the federation along with any other objection which the Registrar may find after further scrutiny of the case in accordance with the provisions of section 8(1) of the Ordinance. If the federation has any intention to comply with the objections, its reply must reach the Commission within fifteen days of the receipt of the objections." In view of these observations, it was feebly submitted that the order did not amount to cancellation of the petitioner's certificate of registration. I cannot accept this submission in view of the clear direction to cancel the petitioner's certificate of registration. In view of this direction, the learned Deputy Attorney-General made an offer that the petitioner's certificate would not be cancelled if the petitioner complied with the objections contained in the first two grounds of the impugned order which I quoted in para. 1. The offer was fair, as submitted but was not accepted by the petitioner, and we cannot impose a compromise on the parties, and, on the other hand, the fact that the offer now made is fair cannot alter the direction contained in the impugned order for the cancellation of the petitioner's certificate. I am satisfied that the impugned order is for the cancellation of the said certificate, therefore, it is void and must be set aside.
Accordingly, the petition is allowed as prayed with costs. Mushtak Ali Kazi, J.--I agree. s. A. h. Petition allowed. 1974 PLC 69 [Labour Appellate Tribunal Sind] Present x Inamullah Khan, Appellate Tribunal SILVER SILK MILLS Ltd., KARACHI ' versus MAZDOOR UNION , decided on 13th July 1973. (a) Industrial dispute-- -- Termination of service due to retrenchment--Notice--Distinction to be drawn between physical service of notice and knowledge of workmen regarding termination with effect from particular date-- Workmen allegedly refusing to receive notice--Notice sent by post also returned undelivered -- Workmen otherwise having knowledge that they had been refused work from particular date -- Termination of service, in circumstances, held effective from such date. [pp. 65, 66]A, C & D (,b) Industrial dispute-- ---- Victimization -- Mere allegation--Not sufficient in absence of facts and circumstances which might have antagonised Management. [p. 65]B M. A. Rahmani for Appellant. Vasi Ahmad for Respondent. Date of hearing: 9th July 1973. ' Decision This is an appeal against an award of the learned Presiding Officer of Sind Labour Court No. 1, Karachi, dated April 25, 1973, whereby the learned Labour Court ordered the appellant to re-instate 8 workers with full back benefits and continuity in service. The facts, as disclosed in their application and written statement are these. The respondent-Union, Silver Silk Industries Mazdoor Union (hereinafter called the Union), claimed to be the Collective Bargaining Agent. The Union came into existence on 23rd July 1972 and it applied for its registration on 25th July 1972. The case of the Union, as disclosed in Paragraphs 4 and 5 of its application is as under :-- "(4) That on information of the existence of the said Union the Respondents pursuaded, compelled and threatened the President of the Union and other responsible workers for the formation of the said Union and when the malicious inducements were not accepted they threatened for dire consequences. (5) That subsequently the respondents have effected and caused an illegal lock-out with effect from 1-8-1972 resulting into unemployment and deprivations to almost 8 workers or so."
2. The case of the appellant Management was that the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance) did not apply to it, as on 29th July 1972, the total number of employees of the Management was 45.
Due to non-availability in the market of Nylon Yarn, both indigenous and imported, the Management was obliged to close 14 of its looms from lst August 1972. The Management had informed, of its intention, the Superintendent, Central Excise and Land Customs, Circle 'C\ that it would be closing 14 of its looms from lst August 1972; that the Excise Authorities in fact sealed 14 of the looms of the Management from lst August 1972. The services of 8 workers were terminated because of the closure of 14 looms. The appellant denied that they had locked out 8 workers. The appellant also stated that notices were tried to be served on the workers, on 29th July 1972, but they refused to accept the same and, therefore, notices were sent through registered cover and they were also returned unserved.
3. The learned Labour Court came to two-fold conclusions. Firstly, that those junior to the workers were not retrenched, but the eight workers were retrenched against the provisions of Standing Order 13 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the Standing Orders Ordinance). In the second place, it was held that the notices terminating their services were not served on the workers. It would be useful to reproduce the concluding portion of the impugned order. It runs as under:-- "In the present case from the evidence on record it is clear that the Applicants were not served with notices of termination in time. They were not the last persons to be retrenched they were the office-bearers of the Union and the allegations that they were victimised due to Trade Union activities remained unrebutted. Consequently, I hold that the applicants were locked out illegally. Hence I direct the respondents to re-instate all the 8 workers forthwith with full back benefits and continuity in service." .
4. I would now proceed to examine the conclusions of the learned Labour Court. It may be stated at once that there is no evidence, whatsoever, for the conclusion that the eight workers, who were retrenched were not the junior-most workers. I have gone through the application of the Union under section 34 of the Ordinance. It is not stated in any of the paragraphs of the said application that there were workers junior to the eight persons, whose services had been terminated. Mr. Ukhair Said, the President of that Union also in his affidavit has not stated that there was any worker junior to the persons, whose services had been terminated. On behalf of the Union, it is only the President of the Union, who has filed his affidavit.
None of the other workers appeared before the Court as a witness. Mr. Wasi Ahmad, the learned Representative for the Respondent Union was unable to support the conclusion of the learned Labour Court that junior-most workers to the eight workmen had been left over and the services of these workers had been terminated.
5. It is true that the notices on the workmen terminating their services were not served by the Management. The question is as to what is the effect of non- service of the notices terminating the services of the eight workmen. A distinction has to be drawn between the physical service of the notices on the workmen and the fact that the workmen knew that their services had been terminated from a particular date.
6. The next question for consideration would be as to whether the workmen had been victimised or not for their Union activities. I have already held in number of cases that mere allegation that certain office-bearers of the Union had been victimized because of their Union activities is not sufficient. The Union must establish some fact or circumstance which may have antagonized the Management so as to victimise the workmen for such activity. In the present case, no fact or circumstance had been disclosed by the Union in its application which might have antagonized the Management. All that had been stated is contained in Paragraphs 4 and 5 of their application, which has already been reproduced above. It would appear from an analysis of those two paragraphs that the Management did not like the formation of the Union. On the face of it, it appears to me that there is no substance in this contention. The Union was formed on 23rd July 1972 and they applied for us icgisiration on 25th July 1972. The Management must have taken steps for closing 14 of its looms much earlier than 23rd July 1972. Under the Central Excise Rules, 1944, Rule 43 (2), an industry has to inform 15 days before closing any of its sections. I would persume, in the absence of anything to the contrary on behalf of the Union, that the requirement of 7. As already observed, it is true notices terminating the services of those 8 workmen were not served on them. As observed by the learned Labour Court, the postal seals on the envelopes containing the notices to the workmen would disclose that they were sent on 4th August 1972. There being no evidence on behalf of the appellant that they tried to serve the workers on 29th July 1972, I would hold, as observed by the learned Labour Court, that notices were sent on 4th August 1972. The question is as to whether the respondents know that their services had been terminated from lst August 1972. The case of the Union, as already mentioned in paragraph 5 of its application was that the eight workers had been locked out from lst August 1972. It is, therefore, clear that the Management had refused to allow them to work from lst August 1972. The President of the Union, who is the only witness on behalf of the Union, admitted in cross-examination as under:-- "Alongwith me nine persons were terminated from service. Nisar and Latif were also removed. I do not know if Nisar and Latif have taken their dues from the factory. I meet Nisar and Latif every day. Nisar and Latif are not present in the Court today. The other persons who were removed alongwith me except Nisar and Latif, are present in this Court I know that when our services were terminated the fourteen looms were closed and sealed."
8. From the admission made by Mr. Ukhair Said, the President of the Union it is clear that their services were only terminated and that they were not locked out within the meaning of the definition of lock-out. Mere allegation that the workers had been locked-out is not sufficient. It is further clear that in fact the looms had been sealed. The accumulative effect of the statement made in the application and the admission is that their services were terminated from lst August 1972. I have come to the conclusion, in the absence of any evidence to establish lock-out, that the eight workers had not been locked out by the Management and that their services had been terminated because of the closure of 14 looms because of non-availability of Nylon Yarn. The eight workmen would be entitled to one month's notice pay and all other legal dues.
9. In the result, the award of the learned Labour Court is set aside. The eight workmen are entitled to one month's wages together with all the legal dues. The appellant must pay one month's pay together with all their legal dues within a week from this order and Rs. 100.00 as costs to Mr. Wasi Ahmad.