1. The petitioners are a Public Limited Company and are engaged in the manufacture of Port Land Cement having their factory at Deh Dhando, District Karachi, East which, as claimed by them, is equipped with modern technology. They have prayed for the following reliefs:-- (a)to declare that the registration, dated 13th June, 1991 of respondent No. 2 as a Trade Union is without lawful authority and has no legal effect and accordingly quash the said registration.
2. (b)to declare that the respondents Nos. 3 to 9 being non-workmen are not entitled to become the office-bearers of respondent No. 2 and as such the registration of the respondent No. 2 as trade union comprising non-workmen is without lawful authority and has no legal effect and accordingly quash the said registration.
3. (c)that the respondent No. 2 in acting upon the said registration as directed by the respondent No. 1 are not entitled to act and represent as C.BA. In the petitioner's establishment.
4. (d)to direct the respondents, their employees or anybody claiming through them not to give the registration of respondent No. 2 as Trade Union, any legal effect and thereby refrain them from acting upon, representing or styling as registered trade union of the establishment of the petitioner in any manner whatsoever.
5. (e)to grant any other relief or reliefs as this Hon'ble Court may deem fit under the circumstances of the case.
6. (f)to award cost of the petition, it is case of the petitioners that 45 workmen, under the Industrial Relation Ordinance, 1969, hereinafter called the Ordinance, and 133 Officers are employed in their establishment for running the said factory. In October, 1990 as a result of re-organisation, the petitioners retrenched both workmen and officers, strictly in accordance with the principle of "last in first out". It is alleged, that on their removal, the respondents Nos. 3 to 9 threatened to forcibly enter into the factory premises and adopted various tactics to pressurise the petitioners to reinstate them in service and for achieving this object they, with mala fide intention, formed a Trade Union and applied for its registration with the respondent No. 1 in April, 1991. According to the petitioners, from second June, 1991 the employees of the petitioner's Company resorted to partial illegal strike and from 10-6-1991 they resorted to complete cessation of work, in spite of an order to the contrary of the National Industrial Relations Commission. The petitioners have claimed that through respondent No. 2's letter (Annexure A to the plaint) they came to know about the formation of said trade union, which included both workmen and non- workman. Consequent upon receipt of said letter, the petitioners immediately addressed a letter to respondent No. 1, raising objections to the effect that 7 out of 10 office-bearers of said trade union, were employed in the supervisory/administrative capacity drawing salary well over Rs.800 p.m., enjoying facilities of officers in the petitioners-company and, as such, were not workmen under the law. In this regard the petitioners again addressed a letter to the respondent No. 1 on 2nd May, 1991 in which designation, salary, and other details about the office-bearers of respondent No. 2 were supplied. The petitioners expressed their apprehension that the facts may be misrepresented by the respondents Nos. 2 to 9, as such, asked the respondent No. 1 to give them an opportunity to produce relevant record in support of their contentions. The Joint Director, Labour, East Division, addressed a letter to the petitioners to furnish record and documentary evidence in support of their objections and the petitioners provided complete information about the nature of duties of the office-bearers of respondent No. 2. It is alleged that the Joint Director, Labour, acting on behalf of the respondent No. 1, examined the relevant record and documents, and recommended to the respondent No. 1 for rejection of the application of respondent No. 2, but the respondent No. 1, instead of acting upon said recommendation, directed the Deputy Director (Trade Unions) to submit another report. It is averred in the petition that no inquiry was conducted by the Deputy Director and he submitted his report on the basis of some meeting which had taken place between the respondent No. 1 and one Nabi Ahmed, a Professional Labour Leader, behind the back of the petitioners. It is alleged that said Nabi Ahmed was not an employee of the petitioners, as such, he was not aware as to the nature of the duties performed by the respondents Nos. 3 to 9. The petitioners have asserted that registration of respondent No. 2 as Trade Union is in violation of section 7 of the Ordinance.
7. The case of respondent No. 1 is that he registered the respondent No.2 Union after hearing the parties and ascertaining the facts regarding respondents Nos. 3 to 9. A plea has been taken that under the Ordinance it is not permissible to give notice to the employer by the Registrar of Trade Unions and it is for the Union to give notice, under section 8-A of the Ordinance, regarding formation of trade union and the names of its office-- bearers. The respondent No. 1 claimed that respondent No. 2 was registered on completion of all legal formalities. It is said that Deputy Director after perusing the documents held that the respondents Nos. 3 to 9 were workmen.
8. The respondent No. 2 has specifically denied that these were 45 workmen in the establishment and the rest 133 were the officers. According to this respondent, the petitioners even have claimed the Welders, Fitters, Clerks, Chowkidars etc. As officers. It is alleged that all the office-bearers of the Union are workmen, under Standing Orders Ordinance, 1968, and the Ordinance, 1969. The maintainability of this petition has also been challenged on various legal grounds.
9. The respondents Nos. 3 to 9 in their respective affidavits, adopted the objections submitted by the respondent No. 2 and maintained that they were workmen.
10. It is contended on behalf of the petitioners that the registration of the respondent No. 2 as Trade Union is in violation of the principles of natural justice and the petitioners were not given an opportunity of being heard at the time the order of registration was passed. Also, it has been argued that respondent No. 1, for the purpose of registration of respondent No. 2, had only heard said Nabi Ahmed, who was neither an employee of the petitioners nor knew anything about the respondents Nos. 3 to 9. A plea has also been raised that the respondents Nos. 3 to 9, after having accepted their position as managerial staff and having availed the privileges and benefits available to the officers, cannot turn around and claim rights and privileges, which are available to the employees, who fall in the category non-management cadre.
11. The requirements for registration of a trade union are laid down in section 7 of the Ordinance. A trade union shall not be entitled to registration under the Ordinance unless the constitution thereof provided for the matters enumerated in this section. The registration of the union is done under section 8 of the Ordinance. According to this section, the Registrar on being satisfied that the Trade Union has complied with all the requirements of the Ordinance shall register the Trade Union in a prescribed register and issue registration certificate in the prescribed form within a period of 15 days from the date of receipt of the application. In case the application is found by the Registrar to be deficient in material respect, he is required to communicate in writing his objections to the trade union within a period of 15 days from the receipt of the application and the trade union shall reply thereto within a period of 15 days from the receipt of the objections. In case, the application for registration is rejected, or the Registrar has delayed disposal of application beyond the period of 15 days or has not issued a certificate for registration within a period of 3 days, as provided in subsection (2) of section 8 of the Ordinance, the Trade Union may appeal to the Labour Court, who may order for the registration of trade union or may dismiss the appeal. Under section 10 of the Ordinance, the registration of a trade union shall be cancelled if the Labour Court so direct, upon a complaint in writing by the Registrar that the trade union has contravened, or has been registered in contravention of any of the provisions of the Ordinance or the rules or contravened any of the provisions of its constitution or made in its constitution any provision which is inconsistent with this Ordinance or the rules.
12. It is evident from aforesaid sections of the Ordinance that, at the stage of registration of trade union, the employer does not come into picture directly and the issue mostly remains confined between the trade union and the Registrar. The registration of a trade union, which is registered in contravention of the provisions of the Ordinance or the rules, can be cancelled by invoking the provisions of section 10 of the Ordinance. For this purpose, it is the Registrar, who is required to make a complaint in writing before the Labour Court. The Registrar can make such complaint on the basis of information received by him from any quarter, including the establishment of any concern. He can also make such complaint, suo motu, if after registration its come to his knowledge that registration was obtained in contravention of law and the rules on the subject.
13. Although the employer as a rule at the time of registration of trade union is not entitled to be heard, but the record shows that the petitioners were so heard. Affidavit of Mirza Karim Baig, Registrar of Trade Unions on this point is clear. He has specifically stated therein that "I have registered the respondent No. 2 Union after hearing the parties and after ascertaining that respondents Nos. 3 to 9 are workmen". The petitioners through their letters, particularly letter, dated 2nd May, 1991, had furnished necessary information to the Registrar, which revealed their case comprehensively, and the Registrar, having taken into consideration all the facts, had passed the order for registration of the respondent No. 2. Personal hearing of the employer within the meaning of sections 7 and 8 of the Ordinance is not a legal requirement, and nor such right can be claimed when it is not specifically provided under the law. Apparently, there is nothing wrong with the registration of respondent No. 2 as a trade union.
14. Mr. Shafiq Qureshi learned counsel for the respondents Nos. 3 to 9 strenuously argued that, in any case, the question that whether a person is workman or not is a question of fact and disputed facts cannot be investigated in writ jurisdiction. He, therefore, contended that plea of the petitioners that respondents Nos. 3 to 9 were not workmen requires evidence and without recording evidence this controversial point cannot be resolved. In this connection, he cited the case of Hotel Intercontinental v. Bashir A. Malik reported in PLD 1986 SC 103. The rule laid down in this case was followed in the cases reported in (1) Security Papers Limited v. Sindh Labour Appellate Tribunal PLD 1988 SC 180, (2) Abdul Razzak v. M/s. Ahsan Sons Limited and 2 others 1992 SCM R 505. In Hotel Inter- continental's case, at page 111, the following was observed by the Hon'ble Supreme Court:-- "The test for determining the question whether an employee is a workman within the meaning of various statutes in the field of labour legislation is well-settled. The consensus of judicial opinion seems to be that it is the nature of the work done by the employee that would be the essential and fundamental consideration for determining the question and not his designation which is not conclusive. The question to be examined is whether manual or clerical work is incidental to the main work or a substantial part of its, so that, the fact that a person employed in a supervisory capacity does some manual or clerical work as ancillary or incidental to such employment has been held not to bring him within the ambit of the definition. The main features, the pith and substance of his employment must be manual or clerical before the definition is attracted."
15. The above test can only be applied after the disputed points are resolved by recording the evidence. Since the material facts about the status of the respondents Nos. 3 to 9 are in dispute, this petition is not maintainable.
16. In consequence, the petition is dismissed with no order as to costs.