' In C.P. 292 of 2000 the facts in brief are that the petitioner Atlas Group of Companies Trade Union claims to be the Collective Bargaining Agent (CBA) in respondent No,8 Establishment viz Messrs Atlas Honda Ltd. As it has been registered as such under section 22 of the Industrial Relations Ordinance.
1969. The respondents Nos.5 and 6 who are the other trade unions in the Establishment have also been duly registered by respondent No,1 viz the Registrar of Trade Unions. The grievance of the petitioner is that respondent No,4 Atlas Honda Mehnatkash Union's application for registration as a fourth union in the Establishment of respondent No,8 could not be considered and registration thereafter accorded by respondent No,1 since the same did not fulfil the compulsory requirement of law viz. Section 7(2)(b) of the I.R.O. As the respondent No,4 did not have the requisite 1/5th of the total number of workers in the said Establishment.
Secondly, the petitioner is aggrieved by the respondent No,3's order dated 15-6-2000 as regards the determination of the CBA of the Establishment whereby the objections of the petitioner and other trade unions were brushed aside and it was decided that a referendum be held in order to confirm whether as to which trade union had the necessary 1/3rd membership in order to become the CBA. This exercise, per the petitioner, would be patently unlawful in view of the fact that in the first instance the respondent No,4-Union could not be registered as such at all. Secondly, it did not have the necessary 1/3rd number of workers so as to qualify to move the application under section 22(2) of the I.R.O. For holding a secret ballot in order to determine the CBA of the Establishment. Hence, the petition with the prayer that the proposed referendum be not held and that an enquiry be carried out under section 10 of the I.R.O. In order to verify whether the respondent No,4 qualified to apply for becoming the CBA.
2. The facts in C.P. No,543 of 1999 are more or less simliar to that of C.P. No,292 of 2000 inasmuch as herein the petitioner S.G. Fiber Employees Union which is the registered trade union of respondent No,6 establishment viz. Messrs S.G. Fiber Mills Ltd. Has challenged the certificate of registration issued to respondent No,3-Union viz. S.G. Fiber Labour Union on the basis that the same was unlawful inasmuch as the said Union did not qualify for being registered as such. Again it has been asserted by the petitioner that respondent No,3 did not have 1/5th of the total number of workers in respondent No,6 establishment in order to so qualify. Hence, the petition with the prayer that the impugned certificate be cancelled.
3. C.P. No, 328 of 2000 has been filed by Messrs S.G. Fiber Mills Limited and again challenges the registration certificate issued by respondent No,1 in favour of respondent No,3 viz. S.G. Fiber Labour Union as a trade union of the petitioner as well as the referendum proceedings initialted at the behest of respondent No,3 to determine the CBA of the petitioner Estalisbhment. Per the petitioner such certificate and proceedings are in violation of section 7(2)(d) and section 22 of the I.R.O. And hence merit cancellation/setting aside respectively.
4. As the facts and the law applicable thereto are similar in all three petitions; I propose to dispose them off through the common order.
5. Mr. M.L. Shahani, appearing for the petitioner in C.P. No,292 of 2000, has submitted fistly that the Registrar of Trade Unions viz. Respondent No,1 has not conducted a thorough enquiry in accordance with section 7(a)(b) of the I.R.O. Which provides in no uncertain terms that if two or more trade unions are earlier registered in any establishment then a subsequent union would not be registered by the Registrar unless it has 1/5th of the total number of workers as its members. In this respect learned counsel has submitted that when respondent No,4 Union viz. Atlas Honda Mehnatkash Union submitted its application to the Registrar for registration as a trade union in the year 1998, 77 workers were claimed to be its members. This, per learned counsel, was impossible since in August, 1998, the petitioner union had 263 members out of a total of 287 workers hence only 24 were available to respondent No,4, which did not consitute 1/5th of the total number of workers in the establishment.
This has also been supported by the establishment itself since in its counter-affidavit it has admitted that wen respondent No,4 applied for registration, it did not have the requisite 1/5th number of workers.
6. Next learned counsel has referred to the noting of the Registrar dated 14-9-1998 that affidavits of 77 workers have been filed by respondent No,4 and, therefore, the registration was allowed, is not possible as from the salary of these 77 workers donations were deducted by respondent No,8 Establishment per letter dated 2-6- 2000, which has been filed as Annexure "C" to the petition. Further, learned counsel has submitted that no resignation has ever been communicated of these 77 workers from their previous trade union to any one.
Learned counsel has further submitted in this regard that respondent No,4 was registered on the noting of a subordinate officer viz. Deputy Registrar, therefore, no enquiry as envisaged per section 7(2)(b) of the I.R.O.
Was ever conducted by the Registrar. In learned counsel's view such enquiry is to be subjective since section 8
(1) of the I.R.O. Promodes that the Registrar must be satisfied that the trade union in question has complied with all the requirements of the I.R.O. Before registering it as such. For the proposition, he has relied upon Messrs Kohinoor Tea (Pvt.) Ltd v. Registrar of Trade Unions (2000 PLC 1). Messrs Hino Pak Motors Ltd. v.
Chairman Sindh Labour Appellate Tribunal (2000 PLC 89), Muhammad Nasir Khan v. Secretary of Education (1999 PLC 312), Holiday Inn Workers Union v. Registrar of Trade Unions (1992 PLC 23), NBP Employees Front Sindh v. Registrar of Trade Unions. (1997 PLC 434). N.D.F.C. Staff Union v. Registrar of Trade Union (1991 PLC 841) and High Court Appeal No,208 of 1998.
7. As regards the referendum, which has been ordered by the respondent No,3, learned counsel submits that this again is unlawful since the precodition of determining whether respondent No,4 has the necessary 1/3rd membership of the total number of workers in the establishment had not been fulfilled. Consequently, learned counsel has criticized the respondent No,3's observations that the referendum itself would decide whether or not the respondent No,4 had the necessary 1/3rd membership, which was to that extent not sustainable under the law. In this connection, he has relied upon: UBL Employees Union v. Registrar of Trade Union (1997 PLC 14). Learned Counsel has distinguished Hakim Sons Chemical Industries (Pvt) Ltd v. Registrar of Trade Union (1999 SCMR 234) wherein the Honourable Supreme Court has observed that a full-fledged enquiry was not necessary under section 7(2) of the I.R.O. As under section 22 whether or not the requisite membership is present would be displayed, on the basis that in the present case no enquiry has been conducted whereas in the cited case the Honourable Supreme Court held that such enquiry had been conducted. Further per learned counsel in similar circumstances the impugned orders were cancelled in Kohinoor Tea (Pvt.) Ltd. Registrar of Trade Unions (supra).
8. In. Reply Mr. Choudhry Resheed Ahmed, appearing for respondent No,4, has fully supported the noting of the Assistant Director Labour, which is the basis of the Registrar's orders for granting certification to the said respondent as a labour, union in the Establishment of respondent No,8. In this respect, he has relied upon: Telegraph Stores and Workshop Workers Labour Union v. Registrar of Trade Unions (1995 PLC 47) and Essa Cement Industries Workers Union v. Registrar of Trade Unions (1998 PLC 500).
9. He has further supported the parawise comments of the Registrar particularly to the effect that the list of 77 members given by the respondent No,4 is more than 1/5th of the total strength of respondent No,8's Workmen and hence the Registrar was correct in issuing the necessary certificate to respondent No,4. Not only this, per learned counsel, whether or no the respondent No,4 has 77 members is a question of fact and cannot be raised agitated in writ jurisdiction for which proposition he has relied upon; Fateh Muhammad v. Registrar of Trade Unions (1991 PLC 158); Khas Traders v. Registrar of Trade Unions (1990 PLC 351) as well as Holiday Inn Workers Union v. Registrar of Trade Unions (supra).
10. Next learned counsel has submitted that as per section 9 of the Industrial Relations Ordinance, 1969, the matter stands concluded before the Registrar and is not open to interference in writ jurisdiction for which proposition he has relied upon Euro Ceramics Ltd. v. Registrar of Trade Unions (1996 PLC 45) and NBP Peoples Federation v. National Industrial Relations Commission (PLD 1975 Kar. 320).
11. He has further submitted in this regard that the registration of a trade union is between the Registrar and the trade union concerned and neither any employer or any trade union has locus standi to challenge the Registrar's decision for which proposition he has again relied upon; Essa Cement Industries Union v. Registrar of Trade Unions (supra) and National Beverage Employees Union v. Registrar of Trade Unions (1998 PLC 533).
12. Learned counsel has further submitted that Constitutional Petition N0.477 of 1998 was filed by the petitioner on the same facts as in the present petition and praying for the same relief which was dismissed vide order dated 3-12-1999 wherein it was observed that per the Honourable Supreme Court's dictum in Hakeem Sons Chemical. Industries v. Registrar of Trade Union (supra) the Registrar was under no obligation to anyone from the establishment for the purpose of determining whether the trade union in question viz. Messrs Atlas Group of Companies, Mehnat Kash Union had the necessary membership in order to qualify as a trade union. It was also held in the said case that after registration of the trade union the proper remedy for challenging the registration was to submit a complaint in writing before the Registrar of Trade Unions under section 10(1) of the I.R.O. For obtaining a direction from the Labour Court for cancellation of registration. Learned Counsel has further submitted that the petitioner had filed. High Court Appeal No,41 of 2000 against the orders passed in C.P.
No,477 of 1998. Which is still pending and consequently, this petition praying for the same reliefs as in Constitutional Petition No,477 of 1998 was not maintainable. Hence, per the learned counsel, the petitioner has not come to the Court with clean hands as it has not disclosed that earlier C.P. No,477 of 1998 on the same facts had been dismissed and that the High Court Appeal is still pending against such dismissal order and also that no stay has ever been obtained in the said High Court Appeal. He has relied upon; Abdul Hafiz v. Board of Intermediate and Secondary Education (1983 SCMR 566).
13. Finally learned counsel has reiterated that the proper procedure for cancellation of the registration of a trade union has been provided in section 10 of the Industrial Relations Ordinance viz. Upon a complaint in writing made by the Registrar to the Labour Court. Per learned counsel this procedure should have been followed rather than filing of the previous petition or the present petition. Consequently, for all the foregoing reasons learned counsel has prayed that the petition be dismissed as it has been filed hardly just a few days before the proposed referendum and stay obtained by suppressing the true facts.
14. Mr. Muhammad Ali, the representative of respondent No,7, has also adopted the arguments of Mr. Choudhry Rasheed Ahmed.
15. The learned A.A.-G. Appearing on behalf of the respondents Nos.1, 2 and 3 has supported Mr. Choudhry Rasheed Ahmed, learned counsel for respondent No,4 and adopted his arguments as well.
16. In reply Mr. M.L. Shahani, learned counsel for the petitioner, has submitted that a window was left open in the order passed in C.P. No,477 of 1988 to challenge the proceedings for electing the CBA, which only starts when there are more than two Labour Unions and the Challenger Union has more than 1/3rd of the total number of workers, which could be determined by the Registrar alone. Thus, in the present case where the respondnet No,4 has less than 1/3rd Membership there cannot be any question of any referendum. Secondly, per learned counsel, the present petition was filed in accordance with the decision in C.P. No,477 of 1998 viz that at the time of determination of the CBA the petitioner would have its remedy.
17. Next learned counsel has submitted that there is nothing to show on the Registrar's note sheet that he applied his mind before issuing the certificate. Per learned counsel the Registrar is a statutory functionary and has to discharge his function accordingly viz. He cannot pass slipshod orders without assigning any reason thereof. Learned counsel has again invited my attention to paras. 11 to 14 of the note sheet, which have been prepared by the Deputy Director of Trade Union and para.15, which is the order dated 17-9-1998 of the Registrar for the impugned registration and which does not contain any reasons at all. Further learned counsel has submitted that the objection as to mala fides is not sustainable as factually they are not correct as whether the petitioner has filed the petition at the initial or advanced stage of the referendum proceedings is totally unconnected with the petitioners' right to file the petition for seeking relief.
18. Mr. M.L. Shahani also appearing for the petitioner Messrs S.G. Fiber Mills Ltd, in C.P. No,328 of 2000 has again critized the impugned registration certificate issued by respondent No,1 viz. The Registrar of Trade Unions in favour of respondent No,2 Messrs S.G. Fiber Labour Union on the ground that this is in violation of section 7(2)(b) of the I.R.O. Similarly, learned counsel has submitted that the Referendum proceedings initiated at the behest of the respondent No,3 to determine the CBA of the petitioners' Establishment is in violation of section 22 of the I.R.O. Learned counsel has referred to the fact that respondent No,3 attempted firstly on 29th December, 1998 for getting itself registered as a trade union, which was rejected on 11-2-1999. Again another application was filed on 13-2-1999, which was similarly rejected on 9-3-1999 and finally the appeal filed before the Vth Labour Court by the respondent No,3 was also rejected on 10-5-1999. However, the third Application filed by respondent No,3 on 5-6-1999 was entertained by the Registrar and the same was allowed on 29-7- 1999, which is impugned in this Constitutional petition. Learned counsel has submitted that the note sheet of the Registrar does not show any independent application of mind by him for the purpose of granting the impugned certification and so also only the Additional Director Trade Unions has carried out the, enquiry and not the Registrar. Hence, per learned counsel the impugned certificate does not carry any weight in the eyes of the law and should be cancelled. Similarly, learned counsel has reiterated that the Referendum proceedings initiated in the matter at the behest of the respondent No,3 is also unlawful since it is yet to be determined whether the said respondent was correctly registered as a trade union. Learned Counsel has relied upon the case-law previously submitted by him in Constitutional Petition No,292 of 2000 in support of the foregoing submissions.
19. Mr. Rafiullah, appearing for the respondent No,3, in C.P. No, 328 of 2000 has vehemently opposed the petition and submitted that the petitioner has produced a list of 583 workers before the Registrar whereas the respondent No,3 had produced 294 workers alongwith the application for registration, which is more than 1/5th of the total number of workers in the. Establishment. Thereafter, 149 workers were physically produced before the Registrar whereupon the impugned certificate was issued. As far as the law is concerned on the subject learned counsel has submitted that the matter of registration is between the Registrar and the trade union concerned and no one else has any right to raise any objection for which proposition he has relied upon. Hakim Sons Chemical Industries (Pvt.) Ltd. v. Registrar of Trade Union and Holiday Inn Workers Union v. Registrar of Trade Unions (supra). He has accordingly prayed that the petition viz. C.P. 328 of 2000 be dismissed.
20. The Learned A.A.-G. Appearing for respondents Nos.1 and 2 has adopted the arguments of Mr. Rafiullah.
21. Mr. Gulzar Ahmed appearing for the respondents Nos.4 and 5 Union in C.P. No,543 of 1999 has fully supported the arguments of Mr. M.A. Shhahani in C.P. No,328 of 2000. He has further elaborated that on 29-12- 1998 an application was moved by 4th Union viz. Mehnatkash Union for registration in the Establishment of respondent No,8, S.G. Fiber Mills Ltd upon which the Registrar called for objections from the existing Unions.
Thereafter, on 11-2-1999 the application of Mehnatksh Union was rejected Again on 13-2-1990 Mehnatkash Union moved a second application, which was yet again rejected by the Registrar on 9-3-1999 and similarly the appeal filed in the Labour Court was dismissed. However, on 26-6-1999 a third application was moved by the same group of people though under a different name viz. S.G. Fiber Labour Union viz. Respondent No,3 and the same was accepted by the Registrar after inviting objections etc. Learned Counsel has pointed out that the Registrar had written to respondent No,3 viz. S.G. Fiber Union regarding the objections and inviting comments.
However, despite the fact that the said Union failed to respondent the certificate was issued by the Registrar on 29-'9-1999. Learned counsel has, therefore, submitted that in the circumstances of the case the issuance of the certificate could not be upheld in law as the comments of respondent No,3 were not before the Registrar at that time. Even otherwise the Registrar had failed to apply his mind to the facts of the matter and therefore, pass a proper order.
22. Mr. S.M. Yaqoob, learned counsel for respondent No,6 viz. S.G. Fiber Mills Limited in C.P. 543 has submitted firstly that as far as the issue of alternative remedies is concerned, section 10 of the Industrial Relations Ordinance only provides for the cancellation of registration by the Registrar and does not lay down any procedure whereby the Employer or any other existing trade union can challenge such registration. Hence, in the circumstances, the petitioners had no alternative except to approach this Court by way of a Constitutional petition. For this proposition learned counsel has relied upon. Muhammad Idris v. East Pakistan Timber Merchants Group (1999 PLC 312).
23. Learned counsel has further submitted that per well-settled case-law the employer and the existing trade unions have to be consulted by the Registrar before registering another trade union. He has cited: N..D.F.C.
Union. Registrar of Trade Union (1991 PLC 841), Burewala Textile Mils Ltd. v. Registrar of Trade Unions (1994 PLC 323) and Ghee Corporation of Pakistan v. Registrar of Trade Unions (1991 PLC 207) in support of this proposition.
24. Learned counsel has criticized the Registrar's directives that the challenge to respondent No,3's registration could be settled at the time of election of the CBA since the proceedings under section 7 of the Industrial Relations Ordinance for registration of a trade union are completely different from those under section 22, which regulates the election of the CBA. Further learned counsel has submitted that section 22 of the I.R.O.
Contemplates that all the trade unions who contest the election of CBA have been validly registered. Hence no proceedings under section 22 could be undertaken unless the question regarding the respondent No,3's registration is settled. Next, learned counsel has submitted that the Company was sent no notice regarding the proposed registration of respondent No,3 and has invited my attention to Annexure "C" to the main petition where although other trade unions were invited to attend before the Registrar regarding the proposed registration of respondent No,3, the company was not so invited although its name is present in Annexure 3 but had been scored out. Similarly, learned counsel has submitted that Annexure "D" is a list of 12 objections raised by the existing Unions, which was sent by the Registrar to the respondent No,3. To which no reply was ever received by the Registrar and hence the registration of said respondent is again mala fide. In this respect learned counsel has submitted that the so-called reply filed by respondent. No,3 viz. Annexure R.3/D alongwith its counter-affidavit is forged and should not be considered. Next learned counsel has submitted that the diary of the Registrar is non-speaking and displays no application of mind at all. In this connection he has referred to pages 4 and 5 of the diary sheets, which display an investigation process in the matter but this is not borne out from the facts of the case. Learned counsel has submitted that the minutes of the meeting of respondent No,3 dated 1-5-1999. Which has been filed as Annexure C/9 to the counter-affidavit of respondent No,6 shows that two hundred workers attended. This per learned counsel, is not possible out of a total of 543 workers in the factory. Similarly, the three office-bearers who were shown as being present cannot be substantiated as they were at the relevant time performing their duties in the factory per Annexure C/13 to respondent No,6's counter- affidavit. Again learned counsel has submitted that on page 5 of the Registrar's diary sheet 149 workers were proved, which constitute 1/5th of the total number of workers and consequently certification was granted.
However, form "C" was not considered, which is a must for membership and not the workers Company I.D.
Card. Again, per Annexure C/12 to the said counter-affidavit, the Registrar has sought Mehnatksh Union's explanation regarding dual membership, which does not at all figure in the note sheet.
25. Finally, learned counsel has submitted that at the time when respondent No,3 submitted its application for membership a total number of 583 workers were employed in the factory out of which only 90 were available and assuming that all 90 were present in the factory at that time, these do not constitute 1/5th of the total strength. Hence the respondent No,3 Union could not be registered as such. As regards the role of the Registrar learned counsel has submitted that he must pass a speaking order after applying his mind in support of which he has relied upon Holiday Inn Workers Union v. Registrar of Trade Unions (supra), B.S. Magnetic (Pvt.) Ltd 8 Sindh Labour Count No,5 (1997 PLC 556) and Messrs Hino Pak Motors Ltd v. Chairman Sindh Labour Appellate Tribunal (supra). Learned counsel has, therefore, supported the petition and prayed that the registration certificate of respondent No,3 be cancelled.
26. I have heard all the Learned counsel as well as the Learned A.A.-G. My conclusions are as follows:--
27. It would be seen that in all these matters the following common issues have been raised:--
(a) Whether the petitions are maintainable?
(b) Whether the impugned registration of the trade union in question can be sustained under the law?
(c) Whether the impugned order of the Registrar as to holding of the referendum in question can be challenged?
28. As to the first issue viz. Maintainability, it was held by the Honourable Supreme Court in Esssa Cement Factory Workers Union v. Registrar Trade Unions, Hyderabad Region (supra) that neither the employer nor the trade union already existing in the same establishment can claim locus standi to challenge the decision of the Registrar under section 8 of the I.R.O. Merely on the ground that no opportunity of hearing was provided to them or their objections raised before the Registrar were not considered before such decision. In the said case the Honourable Supreme Court was seized of an appeal filed by an existing trade union against the Registrar whereby the Registrar's order as to registration of another trade union was challenged on the basis that the objections raised by the petitioner/union before the Registrar were not considered. It was also observed by the Honourable Supreme Court that per section 7(2) of the I.R.O. Certain conditions have to be fulfilled before a trade union can be registered by the Registrar to his satisfaction. This satisfaction implied proper application of mind by the Registrar and therefore, the Registrar cannot act mechanically but must first conduct an inquiry to satisfy himself as to the conditions laid down in section 7(2) of the I.R.O. Similarly, in the case of Holiday Inn Workers Union v. Registrar of Trade Unions (supra) it was held by Wajeehuddin Ahmad, J. (as his Lordship then was) that registration of a trade union, being an act, which was neither mechanical or automatic, required satisfaction on the part of the Registrar as to observance of the requirements of the I.R.O. Such satisfaction, although being a state of mind, yet the same should be reflected in the act itself and should be objective, otherwise it would be exposed to scruitiny under the powers of judicial review per Article 199 of the Constitution.
The foregoing judgment was cited with approval by their Lordships in Essa Cement Factory Workers Union v.
Registrar Trade Unions, Hyderabad Region (supra).
29. A perusal of the foregoing decisions would, therefore, show that a petition would always be maintainable where the allegation was that the Registrar of Trade Unions had not applied his mind judiciously as to whether the trade union should be registered or not and had passed a whimsical and slipshod order. This would be in consonance with the well-established principle that Constitutional remedies would always be available where any statutory or executive functionary entrusted with responsibility for taking certain action in accordance with law has not done so. As held in Essa Cement Factory Workers Union v. Registrar. Trade Unions, Hyderabad Region (supra) even disputed facts are not immune from scrutiny by the High Court in exercise of its Constitutional jurisdiction and when it was not possible for the Court itself to hold an inquiry in this regard, the matter can be referred to the Registrar for further inquiry.
30. As regards the contention raised by Mr. Ch. Rasheed Ahmed, learned counsel appearing for respondent No,3 in C.P. No, 292 of 2000 viza-viz non-maintainability of these petitions, in my opinion, the same cannot be upheld in view of the Honourable Supreme Court's latest pronouncement in Essa Cement Industries case (supra). The case of Fateh Muhammad v. Registrar of Trade Unions and Khas Traders v. Registrar of Trade Unions (supra) relied upon by the learned counsel are distinguishable as there the issue before a Learned Division Bench of this Court was not whether the Registrar had applied his mind judiciously in order to satisfy himself whether the inquiry in question in fact had been carried out. Similarly, in the Case of Hakimsons Chemical Industries (Pvt) Ltd v. Registrar of Trade. Union (supra) which was cited by Mr. Choudhry Rashid, Ahmad the Honourable Supreme Court observed that a full-fledged enquiry was not necessary. In my view this is not the issue before this Court since per the petitioners such enquiry was defective inasmuch as the Registrar did not apply his mind before passing the impugned order and not whether an enquiry was held. So also in the instant case the Honourable Supreme Court held that whether or not a member of the impugned trade union was a worker was a factual issue and could not be agitated in writ jurisdiction. Again there is no cavil with this proposition but yet again this issue is not before the Court. Secondly, as regards the import of section 9 of the I.R.O. Viz. That the matter of registration stands concluded before the Registrar upon issuance of a certificate to that effect, in my opinion, this cannot seal the fact of registration permanently. As adverted to above what is justiciable is the Registrar's function of having exercised his mind judiciously in order to satisfy himself regarding the issue of registration. Consequently, the cases cited by the learned counsel in support of the foregoing proposition viz. Euro Chemical v. Registrar of Unions and NBP People's Federation v. Industrial Relation Commission (supra) do not help him at all because in these cases the Registrar's function was not before the Court.
31. As far as C.P. No,477 of 1988 entitled Atlas Group of Companies Employees Union v. Registrar of Trade Unions and three others is concerned, it would be seen that the Registrar's orders registering respondent No,3 viz. Atlas Group of Companies Mehnatkash Union were impugned on the basis that actually no enquiry was made regarding the 1/5th membership of respondent trade union and that no one from the Establishment or the other trade unions were called by the Registrar for verifying the requisite membership of the impugned trade union. The said petition was dismissed, vide order dated 3-12-1999 by this Court on the basis that under the law the Registrar was not bound to call any one from the establishment or the other trade unions while carrying out the necessary enquiry under section 7(2)(b) of the I.R.O. Reliance was made upon Messrs Hakim Sons Chemical Industries (Pvt.) Ltd. v. Registrar of Trade Unions (supra). It was also held that after the registration of the trade union the proper remedy for challenging the registration was to submit a complaint in writing under section 10(1) of the I.R.O. It would be seen that the impugned registration of respondent No,4 Trade Union viz in C.P. 292 of 2000 vide certificate dated 19-9-1998 was previously challenged by the petitioner Union namely Atlas Group of Companies Employees Union in C.P. No,427 of 1998 which, as stated previously, was dismissed. Consequently in my opinion this issue cannot be reagitated in C.P. No,328 of 2000 on a different legal footing namely, the failure of the Registrar to pass a speaking order after having judiciously considered the matter. To that extent, therefore, I would hold that C.P. No,29 of 2000 is not maintainable. However, with regard to the other objection raised by the petitioner vis-a-vis section 22(1) of the I.R.O. As the same was not decided in C.P. No,427 of 1998, this can be considered by this Court.
32. Applying the foregoing principles of law to the facts of the present matters it would be seen that in C.P.
No,543 of 1999 and C.P. No,328 of 2000 the petitioners have firstly impugned the registration of the respondent No,3 Trade Union as being not in accordance with the law inasmuch as the discretion vested with the Registrar per section 8 of the I.R.O. Has not been properly exercised. The second objection of the petitioners is that the application of respondent No,3 for holding referendum proceedings under section 22(2) of the I.R.O. Is also not in accordance with the law since the latter respondent Union could not do so without first being validly registered as a trade union in C.P. 292 of 2000. The Registrar's directive for holding of a referendum upon the application of respondent No,4 Trade Union has been impugned on the ground that firstly the said Trade Union was unlawfully registered as it did not have the necessary 1/5th workers as its members per section 7(2) of the I.R.O. And hence ipso facto it did not qualify for registration. The second objection is that the Registrar did not determine whether or not the said Trade Union had the necessary 1/3rd numbers of workers as its members before passing the impugned orders. In my opinion all these objections are legal objections and call in question the function of a statutory authority particularly with regard to the discretion exercisable by him under the law, which is always justifiable viz-a-viz Constitutional remedies. Hence, I would hold to the extent mentioned above that these petitions are maintainable except as already stated C.P. No,292 of 2000. It is, of course, another matter whether the petitioner's objections could be upheld by this Court.
33. In this connection, the first objection is that the Registrar had passed slip shod orders and not applied his mind while issuing the impugned registration certificate under sections 7 and 8 of the I.R.O. Section 8(1) of the I.R.O. Lays down, inter alia, that the Registrar upon being satisfied that the trade union has complied with all the requirements of the Ordinance shall register the trade union in a prescribed register and issue a registration certificate in the prescribed form within a period of 15 days from the date of receipt of the application. A perusal of the Registrar's diary, which has been brought on the record would show that in the case of Messrs S.G. Fiber Labour Union, which is respondent No,3 in C.P. No,543 of 1999 and C.P. No,328 of 2000 an application was received from the said Union for registration, which was put up before the Additional Director, Trade Unions and thereafter an enquiry was conducted by him and it was found that the applicant had proved their 1/5th membership in the Establishment by producing 149 workers in their support and thus the provision of section 7(1)(b) of the I.R.O. Was fulfilled. Hence, it was recommended that the said Union may be allowed to be registered. These findings were put up before the Joint Director of Labour who, in turn, recommended the same and passed it on to the Deputy Director Trade Unions and finally when the matter went up to the Registrar, he granted his approval for the registration. I have perused the enquiry carried out in the matter, which appears to be in order since 149 workers were physically produced before the concerned officer, which appears to be more than 1/5th of the total, number of workers in the Establishment. However, it is conspicuous to note that the Registrar has only directed that the impugned Trade Union be registered by merely using the word "Register".
This in my opinion is not a speaking order and hardly displays any application of mind at all by the Registrar.
Hence, the impugned registration is set aside with a directions to the Registrar to first conduct an impartial enquiry in the matter and then to pass a speaking order.
34. Reverting now to the other objection of the petitioners insofar as the holding of the referendum in question is concerned, it would be seen that section 22(2) of the I.R.O. Contemplates that where there are more than one registered trade union in an Establishment or group of Establishment, the Registrar shall, upon an application made in this behalf by any such trade union, which has its members not less than 1/3rd of the total number of workmen employed in such Establishment etc., hold a secret ballot in order to determine as to which one of such trade unions shall be the CBA of the Establishment. In my view, therefore, the letter of the law clearly envisages that before any application for holding of a referendum by a registered trade union in an Establishment, which has more than one trade union, can be considered by the Registrar, he has to arrive at a conclusion that the Applicant trade union had at least 1/3rd of the workers in the Establishment as its members.
In C.P. No,292 of 2000 the impugned order of the Additional Director Labour dated 15-6-2000 shows that he had carried out such an enquiry and had satisfied himself that respondent No,4 union, who was the applicant as regards the holding of the referendum in question, had the necessary 1/3rd membership out of the total number of workers in the Establishment and consequently he allowed the holding of the referendum through a secret ballot whereafter it would be clear as to which trade union would become the CBA. It would, therefore, again appear that the concerned officer had applied his mind and carried out the necessary enquiry before arriving at the conclusion that the Applicant Union had the necessary 1/3rd number of workers and hence no exception can be taken to the order dated 15-6-2000 in C.P. No,292 of 2000 whereby the referendum was allowed on the application of respondent No,4 Union. As regards the case of M/s. Hakim Sons Chemical Industries (Pvt.) Ltd. v.
Registrar of Trade Unions (supra), in my view there the controversy before the Honourable Supreme Court was not whether before moving of the application under section 22(2) of the I.R.O., the applicant trade union should have the necessary 1/3rd majority but whether the trade union in question could be registered as such by the Registrar under section 8 of the I.R.O. In that case, it was contended before the High Court as well as the Honourable Supreme Court that such registration could not be granted to the respondent trade union since some of its members were not workers as such. The Honourable Supreme Court held that this was a factual enquiry and could not be agitated in writ jurisdiction. It aceepted the enquiry of the Registrar under section 7(2)
(b) of the I.R.O. And held that this need not be a detailed enquiry or a full-fledged one as such. It also further held that whether or not the respondent trade union had the requisite number of workers as its members would also be settled since otherwise it would not be able to participate in the referendum for the CBA. In my view, therefore, the said judgment is distinguishable inasmuch as it did not touch the issue of whether the respondent trade union was eligible to apply for holding of the referendum for determining the CBA, which is, before this Court.
35. As regards C.P. No,543 of 1999 and C.P. No,328 of 2000 impugned registration of respondent No,3 Trade.
Union has been cancelled, all further proceedings connected with determination of the CBA upon the application of respondent No,3 are also set aside.
36. Consequently, for the foregoing facts and reasons the following orders are passed.
(a) C.P. No, 543 of 1999 and C.P. No,328 of 2000 are allowed to the extent that the impugned registration of respondent No,3 Trade Union viz. S.G. Fibre Labour Union is cancelled and the matter remanded back to the Registrar to consider the application of said Trade Union afresh and thereafter pass a speaking order after having satisfied himself as to fulfilment of all legal formalities etc. It is further directed that the Registrar shall, upon receiving an application from any registered Trade Union for election of the CBA, first determine the one- third majority of that union before proceedings further as per law.
(b) C.P. No,292 of 2000 is dismissed with a direction to the Registrar to proceed further per law for determining the CBA in the Establishment.