USA CEMENT INDUSTRIES WORKERS' UNION vs REGISTRAR OF TRADE UNIONS, HYDERABAD REGION, HYDERABAD and 4 others

ORDER

' MAMOON KAZI, J.-- This petition, for leave to appeal, has arisen under the following circumstances.

2. The petitioners are registered trade union of workers and were declared Collective Bargaining Agent for the establishment of Messrs Essa Cement Industries Limited. It appears that respondent No,2 applied to the Registrar of Trade Unions Hyderabad Region, the respondent No,1, for its registration in the said establishment. Apart from the petitioners, two other unions of workers had already been registered by the respondent No,1 in compliance with the provisions of section 8 of the Industrial Relations Ordinance, 1969 (hereinafter referred to as "the I.R.O."). When the petitioners came to know about such application. It raised objections before the respondent No,1 viz., firstly, that the respondent No,2 was not a union of workers under the I.R.O. As some of its members were employed as officers and thus they could not join a trade union of workers and secondly, that the said respondents did not have as its members one-fifth of the total number of workmen employed in the said establishment as required by section 7(2)(a) and (b) of the I.R.O. Nevertheless, the said respondents were registered as the fourth union in the said establishment. The order of the Registrar was challenged by the petitioners before the High Court of Sindh in Constitutional Petition No, S-8 of 1997, which was dismissed, vide order dated 2-3-1998 by the learned Judge in Chambers as it was held that the petition raised disputed questions of fact which could not be dealt with in the exercise of Constitutional jurisdiction.

3. Mr. M.L. Shahani, learned counsel for the petitioners has raised a two-fold contention before us.

Firstly, his contention is that a report dated 25-2-1997 was submitted to the Registrar, Trade Unions by the Labour Officer (Factories) which indicated that many of the members of the respondent No,2 had been promoted as officers and they were getting salaries ranging between Rs,3,000 and 8,000 per month. Consequently, according to the learned counsel, the said union was registered in contravention of the provisions of section 7(2)(a) of the I.R.O. Which places an embargo on the power of the Registrar to register a trade union of workmen unless all its members are workmen actually engaged or employed another industry with which the trade union is connected. Secondly, according to the learned counsel, the said report also failed to indicate that the respondent No,2 had the required membership of workmen as contemplated by clause (b) of subsection (2) of section 7 of the I.R.O.

4. In order to appreciate the said contentions of Mr. Shahani, clause (2) of section 7 is reproduced as under:- "(2) without prejudice to the provisions of subsection (1), a trade union of workmen shall not be entitled to registration under this Ordinance--

(a) unless all its members are workmen actually engaged or employed in the industry with which the trade union is connected; and

(b) where there are two or more registered trade unions in the establishment, group of establishments or industry with which the trade union is connected, unless it has as its members not less than one-fifth of the total number of workmen employed in such establishment, group of establishments or industry, as the case may be."

5. As is evident from subsection (2) of section 7, clauses (a) and (b), its provisions are mandatory in nature and a trade union of workmen cannot be registered by the Registrar unless he is satisfied that conditions laid down therein have been fulfilled by the union. Reference to section 8 of the I.R.O. Further indicates that satisfaction only of the Registrar is required. Satisfaction implies proper application of mind and, therefore, the Registrar cannot act mechanically but he must first conduct an enquiry to satisfy himself as to the conditions laid down in subsection (2) of section 7 for registration of a trade union of workmen. Circumstances of the case, however, indicate that not only such an enquiry was conducted by the Registrar through the Labor Officer concerned, as would appear from the two reports in this behalf, dated 25-2-1997 and 15-3-1997 respectively submitted by the latter to the Registrar, but the two reports further indicate that the Registrar was not satisfied with the first report and, therefore, a second enquiry was ordered to be conducted by him.

6. Mr. Shahani has, however, argued that it was incumbent on the learned Judge in Chambers to consider whether a proper enquiry into the facts had been conducted by the Registrar before issuing a certificate to the respondent-union under section 8 of the I.R.O. According to the learned counsel, such a contention had been raised before the learned Judge in Chambers but the same was brushed aside on the ground that the questions of fact could not be enquired into by him while exercising Constitutional jurisdiction. But the learned counsel has very strongly argued that an enquiry into the jurisdictional facts can be made even in the Constitutional jurisdiction.

Therefore, according to the learned counsel, an illegality was patently evident on the face of the judgment delivered by the learned Judge in Chambers. The learned counsel has also taken exception to the fact that the petitioners were not permitted by the Registrar to assist him in the enquiry conducted by him, otherwise, according to him, such a material error might not have been committed by the Registrar.

7. So far as the first contention of the learned counsel is concerned, there can be no cavil with the preposition that jurisdictional facts are not immune from scrutiny by the High Court in the exercise of its Constitutional jurisdiction and even if it was not possible for the Court to itself embark upon an enquiry in this regard, the matter could be referred to the Registrar for further enquiry. However, as was indicated earlier, the Registrar appears to have satisfied itself as to the requirements of registration before passing an order in favor of the respondent-union. The very fact that two enquiries were got conducted by the Registrar in this regard through his subordinate is indicative of his satisfaction as required by the law. It, therefore, appears that there was no material placed before the High Court calling for its interference in this regard, therefore, the learned Judge in Chambers appears to have rightly declined to reopen the question. The first contention of Mr. Shahani, therefore, appears to have no force

8. So far as the second contention of Mr. Shani is concerned, it may be pointed out that although, there is no hard and Fast rule laid down in the I.R.O. Directing the manner in which an enquiry is to be conducted by the Registrar under section 8, but nothing prevents the Registrar from seeking assistance either from the employer concerned or the union or unions formed by the workmen in the same establishment. However, the .Registrar is not duty-bound to seek assistance either of the employer or such unions. Such question came up for determination before the Hig",1 Court of Sindh in Bata Shoe Co. (Pakistan) Ltd. v. Registrar, Trade Unions of Sindh (PLD 1978 Kar. 567), where it was observed in this regard: "In other words, there is no room for any challenge by an employer, who may consider itself affected by the deOsion of the Registrar in favour of a Trade Union. It follows, therefore, that the law does not contemplate any notice to the employer and no grievance can be made if the Registrar or the Appellate Court does not hear the employer."

8-A. Although, the observations made in this case are applicable only to the employer who may object to the registration of a trade union of workmen without notice to him, but the observations equally apply to a trade union of workmen. In another case reported as Holiday Inn Workers' Union v. Registrar of Trade Unions (1992 PLC 23), similar view was expressed by another learned Judge of the same High Court. It was observed in this case that the matter of registration is one between a trade union applying for registration and the Registrar and others, including the pre-existing trade unions or the employer have no say in the matter. The same view had earlier found favor in yet another judgment of the same Court in National Beverage Employees' Union v. Registrar, Trade Unions, Government of Sindh (1986 PLC 533). This judgment was also relied upon by the learned Judge in Chambers in the present case.

9. It, therefore, follows that neither the employer nor a trade union already4xisting in the, same establishment can claim locus standi to challenge the decision of the Registrar merely on the group that no opportunity of hearing was provided to it or an objection raised by it before the Registrar was not considered before such decision.

10. It is pertinent to notice that although, registration of a trade union may be cancelled in case it has contravened or has been registered in contravention of any of the provisions of the I.R.O it wpuld be beyond the Registrar's competence to PSs such order unless the Labor Court so directs. No doubt, the High Court in the exercise of its Constitutional jurisdiction may order the Registrar to seek such directions from the Labour Court. As required by section 10., but the same would depend upon the circumstances of each case. The circumstances of the present case did not warrant such interference by the High Court as the petitioners have failed to establish that the discretion vesting in the Registrar was not properly exercised.

11. In the result, the petition is dismissed and leave is refused.