1. ' This Petition calls into question the Certificate, dated 21-4-1997 whereby the respondent No.2 was registered as a Trade Union under the Provisions of the Industrial Relations Ordinance, 1969.
2. ' The brief facts of the matter as stated in the petition are, that the Petitioner is carrying on the business of a shipping agent in the Port of Karachi whereas one of its Departments is exclusively allocated for recruitment of seamen for its foreign principles. In this connection a roster/register is maintained by the petitioner which, in fact, is a waiting list of the prospective seamen who are desirous of being employed on its foreign principle's vessels. As and when a vacancy is available in such vessel, the petitioner contacts the seamen and thereafter, upon selection and medical fitness a proper service contract is signed between the semen and the petitioner to work on foreign vessels flying foreign flags only. This contract/articles of employment is registered with the shipping master who acts as their representative and intermediary for all settlement of disputes between the petitioner's foreign principals and the sehmen.
3. ' It has been further asserted in the Memo. of Petition that essentially the ingredients of such employment entered into by the Seamen with the Petitioner's foreign principles is purely on a master and servant relationship basis as the seamen are paid on board the vessel by the foreign Company in foreign exchange and the terms and conditions of service are regulated by such Company. So also the place of employment is only on board the foreign vessel is plying in the international water. It has been asserted that under no circumstances can it be construed that the seamen are the employees of the Petitioner-Company or receive salary from them or are on their employee register. Hence it has been asserted by the petitioner that such seamen do not fa,: within the domain of the Industrial Relations Ordinance or the West Pakistan Standing Orders Ordinance.
4. ' A query was raised by the respondent No. 1 vide letter, dated 12-2-1997 which was addressed to the petitioner asking for the list of seamen who were on the Petitioner's Roster as an application had been received on behalf of Pakistan United Seamen Union for their registration under section 5 of the Industrial Relations Ordinance, 1969. Thereafter, some correspondence was exchanged between the Petitioner and the respondents No.1 in consequence whereof negotiations were held during the entire course of which it was the petitioners' stand that the seamen on their roster were in fact not the employees of the Petitioner who merely acted as an intermediary between said seamen and the Petitioner foreign principals for the purposes of their employment with the latter.
5. Copies of such correspondence have been annexed to the Petition as Annexures 'B' to 'G'. However, notwithstanding the Petitioners' protests and representations, the impugned certificate was given whereby the seamen on the petitioners roster was registered as a trade union.
6. ' Mr. R.F. Virjee learned counsel for the Petitioner, based on the above facts, has vehemently contended that, in the first instance, the seamen who are on the Petitioners roster/waiting list cannot qualify as workers within the definition of this term provided in section 2 (xxxviii) of the Industrial Relations Ordinance, 1969 as the seamen are not the employees of the petitioner and not a single person from amongst them is drawing salary from the petitioner. Secondly, learned counsel has contended that the respondents No.1 has travelled beyond his jurisdiction in giving recognition and registration to a trade union which does not qualify under section 7(2)(b) of the Ordinance as the respondent No.1 never applied his conscious mind or conducted any enquiry into the issue whether at least 1/5th of the total number of workmen who are presently employed with the petitioner which are in fact the petitioners' employees were represented through another trade union. In support of this contentions, learned counsel has relied upon the following cases:--
(i) Quetta Municipal Corporation through Administrator and another v. Registrar, Trade Unions, Balochistan and Manpower, Quetta and 3 others (1995 PLC 151).
(ii) Shama Zari Industries (Pvt.) Ltd. v. Registrar of Trade Unions, Sindh and 3 others (1992 PLC 733).
(iii) Vera and others v. Messrs Kazi & Kazi Ltd. and others (PLD 1990 SC 435)
7. ' Learned counsel has also relied upon on an unreported decision of the Honourable Supreme Court of Pakistan in Civil Petition No.195-K Messrs A.R. Rana (Pvt.) Ltd. and others v. Registrar of Trade Union Sindh whereby leave was given to consider the question whether Registrar of Trade Union erred in giving recognition to certain categories of workers who are basically employed by the Petitioners for a limited duration and who shifted to other employment whenever work was available there. Learned counsel submits that the Honorable Supreme Court while considering the definition of the words "workers" and "workman" as appearing in section 2(xxxviii) of the Industrial Relations Ordinance observed whether the terms apply to persons who are really not employed but can be employed as the definition suggests an elements of permanency in the relationship of the employer and the employee. Such observation was made the basis of the leave granting order. As regard the invocation of the jurisdiction of this Court, learned counsel submits that section 10 of the Industrial Relations Ordinance, would not be applicable to the facts of the case as this provision only deals with disputes between the Registrar and the Employee and in this connection learned counsel has relied upon Bata Shoes Co. (Pvt.) Ltd. v. Trade Union of Sindh and 2 others (PLD 1978 Kar. 567) as well as Shama Zari (Pvt.) Ltd. v. Registrar Trade Union (supra).
8. ' On the other hand, Mr. Syed Ishtiaq Ali Kanhorvi maintains that the Seamen who are on the Petitioners Roster are, in fact, its employees as they are being paid by it. Secondly, learned counsel contends that as per Rules 2(i) of the Merchant Shipping Rules 1961 (hereinafter "Rules"), the shipowner includes his representatives and agents. Regarding this Court's jurisdiction to entertain the petition, learned counsel submits that under section 10 of the I.R.O. only the Labour Courts can take cognizance of the dispute between the parties and even otherwise the petition is not maintainable as neither is the petitioner aggrieved by the impugned registration and nor can this Court conduct an enquiry into the matter as questions of fact are in dispute, which can only be resolved by the Registrar in terms of the I.R.O. In support of his contentions learned counsel has relied upon the following cases:--
(1) Messrs Pak Land Cement Ltd. v. Registrar of Trade Union (1994 PLC 177).
(2) Muhammad Shakeel, Meter Reader, WAPDA v. Registrar of Industrywise Trade Unions, National Industrial Relations Commission, and others (1995 PLC 306).
(3) Ali Sher and 2 others v. Registrar of Trade Union and others (1983 PLC Lah. 171).
9. ' I have heard both the learned counsel and after having gone through the Petition my conclusions are as follows. The following issues arises of consideration.
(1) Whether this Court has jurisdiction to entertain the petition and whether it is maintainable on the grounds that neither is the petitioner aggrieved and nor can this Court enquire into the factual matters in dispute.
(2) Whether the Seamen whose names are entered on the Petitioner's Roster are workmen within the meaning of such definition in the I.R.O. and hence could form a trade union.
(3) Whether such Trade Union has otherwise been established as per the provisions of the I.R.O.
10. ' As regards the issue of jurisdiction, it would be seen that section 10 of the I.R.O. provides for the cancellation of the registration of a Trade Union if the Labour Court so directs upon a complaint in writing made by the Registrar in the circumstances provided for in said section. Section 10 has to be read with the preceding sections of the I.R.O. most significantly sections 5 to 7, which provide for the application for registration as a Trade Union and the requirements thereof and section 8, which provides for the process of registration culminating in the issuance of a certificate of registration as a trade union under section 9. In none of these sections does the Employer have any participation either in an active or passive role as the entire matter is between the workers and the Registrar.
11. Consequently, in my opinion the Petition cannot merely be dismissed on the ground that the certificate issued by the Registrar can only be cancelled by having recourse to section 10, as the Employee i.e. Petitioner in the present case cannot invoke the provision of section 10 of the I.R.O. or for that matter section 11, which provides for appeals emanating from section 10. In this regard reference can be made to the case of Quetta Municipal Authority v. Registrar Trade Union and 3 others and Bata Shoe Company (Pak) Ltd. v. Registrar of Trade Union of Sincih and 2 others (supra).
12. Regarding the cases cited at Bar by Mr. S. Ishtiaq Ali Kanhorvi, learned counsel for Respondent No.2, it would be seen that as far as Muhammad Shakeel v. Registrar of Industry wise Trade Union (supra) is concerned, the facts thereof were different as there the Petitioner after initiating parallel proceedings under section 10 of the I.R.O. has invoked the writ jurisdiction of the Lahore High Court seeking the same relief i.e. cancellation of the registration of the Pakistan WAPDA Hydro Electric Central Labour Union through the Registrar. Accordingly, a learned Single Judge of the Lahore High Court came to the conclusion that in the circumstances of the case, the Petition was not maintainable. The principle of law laid down in Ali Sher and 2 others v. . Registrar of Trade Union Sindh and 7 others (which is the other case relied upon by Mr. Kanhorvi) also does not advance the respondent No.2's case as to non-maintainability of the Petition as there a learned Single Judge of this Court came to the conclusion that under section 10 of the I.R.O. cancellation of the Registrars Certificate could only be ordered by Labour Court on a complaint by the Registrar himself and that the Registrar's obligation which was discretionary could not enforced through a writ petition. Again there the Employees were asserting their rights and not the Employer as in the present case. It is a well settled principle which does not need elucidation that where the law does not provide for any appeal to an aggrieved person from the order of a judicial or quasi-judicial authority, the writ jurisdiction of the High Court can always be invoked. As regards the case Messrs Pakland Cement Ltd. etc. v. the Registrar of Trade Unions etc. (supra) it may be observed that a learned Single Judge of this Court came to the conclusion that the question whether or not a person was a worker within the definition of that term as provided in section 2 (xxviii) of the I.R.O. was question of fact and hence declined to interfere in writ jurisdiction on this basis. In that case the petitioners has again challenged the registration of the Respondent Trade Union on the basis that the persons who had formed said Union were not employed by the petitioners as they were inter alia their ex-employees.
13. In my view this case is also distinguishable from the facts of the present case as in the latter case apparently the material was sufficient on the record on the basis of which the Registrar came to the conclusion that the respondent workers qualified to be treated as such as per definition of that term provided in section 2(xxviii) of the I.R.O. In the present case as per the parawise comments filed by the Registrar it appears that apart from the workers representations there was nothing from the Petitioners' side except their letters denying that the seamen were employed by them which apparently the seamen could not controvert. In this regard reference can be made to Abdul Razzaq v. Messrs Ahsan Sons Ltd and 2 others (1992 SCM R 505).
14. As regards the issue whether or not the petitioner is an aggrieved person, it would be seen that upon registration of the Respondent Union certain results would flow not the least of which would be the recognition of the Seamen as workers of the petitioner with the further consequence of the enforcement of their rights provided under the I.R.O. In these circumstances, it cannot be said that the petitioner would not be effected by the impugned registration and hence debarred from invoking the Constitutional jurisdiction of this Court. Accordingly, in iv' view the Petitioner's squarely fit into the meaning of the term "aggrieved" person" and have the right to file this petition in the circumstances of the case.
15. ' Turning now to the issue whether the Seamen on the Petitioner's Roster can be termed as "worker" or "workmen" within the meaning of that term as defined in section 2(xxviii) of the I.R.O., it would be seen that such r, definition suggests an element of permanency in the relationship between the 6 Employer and the Employee as observed by the Hon'ble Supreme Court in Messrs A.R. Khan & Sons (Pvt.) Limited v. The Registrar of Trade Union Sindh and others (supra). It may also be seen that in Vera v. Kazi & Kazi (supra), the Humble Supreme Court while considering the definition of the term "worker" as appearing in the Worker Children (Education) Ordinance (which is analogous to that appearing in the I.R.O.) came to the conclusion that the Dock Labourers at the Karachi. Port were not permanently employed with the stevedores as such employment only arose when there was need of the same i.e. upon unloading or loading or a Vessel. Consequently, the Hon'ble Supreme Court held that the provisions of the said Ordinance would not apply to the stevedores who would accordingly not be obliged to pay the demanded education cess. Although Vera v. Kazi & Kazi involved the interpretation of the term "Worker" as appearing in the Workers Children (Education)
16. Ordinance, the Principles thereof can be readily applied to the case at hand where apparently the Seamen are firstly not employed by the petitioner and secondly even if C is where the case they are employed as and E when the need arises.
17. ' The above discussion then gives rise to the consideration of the leave granting order passed by the Hon'ble Supreme Court in Messrs A.R. Khan & Sons (Pvt.) Limited v. The Registrar of Trade Unions Sindh and others where the precise issue is the import of the terms "Worker" and "Workman" as appearing in section 2(xxxviii) of the I.R.O. with regard to the Dock Labour at Karachi Port, which in my view has a direct bearing on the outcome of this case.
18. Be as it may, in my opinion as the exercise before the Registrar appears to be one sided, the matter is remanded back to him for consideration on merits after giving a proper hearing to both the sides who would, accordingly, be free to produce documents and lead evidence, if necessary. Although sections 5 to 9 of the I.R.O. do not provide for the Employees participation in the proceedings before the Registrar at all, however, in my view as per settled law, even when a statute does not specifically give an aggrieved person a right of hearing, the said right has to be read into such a statute. Consequently, the impugned certificate issued by respondent No.2 is cancelled and the respondents are restrained from taking any further steps in pursuance thereof. The Petition is accordingly disposed of in the foregoing terms.