' This case has come back on remand to this Tribunal by the Hon'ble High Court of Sindh, by order, dated 10-12-1998, passed in C.P. No,D-1359 of 1994. Copy of the order having been received in this Tribunal on 9-2-1999. The matter was fixed for hearing on 9-3-1999 with notice to the parties. It was, however, adjourned. On the application of the applicant's counsel on the ground that he was busy before the High Court Hyderabad Bench in three matters.
2. Mr. Mahmood A. Ghani, learned counsel for the applicant (hereinafter referred to as the Company) (in Revision Application No,489 of 1993) submits that an application for registration was filed on 8-12-1991 by the respondent (hereinafter referred to as the Union). The said application for registration having not been decided by the Registrar of Trade Unions for about four months the union filed appeal under section 8(3) of the I.R.O., 1969 to the Labour Court No,5 on 16-4-1992 on the ground that Registrar, Trade Unions made inordinate delay in deciding the application for registration of the Union and as such, the learned Labour Court should pass an order registering the said Union. On hearing about the filing of the said appeal before the learned Labour Court, the Company filed an application under Order 1, Rule 10, C.P.C., for joining the company as a party to the proceedings before the Labour Court. After hearing both the parties, the learned Labour Court joined the employer/company as party to the said appeal, by its order, dated 18-2-1993. (It is pertinent to note that no appeal or revision, against the said order, was filed by the Union.)
3. It appears that the Registrar, Trade Unions, in the meanwhile, had rejected the application of the Union by his order, dated 19-4-1992 and that is why the learned Labour Court, by his order, dated 26-9-1993 ruled that the rejecting of the trade union by the Registrar Trade Unions was invalid and directed the Registrar to register the Union within a week.
4. The Company, being aggrieved with the said order of the learned Labour Court, filed a Revision Application on 29-9-1993 bearing No,KAR-489 of 1993 in this Tribunal, which was dismissed by the Tribunal by its order, dated 17-5-1994. Against the said order, the Company invoked the Constitutional jurisdiction of the High Court by filing a Constitution Petition No,D-1359 of 1994, which was disposed of by its order, dated 10-12-1998 whereby the case has been remanded, as aforesaid. The relevant observation is reproduced below:-- "We have looked at in detail the impugned order and the case-law cited and we are of the opinion that the Tribunal should have given a detailed order so that the matter would have been clarified.
We are, therefore, remanding the case back to the tribunal with the observation that the tribunal should look into following aspects:--
(1) Whether the members of the respondent No,4 fall within the definition of a workmen under the I.R.O., 1969 ?
(2) Whether the Union fulfilled the condition of section 7(2)(b) of the I.R.O., 1969 ?
(3) Whether the employer has the right to interfere and challenge the registration of the union ?"
5. Now the case is again taken up today, learned counsel for the applicant submits that admittedly the respondent Union was formed exclusively in relation to Salesmen and that the total number of members of the said Union were 12/14. He further submits that there is a pathora of law on the point that salesmen are not workmen, with which he is ready.
6. Mr. Zaheeruddin, learned counsel for the respondent union submits that the questions, raised by the Hon'ble High Court, are mixed questions of facts and law and cannot be decided unless and until evidence is recorded as to the nature of duties of the members of the respondents Union and the number of persons whether forms 1/5th of the total number of persons employed and whether it comes within the ambit of section 7(2)(b) of the I.R.O., 1969.
7. I find myself in agreement with the learned counsel for the respondent with which Mr. Mahmood Ghani also seems agreeable. It seems that the observations of the Hon'ble High Court and the points, raised by it, cannot be fully examined until and unless there is evidence on record. But the main hurdle in the way is the order, dated 26-9-1993 ordering the registration of the Union. Unless and until it is set aside by this Tribunal the question of recording evidence on the points, raised by the Hon'ble High Court, in its order of remand, cannot be examined and decided in one way or the other.
8. I am, therefore, constrained to set aside the order, dated 26-9-1993, passed by the learned Labour Court No,5 and remand the case to it with a direction to record the evidence of the union as well as the employer, who has been impleaded as a party to the proceedings by order, dated 18-2- 1993, which has gone unchallenged.
9. It also appears that soon after the filing of the appeal, on or about 16-4-1992, the Registrar, Trade Unions has rejected the application for registration of the Union, by his order, dated 19-4-1992. It will, therefore, be all the more necessary to call for the record from the Registrar of Trade Unions to examine the reasons of rejection of the registration of the union, sought for, and examine the Registrar of his representative as court-witness.
10. In view of the above observations, both the counsel agree that the revision application be disposed of accordingly.
11. Before parting with the matter, I would like to observe that as the matter is hanging fire for the last 8/9 years, it will be appreciated, if the learned Presiding Officer of the Court concerned, will make efforts to decide the case as early as possible. The learned counsel for the parties are directed to appear before the learned Court on 26-3-1999.