' Petitioner claims to be a registered workers union of M/s. Thatta Cement Company Limited, Thatta.
It requested the respondent No,1 namely the Registrar, Trade Unions, Hyderabad for determination of Collective Bargaining Agent (C.B.A.) as provided under section 22 of the Industrial Relations Ordinance, 1969 (I.R.O. 1969). The respondent No,1 vide its letter, dated 16-7-1998 ordered for the holding of referendum on 27-7-1998, but for the intervention of the District Magistrate, Thatta, (Mr. Rashid Bashir Mazari) who vide his order, bearing No,JB/4582, dated 17-7-1998 directed postponement of the proposed referendum as it was apprehended by the District Magistrate that due to political as well as law and order situation such referendum was not conducive to public peace and was, thus, not advisable. It is this order which has been impugned in the instant petition.
2. Notice was issued to the respondents as well as to the Additional Advocate-General at Hyderabad but despite that the learned District Magistrate, Thatta, did not appear and on 15-4- 1999 following order Was passed by this Court:- "Notice to the Deputy Commissioner, Thatta, was sent in ordinary course. Mr. Leghari has also filed copy of Air Courier receipt which indicates that notice to Deputy Commissioner, Thatta, was also sent through Air Courier. Despite all these efforts he has not appeared. It is 10.25 a.m. Issue notice to Deputy Commissioner, Thatta, as to why proceedings for Contempt of Court should not be initiated against him for non-compliance of this Court order. He is directed to appear in person alongwith his explanation on the next date of hearing. Notice to be served on Deputy Commissioner, Thatta, through the office of District and Sessions Judge, Thatta. To come up on 29-4-1999. Meanwhile, repeat notice to Farooq Sagar, General Secretary, Thatta Cement Employee Union, Thatta, for the above said date."
3.. Pursuant to the above order, the District Magistrate/Deputy Commissioner, Thatta namely Mr. Abid Hussain has appeared in person and has filed his statement in writing duly supported with an affidavit which is as under:-- "It is respectfully submitted that I could not appear on 15-4-1999 in this Honourable Court, under a bona fide belief, that the Administration had nothing to do with the Constitutional Petition and that my appearance was formal. The default is deeply regretted.
' I tender my apology and regret for not appearing in the Honourable Court on 15-4-1999. It is humbly prayed that the contempt notice may kindly be vacated. Moreover, it is submitted that undersigned has no objection, if elections/referendum be held for C.B.A."
4.. The notice served upon the District Magistrate, Thatta, shows that the work "in person" was struck off which may have given him such impression. The above explanation is accepted with warning to the District Magistrate, Thatta, to remain careful in future and to pay full attention to the notices/summons issued by the Courts.
5. Mr. Farooq Asghar Shah, General Secretary of the Thatta Cement Employees Union (T.C.E.U.) has appeared on Court notice and requests for time to make his submissions. In the first place he is not a party to the instant proceedings but it was in the interest of justice that notice was issued to his Union in order to keep them aware of the orders to be passed in this case. Petitioner has filed certified copies of the orders passed in C.P.No,D-84 of 1988 (Thatta Cement Employees Union v.
Registrar Trade Unions and two others) which indicate that the said Employees Union filed a petition challenging the registration of the present petitioner which'was withdrawn as not pressed but earlier to that, their stay application was also dismissed by a Division Bench of this Court with the observation that restraining the functioning of a registered Trade Union "might effect the democrative right of workers to join Union of their choice." Reference was made to Article 17 of the Constitution, 1973 as well as to a decision of Hon'ble Supreme Court in the case of Civil Aviation Authority Islamabad v. Union of Civil Aviation Employees and another (PLD 1977 SC 781). In such circumstances, it appears that the plea of General Secretary, T.C.E.U. Is not bona fide and wants to gain time. However, he has admitted that after registration of the petitioner as another Trade Union in 1997 of the same factory, no referendum has been arranged. For this reason, I am not inclined to adjourn the hearing. It is to be seen that recently in Karachi, referendums were held in K.E.S.C. And K.W. & S.B. Despite the situation in that city. At this stage, I would like to quote a passage from the decision in the case Civil Aviation Authority (Islamabad) (ibid) where it was observed by the Honourable Chief Justice of Pakistan Mr. Ajmal Mian that "there are certain rights which are inherent in a trade union on account of its formation which, inter alia, include the right to act as a collective bargaining agent". (PLD 1997 SC 781 at 815).
6. Now the respondent No,2 has given no objection for holding of referendum for determination of C.B.A. Which statement is taken on record. Effect of this statement is that the earlier order of the District Magistrate, Thatta, dated 17-7-1998 stands rescinded/recalled and this petition is entitled to be granted as prayed with no orders as to costs.
7. Before parting with this order, I would like to observe that the District Magistrates/Deputy Commissioners are not competent to interfere in the trade union affairs by raising frivolous plea of law and order situation. They should keep in mind that they are interfering in the fundamental rights of a trade union before passing any such order. The petitioners were deprived of the referendum for nearly 10 (ten) months for no reason. If there exists any such apprehension they are required to act strictly with the provisions of Criminal Procedure Code and to apprehend culprits who may be responsible for creating such a situation. For such acts, they are required to pass a speaking order. In support of this view, I would like to refer a recent amendment in the General Clauses Act, 1897 (see PLD 1997 CS 423) which has made it mandatory to give reasons for making any order under any enactment. The newly introduced section 24-A of the General Clauses Act, 1897, reads as follows;-- " 24.A. Exercise of power under enactments.---(1) Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person such power shall be exercised reasonably, farily, justly and for the advancement of the purposes of the enactment.
(2) The authority, office or person making any order .Or issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be, for issuing the direction and shall provide a copy of the order or, as the case may be, the direction to the person affected prejudicially."
8. No material was placed before this Court which may have justified the learned District Magistrate, Thatta, to interfere in the holding of referendum for determination of C.B.A. It is not clear whether the impugned order was passed under section 144, Cr.P.C.; neither any provision of law nor any period was prescribed in that order. All these circumstances are more than sufficient to draw an inference that the then District Magistrate, Thatta, interfered in the union affairs on the instigation of the management of Thatta Cement to permit their pocket union to retain the status of C.B.A. Without having recourse to the provisions of I.R.O., 1969. They are not entitled to deprive workers of their fundamental rights as guaranteed under Article 17 of the Constitution, 1973 by raising unjustified plea of law and order situation. It is further observed that the respondent No,1 will give sufficient time to both the workers unions for making preparation for the proposed referendum strictly in accordance with law. A copy of this order may be forwarded to the Chief Secretary to the Government of Sindh for taking necessary departmental action against the then Deputy Commissioner, Thatta, as permissible under the law.
9. With the above observation, this petition stands accepted/allowed with no order as to costs.