1. ' The petitioner has stated in the petition that he is an employer and employs workmen. There is already an employees' union enjoying the status of Collective Bargaining Agents since 1970. The Registrar of Trade Union has registered another union namely Hakimsons Chemical Industries (Pvt.) Limited, Labour Union on 25th January, 1997 and such certificate of registration has been impugned in this petition. Further after the respondent No,2 Union was registered they applied for the referendum and respondent No,1 issued a letter to the petitioners directing them to submit complete list of workers in terms of section 22(4) of Industrial Relations Ordinance, 1969. This letter has also been impugned. The precise contention of the learned counsel appearing for the petitioner is that the union is illegally registered union as the workers who applied for the registration of the union were not the employees employed by the petitioner as according to the learned counsel for the petitioner they were employed on daily wage basis. They were not confirmed nor were permanent employees. They were casual employees and that their wages were paid of the payment sheet. Their services were terminated on 30th October, 1996 while they applied for the registration on 3rd November when they were not the employees of the petitioners and the provisions of section 7(2)(a) of I.R.O. Have been ignored and the registration of the union due to such non-compliance of law is illegal. Illegal union has no status to apply for the referendum and the learned Registrar while issuing the letter for determination of Collective Bargaining Agent has exceeded the jurisdiction. Learned counsel for ttiet petitioner has relied upon as unreported judgment of this Court in case of Constitution Petition No,S-59 of 1988 and other connected matters and decided by Hon'ble Mr. Justice Mamoon Kazi and his lordship ruled as follows: "10. The petitioners are aggrieved because the petitioners have received an intimation from respondent No, 1 that respondent No, 4 had applied for determination of a Collective Bargaining Agent and the petitioners had been requested to submit a list of the workmen employed by them.
2. The petitioners again objected to the registration of the said respondent but to no effect, and therefore, the petitioners apprehend that respondent No, 1 would proceed with the holding of the referendum and perpetuate the illegality already committed by him by grant of Certificate of Registration to the respondent No, 4.
11. The circumstances under which Constitutional Petitions Nos.S-72, 73 and 74 of 1989 have been filed are that the petitioners in the three petitions are joint stock companies and are distinct juristic persons under the law. The petitioners were informed by a telegram in regard to formation of a union (respondent No, 3) by employees of the three petitioners. The list of office-bearers supplied to the petitioners by the said telegram indicated that more than 25% of the office-bearers were outsiders and were not employed by the petitioners nor they were covered by the definition of worker' under the I.R.O. Therefore, according to the petitioners, respondent No,3 has been formed by contravention of section 7(1)(d) of the I.R.O. Furthermore, according to the petitioners, the employees of all the said companies cannot form one union collectively because neither there is unity of accounts nor unity of management nor there is anything common which may be considered a binding force among the workers. The grievance of the petitioners is that such objection was sent by the petitioners to the Registrar, Trade Unions/Joint Director Labour but to no effect. Respondent No,3 has also contravened section 7(2)(a) of the I.R.O. But notwithstanding such objections respondent No,3 has been able to get a certificate of registration dated 29-3-1989 from respondent No, 1. . The petitioners, therefore, have sought declaration that the Certificate of Registration granted to respondent No,3 is illegal, ultra vires and ab initio without lawful authority.
3. The petitioners are also aggrieved by the fact that respondents Nos.1 and 2 have taken further steps on the application of respondent No,3 for determination of Collective Bargaining Agent in the establishments run by the petitioners."
4. ' Additionally he relied upon another unreported judgment in Constitutional Petition No, S-55 of 1990 (Ciba Geigy (Pakistan) Limited v. Registrar of Trade Union and others) and Mr. Justice Abdul Rahim Kazi remanded the smatter to the Registrar directing him to hold an enquiry in relation to the fact whether the person alleged to be General Secretary has ceased to be work& as he was promoted. He also relied upon an unreported judgment of this Court in Constitutional Petition No, S-53 of 1986 in which a consent order was passed and the Registrar was directed to hold an enquiry whether the persons who formed the Union were employees of the petitioners. He further relied upon another reported judgment in the case of M/s. Worldwide Refrigeration and Air- conditioning Co. (Pvt.) Ltd. v. The Registrar, Trade Union (C.P. No, S-52 of 1989) wherein the Registrar was directed to hold an enquiry as to whether the employees who formed the Union were the employees employed by the employer or that they were employees of the contractor .
2. In addition thereto he relied upon the following reported judgments:
(1) Ghee Corporation of Pakistan v. Registrar, Trade Unions and another (1991 PLC 207).
(2) Idara-e-Kissan v. Registrar, Trade Unions, Lahore and others (1995 PLC 134).
(3) The Chittagong Mercantile Employees' Association v. The Chairman, Industrial Court of East Pakistan, Dacca and others (PLD 1966 SC 731).
(4) Muhammad Ayoob v. The Punjab Labour Court No, 1 and 5 others, (1990 SCMR 1539).
3. Opposing the contentions of Mr. S. Qamaruddin Hasan, learned counsel for the petitioner, Mr. M.A.K. Azmati, learned counsel appearing for the respondent No, 2, contended that whether the persons who formed the Union are employed by the petitioner or not is a question of fact which could not be decided by this Court in the Constitutional jurisdiction. His further contention was that admittedly the petitioners have stated that the workers who formed the Union were in fact employed by them on daily wages, however, the petitioners have not placed on record the letter of appointment which is requirement of law under Standing Order 2-A of the Schedule of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Even otherwise, it is incumbent upon the employer to issue proper termination letters in terms of Standing Order 12(3) of the Standing Orders Ordinance, 1968. No such termination order has been issued as such it could not be said that the persons who formed the Union were outsiders and their services were terminated in accordance with law. He further contended that under section 3(a) the workers without distinction (i,e, permanent, temporary, casual or any other category) can form the Union. The definition of worker under section 2(xxviii) of I.R.O., 1969 is not restricted to the permanent workers only.
4. After the arguments were concluded, by a short order this petition was dismissed with no order as to cost for the reasons to be recorded subsequently and these are the reasons for passing such order. REASONS A. The Standing Order 2-A of the Schedule of the Standing Orders Ordinance, 1968 reads as follows:-- "2-A. Terms and conditions of service to be given in writing.---Every workman at the time of his appointment, transfer or promotion shall be provided with an order in writing, showing the terms and conditions of his service."
5. ' The above provision of law charges the employer to issue letter of appointment. Admittedly, in this case no letter of appointment was issued. The factum of employment is not denied. It has been admitted that these persons were employed on daily wages basis and that they were paid off on payment sheet which is annexed as Annexure 'D'. Accoiding to the learned counsel for the petitioner, this should be treated as termination order. I am afraid, I cannot read Annexure 'D' i,e, payment sheet as termination order as under Standing Orders 12(3) of the Standing Orders Ordinance, 1968 it is necessary for employer to issue order in writing stating the reasons for termination of employment. (Even in the case of resignation a letter of employer accepting resignation is necessary and the reason of termination would be voluntary resignation).
6. ' B. There is no category of casual employees. This Court in Constitutional Petitions Nos. D-687 and 688 of 1995 (United Bank Limited v. Sindh Labour Appellate Tribunal and others) decided on 12th March, 1997 held as follows: "In this case the admitted position is that the Standing Orders, 1968 is applicable to the establishment of the petitioners. It is an admitted position that the letter of appointment was not issued to the workers and obviously Standing Order 2-A was not followed which binds an employer to issue the letter of appointment while employing worker. We also find that no letter of termination was given nor any reasons were assigned for termination thereby provisions of Standing Order 12(3) of the Standing Orders Ordinance, 1968 were violated .. The employer was bound to issue termination letter with specific reasons which has not been done . Of late it has been that there is patent violation of Standing Orders Ordinance and the establishments were employing worker as casual labourers. The Legislature has not defined a category called casual labourers in the Standing Orders Ordinance. Standing Orders Ordinance has specified classifications of workmen in Standing Order 1 and that classification of workmen is conclusive. Consequently, therefore, the workers were employed to do the job of permanent nature and as permanent employees could not be termed as casual employees/workers, the term which is non-existing.
7. ' Another confusion has been created about the period of payment of Wages. It is stated that workers are daily Wagers or Weekly Wagers as such could not be termed as permanent workers.
8. Period of payment of wages has nothing to do with the nature of job, as temporary worker can be given monthly wages and *equally a permanent worker can be given daily wages. The nature of job is the only deciding factor regarding classification of worker as has been repeatedly ruled by the superior Court."
9. ' In the petition before me when these persons were employed what was the nature of job which could have been ascertained from the letter of appointment and letter of termination is not available before me. The Registrar of Trade Union in his parawise comments has stated as follows: "That the contents of para. 3 of the grounds of the petition, are denied. Though the petitioner was not called but their objections were duly considered and thereafter, it was found that the management failed to prove -by documentary evidence and or affidavit that the office- bearers/members were not in the employment of the establishment. Therefore, the respondent No,2 union was registered on the basis of affidavit and thus has been legally registered under I.R.O., 1969."
10. ' Admittedly, the petitioners have not given the letters of appointment nor the letters of termination to establish that on the day when the Union was formed, the persons who formed the union were outsiders. As such no exception could be taken in relation to the impugned certificate. C. Reverting to the judgments relied by the learned counsel for the petitioner, suffice to say that the judgments in Constitutional Petition No,S-59 of 1988 and Constitutional Petition No, 52 of 1989 related to the employment of workers through the contractors. Such is not the case here, as factum of employment is not denied. However, it is contended that on 3rd November they (workers) were not in the employment. Such fact could have been established through termination orders which admittedly have not been issued. In absence of any proof on the mere statement of the employer that the persons who formed Union are not the workers employed by them would be dangerous trend and would also curb the right of the workers to form union without distinction. Mr. M.A.K.
11. Azmati was correct that it is not the prerogative of the permanent workers to form the Union. Any worker and that too without any distinction can form the Association or the Union in terms of section 3 of I.R.O.
12. D. Reverting to the unreported judgment in Constitutional Petition No,53 of 1986, it was the consent order. The Registrar was directed to find out whether the persons were employed by the contractor or not, as such fresh enquiry was ordered. The judgment in Constitutional Petition No,S-55 of 1990 relates to the fact whether a person after promotion can continue to be the office-bearer of the Union which is not the case before me as such the judgments so relied are not helpful to the learned counsel as admittedly the workers were employed by the petitioner. E. Reverting to the reported judgment relied upon by the learned counsel for the petitioner in the case of Ghee Corporation of Pakistan, Lahore High Court has ruled that the persons who were employed as Assistant Managers could be excluded from the definition of worker or workman as such officers after drawing emoluments in their capacity as officers could still be termed as workers in view of principles of estoppel and incase if they form the Union as workers, the employer should have been heard. Admittedly, in this case the persons who formed the Union were not in the management cadre. Admittedly, they were daily wage earners and workmen. In such eventuality the cited case has no applicability as admittedly the workers who formed the Union were employed by the petitioners as workers.
13. F. Reverting to other judgment from the Lahore High Court in the case of Idara-e-Kissan another Judge ruled that: "Therefore, the employer is entitled to notice of hearing by the Registrar before an application for a new trade union is granted. It is to avoid misstatement of withdrawal of material facts so as to enable the Registrar to conclude the matter according to law and in view of Social Justice."
14. ' I have considered the cited judgments. With due respects I am unable to persuade myself to agree with such reasoning. Wherever the Legislature wanted that the employer should be associated he expressly says so or uses the language which of necessity suggests that employer would be associated. Section 7(2)(b) of I.R.O. Says that in an Establishment if third Union is registered, it is incumbent upon the Registrar to hold the enquiry not only from the employer but also from the Unions to ascertain that the. Union which has applied for registration has one-fifth number of total workers employed in such Establishment as their members, which is a condition precedent for registration of third Union. Such position is not obtaining in this case on the record.
15. The respondent No, 2 Union admittedly is a second Union which could be registered without hearing the employer. The employer could be heard only at the time of determination of Collective Bargaining Agency in terms of section 22 as has been held by this Court in Bata Shoe Company's case (PLD 1978 Kar. 567). Section 22 subsections (2) and (3) lays down that the association of employer was necessary for determination of Collective Bargaining Agency. Even otherwise, in labour matters the workers plead economic justice while the employers plead legal justice. In such matters the Court has to maintain a balance between legal and economic justice. Moreover, the scales of social justice are titled in favour of weaker section. In between employer and workman, workman would be weaker section of society, therefore, even within the scope of Social Justice, employer could not claim right of hearing for registration of second union.
16. G. The judgment cited in the case of Chittagong Mercantile Employees' Association, Honourable Supreme Court has held that a defective Union cannot raise and prosecute industrial dispute. In the reported judgment Hon'able Supreme Court came to the conclusion that the Union had lost the capacity after the expiry of the agreement to raise an industrial dispute. In this case the Union so registered is not incapacitated in any manner. The registration certificate is the conclusive proof that the Union has been registered in accordance with law. There is no material available before me to come to the prima facie conclusion that the Union registered by the Registrar is suffering from any inherent defect which may require enquiry. Lastly, in the case of Muhammad Yaqoob, Hon'able Supreme Court has ruled that notwithstanding the fact that the worker was working for more than eight years, was a temporary worker. I have no cavil with the proposal but I have already stated that even temporary worker is capable of forming the Union and remain the member of such Union.
17. H. Lastly, my attention was invited to the provisions of section 22(4) of the I.R.O. And the learned counsel contended that only the workers who have been employed for last 90 days can be the voters. In such capacity even temporary worker could be a voter if he is employed for more than 90 days. To be a voter and to be a ibember of a Union are two different positions and controlled by two different provisions of the Industrial Relations Ordinance and such argument is not apt.
18. I. This brings me to the point raised at the time of admission and stated in the order of this Court, dated 12th March, 1997: "Be that as it may, I feel that the question as to whether an Employer has to be kept-a-lien to the proceedings under section 7 of I.R.O. Is to be considered and requires detailed hearing. The petitioner in the prayer clause, besides seeking writ for quashment of the Certificate' of Registration, dated 25-1-1997 and the letter dated 20-2-1997, has also applied for a writ of mandamus for directing the respondent No, 1 to decide the matter in exercise of power under section 10 of the I.R.O. In order to consider the above contentions, I am inclined to admit this petition to regular hearing and order accordingly."
19. ' Right to form a Union or an Association is a Constitutional blessing this emanating from Article 17 of the Constitution. The Courts are reluctant to read restriction which have not been introduced by the Legislature. Such reasonable restrictions could only be in the interest of sovereignty or integrity of Pakistan, public order or morality. The restrictions that the learned counsel appearing for the petitioner wanted me to import in the provisions of section 7(2)(a) of the I.R.O., that the employer be heard even in registration of first two unions in the establishment, I am afraid, I cannot bring such provision within the reasonable restrictions contemplated by the framers of the Constitution in Article 17. The Legislature could have placed the same embargo as has been placed in section 7(2)(b) if it would have Been the will of Legislature in relation to section 7(2)(a) as well, but Legislature has not done so. By interpreting a law the Court not import restriction which we're not intended by the Legislature.While interpreting the law the Courts can iron out creases but cannot alter the In the judgment of Bata Shoe Company (PLD 1978 Kar. 567) this Court has ruled as follows: "8. There is still another aspect of the matter to which my attention was invited by Mr. All Ahmed Fazeel, the learned counsel for the respondent that the petitioner has no locus standi to file the present petition it was not a party to the proceedings before the lower Courts. The learned counsel invited my attention to the following passage from the Extraordinary Legal Remedies by Ferris at page 199:-- '174-175.--As a general rule certiorari will not issue at the instance of one not named as a party to the proceeding in which the judgment or order sought to be reviewed was.Entered. Where one not a party seeks to use certiorari, he must show that the decision sought to be reviewed is directed against him or his property in the sense that the enforcement of the decision would involve special immediate and in its effect a direct injury to his interests. But if petitioner is a party in substance though not in form, he may have the writ. It is not necessary that he be a party to the record, but only that he be interested in the subject-matter upon which the record acts.
9. The aforesaid passage was approved by the Supreme Court of Pakistan in Tariq Transport Co., Lahore v. The Sargodha Merit Bus Service and others (PLD 1958 SC (Pak.) 437). As observed by me earlier there is no immediate or direct injury caused by the impugned order to the interest of the petitioner. I am fortified in this view by a decision of the Lahore High Court reported in Abdul Jamil v.
20. Registrar of Trade Unions, West Pakistan and another (PLD 1971 Lah. 220). This was a reverse case in which registration of a Staff Union of supervisors as a Trade Union of employees was challenged on the ground that, its members were workmen and the Court declined to interfere on the ground that, among others, that such a dispute can be resolved when an industrial dispute is raised, by the rival Trade Union who claimed to represent workmen, in proceedings under the Ordinance itself."
21. ' The above judgment in my humble view answers the question posed in the admission order quoted supra. The up-short of the above discussion is that this petition has no merits and the same is dismissed with no order as to costs.