MUHAMMAD AFZAL SOOMRO, J. -- The petitioners, through this Constitutional Petition, challenging the authority of respondents Nos. 1 and 2 for holding Referendum at Port Muhammad Bin Qasim have prayed for the following relief:-
(i) Declaration that respondents Nos. 1 and 2 are not competent to hold referendum under Section 22(2) of the IRO, 1969.
(ii) Declaration that the proceedings finalized by respondent No. 2 for holding referendum are not according to law.
(iii) Declaration that the petitioner is entitled to participate in the referendum and all of its 200 (two hundred) members as mentioned in the list are entitled to cast their votes in the referendum under the law.
(iv) Direction to respondents Nos. 1 and 2 to refrain from holding referendum as announced by respondent No. 2.
(v) 'Cost of the petition.
(vi) Any other relief which this Honourable Court may deem fit in the circumstances of the case.
2. The brief facts leading to the filing of the present petition are that petitioner being a trade union registered under Section 8 of the Industrial Relations Ordinance, 1969, herein after referredto as the IRO, 1969, decided to participate in the referendum to be held in the year 1999, after having been held by this Court that the petitioner is registered Trade Union vide its judgment dated 9.4.1997 passed in Constitutional Petitions bearing C.Ps. Nos. S11 and 12 of 1996, challenging the registration of the petitioner by some Cargo Handling Companies on the ground that members of the petitioner union were not Dock Workers due to which it is not entitled to registration as their trade union. However, when Registrar did not allow the petitioner to participate in the referendum on the ground that its members were not Dock Workers, the petitioner filed Contempt of Court Application against him on the ground that he was violating the said judgment by not treating the members of the petitioner as Dock Workers and accordingly the petitioner was allowed to participate in the referendum vide order dated 13.1.1999 which was held on 6.3.2000. It has, further been stated in the memo. of petition that on 7.3.2002 one- of the Trade Unions of Dock Workers made a representation to respondent No. 2 for holding a fresh referendum and accordingly respondent No. 2 initiated necessary proceedings for that purpose under Section 22(2) of the IRO,- 1969 and notices were issued--to- various Trade Unions including the petitioner to enable them to participate in the referendum and in response thereto the petitioner submitted a list of its members consisting 200 Dock Workers. Respondents Nos. 9 to 12 submitted their objections to such list before respondent No. 2 on the ground that the members shown in the list of the petitioner were not Dock Workers taking the plea that though the members of the petitioner were held, to be Dock Workers through judgment passed in C.Ps. Nos, 11 and 12 of 1996 but such judgment has been challenged by way of filing of HCAs Nos. 1999/1997 and 189/2000. Consequently, respondent No. 2 called a meeting of all the interested trade unions in order to finalize the list of voters. The petitioner objected in respect of the authority of respondent No. 2 for holding the referendum. According to the petitioner, these objections were not considered at all and its 123 members were held to be entitled to participate whereas 77 members were not allowed to participate in the referendum, which was announced to be held on 25.4.2002. The petitioner, impugning such order of respondent No. 2, has filed this Constitutional Petition.
3. On 25.4.2002, in response to the notice M/s. Chaudhry Rasheed Ahmed and Muhammad Ashraf filed powers alongwith counter-affidavits on behalf of respondents Nos. 8 to 12 whereas respondent No. 2 also made his presence and filed comments and the matter was adjourned to 29.4.2002 with the direction that though Referendum may be held but result thereof will not be announced till the next date of hearing. On 29.4.2000, again notices were repeated against respondents Nos. 3. to- 7 for 9.5.2000 and till then interim order was ordered to be continued. On 9.5.2000, by consent the matter was adjourned to 16.5.2002 for final hearing and the learned counsel for the petitioner also intended to file rejoinder. He was allowed to do so.
4. In the parawise comments, submitted on behalf of respondents Nos. 1 and 2, it has been averred that objections of respondents Nos..9 to 12 in respect of membership were furnish lists of their paid members and list of employees respectively alongwith' their bio-data such as parentage, age, section or department, etc. Accordingly, a voters' list 'of 1757 Dock Workers was approved as final 'voters list on 15.4.2002 after holding several joint meetings in which petitioner Union also participated and "Subsequently in- a meeting held on '18.4.2002, seq 123 members of the petitioner Union were also approved/allowed as voters alongwith above-said 1757 Dock Workers. Moreover, it has been averred, though the petitioner Union claimed that it had 123 members during the pendency of the Constitutional Petitions Nos. S-1 1 and S-12 of 1996 which number was increased but it did not produce any proof of the employment of the increased number of members nor this was incorporated in its last Annual Return of the year, 1999 where even the membership of the petitioner Union-was shown as 105.
5. In the counter-affidavit filed on behalf of respondents considered and keeping in view the judgment of this Court passed in C.P.No. D1017 of 1997, 123 members of the petitioner Union were :approved as voters and remaining 77 names, who were claimed to be, its. members, were struck down for the reasons firstly, as no proof of their employment was furnished, secondly, in the last Annual Returns submitted on behalf of the petitioner Union in 1999 the total number of its paid members was shown as 105 and thirdly since the registration of the petitioner Union i.e., on 24.12.1995 it had not held any elections'. So far as the authority of respondent' No. 2 is concerned, it was averred that he was notified as District Officer, Labour-IV and Authorized Representative of R.T.U. Sindh through Notification No. SO(S&GAD)-2/16/2002, dated 31st January, 2002 issued by Government of Sindh to hold referendum. It has, further, been averred that the procedure prescribed in Section 22 of IRO, 1969 was properly followed in a manner that the General Secretary of Port Muhammad Bin Qasim Harbour & Dock Workers Union vide its application dated 7.3.2002 applied under Section 242) of `the said IRO to hold referendum for determination of CBA in the establishments of Cargo. Handling Companies presently operating at Port Qasim Authority Bin Qasim, karachi Whereupon all the 'registered trade unions, 'including the petitioner, Were advised to Nos. -3 and 7, objections have been raised, firstly, the person who has signed the memo. of petition, applications and the affidavits is incompetent to do for the reason that he ceased to hold the position in the Union as no election of the petitioner Union has never been held since its formation in 1995 and therefore the terms for which he was elected and even the term guaranteed under the provisions of. the Constitution and the Industrial Relations Ordinance, 1969 has expired years ago, secondly, none of the so-called disenfranchised workers has filed any complaint nor any of them has filed this petition and they only being the aggrieved persons could approach this Court, thirdly, the petitioner Union neither had submitted any proof of the employment of so, called 77 members with the establishment of any of the Employers before the Registrar's nominee nor has submitted before this Court, fourthly, the petitioner Union has no nexus with respondents Nos. 9 to 12 as it is not registered for these establishments, fifthly, the disputed questions of facts are involved in the matter which cannot be decided in this petition, and, sixthly, the petitioner Union is of Tele' staff of the companies named in its certificate whereas Referendum has to be held among unions of dockworkers registered/recognized by Port Qasim Authority.
6. In the counter-affidavit filed on behalf of respondents Nos. 8 to 12, it has been averred that this- petition is misconceived and not maintainable as the petitioner has not come before this Court with clean hands having no locus standi for the reason that its registration certificate had since long been ceased to operate at Port Qasim Authority and at present there are four Cargo Handling Companies working at Port Qasim Authority and since last several years the Companies/Firms named in the petitioner's registration Certificate have not entered into any agreement with Port Qasim Authority for Cargo Handling. Moreover, none of the companies for which the petitioner union was registered has been joined as respondent in this petition, which is a clear admission on the part of the petitioner Union that those companies for ,which it was registered have ceased to operate. Furthermore, the list of members (Annexure 'E' to the petition) is claimed to be not genuine for the reason that at least hundred names were included who are neither working with the Cargo Handling Companies operating at Port Qasim Authority nor are they members of the petitioner.
According to them, even during the joint meeting held on 18.4.2002 the petitioner Trade Union did not demand inclusion of its more than 1 23 members in the Voters' list.
7. I have heard the arguments of the learned counsel appearing on behalf of the respective parties.
8. It has been contended by the learned counsel for the petitioner that respondent. No. 2 who is District Officer, Labour-V was not competent to initiate proceedings for holding Referendum "under Section 22(2) of the IRO, 1969. It has, further, been contended that entire proceedings for holding Referendum have become illegal and without lawful authority for the reason that Director of Labour, namely Khawar Jameel, who is discharging the functions of Registrar of Trade Unions, Government of Sindh, has not been notified, appointed or authorised as Registrar of Trade Unions for the said purpose. It has, also, been contended that Section 22 of the IRO, 1969, prescribes procedure for holding Referendum and according to that procedure Registrar of Trade Unions is required to prepare a list of Voters after verification of the lists submitted by the Trade Unions and Employers who are required to submit list of their workers. According to the learned counsel, only four of them submitted a combined list of their workers but no verification was conducted by respondent No. 2 who, too, did not prepare a list of voters, hence has not acted according to the mandatory requirements of law and his decision to hold Referendum is illegal and void. It has, further, been contended by the learned counsel that though petitioner's Union having already been held to be the Union of Dockworkers, but its several members were not allowed to exercise their right of vote in the Referendum by respondent No 2 whose decision with regard to entitlement of only 123 members of the petitioner Union and disentitling its 77 members from casting their vote, is without any valid reason and basis as the petitioner's Union had such 123 members during the pendency of CPs Nos. S-1 1 and S-12 of 1996 which number was increased afterwards and presently it has 200 hundred members all of whom are entitled to cast their votes. It has, further, been contended by the learned counsel for the petitioner that mere omission of filing annual returns will have no effect on the list of the voters and members of the participating trade unions. It has, also, been contended by the learned counsel that since according to Notification dated 31.1.2002 Jehangir Azar who was Joint Director, Labour was transferred and posted as District Officer Labour, Landhi Town which comes under the jurisdiction of City District Government, could not be delegated powers of Registrar under Section 22(3) of the IRO as he had ceased to be associated with Directorate of Labour, Government of Sindh. Moreover, Qayyum Nazar who was Registrar of Trade Unions, Sindh, Karachi was transferred on 19.8.2000 and Muhammad Khawar Jamil who took over the charge from ,Qayyum Nazar was not notified as Registrar Trade Unions as such the authority delegated to Jehangir Azar ceased to be operative. With regard to the elections in the petitioner Union, it has been contended that elections of its office bearers are being held as and when' they become due and since the same office bearers were elected again and again and there is no change, no intimation to the Registrar is required. In support of his contentions, he has relied upon the cases of Karachi Warehouse and Carriers Workers' Union Vs. Pakistan Warehouse Carriers Workers Union and 3 others (PLD 1978 Kar. 417), Irrigation Tubewells Workers Union (Regd.)
Vs. Irrigation Tubewells Workshop and Operation Workers' Union (Regd.) and two others (1991 P.L.C.
171) and K.E.S.C. Progressive Workers' Union through its Chairman and others Vs. K.E.S.C. Labour Union through its General Secretary and others (1991 SCMR 888) in support of his contentions.
9. On the other hand, learned counsel appearing on behalf of respondents Nos. 1 and 2 have contended that objections of respondents Nos. 9 to 12 in respect of membership were considered and keeping in view the judgment of this Court passed in C.P. No. D-1017 of 1997, 123 members of the petitioner Union were approved as voters and remaining 77 names, who were claimed to be its members, were struck down for the reasons firstly, as no proof of their employment was furnished, secondly, in the last Annual Returns submitted on behalf of the petitioner Union in 1999 the total number of its paid members was shown as 105 and thirdly since the registration of the petitioner Union i.e. on 24.12.1995 it had not held any elections. It has, also, been contended that respondent No. 2 was notified as District Officer, Labour-IV and Authorized Representative of R.T.U., Sindh through Notification No. SO(S&GAD)-2/16/2002, dated 31st January, 2002 issued by Government of Sindh to hold Referendum. It has, further, been contended that the procedure prescribed in Section 22 of IRO 1969 was properly followed in a manner that when the General Secretary of Port Muhammad Qasim, Harbour & Dock Workers Union vide its application dated 7.3.2002 applied under Section 22(2) of the said IRO to hold Referendum for determination of CBA in the establishments of Cargo Handling Companies presently operating at Port Qasim Authority Bin Qasim, Karachi, all the registered trade unions,, including the petitioner, were advised to furnish lists of their paid members and list of employees respectively alongwith their bio-data such as parentage, age, section or department, etc. Accordingly, a voters' list of 1757 Dock Workers was approved as final voter's list on 15.4.2002 after holding several joint meetings in which petitioner Union also participated and subsequently in a meeting held on 18.4.2002, 123 members of the petitioner Union were also approved/alloWed as voters alongwith above-said 1757 Dock Workers. Moreover, though the petitioner Union claimed that it had 123 members during the pendency of the Constitutional Petitions Nos. S-11 and S-12 of 1996 which number was increased but it did not produce any proof of the employment of the increased number of members nor this was incorporated in its last Annual Return of the year 1999 where even the membership of the petitioner Union was shown as 105.
10. Learned counsel appearing for respondent No. 3, Mr. Muhammad Shafiq Qureshi, has contended that the person who has signed the memo. of petition, applications and the affidavits on behalf of the petitioner Union is incompetent to do for the reason that he ceased to hold- the position in the Union as no election of the petitioner Union has ever been held since its formation in 1995 and therefore the terms for which he was elected and even the term guaranteed under the provisions of the Constitution and the Industrial Relations Ordinance, 1969 has expired years ago. It has, also, been contended that none of the so-called disenfranchised workers has filed any complaint nor any of them has filed this petition and they only being the aggrieved persons could approach this Court. Further more, petitioner Union neither had submitted any proof of the employment of so- called 77 members with the establishment of any of the Employers before the Registrar's nominee nor has submitted before this Court. It has, also, been contended by the learned counsel appearing on behalf of respondent No. 3 that the petitioner Union has no nexus with respondents. Nos. 9 to 12 as it is not registered for these establishments. Besides, since disputed questions of facts are involved in the matter,. which cannot be decided in this petition, this petition is liable to dismissal. It has, further, been contended that the petitioner Union is of Tele staff of the companies named in its certificate whereas. Referendum has to.be held among unions of dockworkers registered/recognized by Port Qasim Authority. He has relied upon the cases of Ch. Ja/aluddin and another Vs. Settlement Commissioner, Lahore and others (1968 SCMR 995), The Punjab Miners'
Labour Union Vs. The West Pakistan Industrial Development Corporation, Jhelum (PLD 1972 Lahore 489), MCB Staff Union of Pakistan Vs. Senior Member, NIRC, Lahore. etc. (NLR 2001 16)., Democratic Worker's Union C.B.A. Vs. State Bank of Pakistan and others (2002 PLC (C.S.) 614) and an unreported judgment of Hon'ble Supreme Court of Pakistan passed in Civil Petitions Nos. 3024 and 904-L of 2000 in support of his contentions.
11. Learned counsel appearing for respondents Nos. 8 to 12 have contended that this petition is misconceived and ,not maintainable as the petitioner has not come before this Court with clean hands having no locus standi for the reason that its registration certificate had since long been ceased to operate. at Port Qasim Authority and at present there are four Cargo Handling Companies working at Port Qasim Authority and since last several years the Companies. Firms named in the petitioner's registration Certificate have not entered into any agreement with Port Qasim Authority for Cargo Handling. However, none of the companies for which the petitioner union was registered has been joined as respondent in this petition which is a clear admission on the part of the petitioner Union that those companies for which it was registered have ceased to operate. It has, further, been contended that the list of members is not genuine for the reason that at least hundred names were included who are neither working with the Cargo Handling Companies operating at Port Qasim Authority nor are they members of the petitioner. According to them, even during the joint meeting held on 18.4.2002 the petitioner Trade Union did not demand inclusion of its more than 123 members in the Voter's list. Reliance has been placed on the cases of Pakistan Burman Shell Petrol Pumps Employees' Union, Karachi Vs. Pakistan Burman Shell Limited through its Director and 4 others (PLD 1978 Kar. 279), Merchant Navy Seamen's Vs. Sindh Labour Tribunal and 3 others (1987 PLC 444), S.M. Afaq Vs. Federal Public Service Commission (2001 PLC (C.S.) 1.31) in support of contentions.
12. I have considered the arguments of all the learned counsel appearing for respective parties and also perused the record placed before me.
13. The whole case of the petitioner Union depends upon the authority of respondent No. 2 for initiating Referendum proceedings. By a Gazette Notification No. L-II-8-6/75, dated 3rd September, 1996, of Government of Sindh under Section 12 of the IRO, 1969, appointed/notified Director Labour, Sindh, Karachi as Registrar of Trade Unions for Karachi Division and in this respect Government of Sindh had constantly been issuing Notifications appointing different officers as Director Labour and on 19th August, 2000 through Notification No. SOI(S&GAD)- 1/3/2000, issued by Chief Secretary on behalf of Government of Sindh, Capt. (Retd.) Qayyum Nazar Changazi, District Management Group was posted as Director (Labour) & Transport Department in place of Malik Asrar Hussain was transferred to Government of Balochistan. Under sub-section (13) of Section 22 .of IRO, 1969, the Registrar may authorize in writing an officer to perform all or any of his functions. Accordingly, having powers to authorize any officer to perform all or any functions of the Registrar, Trade Unions, Qayyum Nazar, authorised Jehangir Azar, District Officer, Labour IV (notified as such through Notification No. SOI(S&GAD)- 2/16/2002, dated 31st January, 2002) to perform all the functions in connection with the Referendum proceedings in the establishments of Cargo Handling Companies Operating at Port Qasim Authority, Karachi by strictly observing the provisions of law. Admittedly, the proceedings for holding fresh Referendum were initiated on 7th March, 2002 by respondent No 2 (District Officer Labour-IV) an authorized officer on behalf of .Registrar Trade Unions and in this context he issued notices to various Trade Unions, including the petitioner Union, to enable them to participate in the Referendum. However, though on 19th March, 2002 by Notification No. SOI(S&GAD)-1/8/2002 Muhammad Khawar Jameel, an officer of Secretariat Group, Managing Director, S.I.T.E., Karachi was transferred and posted as Director Labour in place of Capt. (Retd.)
Qayyum Nazar Changezi was transferred but such transfer of an officer does not affect the authorization given to the officer who initiated the proceedings for holding Referendum in accordance with law and there exists a Notification appointing/notifying Dr. Khawar Jampel to act as Registrar, Trade Unions. Accordingly, I hold that respondent No. 2 had the authority to hold the Referendum.
14. According to Section 21 of IRO, 1969, every Trade Union has to send a general statement audited in prescribed manner of all receipts and expenditure annually to the Registrar of Trade Unions, together with the general statement a statement showing all changes of officers made by the Trade Union during the year to which the general statement refers has also to be sent to the Registrar and a copy of every alteration made in the Constitution of a registered Trade Union and of a resolution of the general body having the effect of a provision of the Constitution shah also be sent to the Registrar within 15 days of making of. the alteration or adoption of resolution. Admittedly, the petitioner -Union submitted its last return for the year 1999, perusal of which reveals that number of members of petitioner Trade Union at the beginning of the year was 151 and not a single person joined as member during ,the whole year whereas 46 members left the petitioner Union, hence the total number of persons/members comes to 105. It is mandatory for a Trade Union to submit its Annual Returns. It is an admitted position that the petitioner Union after 31st December, 1999, till the initiation of proceedings for holding the disputed Referendum has not presented the audited account for two years hence the petitioner Union has become guilty of the breach of provisions of Section 21 of the IRO, 1969 because the period prescribed for the submission of these accounts was 31st December, 2000 and 31st December, 2001, respectively. Similarly, the contention of the learned counsel appearing on behalf of the petitioner with regard to the fact that elections of petitioner's Union office bearers are being held as and when they become due and since the same office bearers were being elected again and again and there was no change, no intimation to the Registrar was required, is not con-vincible. Even if no change was made, the petitioner Trade Union under Section 21 of IRO, 1969 was bound to inform the latest position to the Registrar of Trade Unions. Moreover, no proof has been given to establish that any election has so far been held in the petitioner Trade Union which is the requirement for registration of a Trade Union under Section 7(1)
(j) of the IRO, 1969 and such failure to hold elections in the Trade Union has created doubt about the competency of the person i.e. General Secretary of the petitioner Union to sign the memo. of petition and its affidavits and since such person was not competent to sign these documents, the very filing of this petition is held to be null and void as that very General Secretary had no locus standi to file this petition. Therefore, I hold that the petitioner Union has violated the provisions of Section 21 of IRO, 1969 and has not come to the Court with clean hands.
15. Besides, there is also factual controversy involved in this matter. For instance, 77 persons who have claimed to be employed and their inclusion has increased the number of the members of the petitioner Union but no proof of their employment has been submitted. This Court under its Constitutional jurisdiction cannot determine that whether the increased number of 77 members of the petitioner Trade Union were employed and have completed the required period of membership i.e. three months. This issue can only be resolved through evidence, which cannot be recorded in a Constitutional Petition. Accordingly, I hold that this petition also fails on the ground of maintainability.
For what has been discussed above, I am of the considered view that this Constitutional Petition has no merit, which accordingly, is dismissed alongwith listed application.
C.P. No. 170/2002 stands disposed of alongwith listed application.