M.L. SHAHANI, J.- The petitioner has filed this petition against the judgment of the Labour Court No. V, dated 28th September, 1993 whereby the appeal filed by the respondent No. 3 Union was allowed and the Registrar was directed to register the union.
2. Brief facts of the case are that on 10th September, 1992 a union in the name and style of S.B.
Magnetic Employees Union was formed and such application is placed on record at page No. 25.
The petitioners were also informed as contemplated under Section 8-A about the union has been formed the petitioners wrote to the respondent No. 2 that the persons who formed the trade union are not employees of the establishment of the petitioner, and they are employees of a contractor, It appears that the Registrar conducted an enquiry and passed the following order.
"Subject:- APPLICATION FOR REGISTRATION OF TRADE UNION.
Reference: Your application dated 12.9.1992 on the subject noticed above.
Since you have failed to establish the relationship of Employees and Employer. Particularly in respect of office-bearers and its members. So as to satisfy the provisions of section 7(l)(b) of I.R.O.
1969, therefore, the Registrar of Trade Unions, Sindh, has rejected application for registration of your union on 22.11.1992.
Against this order the respondent No. 3 union filed an appeal before the respondent No. 1.
Respondent No. 1 in the impugned order in paragraph No. 2 gave the facts of the case and in paragraph No. 3 he mentioned that the appeal was admitted and in paragraph No. 4 he stated that he heard the appellant as well as respondent/intervenor (petitioner) was also heard. In paragraph 5 he averred the contentions urged on behalf of the respondent No. 3 union. In paragraph No. 6 he mentioned that the respondent No. 2 did not argue the case. In paragraph No. 7 he averred to the contentions of the petitioners, In paragraph No. 8 he ruled as follows:- "8. 1 have considered the arguments of parties and have come to the conclusion that the appellant's Union is entitled to the registration because their members are in fact, employees of the Intervenor and not of contractor Zaheer Ahmad for tie reasons stated above. The impugned order liable to be set aside, on the ground urged by the learned' Advocate for the appellant. The Intervenors Advocate has failed to convince this Court that there exists no relationship of employer and employees.
Accordingly, while accepting this appeal, I direct the Registrar Trade Union to register the appellant's Union within a week and issue necessary certificate of registration.
This order has been impugned by the learned counsel for the petitioner on the following grounds:-
(1) The order is not a speaking order as the respondent No. 1 was exercising jurisdiction under the law and was bound to assign the reasons while allowing the appeal.
(2) The learned Respondent No. 2 has not averred that the employees of the contractor are distinguished from the employees of the main employer and, therefore, the employees of contractor could not form the union in relation to the establishment of the main employer.
According to him the impugned order was not sustainable and the order passed by the Labour Court for registration of the union is, therefore, patently illegal. He further contended that in view of the judgment of Hon'ble Supreme Court in the case Munir Ahmad v. Labour Court and other (1985 SCM R 257) there is distinct entity of a contractor different from that of an employer such contention has not Been adverted to by the Labour Court.
3. Against these contentions Mr. Suleman Habibullah learned counsel appearing for the respondent No. 3 urged that this petition which has been filed by the employer is not maintainable. He further urged that the order of the Labour Court is just valid, proper and sustainable and no exceptions could be taken against such an order and lastly he stated that the order of the Registrar was invalid and appeal is provided under Section 8(3). The jurisdiction has been exercised by the Labour Court possessed by it under law as such the petition merits to be dismissed. He relied upon the judgment reported as Muhammad Jamaluddin v. United Bank Limited" (1986 PLC 583).
4. Mr. Rabat Ahmad Khan, Deputy Director appearing for the respondent No. 2 stales that an enquiry was conducted and the order of the Registrar was valid and it has been illegally set aside by the Labour Court.
5. 1 have given anxious consideration to the various pleas urged by the parties and gone through the record with the assistance of the learned counsel as well as the learned representative appearing for the respondent No. 2.
6. Coming to the legal objection urged by the Mr. Habibullah that the employer is non-entity and has no authority to file a petition and, therefore, petition is not maintainable, such contention I am afraid is not available for the following reasons:-
(a) To be dealt in accordance with law is inalienable right of every citizen and any citizen who feels that has not been dealt in accordance with law has a right to invoke the jurisdiction of the Court. In this case the union has informed the employer about the formation of the trade union which fact is not denied by Mr. Suleman Habibullah, learned counsel appearing for the union. On the basis on such intimation the petitioner approached the Registrar of trade union pointed out the defects regarding registration of trade union. On such pointation an enquiry was conducted by the Registrar and the Registrar refused the registration of union. Such order of refusal was assailed before the respondent No. 1. Respondent No. 1 allowed the petitioner to appear as intervenor-co- respondent and their contentions were over ruled. Felt aggrieved, therefore, invoked the jurisdiction of this Court.
(b) A party which has been allowed by the functionaries under the law as well as the Tribunal of limited jurisdiction, to appear. If the decision is given against such party, they can legitimately impugned such orders in the Constitutional jurisdiction, if otherwise availed.
(c) Even otherwise it was the duty of the Registrar to ascertain the facts about the formation of union, about its validity and its legality. Regarding the validity and legality the employers informed the Registrar and supplied documents which were admitted by him after holding the enquiry and passed the order which was assailed before the Labour Court.
7. The employer was a party throughout the proceedings therefore, no exceptions can be taken regarding the filing of the petition by them against the judgment by Labour Court which was decided against them. As such I hold that the petition is maintainable. Facts of the cited case and the findings given are not sustainable tn view of the peculiar facts of this case.
8. Coming to the contention of Mr. Shaheen Shah Hussain, learned counsel for the petitioner, his first grievance is that the order is not a speaking order. 1 have also produced a portion of the impugned order in this judgment. I agree with him that no reasons have been assigned by the learned Labour Court in coming to a particular conclusion, and w hat w ere the basis for agreeing with the contention of appellant's counsel (who is respondent No. 3), such basis are wanting on the face of record.
9. A Tribunal which is created under the law and has been given authority to adjudicate the rights of the parties is equally charged to assign the reasons for coming to a particular conclusion. The reasons assigned is the only criteria which distinguishes between autocratic order and a judicial order. The Tribunals are not despots so that they can pass the order without assigning any reasons.
They are created under the law' and. Therefore, charged to assigned the reasons. Since the reasons have not been assigned, therefore, the order is declared to be without lawful authority.
10. This also brings me to the order which was passed by the Registrar of Trade Union which is at page No. 65 and also reproduced in this judgment.
The respondent No. 2 was also exercising powers under the law. While deciding whether union should be registered or not is a legal function assigned to him in terms of Section 8 of IRO. The Registrar of the Trade Union is equally bound by law to state the reasons for taking a particular decision. Those reasons are all the more necessary because his order is appealable under Section 8(3) of the IRO., 1969. In other words the respondent No. 2 is equally charged to pass a judicial order assigning reasons, he has to quote the evidence which was led before him and which is the basis of his conclusions, and it has not been done. Equally, therefore, by setting aside the said order of the Labour Court I cannot grant validity to the order of the Registrar, which is equally declared to be without any lawful authority.
Even otherwise it is the duty of the Court in exercise of the Constitutional jurisdiction to do complete justice between the parties as has been held by the Hon'ble Supreme Court in Romaq Ali's case (PLD 1972 Supreme Court 236). The Court cannot aver look the illegality committed by the respondent No. 2. Even otherwise both the management as well as union are to be dealt with in accordance with law and such right is to be protected by this Court in exercising of the powers conferred under Article 199 of the Constitution. More particularly because Hon'ble Supreme Court in the case of Utility Stores Corporation (PLD 1987 S.C. 448) has ruled that the Tribunal or the Court exercising jurisdiction wrongly, goes outside. The jurisdiction and, therefore, amenable to the writ jurisdiction of this Court. While deciding whether an employee is worker of the contractor or the employer guide lines have been provided by the Honourable Supreme Court in the case reported as Farid Ahmad v. Pakistan Burmah Shell Ltd. And others (NLR 1987 Lahore 219) and has ruled as follows:- "8. Leamed counsel for the appellant contended that notwithstanding the fact that the appellant had been employed by the contractor it was competent for him to have filed a criminal complaint against the Principal Company, i.e. Pakistan Burmah Shell Ltd. According to him the liability' of all acts done by the contractor at the petrol pumps being run by the contractors rested on the respondent-company. For this contention the learned counsel relied on the definition of the term 'Worker" and 'Workman' as contained in S. 2 (xxviii) of the Industrial Relations Ordinance (XXIII of 1969). It reads as follows:- S.2 (xxviii) 'Worker" and 'Workman' means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied.......... ''
9. The learned counsel has over looked that this question already stands decided by this Court tide its judgment in Mian Munir Ahmad v. The State (1985 SCM R 257), wherein it has been held that a company is not responsible for the acts of the contractor employed by it to carry out any particular work for the company. The misconception on which the learned counsel has based his contention has arisen because of the use of the word persons employed... either directly or through a contractor...... In the definition of the word workmen in Section 2 (xxviii) of the Industrial Relations Ordinance.
What was intended by the legislature by this provision was to include amongst workman or employees not only persons who have been directly employed by the owner or employer but also those who were employed by them through such persons who undertake contracts to supply labour. The word 'contract" in this context does not mean persons employed by owner or an employer of a factory or the company for performing any particular work or task to be done in relation to the running of the factory or the company".
11. For all these reasons the upshot of the above discussion is that the orders dated 25.11.1992 passed by the respondent No. 2 and the orders dated 28-9- 1993 passed by the respondent No. 1 are declared to be without lawful authority, therefore, of no legal effect. Consequently, therefore, the matter is remanded to the respondent No. 2 who shall hold an enquiry in accordance with law and pass proper legal orders based upon the evidence and determine as to whether the union which is formed in relation to the employee employed by the contractor or the employees are employed by the main employer, and then come to a legal conclusion in the light of directions given in this judgment.
12. In view of the circumstances, of the case the parties are left to bear their own costs.