' Briefly the facts of the case are that the petitioner is a public Limited Company employing 177 permanent workmen, There are 2 unions existing. One union has been certified as a C.B.A. The General Secretary of respondent No,2 was employed as supervisor in the stretching department of the petitioner. He, however, was terminated from service on 26-3-1996. He had challenged his termination under section 25-A of I.R.O. Before the Sindh Labour Court who dismissed the matter observing that he was not a workmen. An appeal was also filed which was also dismissed on the same ground. Being aggrieved against the two findings the same person filed Constitutional Petition No,1492 of 1999 before this Court. This petition was dismissed in limine on 3-1-2000.
' The General Secretary of respondent No,2 on 19-8-2000 submitted an application before the respondent No,1 for registration of a 3rd union. According to the petitioner once 2 unions are already in existence a 3rd union cannot be registered unless this union has its members not less than 1/5th of the total number of workmen employee. According to the petitioner the Registrar without applying his mind especially as regards the credential of the applicant and the list of members supplied in a mechanical manner ordered the registration of the respondent No,2 on 5- 9-2000. No communication was addressed to the petitioner by the respondent. However, when the petitioner found out he addressed a letter to the respondent No,1 and raised objections. The main objection related to the list of members and whether the applicant was a worker. It was pointed out that the 71 persons who were supposed to be the members of the new union out of the total strength of 179 was doubtful as 164 persons were already members of the Azad Labour Union. This was verifiable as the petitioner was deducting monthly union subscription. The Gentlemen whose amounts were deducted had not raised any objection or had not drawn the attention of the employers due to the change of their membership. It was thus, urged to the Registrar that dual membership was not permissible. The Registrar was requested to exercise his jurisdiction under section 10 of I.R.O. Which would ultimately result in cancellation of the registration of respondent No,2 union. According to the petitioner the Registrar has failed to exercise jurisdiction under section
10. There .Being no alternative, efficacious remedy available this petition has been filed with the following prayers: "That in view of the facts and grounds mentioned hereinabove, it is prayed that this Hon'ble Court be pleased to accept the petition and set aside the impugned order of the respondent No,1, Registrar of Trade Unions and be pleased to declare that issuance of the Registration Certificate dated 5-9-2000 was illegal, void ab initio and passed by the respondent No,1 in wrongful exercise of his jurisdiction contrary to the provisions of law, denial of natural justice and an abuse of the process of law and is of no legal effect.
' That in alternative it is humbly prayed that this Hon'ble Court may be pleased to suspend the operation of the order of registration dated 5-9-2000 of the respondent No,2 Union and direct the respondent No,1 Registrar of Trade Unions to apply in terms of the provisions of section 10 of I.R.O.
1969 impleading the petitioner as one of the party alongwith all other registered Trade Unions before the Labour Court for directions for the cancellation of the registration of the Trade Union having been registered contrary to the provisions of law and the rules framed thereunder.
' That it is still further prayed in the alternative that this Hon'ble Court may be pleased to set aside the order of Registration dated 59-2000 passed by the respondent No,1 Registrar of Trade Unions and direct the respondent No,1 Registrar of Trade Unions to determine the application for registration of the Union afresh after notice to all the registered Trade Unions in the establishment and the petitioner and to pass appropriate legal order as is permissible in law after hearing the objections of the parties concerned.
' It is further prayed that the Hon'ble Court may be pleased to grant such further and/or' appropriate relief as the Hon'ble Court may deem fit under the circumstances."
' Counter-affidavit has been filed by the respondent No,2 who has denied all that has been stated in petition. In fact he has insisted that the Registrar was satisfied and after being satisfied he rightly registered his union. A rejoinder has also been filed. Documents have also been filed by both the sides. Parawise comments have also been filed by the respondent No,1 who is the Registrar. Both the sides have argued the matter at length and relied upon various case laws: ' They have also filed several documents which are supposed to show their respective correct position as regards the membership is concerned. An attempt has been made to try and bring on record as many documents as possible. Possibly the parties have been litigating for a long time.
My only objective is to see what has been urged and based upon that to give my findings.
' When Habib Supra Mills (Textile Division) Mehnatkash Union (respondent No,2) applied for registration no notice was served, no objections were sought for, no affidavits of any nature were filed, no documentary record was collected by the Registrar of Trade Union, no enquiry of any nature was conducted. None has been placed on record by the Registrar nor has the Registrar claimed conducting any. Enquiry. In fact the Registrar of Trade Union admits that after the registration of the Union they received intimation to the effect that some of the members of the Union have now resigned as members of their earlier Union. The case of Hakim Sons is, therefore, clearly distinguishable. As against the Supreme Court of Pakistan judgment of 1998 PLC relevant observations at page 504. (Para. 5), the Hon'ble Supreme Court has observed that the provisions of section 7(2) (b) are mandatory in nature and a Trade Union of Workmen cannot be registered _by the Registrar unless he is satisfied that conditions laid down therein have been fulfilled by the Union. Under section 8 of I.R.O. 1969 satisfaction of the Registrar of Trade Union is required. This satisfaction implies proper application of mind. The Registrar cannot act mechanically but , must first conduct an inquiry to satisfy himself as to the conditions laid down in section 7 (2) for registration of a Trade Union of workmen. In the case of Essa Cement the Registrar of a Trade Union conducted two separate inquires through his Labour Officer and obtained two separate reports.
The Registrar of Trade Union based his decision on these two reports. In fact when the Registrar of Trade Union was not satisfied with the first report he ordered submission/inquiry second report.
Thus, the registration in Essa Cement was not effected mechanically but reflected proper application of mind.
' In the instant case there is nothing on record to show that Registrar of Trade Unions applied his mind, conducted any enquiry, called for any affidavits, nor issued any notice to any person, neither it has been claimed nor any document has been placed on record. Even the Registrar of Trade Unions has not filed the parawise comments, the minutes of the enquiry if any. It appears that in mechanical manner the registration has been effected which attracts the violation of the guidelines laid down by the Hon'ble Supreme Court in the case of Essa Cement.
' It has next been argued by the learned counsel for the petitioner relying on 1992 PLC 23 that neither the employer nor any other Union are to be consulted/informed before the Registrar effects the registration of the Union.. There is no cavil to this preposition. Even in 1992 PLC page 23 at page 26 (Para. 4), the Hbn'ble High Court have held that the act of registration Union is neither mechanical or automatic. It requires satisfaction on the part of the Registrar as to be obse-vance of the requirement of the Ordinance. This satisfaction refers to state of mind. Registration being a conscious act due satisfaction should be reflected in the act. Registration ought to satisfy the test of objectivity if not it may well be exposed to be scrutiny in exercise of power of judicial review. The General Secretary of the Union who applied for registration of the Union under Regulation 3 .Need not necessarily be a member of the Union. The position now taken by the learned counsel is contrary to the earlier position taken at the time of applying for registration. At that time vide Annexure P/8 Mr. Muhammad Yousuf Khan filled the membership form of the Union in which in Column 3 he identified his status as that of a worker knowing fully well that he was a non-workman which was held so by the Labour Court. Labour Appellate Tribunal and the High Court, The Registrar of Trade Union in his parawise comments in this Hon'ble Court admits that they were not aware of any proceedings of the Labour Court, Labour Appellate Tribunal and the High Court. Now the learned counsel has taken a contrary plea that Muhammad Yousuf meets the requirement of being on office-bearer of the Union on the basis of section 7 (1) (d) of I.R.O.
1969. This provision only says that 75% of the office-bearers of a Trade Union shall be from amongst the workmen actually engaged or employed in the industry, 25% according to the learned counsel for the Union can be outsiders. According to him this 25% can be any persons even if they are non- workmen. Such an interpretation would be contrary to the essence and spirit of the law. Some rational interpretation will be that 25% outsiders should also necessarily be in the category of workman though not employed in the employment where the Union is applying for registration.
This interpretation will be in consonance with the essence and spirit of the law. Section 7(2)
(accused). Of I.R.O. 1969 provides .a Trade Union of Workmen shall not be entitled to registration under I.R.O. 1969 unless all its members are workmen actually engaged or employed in the industry with which a Trade Union is connected. There is no room under the circumstances for a non- workman being member or holding, office in the Union even under 25% Quota for "outsiders". These outsiders should also be in the category of workmen or else there is nothing to prevent even employer from forming his own Union in his own establishment holding office of President and General Secretary of the Union from amongst 25% outsiders quota and thus, frustrating the very essence and spirit of I.R.O.
1969. Regulation 3 of the Industrial Relations (Sindh) Rules, 1973 provids that application for registration of a trade union in terms of section 5 of 1.R.O., 1969 shall be in form "A". Form A specially provides that it is either a Trade Union of workmen or it is a Trade Union of employers. There cannot I c be a combination of a Trade Union both of workmen and employees. This interpretation fits in the definition of the term " Trade Union" as defined in section 2 (xxvi) which provides that a Trade Union means combination of workman or employers. Section 3 of I,R.O. 1969 provides that workers shall have right to establish a joint Association of their own choosing. Section 3 (b) of I.R.O. 1969 provides that employer shall have right to establish their own Association. Thus, there has to be a Trade Union exclusively of employers. In the instant case admittedly Muhammad Yousuf khan, General Secretary of the Union has been declared to be an employer by all Courts. Apparently the General Secretary applied in terms of section 5 read with Rule 3 and in Form A' of Industrial Relations (Sindh) Rules, 1973 posing himself as a workman without disclosing that he was a non- workman. The Registrar of Trade Union without disclosing that he was a non-workman. The Registrar of Trade Unions withcut conducting any enquiry as to the status of the applicant and without obtaining any affidavit accepted the form and ordered the registration. Even on the doctrine of locus poenitentia as laid down in PLD 1992 SC 207 the Registration Certificate issued by the Registrar of Trade Union should be liable to be recalled having been obtained though misrepresentation. Registration Certificate is only a. Proof that the Union has been registered. It is not a proof that the Union has been properly registered. Such a registration certificate can be challenged. In E PLD 1968 SC 412, the Supreme Court of Pakistan held that the certificate of incorporation by the Registrar of companies registering/incorporating a company can be challenged in the Court of law being contrary to law. In the absence, therefore, of any material placed on record by the Registrar of Trade Unions showing that the parameters laid down by the Supreme Court of Pakistan in 1998 PLC 500 as to registration of the Union in a mechanical manner or as to the subjective satisfaction of the Registrar of Trade Unions having been achieved, the jurisdiction of this Court can be invoked and directions can be given by this Court to the Registrar of Trade Unions after setting aside the earlier orders for registration of the Union to conduct an enquiry as held by the Supreme Court of Pakistan in 1998 PLC 500 (relevant observations at page 505 para. 8). Although the Registrar under section 8 was not duty bound to seek assistance either from the employer or other unions nothing prevents Registrar of Trade Unions from seeking assistance either from the employer concerned or other Unions specially and all the more when in the earlier round Muhammad Yousuf Khan, General Secretary and other office- bearers of the Union misled and misguided the Registrar of Trade Unions in not disclosing their proper status and or outcome of the litigation declaring Muhammad Yousuf Khan not to be a workman. The decisions of this Court in 1992 PLC 23, is distinguishable as in that case the Courts' attention was not drawn to Regulation 3(1) Form-' A' of Industrial Relations (Sindh) Rules, 1973 wherein the General Secretary was required to make statement whilst applying for registration to the effect that the members of applying Trade Union. Apparently rule 4 (1) Form. "C" to the Industrial Relations (Sindh) Rules, 1973 has also not been looked into. This is the Form for the application for membership and each individual member applying for membership of the Union is required to give a declaration to the effect that he is not a member of any other trade union in the establishment to which the union relates. From the reading of the Regulations and the forms it is clear that dual membership is not permissible in law.
7. In the case reported in. 1992 PLC 7, two Unions were already registered and the third union had applied for registration. When the 3rd union applied for registration, the Regirtrar of Trade Unions called for information to verify dual membership of the union as required under section 3-A of I.R.O.
1969, and to check 1/5th membership as provided for in section 7 (2) (b) of I.R.O.
1969. The Division Bench of High Court thereafter observed at page 83 of the judgment reported in 1992 PLC that under section 7(2) a Trade Union of workmen shall not have been entitled to registration under this Ordinance unless all its members are workmen, actually engaged or employed in the establishment, group of establishment or injustly with which the trade union is connected unless it has as its members not less than 1/5th of the total number of workmen employed in such establishment, group of establishments or, industry as the case may be. The Hon'ble Division Bench of the High Court at page 84 further observed that the very first sentence of the provision of section 8(1) of the Ordinance makes the satisfaction of the Registrar necessary in accordance with the requirement of this Ordinance. If a Trade Union violates any of the provisions of the Ordinance it cannot claim the registration. The Division Bench of the High Court observed that the Industrial Relations Ordinance uses the expression "being satisfied". Satisfaction according to the Division Bench is essentially a condition of the mind. There should be Substantial ground for conclusion on the material available with the Registrar that the Trade Union has as its members not less than 1/5th of the total number of members of the workmen employed in the establishment.
In that case it was observed that since the Registrar of Trade Union granted the registration certificate to the 3rd Union without applying his mind the petition was allowed after referring to an earlier unreported decision of the Division Bench of the Karachi High Court in Constitutional Petition No,D-1161 of 1989 in the case of Habib Bank Limited Employees Federation v. Full Bench N.I.R.C. It was declared that the certificate of registration was issued by the Registrar of Trade Unions without lawful authority and of no legal effect and the matter was remanded back to the Registrar of Trade Unions to consider and dispose of all objections raised by the parties concerned. It is even otherwise a cardinal principle of law and well-settled by the Hon'ble Supreme Court of Pakistan in 1993 SCM R 1533 at 1542 that when express statutory power is conferred on a public functionary, it should not be pushed to far, for such conferment implies a restraint in operating that power, so as to exercise it justly and reasonably. Excessive' use of power is itself unlawful. Similarly in yet another Division Bench case Kamal Ahmed Khan v. National Bank of Pakistan 1991 PLC 834. At 836, it was observed after referring to 1992 SCM R 259 that whether a litigant draws the attention of the Court to it or not it is the duty of the Court to apply the correct law.
8. The learned counsel for the respondent has referred to 1983 PLC 171, to the effect that it is discretionary with the Registrar to declare as to whether he can move the Labour Court for cancellation of the registration of the union. This proposition of law is contrary to the principle well- settled by the Supreme Court of Pakistan in the case of Independent Newspaper Corporation 1993 SCM R 1533 at page 1542. It -was observed that when a statutory power is conferred on a public functionary he should exercise it. Justly and reasonably because excess and wrong use of such a power itself is unlawful. It is, therefore, not open to the Registrar of Trade Unions to adopt an altogether autocratic and despotic approach insisting that he will not apply for the cancellation of the Registration of the Union and not even give any reason for the same, In this case the Registrar of Trade Unions has filed his parawise comments. No reasons whatsoever have been given by him in his grounds as to why he did not apply for the cancellation of the Registration of the Union. He has not even chosen to place on record any document to show as to what enquiry and in what form or manner it was conducted so that the Court be in a position to Conclude that substantial grounds for registration existed with the Registrar of Trade Unions and there was subjective satisfaction on the part of the Registrar of Trade Unions. Reference has been made by the counsel for the respondent to 1986 PLC 535. Even in this judgment the Court has held that it is the duty of the Registrar under section 8 to see that all the requirements of I.R.O. 1969 has been completed and that there is no contravention of any of the relevant provisions of the Ordinance. Although the Registrar is competent to authorize any officer in writing to perform all or any of his functions, in the parawise comments the Registrar of Trade Unions has nowhere mentioned or claimed that any of such functions was performed on his behalf by any other person.
9. Reference is also made to yet another reported decision of Court in the case of B.P. Industries
(Pvt) Ltd. Employees Union v. Registrar of Trade Unions Sindh and 3 others. Reported in 1992 PLC 662 wherein it was held that where there are already two registered Trade Unions and a third Union applies for registration it is imperative on the part of the Registrar of Trade Unions to hold a proper enquiry to find out whether the third union has as its members not less than 1/5th of the total number of workers employed in the establishment. This having been not done by the Registrar of Trade Unions the petition was allowed and the granting of the certificate and the subsequent holding of the referendum was held without lawful authority.
10. Finally reliance was also placed on a decision given by Mr. Justice S.A. Sarwana in an unreported C.P. No,93 of 1993 titled.
11. Gandhara Nissan Diesal Ltd. v. Registrar of Trade Unions. In this case out of 10 office-bearers 4 persons were non-workmen. The Registrar for Trade Unions nonetheless registered the Union. In Const petition it was held that in terms of section 7(1) of I.R.O. 1969 a Trade Union is not entitled to registration unless the Constitution provides that 75% of office executives are amongst the workmen and four officers of the Executive Committee do not fall within the definition of the term workman. It was the duty of the Registrar of Trade Unions to hold the enquiry and ascertain this fact. Since this was not done the registration certificate was ordered to be set aside and the petition was allowed and the Registrar of Trade Unions was directed to hold the enquiry afresh.
12. In the instant case the General Secretary of the Union has already been held by the Labour Court/Labour Appellate Tribunal and by the Division Bench of the High Court to be non-workman.
This issue cannot now be re-examined by the Registrar of Trade Unions. Under the circumstances the, registration of the Union is liable to be cancelled as having been issued by the Registrar of Trade Unions in violation of the provisions of I.R.O. 1969 and the rules framed thereunder.
' In view of the facts and grounds mentioned hereinabove, the petition is allowed, the impugned order of the registration of the Union is ordered to be set aside. A direction is given to the Registrar of Trade Union to apply in terms of the Provisions of section 10 I.R.O. Before the Labour Court for the issuance of notice to all the parties concerned including the other.