1. ' This Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has been preferred seeking following declaration:-- "(i) That the registration of Respondent No,3, as a union Of workers in the establishment of the petitioner is illegal and quash the same and further direct the Respondent No,2 to initiate proceedings under section 10 of the Industrial Relations Ordinance against the respondents.
(ii) Declare that Respondent No,1, was not a Registrar of Trade Union as no notification appointing such person exists in terms of section 12 of Industrial Relations Ordinance, therefore, impugned order is without any lawful authority."
2. ' The relevant facts as gleaned from the Memo. Of Petition are that the petitioners are body corporate engaged in importing, processing and marketing tea in the country. According to petitioners they employ some employees who have directional role in the factory, but the bulk of the work is given on contract which mainly relates to packing. It is contended that the contractor employees his own workmen, and submits bills according to the rate so agreed and specified in the contract. It is further averred that the employees employed by the Contractor (which is a distinct and separate establishment iu terms of law and have no relationship of employer and workmen employed by the petitioners) formed a trade union and intimated the petitioners about the formation of such union. The petitioners immediately sent letter to Respondent No,1,. Director of Labour Government of Sindh and the Registrar of Trade Unions intimating that the persons forming union were not the workers of the petitioners. The Respondent No,2, Joint Director (Labour) summoned the petitioners for a joint meeting and thereafter on the basis of proof it was established that the petitioners were not the employers of the workers who formed union, the Respondent No,3. It is further contended in the petition that the Respondent rejected the contention of the petitioners and registered Respondent as union vide order, dated 28-12-1997. The petitioners thereafter filed Constitutional Petition in this Court being C.P.No,S-23 of 1998 and the matter was remanded back to the Respondent No,
1. After remanding of matter back to the Respondent No,1, proceedings/meetings took place before the Joint Director (Labour) West Division and one meeting only took place before Respondent No,
1. It is alleged in the petition that no notification regarding the appointment of Respondent, No,1, by the Government of Sindh in terms of section 6 of the Industrial Relations Ordinance was issued. It is further stated that the Respondent No,1, is not notified Registrar of Trade Unions but he rejected objections urged by the petitioner and registered Respondent No,3, as union. It is stated that the petitioners have not been dealt in accordance with law and the respondent No,1, has registered a union of workers not employed by the petitioners, therefore, Respondent No,3, has been registered as union in violation of section 7 of Industrial Relations Ordinance, which inter alia provides that no union shall be registered unless all the workmen are employed in the industry to which the union is related. It is further contended in the petition that against the registration of union and for the determination of proceedings for C.B.A., the petitioners have no alternate remedy and hence this petition. It is further stated in the petition that the Respondent No,1, should have initiated proceedings under section 10 of the I.R.O., or should have refused to register such union.
3. ' I have heard Mr. M.L. Shahani, learned counsel for the petitioner and Mr. Muhammad Ali Mazhar, Advocate for the Respondent No,3. None present for Respondents Nos.1 and 2. The learned Advocate for the petitioners and Respondent No,3, have addressed their arguments at length. Mr. Shahani, has assailed the registration of union and has elaborately narrated the facts. He has contended that the Respondent No,1, is performing judicial functions and, therefore, he was required to perform all the functions himself instead of delegating the job of ascertaining the facts by his subordinates. He has further submitted that the Registrar has not applied his mind to the facts and law and, therefore, the registration of union is not proper. He has argued that the Registrar has placed reliance on an extraneous material, to wit, a statement which was not made before him. He has further contended that the persons who have formed the union are not employed by the petitioner and, therefore, they cannot be imposed on the petitioners. Mr. Shahani, has dilated on the issues of facts in details, which I would not like to discuss because of findings to be given presently.
4. ' On the other hand Mr. Muhammad Ali Mazhar, learned counsel for the Respondent No,3, has mainly argued that the writ petition is not maintainable because the disputed questions of facts cannot be considered by the High Court while exercising writ jurisdiction under the Constitution. He has further submited that the petition is not maintainable for further reason that the petitioners have not exhausted the alternate remedy available in law. Mr. Muhammad Ali Mazhar, has submitted that in similar circumstances, a Division Bench of this Court has held that petition is not maintainable. In support of his contention he has placed reliance on D.B. Judgment of this Court in the case of Messrs Hakim & Sons Chemical v. The Registrar of Trade Marks (it appears that instead of Registrar of Trade Unions the, name of respondent has been wrongly printed as Registrar of Trade Marks), 1998 PLC 122.
5. ' I have carefully considered the contention raised by the learned Advocate for the parties before me. I have gone through the D.B. Judgement of this Court cited above and is of the considered opinion that the issue already stands covered with the findings of above judgment to the effect that without availing the adequate, alternate and efficacious remedy available to the petitioners under section 10 of the Industrial Relations Ordinance, the petition is not maintainable. I can do no better than to re-produce the relevant findings which reads as follows:- "It is pertinent to note that for invoking the Constitutional jurisdiction of this Court under Article 199 of the Constitution, the appellants were required to show that no other adequate alternate and efficacious remedy was available to them under any other law. The appellants in their petition made a statement that no other adequate, alternate and efficacious remedy was available to them under any provision of law which statement was absolutely contrary of the provision of section 10 of the Industrial Relations Ordinance which empowers the respondent No,1 to file registration of a Trade Union on the grounds contained subsections (1), (2) and (3) thereof. The respondent No,1, can lodge a complaint for cancellation of the registration on coming to know of any of the aforesaid causes warranting cancellation of a Trade Union. Such information can be acquired by respondent No,1 on his own accord or through some other source, which may include the employer. As such, after registration of respondent No,1, the appellants could approach the respondent No,1, for cancellation of registration of respondent No,2, Union on the ground that on the date when it was formed the office-bearers/workers thereof were not in their service and so was the -fact when the application for registration was filed, but as already pointed out the appellants did not resort to the above statutory remedy available to them. It is a settled principle of law that exercise of Constitutional jurisdiction would be declined in favour of a party who has not exhausted the remedy available to him before filing the Constitutional petition. In support of the above proposition several authorities can be cited. In the case Shaikh Gulzar Ali & Company v. Special Judge Banking Court and others, reported in 1991 SCM R 590, the Supreme Court made an emphatic declaration that the High Court in exercise of its Constitutional jurisdiction could not be allowed to take over the function of the machinery provided by the statute. In the case of Adamjee Insurance Company v. Pakistan, reported in 1993 SCM R 1798, the Supreme Court categorically declared that the condition precedent for exercise of Constitutional jurisdiction was that no other remedy was available to aggrieved party. In the case of Abdur Rehman v. Haji Mir and others reported in PLD 1983 SC 21, the Supreme Court observed that Constitutional jurisdiction could not be invoked in the presence of alternate adequate remedy. The Supreme Court in the case of Mumtaz Ahmed and others v. Assistant Commissioner and another, reported in PLD 1990 SC 1195 propounded the principle that when a statute creates and also provides machinery for redress of the party complaining of breach or violation of any provision of the statute, then it must avail himself of the remedy provided by the statute for such breach before invoking Constitutional jurisdiction of this Court did not exhaust the alternate ;adequate and efficacious remedy available to them under the Industrial Relations Ordinance, which is condition precedent for invoking the Constitutional jurisdiction. On this ground too the Constitutional petition filed by appellants was liable to be dismissed."
6. ' Mr. M.L. Shahani, learned counsel for the appellant has stated during the course of arguments that the plea for issuance of writ of quo warranto is not pressed meaning thereby that the objection to the effect that Respondent No,1, was not Registrar of Trade Union has been given up. The only other remedy sought through this petition is for the initiation of proceedings under section 10 of the I.R.O., and to the declaration that registration of Respondent No,3, as union of workers in the establishment of the petitioner is illegal. All these questions can be determined by the Labour Court on a complaint by the Registrar of Trade Unions under section 10 of the Industrial Relations Ordinance, which reads as follows:-- '1(10) Cancellation of registration,---(1) The registration of a trade union shall be cancelled if the Labour Court so directs upon a complaint in writing made by the Registrar that the trade union has-
(i) contravened (or has been registered in contravention of,) any of the provisions of this Ordinance or the rules; or
(ii) contravened any of the provisions of its Constitution; or
(iii) made in its Constitution any provision which is inconsistent with this Ordinance or the rules.
7. (iv)
(2) Where any person who is disqualified under section 7-A from being elected as, or from being, an officer of a trade union is elected as an officer of a registered trade union, the registration of that trade union shall be cancelled if the Labour Court, upon a complainant in writing made in this behalf by the Registrar, so directs.
(3) The registration of a trade union shall be cancelled by the Registrar, if after holding such inquiry as he deems fit, he finds that such trade union has dissolved itself or has ceased to exist."
8. ' It is admitted position that the petitioner has not availed the remedy available under section 10 of the Industrial Relations Ordinance, 1969 and therefore, respectfully following the decision of Division Bench in the judgment cited (supra), it is held that the petitioner has no right to invoke the Constitutional jurisdiction of this Court for issuance of writ of mandamus under Article 199 of the Constitution. In view of my findings that the Constitutional petition is not maintainable and the issues of facts and law raised in the petition can be effectively and competently decided by the Labour Court on the complaint of Registrar, Trade Unions, therefore, I would not like to dilate, on the points raised before me on merits. The petitioners may have recourse to the alternate remedy available to them under the Industrial Relations Ordinance. The Constitutional petition stands dismissed as not maintainable. The listed applications also stands dismissed accordingly.