Messrs. CRESCENT GARMENT INDUSTRIES LIMITED Versus WORKERS' UNION
DECISION
This appeal is directed against the order, dated 18‑9‑1988, passed by the learned Presiding Officer, Sind Labour Court No. IV, at Karachi.
2. The brief facts leading to this appeal are that the respondent No.l is Trade Union, registered with respondent No. 2, who is Registrar of Trade Unions, and also has status of `C.B.A.'
3. On 6‑3‑1988, in Case No. 24(48) of 1988 and 4‑A(44) of 1988 the Chairman, N.I.R.C., prohibited strike and directed respondent No. 1 not to indulge in acts of unfair labour practice. On 27‑6‑1988 the respondent is alleged to have gone on/instigated an illegal strike without notice. The learned Member N.I.R.C. passed another order on same date directing the respondent to call off illegal strike but the said orders were not obeyed by respondent No. 1 and illegal strike was continued till 4‑7‑1988 on which date an agreement was concluded between the management and the union. Again on 14‑7‑1988 the workers at the alleged instance and instigation of respondent No. 1 proceeded on strike in violation of sections 26 and 28 of I.R.O. The applicants, therefore, moved an application under section 34 of the I.R.O., 1969, with the Labour Court impleading respondent No. 1 and 2 as parties praying that the respondent No. 2 be directed to file an application under section 10 of I.R.O., 1969, in the Labour Court for cancellation of the registration of respondent No. 1 on the ground that they had called an illegal strike. The learned Labour Court dismissed the application of the appellants on the legal ground that it had no jurisdiction to give such directions.
4. I have heard Mr. Mahmood Abdul Ghani, learned representative for the appellant and Mr. Ibne Ayub, learned representative for respondent No. 1. None appeared for respondent No. 2.
5. The contention of Mr. Mehmood Abdul Ghani is that under the Industrial Relations Ordinance a right has been given to the workers to call the strike in accordance with the procedure laid down therein and the illegal strikes are prohibited by the I.R.O. It is submitted that conversely a right is devolved upon the established viz. the appellants that no illegal strike would be called Ill it establishment. It is further submitted, that though under section 10 the power lies with the Registrar Trade Union to file a complaint in the Labour Court for cancellation of the registration of the Union who indulges in illegal strike but the failure on the part of the Registrar of Trade Unions to move, application entitled the establishment to enforce its right by moving the Labour Court in this respect. It is submitted that even under section 10 the appellant has to get the registration of such union cancelled by enforcing the Registrar through the Labour Court to comply with the provision of section 10. It is submitted that this is a right guaranteed under the I.R.O. and, therefore, would come within the purview of the words `any right' used in section 34.
6. Mr. Mahmood Abdul Ghani has relied upon tire case of Karachi Pipe Mills Ltd. v. Sind Labour Appellate Tribunal and 2 others 1984 P L C 1359 where in a Full Bench of Sind High Court considered the meaning and scope of word `right' as used in section 34. Their Lordships have referred to a decision of through the Labour Court in the case of Mian Irshad All v. Government of Pakistan herein it was observed that:‑
"The trend of authority is that the word `right' for the enforcement whereof the Court will come to the rescue of the aggrieved person, is not in the strict juristic sense."
Reference was also made by the Full Bench to the observations of their Lordships of Supreme Court in the case of Mian Fazal Din v. Lahore Improvement Trust P L D 1969 S C 223 wherein it is observed:‑‑
"It is clear from the above that the right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or tile curtailment of a privilege or liberty or franchise.
Reference was also made to the observations in the case of Piran Ditta v. Noor Muhammad P L D1966 Kar. 618 wherein it was held by the High Court:‑
"The last contention emphasises the difference between a right or privilege on the one hand, and a procedure on the other hand. The demarcation or their scopes is not easy because the meaning of the word `right' has yet not been stated with precision."
"There is no doubt that in suitable circumstances a procedure may also be right. Thus, the right of appeal is a procedure as well as a legal right. Whether it is more of a procedure or more of a legal right depends on which of the two aspects is more important in a given situation; therefore, the contention of learned counsel that section 18 of the Karachi Small Causes Courts Act, 1929, did not confer a right because 'it simply provided a shorter procedure is not a complete argument for excluding the application of clauses (c) and (c) unless counsel could further show that it was not a remedy or a privilege or a legal right. A `legal right' is that which is recognizable and enforceable at law."
In the case of Nickell v. Resenfield 1982 Cal. App. 369 it was observed as under:‑
"When we speak of a person having a right, we must necessarily refer to a civil right, as distinguished from elemental idea of right absolute. We must have in mind a right given and protected by law, and a person's enjoyment thereof is regulated entirely by the absolute, nothing but, chaos could result.'
8. Mr. Mahmood Abdul Ghani also relied upon the case of Mushtaq Hussain Shah v. Riaz Muhammad Hazarvi P L C 1978 Kar. 612 where in ZA. Channa, J. (as he then was) held that:‑
"In my humble view, the right to registration by a Trade Union having been conferred by the I.R.O., has also liability to cancellation of registration under certain circumstances, and the statute having provided the authorities by which and the mode in which registration was to be granted or cancelled, the right or the liability cannot be enforced in an other manner or through any other forum."
In the reported case trade union had been registered by Registrar of‑Trade Unions under section 8 of the I.R.O. but before the grant of registration to the said union respondent No. 1 filed a suit in the Civil Court for declaration that rival union was not entitled to registration and injunction for restricting its registration. While repelling the arguments of the learned counsel for respondent No. 1 that under the I.R.O. no right was conferred upon respondent No. 1 to apply for cancellation, reference was made to section 10 of I.R.O. and it was observed by the learned Judge that `it was open to respondent No. 1 to approach the Labour Court to direct the Registrar to cancel the registration of the applicant if its registration by the Registrar was in contravention of the provisions of the I.R.O.' The trend of discussion in the above case shows that when act creates an obligation and enforces the performance in specific m ner performance cannot be enforced in any other manner.
9. Reference was made in that case to the observations of the Supreme Court in the case of Abul A'la Maudoodi v. Government of Pakistan P L D 1964 `~ C 673, wherein it was observed:‑ :.
"I would have no hesitation in holding that where a special statute dealing with a special subject created special liabilities as also provided a special remedy or procedure for the enforcement of that liability then in order to bring about the consequences contemplated by that statute for the breaches of its provisions recourse should be had to that statute and not to any other statute.
10. The learned Labour Court while rejecting the application of the appellant had relied upon the case of Riaz Hussain Shah and 23 others v. Punjab Labour Court No. 2 and others P L D 1977 Lah. 316 wherein it wits held that:‑
"Objection to Constitution of Union being repugnant certain rules can only be taken note of by Registrar who can lodge a complaint with Labour Court under section 10 but Labour Court cannot take up such issue suo Motu but can direct Registrar to caned registration."
11. Reliance was also placed by the learned Trial Judge on the case of National Bank of Pakistan People's Federation v. N.I.R.C.Islamabad P L D 1975 Kar. 320. A Division Bench of High COurt at Karachi held:‑
"The certificate of registration granted to a Trade Union cannot be cancelled otherwise than in manner laid down under section 10."
12. The learned counsel for the appellants, Mr. Mahmood Abdul Ghani also relied upon an unreported decision of this Tribunal in Appeal No. HYD‑249 of 1988 Messrs Abbasien international v. Abbasien International Workers Union, wherein this Tribunal holding the respondent to be illegally constituted directed Registrar of Trade Unions, Hyderabad. to cancel the registration of Trade Union forthwith.
13. Mr. Mehmood Abdul Ghani also referred to a decision of this Tribunal in the case of Mehran Cotton Ginning Factory Employees' Union v. Registrar of Trade Unions 1983 P L C 698. In that case the Registrar had filed the complaint under section 10 of the I.R.O. before the Labour Court for cancellation of the registration of Trade Union which was granted by the Labour Court. In appeal this Tribunal held that the direction of Labour Court for cancellation of registration of Trade Union was justified. Obviously this reported case is distinguishable, as the Labour Court had been moved by the Registrar, as provided under section 10 of I.R.O.
14. Under section 3(a) right is conferred upon the workers to establish and join associations of their own choosing. Under clause (b) of the same section similar right is conferred upon the employers to establish and join associations of their own choosing. The association formed by the workers is known as Trade Union and is regulated by the I.R.O. However, there appears no provision under the I.R.O. regulating associations formed by the employers. Section 8 provides for registration of Trade Union by Registrar and section 10 provides for cancellation of registration in certain cases. The right to form the Trade Union is a right specially conferred upon the workers and, therefore, in my opinion, the right, if any, to have the registration cancelled under section 10 would also devolve upon the workers and not upon the employer.
15. No doubt under the provisions of Industrial Relations Ordinance the employer has got right that no illegal strike be called in his Organization. The question is whether that right could so extend, that employer could seek for cancellation of the registration of Trade Union under section 10 of the I.R.O. Section 46‑A provides for procedure in the case of illegal strike or lock‑out. Under subsection (3) the Labour Court could direct that such strike be called off and if the order of the Labour Court is contravened then under subsection (7) the Labour Court may order dismissal of any of the striking workers and if the Court comes to a finding that registered trade union has abated or committed commission of such contraventions, the finding shall have the effect of cancellation of the registration of such trade union. Thus, the right of the employer against the trade union, which calls or abates an illegal strike, can be enforced under section 46‑A only and in accordance with the procedure laid down therein. As laid down by the Hon'ble Supreme Court in the aforesaid case of Abul A'la Maudoodi, if special statute creates special liability and provides special remedy, the remedy can be enforced in accordance with that provision only.
16. The relevant portion of section 10 of the I.R.O. may be reproduced as under:‑
"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."
17. The only provision of the Ordinance which the respondent union is, alleged to have contravened is alleged commission of illegal strike in violation of sections 25 and 28 of I.R.O. Under the I.R.O. the Registrar of the illegal (sic) and, therefore, on that ground he cannot file any application for cancellation of I1 the registration. This power is vested in the Labour Court under section 46‑A(3) to hold any strike illegal and as pointed out subsection (7) provides for cancellation of registration.
18. In none of the cases referred to above there was direct question under issue as to whether a Labour Court could direct the Registrar of Trade Unions in case of illegal strike to file a complaint for cancellation of trade Union under section 10. However, in' the unreported case of Abbasien International v. Abbasien International Workers Union‑‑Appeal No. HYD‑249 of 1988 this Tribunal had allowed the appeal of the establishment against illegal registration by the Registrar and ordered cancellation of registration. With due respects it may be pointed out that neither the Labour Court nor the Tribunal has got suo motu power to order cancellation of the registration of Trade Union unless there is complaint in writing under section 10 by the Registrar. Even in the present case the appellant had not moved the Labour Court for cancellation of registration but moved only for direction to the Registrar to file such complaint.
19. There can be no doubt that where special liability is created and right of remedy is specifically provided by specific provision of special statutes such right and liability can be enforced only in accordance with such specific provisions of that statute. As pointed out above neither the Registrar could hold any strike to be illegal nor can the employer enforce his right against illegal strike through the Registrar by forcing him to move application for cancellation. In cases of illegal F strike procedure is specifically laid down in section 46‑A which also provides for cancellation of registration of trade union. The right of the employer, if any, can be enforced in accordance with the procedure laid down in section 46‑A only.
20. In the aforesaid case of Mushtaq Hussain Shah v. Riaz Muhammad Hazarvi P L D 1978 Kar. 612, the observations were made by the learned Single Judge of the High Court, where the move for cancellation of the registration of Trade Union was made by the workers and not by the establishment. Furthermore the ground therein was that when one Union was already registered other Union could not be registered. The facts of the reported case are quite distinguishable from the facts of this case and what has been held therein is that the cancellation can be made only in accordance with section 10 and in no other way.
21. This application before the learned Labour Court for directing the Registrar to move for cancellation of Trade Union on the ground of illegal strike is, m my opinion, misconceived and has been rightly rejected by the learned Labour Court.
22. The appeal is, accordingly, dismissed.
M.Y.H./1399/Lb. S Appeal dismissed.