Through this Constitutional Petition filed by the Lahore Chamber of Commerce 'and Industry, the registration of respondent No.2 as a Trade Union by the Registrar, respondent No. 1, and its subsequent refusal to lodge complaint before the concerned Labour Court for the cancellation of registration, has been challenged.
2. The brief facts are that the petitioner is a body Corporate which was registered under the Companies Act, 1913 as a. Company Limited by Guarantee. Some employees of the petitioner claiming to be the 'workmen' established a trade union by the name of "Lahore Chamber of Commerce and Industry Employees" Union" and approached the Registrar of Trade Unions, Lahore Region, Lahore (respondent No. 1) for its registration. Accordingly, this union was registered and the requisite certificate in the name of Lahore Chamber of Commerce and Industry Employees' Union, Lahore (respondent No.2) was issued by the Registrar of Trade Unions, Lahore Region, Lahore on 14- 2-1997 under the Industrial Relations Ordinance, 1969 (hereinafter referred to as 'the Ordinance').
On 5-12-1995, the Secretary of the petitioner company submitted an application to respondent No. 1 with the requ6st to move the concerned Labour Court for the cancellation of registration of respondent No.2 as the Trade Union. Vide letter dated 17-12-1995 respondent No. 1 rejected this application of the petitioner stating that there was no legal justification of the same and that the respondent No.2 had the right to be registered as a Trade Union. This order/action of respondent No. 1 has been challenged in this writ petition by the petitioner and a direction Sis sought to respondent No. 1 to initiate proceedings under section 10 of the Ordinance against respondent No.2 for getting its registration cancelled. On 15-2-1996 pre-admission notice to respondent No.2 was issued. After hearing respondent No.2 at the limine stage, the writ petition was admitted to regular hearing on 5-5-1996 whereupon respondent No.2 filed written statement and respondent No. 1 filed parawise comments. The final arguments, however, were addressed by learned counsel for the parties on 17-10-1996.
3. The learned counsel for the petitioner submitted that the petitioner company is not 'Establishment' or 'Undertaking' or 'Industry' in terms of the Ordinance but is a voluntary association of the persons who carry on and are linked with the Trade, Commerce and Industry in Pakistan particularly within the Lahore Division, therefore, the Union formed by the workers employed by the petitioner could not be registered under the provisions of the Ordinance as a Trade Union. In this respect he referred to the following clauses of the Memorandum of Association of the petitioner:-- "3.The objects for which the Association is. Established are:
(1) To promote and protect the trade, commerce and industry of Pakistan and in particular the trade, commerce and industry of Lahore Division.
(2) to watch over and protect to the general industrial and commercial interests of Pakistan or any part thereof and the interests of persons engaged in trade, commerce or industry of Pakistan and in particular in Lahore Division.
(4) To obtain the removal as far as the Chamber can, of all acknowledged grievances affecting merchants and/or industrialist of mercantile and/or industrial interests in general.
(5) To promote or oppose legislative and other measures affecting trade, commerce and industry.
(8) To arbitrate in the settlement of disputes arising out of commercial transactions between parties willing or agreeing to abide by the judgment and decision of the Association.
(9) To establish just and equitable principles in trade, commerce and industry.
(10) To form a code or codes of practice to simplify and facilitate transaction of business.
(18) To do all such other things as may be conducive to the extension of trade, commerce or manufactures, or incidental to the attainment of the above objects of any of them.
(19) To collect and circulate among members statistics and other information relating to trade, commerce and industry.
4. Learned counsel also referred to clauses (ix) and (xiv) of section 2 of the Ordinance. Clause (ix) defines the 'Establishment' as "any office, firm, industrial unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying on any industry" and 'Industry' under clause (xiv) is defined to mean "any business, trade, manufacture, calling, service, employment or occupation;" He thus submitted that in order to determine whether the petitioner company is an 'establishment' or 'industry', its working as a whole has to be seen. He relied on the judgments of the Hon'ble Supreme Court in 'Livestock Employees' Union and others v. Government of Baluchistan, Livestock Department through Secretary, Quetta and others' (1996 SCMR 1399) and of this Court in 'Managing Committee, The Punjab Club, Lahore v. The Registrar of Trade Unions, Lahore Region, Lahore and another' (1993 PLC 543). In the first mentioned case the Hon'ble Supreme Court held as follows:-- "In the instant case, the primary object of the departments is to implore all avenues for the advancement of particular field and to cater the needs of public-at-large. The cost is to be borne from public funds. They do not run any industry. The function of the Forests Department is to protect the forests from- destruction which is necessary for the healthy environment. For the performance of their duties, they make research in their special field. From the nature of their work it cannot be deduced by any stretch of imagination that the respondents are running any industry.
Whatever little business does that is ancillary to the main object. The departments are performing multifarious duties in this behalf but their main function is not changed. The petitioners are not employed to run any industry. The Government is not consuming any wealth from these establishments. The ingredients of any industry are lacking in the present case, therefore, the learned High Court has taken a correct view of the matter."
5. In the case of 'Managing, Committee, The Punjab Club, Lahore v. The Registrar of Trade Unions, Lahore Region, Lahore and another" (1993 PLC 543) this Court while dealing with the case of Punjab Club, Lahore observed that, "It emerges from the foregoing discussion that Punjab Club cannot be regarded to be an 'industry' within the meaning of Industrial Relations Ordinance, 1969, and as such trade union formed by its employees did not qualify for registration, in view of section 7(2) of the Industrial Relations Ordinance, 1969".
6. In the light of these precedent cases and the aforesaid provisions of the petitioner's Memorandum of Association, the learned counsel for the petitioner submitted that, as the petitioner did not fall within the definition of ' establishment' or 'industry', the provisions of the Ordinance did not apply and, therefore, the registration of respondent No.2 as a trade union was in contravention of the relevant law and liable to cancellation.
7. On the other hand learned counsel for respondent No.2 submitted that the petitioner is rendering service to its members, therefore, is an 'industry' as defined in the Industrial Relations Ordinance, 1969. He also referred to clauses (1), (12) and (18) of the Memorandum of Association of the petitioner in this regard showing nature of service being rendered by the petitioner to its members, which are reproduced below:-- "(1) To promote and protect the trade, commerce and industry of Pakistan and in particular trade, commerce and industry of Lahore Division.
(12) To sell, improve, manage, develop, exchange, lease or let, under lease, sublet, mortgage, dispose of, turn to account or otherwise deal with, all or any part of the property of the Chamber.
(18) To do all such other things as may be conducive to the extension of trade, commerce to manufactures, or incidental to the attainment of the above objects of any of them.
8. On the strength of these activities the learned counsel for respondent No. 2 argued that the petitioner-company is the 'industry' in terms of section 2(xiv) of the Ordinance. He relied upon the judgment of the Hon'ble Supreme Court in 'Employees' Old-Age Benefit v. National Industrial Relations Commission and others (1988 SCMR 765) wherein it was observed as follows:-- "For the disposal of this appeal, it is unnecessary to refer to these cases as there can be little doubt that the functions of the appellant institution do constitute 'service' within the meaning of the said clause. Ordinarily, it would be the obligation of an employer himself to look after his workers by providing relief to them in the event of their becoming sick or disabled or aged. The statute which has created the appellant has institutionalized these functions, which really belong to the employer, by setting up a body for performing them for him. The appellant institution is thus rendering a service to the industrial and commercial sectors. It cannot, therefore, say that its functions fall outside the purview of clause (xiv). "
9. The case of the Employees' Old-Age Benefit Institution (supra) is not attracted to the facts of the present case: The petitioner-company is a voluntary association of traders and industrialists which is being run and managed by elected representatives, in accordance with its Articles of Association, without remuneration, and is not itself carrying on any trade or running any industry nor rendering any service of the kind mentioned in this precedent case. In the case of 'K.G. Old v.
Presiding Officer' (PLD 1976 Lah. 1097) this Court held that "The enterprise as a whole has to be looked at to find out its raison d'etre, and any part of it which is incidental, ancillary or an adjunct cannot determine the character of the whole".
10. Since the present case can be decided on the determination of the question as to whether at this stage the petitioner can be given relief as prayed for in the exercise of equitable jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, seeking direction to get the proceedings under section 10 of the Ordinance initiated for cancellation of the registration of respondent No. 2, the question whether the petitioner is or is not an 'industry' or an 'establishment' in terms of the Ordinance, do not appear to call for decision.
11. Admittedly respondent No. 2 applied for its registration under section 7 of the Ordinance in the year, 1972 and was registered as a Trade Union by respondent No. 1 in accordance with section 8 of the Ordinance and thereafter, Certificate of Registration was issued on 14-2-1972 by respondent No. 1 in the name of respondent No. 2 in accordance with section 9 of the Ordinance. Section 8 of the Ordinance provides that "The Registrar, on being satisfied that the trade union has complied with all the requirement of this Ordinance, shall register the trade union in a prescribed register and issue a registration certificate in the prescribed form within a period of fifteen days from the date of receipt of the application". Similarly section 9 of the Ordinance states that "The Registrar, on registering a trade union under section 8, shall issue a certificate of registration in the prescribed form which shall be conclusive evidence that the trade union has been duly registered under this Ordinance". The certificate of registration was issued by respondent No. 1 on 14-2-1972 which reads as follows:-- "It is hereby certified that the Lahore Chamber of Commerce and Industry Employees Union, 51/93, Lytton Road, Lahore has been registered under the Industrial Relations Ordinance, 1969
12. After respondent No. 2 was registered as trade union it was also declared as Collective Bargaining Agent by respondent No. 1. The petitioner-company recognised the status of respondent No. 2 as registered trade union and the Collective Bargaining Agent and in that capacity has been dealing with it. The petitioner and respondent No, 2 exchanged correspondence, entered into negotiations, arrived at settlements and executed many agreements from the to the.
Since the inception of respondent No. 2 as Trade Union and C.B.A. The petitioner-company used to hold meetings with the former. Respondent No. 2 has placed on record copies of the minutes of some of the meetings. Annexure C/1 is the minutes of the meeting of the Administrative Sub- Committee held on 29-4-1972. In this meeting, inter alia, the demands of respondent union were considered. This meeting shows that after discussion the Committee approved some of the demands. It is recorded therein that "The Committee, after some discussion, recommended that the demands of the Union tray be accepted to the extent as given below:" In the minutes of the meeting of the Adhoc Committee held on 19-11-1979 (Annexure D/1), it is stated that "The Secretariat pointed out that the C.B.A. Agreed not to raise any further demand during the currency of the agreement which was agreed to by the then President of the Chamber and the C.B.A. The agreement is effective from 1-4-1978 till 30-3-1980". Similarly many settlements were made by the petitioner company with respondent No. 2 from the to the. As is indicated in the minutes of the meeting of the Ad Hoc Committee held on 19-11-1979, an agreement was executed in the year 1978 covering the period from 1-4-1978 to 30-3-1980. Subsequently, the petitioner-company arrived at settlement with respondent No. 2 in the year 1984 on the demands made by the respondent Union.
This settlement remained effective for a period of to years and was signed by the President and the Secretary of the petitioner --company on the one hand and by the President and General Secretary of the Trade Union/C.B.A. On the other hand. This was followed by similar settlements between the petitioner company and respondent No. 2, in the years 1988, 1990, 1992 and 1994, copies whereof are placed on record.
13. It is thus clear that since the year 1972 the petitioner-company has throughout accepted and recognised the registration and status of respondent No.2- as Trade Union and the Collective Bargaining Agent. Now after about a quarter of the century, the petitioner cannot turn round and challenge the validity of the registration of respondent No. 2 as the Trade Union. This petition is, therefore, hit by the doctrine of laches which is based upon the maxim that the equity aids the vigilant and not those who slumber on their rights. Reference may be made to the following observations of this Court in Mukhtar Ahmad and others v. Noor Muhammad (PLD 1991 Lab. 282):-- "The doctrine of laches is based upon the maxim that equity aids the vigilant and not those who slumber on their rights. It is defined as neglect to assert right or claim which, taken together with lapse of the and other circumstances causing prejudice to adverse party, operates as bar in Court of equity. It is a neglect, for an unreasonable and unexplained length of the under circumstances permitting diligence, to do what in law should have been done. "
14. Article 114 of the Qanun-e-Shahadat, 1984, which corresponds to section 115 of the Evidence Act, 1872, embodies the principle of estoppel and is attracted to the present case also. The past conduct of the petitioner leads to the irresistible conclusion that the petitioner by its conduct, declarations and representations has acquiesced to the legal status and character of respondent No. 2 and waived the right to challenge the same. Article 114 reads as follows: -- "Estoppel.---When one person has, by his declaration, at or omission, intentionally caused or permitted another person to believe a thing to be true and to at upon such believe neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing."
15. In following this principle I am guided by the judgments in the cases of (1) Ocean Industries Limited and others v. Industrial Development Bank (PLD 1966 SC 738) and (2) ' Mool Raj and others v. Janeshwar Lal' (AIR 1939 Lah. 502).
16. In the Ocean Industries case the Hon'ble Supreme Court held as under:-- "To establish the case of waiver or estoppel it was necessary to clearly show that the party alleged to have waived its rights had acted in such a manner as to lead the other side to believe that such rights will not be enforced or will be kept in suspense or abeyance for some particular the. The 'gist of the equity', as observed by Viscount Simonds in the case of Tool Metal Co. v. Tungsten Electric Co. (1955) 2 AER 657, "lies in the fact that one party has by his conduct led the other to alter his position" yet he cautioned that he would not have it supposed that in commercial transactions mere acts of indulgence are at to create rights.' A mere gratuitous indulgence shown by not enforcing strictly one's legal rights for a brief period cannot, in our view, give rise to the inference that the rights have been abandoned for all times."
In Mool Raj and others v. Janeshwar Lal (AIR 1939 Lah. 502), it was observed that:-- "The failure of the plaintiffs 'predecessors-in-interest to raise any objection to the encroachment in the circumstances was, in my opinion, rightly held to result in estoppel in the circumstances of this case. The principles governing cases of this kind are laid down in AIR 1924 Cal. 438, and in view of these principles the plaintiffs were not justified in keeping silent when they were aware that the defendants had encroached upon their property and were erecting a costly building. There is good reason to think that the present suit has been instituted merely to bring pressure upon the defendants and extort money from them."
16-A. When confronted with this situation, learned counsel for the petitioner tried to take shelter of the rule that there is no estoppel against the Statute. He submitted that at the the when the registration of the respondent No.2 as Trade Union was made by respondent No. 1, the relevant law i.e. Section 10 of the Industrial Relations Ordinance was silent on the point. However, the amendment introduced by Industrial Relations (Amendment) Act, 1975 (Act XVI of 1975). Section 10 of the Industrial Relations Ordinance, 1969 provided that the registration cannot be made in contravention of the Ordinance and the Rules. The amended section 10 reads as follows:-- "Cancellation of registration.---(1) The registration of a trade union shall be cancelled if the Labour Court so directs upon a complaint in writing made by the Registrar that the trade union has--
(i) contravened (or has been registered in contravention of, any of the provisions of this Ordinance or the rules; or
(ii) contravened any of the provisions of its constitution; or (i.e) made in its constitution any provision which is inconsistent with this Ordinance or the rules
17. Thus, since the year 1975, sub-clause (i) of section 10(1) of the Ordinance contains the words "or has been registered in contravention of". The petitioner-company has not placed on record any material to show that at the the of registration in the year 1972 any objection was raised by the petitioner before the Registrar, respondent No. 1 or thereafter upon the promulgation of Act XVI of 1975 any steps were taken by the petitioner- company to get the registration of respondent No. 2 as Trade Union cancelled, upon the month of December, 1995 when the petitioner submitted application to respondent No. 1 for the first the for initiating proceedings under section 10 of the Ordinance for cancellation of the registration of respondent No. 2 as Trade Union.
18. There is no denying the fact that the petitioner had the full knowledge of the registration of respondent No. 2 as Trade Union and the C. B. A. And consciously entered into negotiations, exchanged correspondence, held meetings and made settlements with respondent No.2 as Trade Union/C.B.A. From the to the since the year 1972. The petitioner-company has thus consciously abandoned the right to challenge the. Registration of the respondent No. 2 and its status as C.B.A.
And due to such conduct its right is defeated by the rule of estoppel, waiver and acquiescence. In this regard the following observation of the Hon'ble Supreme Court in the case of Ocean Industries Limited (supra) are relevant:-- "To establish the case of waiver or estoppel it was necessary to clearly show that the party alleged to have waived its rights had acted in such a manner as to lead the other side to believe that such rights will not be enforced or will be kept in suspense or abeyance for some particular the."
Similarly in 'The Canadian Pacific Railway Company v. The King (AIR 1932 Privy Council 108), it was held that "The Foundation upon which reposes the right of equity to intervene is either contract or the existence of some fact which the legal owner is estopped from denying. Thus, in the case put, B's conduct is such that from it may be inferred a contract by B not to disturb A in the possession of the land, or it may amount to a statement by B that the land is A's upon the faith of-which A has acted and built".
19. On the point that there is no estoppel against the Statute, the following observations made by this Court in 'West Punjab Government through Home Secretary v. Mian Akbar Hussain (PLD 1952 Lah. 430) are reproduced below with advantage:-- "In short, rule that there is no estoppel against statute prevails only if the contract is in clear terms forbidden by it, and to decide whether that was the intention of the Act, its language should be construed strictly and on the side of enquiry."
These observations were based on a Full Bench judgment of this Court in Preme Parkash v. Mohan Lal (AIR 1943 Lah. 268), wherein it was held that, "the prohibition contained in the proviso to section 60, C.P.C., are mandatory and not merely directory and that in any case the exemptions contained in the proviso were made on the grounds of public policy------" In the case of 'Chief Engineer, Building Department, Provincial P.W.D. Government of Sind v. Messrs Pak National Construction Company (PLD 1981 Kar.. 553), it was held as follows:-- "Reliance was placed by Mr. Akhtar also on Abdul Wahid Khan v. The Custodian of Evacuee Property, West Pakistan, Karachi and others. It was held therein that the principle of estoppel does not operate unless party acts on representation of other party and thereby changes its position.
There cannot be any dispute with the proposition which this case lays down. But the facts that the appellant participated in the proceedings after having initially objected to the jurisdiction of the arbitrator without any protest, and subsequently consented to the application for extension of the for giving award made by the arbitrator, and took chance for a favourable decision do, in our view, attract the principles of acquiescence, waiver and estoppel. "
20. At the the when the registration of respondent No. 2 as Trade Union was made, section 10(1)(i) did not contain the words "or has been registered in contravention of", therefore, even if the registration of respondent No. 2 as Trade Union contravened any of the provisions of the Ordinance, the Registrar was not under obligation to make a complaint to the Labour Court concerned for cancellation of the registration. As observed above, the law was amended and the aforesaid words were added to section 10(1)(i) in the year 1975 which did not have retrospective application. Even otherwise, the Registrar (respondent No. 1) while rejecting the application of the petitioner- company has stated in the letter dated 17-12-1995 (Annexure B) that: Therefore, it cannot be said that the registration of the respondent No.2 at the relevant the was made in contravention of the Ordinance or rules made thereunder. The issuance of the certificate under section 9 of the Ordinance is the conclusive evidence that the respondent No.2 has been duly registered under the Ordinance. This question may be seen from another angle, namely, that the prohibition is not mandatory nor is even legal position free from doubt. The cancellation of registration of respondent No. 2 is, therefore, not warranted. In this view of the matter the arguments of the learned counsel for the petitioner that there is no estoppel against the statute loses its force.
21. There is another aspect of the case namely that this writ petition is mala fide. It appears that respondent Union annoyed some officers of the petitioner-company by making complaints initially to the petitioner and subsequently to the National Industrial Relations Commission and the Labour Court. Respondent No. 2 has placed on record some documents in this behalf showing that in the months of March, 1995 and April, 1995 complaints were made by the office-bearer of the Trade Union against Mr. M. Latif Chaudhary, Secretary and Haji Tassawar Ali Raza, Deputy Secretary of the petitioner company. Subsequently in the month of July, 1995 complaint was filed by respondent No. 2 against the President and the Secretary of the petitioner-company alleging the commission of unfair Labour practice by them. A restraint order was passed by the learned Chairman, National Industrial Relations Commission on 15-10-1995 in the following terms:-- "The learned counsel has argued that the petitioner who was employed in the Lahore Chamber of Commerce and Industry, Lahore has a right to be represented on the Management under section 23-B of the I.R.O: 1969. The petitioner made this demand and the respondents got annoyed and have started persecuting the petitioner by various methods. Admit. Notice.
Respondents are restrained from proceeding in any manner which would amount to unfair labour practice against the petitioner. "
22. This was followed by the complaint under sections 54 and 55 of the Industrial Relations Ordinance by respondent No. 2 against the petitioner in which the learned Labour Court No. 2, Lahore was requested to punish the petitioner-company for violating the settlements. The reply was filed by the petitioner company before the National Industrial Relations Commission and the Labour Court but the objection was not taken against the registration of respondent No. 2 as Trade Union nor was its status as C.B.A. Challenged. However, it is clear that these complaints against the Secretary and the Deputy Secretary to the petitioner-company and to the National Industrial Relations Commission and the Labour Court annoyed the petitioner-company and its officers whereupon they made an application to respondent No. 1 for initiating the proceedings under section 10 of the Ordinance to get the registration of respondent No. 2 cancelled.
In the light of the above discussion, this writ petition has no merit and is accordingly dismissed, without any order as to costs.