Secretary of Aircraft Engineers of Bangladesh Vs. Registrar of Trade Union, 45 DLR (AD) (1993) 122

Case No: Civil Appeal Nos. 14-18 of 1993

Judge: Mustafa Kamal ,

Court: Appellate Division ,,

Advocate: Mr. A. F. Hassan Ariff,Syed Amirul Islam,Mr. Rafique-ul-Huq,Mr. Asrarul Hossain,Mr. Amir Hossain Khondker,,

Citation: 45 DLR (AD) (1993) 122

Case Year: 1993

Appellant: Secretary of Aircraft Engineers of Bangladesh

Respondent: Registrar of Trade Union

Subject: Labour Law,

Delivery Date: 1993-8-18

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Shahabuddin Ahmed CJ
M H Rahman J
ATM Afzal J
Mustafa Kamal J
Latifur Rahman J
 
Secretary of Aircraft Engineers of Bangladesh
……………Appellants
Vs.
Registrar of Trade Unions and ors
.........................Respondents  [In CA No.14 of 1993]
Aircraft Workshop Technical Workers Union
……….………Appellants
Vs.
Registrar of Trade Unions and ors
...........................Respondents [In CA No.15 of 1993]
Bangladesh Biman Flying Service Association of Cabin Crew
..................Appellant
Vs.
Bangladesh Biman Sramik Union and ors
…………….Respondents [In CA No. 16 of 1993]
Bangladesh Airlines Pilots Association and another
…………….Appellants
Vs.
Registrar of Trade Unions and ors
…......................Respondents [In CA No. 17 of 1993]
Flight Engineers and Navigators Association and anr
………………Appellants
Vs.
Registrar of Trade Unions and ors
.........................Respondents [In CA No. 18. of 1993]
 
Judgment
August 18th, 1993.
 
Industrial Relations (Amendment) Act (XXII of 1990)
Sections 7(2) & 10
Trade Unions have to be organized “establishment-wise” and there cannot be at any given point of time more than 3 registered trade unions in an establishment. The registration may even be cancelled if membership of the union falls short of thirty percent. The purpose is not to restrict the right to form unions but give trade unions a shape and to chart out a well-ordered territory for their operation.   …. (11)
 
Case Referred to-
Asaduzzarnan Vs. Bangladesh 42 DLR (AD) 144;
 
Lawyers Involved:
Rafique-ul-Huq, Senior Advocate instructed by Mvi. Md. Wahidullah, Advocate-on-Record-For Appellants. (In CA No.14 of 1993).
Shamsul Hoque Siddique, Advocate-on-Record-­For the Respondent No. 1 (In CA No. 14 of 1993).
Hassan Arif, Deputy Attorney-General, (B Huss­ain, Deputy Attorney‑General with him), instructed by Shamsul Haque Siddique, Advocate-on-Record-­For Respondent No. 2 (In CA No. 14 of 1993).
Amir Hossain Khondker, Advocate (appeared with leave of the Court) (M A Tarek, Advocate with him), instructed by Sharifudclin Chaklader, Advocate­-on-Record-For Respondent No. 3 (In CA No. 14 of 1993).
Syed Amirul Islam, Advocate instructed by Mvi. Md. Wahidullah, Advocate-on-Record-For the Appellant. (In CA No. 15 of 1993).
Hassan Arif, Deputy Attorney-General, instruct­ed by B Hossain, Advocate-on-Record-For Res­pondent Nos. 1 and 2. (In CA No. 15 of 1993).
Amir Hossain Khandker, Advocate (appeared with leave of the court) (M A Tarek, Advocate with him), instructed by Sharifuddin Chaklader, Advocate-­on-Record-For Respondent No. 3. (In CA No. 15 of 1993).
Asrarul Hossain, Senior Advocate instructed by Faruque Ahmed, Advocate-on-Record-For the Appellant. (In CA No. 16 of 1993).
Shafique Ahmed, Advocate instructed by Aftab Hossain, Advocate‑on‑Record‑For Respondent No.1 (In CA No. 16 of 1993).
Amir Hossain Khondkar, Advocate (appeared with leave of the Court) (MA Tarek, Advocate with him), instructed by Sharifuddin Chaklader, Advocate-on-Record-For Respondent No. 5 (In CA No.16 of 1993).
Respondent Nos. 24 and 6-Not represented. (In CA No.17 of 1993).
Dr. Kamal Hossain, Senior Advocate instructed by Kazi Shahabuddin Ahmed, Advocate-on-Record -For the Appellants. (In CA No.17 of 1993).
Hassan Arif, Deputy Attorney-General (B Hossain, Deputy Attorney‑General with him), instructed by AW Mallik, Advocate-on-Record-For Respondent Nos. 1 and 2. (In CA No.17 of 1993).
Amir Hossain Khondkar, Advocate (appeared with leave of the Court) (M A Tarek, Advocate with him) instructed by Sharifuddin Chaklader, Advocate-­on-Record-For Respond No. 3 (In CA No. 17 of 1993).
Dr. Kamal Hossain, Senior Advocate instructed by Kazi Shahabuddin Ahmed, Advocate-on-Record -For the Appellants. (In CA No. 18 of 1993).
Hassan Arif, Deputy Attorney-General (B Hossain, Deputy Attorney-General with him), instructed by Zinnur Ahmed, Advocate-on-Record-­For Respondent Nos. 1 and 2. (In CA No. 18 of 1993).
Amir Hossain Khondkar, Advocate (appeared with leave of the Court) (MA Tarek, Advocate with him), instructed by Sharifuddin Chaklader, Advocate-­on-Record-For Respondent No. 3. (In CA No. 18 of 1993).
 
Civil Appeal Nos. 14‑18 of 1993.
(From the Judgment and order dated 14.7.92 passed by the High Court Division in Writ Petition Nos. 1311,1923, 1924 and 2648 of 1990 and Writ Petition No. 133 of 1991).
 
JUDGMENT
 
Mustafa Kamal J.
 
1. One registered trade union, namely, Bangladesh Biman Sramik Union and four existing Collective Bargaining Agents of the Bangladesh Biman Corporation, in brief, the Biman, namely, Bangladesh Airlines Pilots Association, Flight Engineers and Navigators Association, Aircraft Workshop Technical Workers Union and Society of Aircraft Engineers of Bangladesh Biman along with their respective Presidents obtained separate Rules Nisi respectively in Writ Petition Nos. 1311, 1923, 1924, 2648 of 1990 and 133 of 1991 in order of filing. By a common Judgment and order dated 14.7.92 a Division Bench of the High Court Division made the Rule absolute in Writ Petition No. 1311 of 1990 and made the Rule partly absolute in the other writ petitions. The last-named four Collective Bargaining Agents of the Biman preferred CA Nos. 17, 18, 15 and 14 of 1993 respectively and Bangladesh Biman Flying Service Association of Cabin Crew, which added itself as respondent No. 6 in Writ Petition No. 1311 of 1990, preferred CA No. 16 of 1993 from the said Judgment and order of the High Court Division. These appeals by leave have been heard together and will be disposed of by this common Judgment.
 
2. The background of the dispute involved in these appeals is that the Registrar of Trade Union, in brief, the Registrar registered the five writ petitioners as well as two other Unions as Trade Unions of the Biman under section 8 of the Industrial Relations Ordinance, 1969 (Ordinance XXIII of 1969), shortly the Ordinance, 1969. Only the five appellants were determined as the Collective Bargaining Agents of the Biman under section 22.
 
3. The Ordinance, 1969 was amended by the Industrial Relations (Amendment) Act, 1990, shortly, the Amendment Act, 1990. By section 2 thereof two provisions were added to sub‑section (2), of section 7 of the Ordinance, 1969 so that the entire sub‑section (2) of section 7 now reads as follows:
 
"7(2) A trade union of workers shall not be entitled to registration under this Ordinance unless it has a minimum membership of thirty per cent of the total number of workers employed in the establishment or group of establishment in which it is formed:
Provided that more than one establishment under the same employer, which are allied to and connected with one "another for the purpose of carrying on the same industry irrespective of their place of situation, shall be deemed to be one establishment for the purpose of this sub-section:
Provided further that where any doubt or dispute arises as to whether any two of more establishments are under the same employer or whether they are allied to or connected with one another for the purpose of carrying on the industry, the decision of the Registrar shall be final."
 
4. By Section 5 of the Amendment Act. 1990 a special provision was made as follows:
 
“5. Bishesh bidhan- 1. Ukto Ordinance ba apatato: balobat onno kono aine ja kichui thakuk na keno, ei ain dara sangshodhito ukto Ordinance er Section 7(2) er bidhan sammoto noy emon sakol biddoman Trade union er nam, proyojonio tadonter por Trade Union samuher Registrar sarkari gazette proggapon dara prokash koriben. 
(2) Upa-dhara (1) er odhin proggapon jarir tarikh hoite nobboi din otibahito hoibar por proggapone ullekhito trade unioner registration, upa-dhara (3) er bidhan sapekkhe batil hoibe.
(3) Upa-dhara (1) er odhin prokashito kono trade unioner nam gezzete prokash karar biruddhe apotti thakile uhar je kono karmokarta uktorup batiler purbe trade unionsamuher registrarer nikot ukto apotti lipibaddho koria abedon dakhil korite pariben ebong je trade unioner bapare eirup abedon dakhil kara hoibe sei trade union, upa-dhara (2) er bidhan satteo, bahal thakibe.  
(4) Upa-dhara (3) er odhin abedon praptir nobboi diner moddhe trade union samuher registrar abedonkari o shagshisto onnano pokkhoke shunanir sujog dia bishoytir upor tahar siddhanto prodan koriben ebong ukto siddhanto motabek jodi  shagshisto trade unionti upori-ukto Section 7(2) er bidhan sammoto noy bolia sabbasto hoy taha hoile siddhanto prodaner tarikh hoite trade unionti batil hoibe.”
 
5. The existing seven registered trade unions of the Biman including the writ petitioners were served with an order of the Registrar embodied in Memo No. RTU/CBA(3)/78/C‑40 dated 2.5.90 stating therein that in pursuance of an enquiry made under section 2 of the Amendment Act, 1990 it had been found that none of the seven existing trade unions was constituted in accordance with the newly‑introduced provisos to sub‑section (2) of section 7 of the Ordinance, 1969. The Registrar ordered that henceforth there will be two establishments in the Biman taking into account its running along commercial lines and in keeping with the characteristics of services rendered by its employees, namely, (i) Bangladesh Biman Ground Services and (ii) Bangladesh Biman Flying Services. He asked the seven registered trade unions of the Biman to submit their documents to his office for obtaining proper registration certificate. The Resistrar then caused a Notification to be published in the Bangladesh Gazette on 17.5.90 under section 5(1) of the Amendment Act, 1990 listing therein the names of the existing seven registered trade unions of the Biman, including the five writ petitioner‑unions, whose registration were liable to be cancelled.
 
6. The writ petitioners submitted objections in accordance with section 5(3) of the Amendment Act, 1990. However during pendency of the  proceeding before the Registrar under section 5(4) of the Amendment Act, 1990 the writ petitioners four of which were Collective Bargaining Agents and one of which was a registered trade union of the Biman commonly challenged the Registrar's order dated 2.5.90. Except in Writ Petition No. 1311 of 1990, the other writ petitioners also challenged the Notification of the Registrar dated 17.5.90 as also the vires of the two provisos to sub‑section (2) of section 7 and section 5 of the Amendment Act, 1990 on the ground that the amended legislation is violative of the fundamental right guaranteed by Article 38 of the Constitution.
 
7. The five writ petitioners had their own separate stories to tell, but the High Court Division, concentrating on their common cause, held that the common impugned order of the Registrar dated 2.5.90 was passed without lawful a6thority as it had not been mentioned anywhere in the said order that there was any doubt or dispute which necessitated the passing of the said order. The Registrar was not given any power, it held, to divide or unite any establishment for the purpose of registration of trade unions on the basis of the characteristics of services rendered by the employees of the Biman or for the purpose of its commercial management. It was not necessary in its opinion to decide the constitu­tionality of the two provisos added to sub‑section (2) of section 7 of the Ordinance, 1969. Section 5 of the Amendment Act, 1990 was held not to be violative of Article 38 of the Constitution as it had not curtailed the right of any worker to form a trade union or to become a member of a trade union. The Rule Nisi issued in Writ Petition No. 1311 of 1990 was made absolute and the Rules Nisi issued in the other writ petitions were made absolute in part as already noticed. The impugned order of the Registrar dated 2.5.90 was declared to have been made without lawful authority, but the impugned Notification dated 17.5.90 was not interfered with as the proceedings were still pending with the Registrar under section 5(4) of the Amendment Act. 1990.
 
8. Since the High Court Division did not decide upon the constitutionality of the two provisos and held that section 5 of the Amendment Act, 1990 was not violative of Article 38 of the Constitution, all the writ petitioners, except the appellant in CA No. 16 of 1993, have obtained leave to appeal from this Court and have urged a fresh consideration of these issues. The appellant in CA No. 16 of 1993 has supported the Registrar's order dated 2.5.90 and is aggrieved by its cancellation by the High Court Division.
 
9. Article 38 of the Constitution guarantees the right of freedom of association in the following manner:
 
"38. Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of morality or public order."
 
10. There can be no doubt that the right to form an association or union not only embraces the right to form a trade union but also that "the word 'form' in Article 38 does not limit the exercise of that right to the formation of an association. The right to form an association must of necessity imply the right to continue and carry on the activities of the association as well". Asaduzzaman Vs. Bangladesh, 42 DLR (AD) 144. The right is subject only to reasonable restrictions in the interests of morality or public order. The "restrictions", if any, must be relatable to "the right to form associations or unions". But so long as this right is not restricted, except on the ground of morality or public order, a statute may provide for the manner of organisation of associations or unions (including trade unions), the nature of its composition, required minimum strength, requirements and conditions of registration, cancellation of registration, supervision over the activities of an association or union (including trade union) and so on. These legislative exercises, so long as they do not restrict "the right to form associations or unions", may provide for an orderly and rational basis for their functioning. The legislative provisions can be set at naught only if it is found that they restrict die right of association or union without the restraint having any nexus with morality or public order or that they have the effect of rendering nugatory the effective exercise of the said right.
 
11. The Ordinance, 1969 is a piece of legislation of that sort. It provides for the manner and method of organisation of trade unions in an industry (as defined therein). Affirming the right to form an association or union, section 3 provides that, "subject to the provisions of the Ordinance, workers as well as employers, without distinction whatsoever shall have the right to establish and, subject only to the rules of the organisation concerned, to join associations of their choosing without previous authorisation”  (Underlines are mine). This section has its source Article 2 of Convention No. 87 adopted by the International Labour Organisation in 1948 and ratified by (former) Pakistan. But the Ordinance, 1969 follows its own method of organisation of trade unions, which may or may not be the same in other parts of the world. Trade unions have to be organised "establishment‑ wise". Establishment, “means any office, firm, industrial unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying on any industry" (section 2(iv) and industry "means any business, trade, manufacture, calling, service, employment or occupation". (Section 2(xiv). If a trade union, t1tus constituted "establishment‑wise", seeks registration, then it is not entitled to registration, meaning to say that it has no right of registration under section 7(2), unless it has a minimum of membership of thirty percent of the total number of workers employed in the establishment or group of establishments in which it is formed. Plainly speaking section 7(2) implies that there cannot be at any given point of time, more than 3 registered trade unions in an establishment. The registration of a trade union may even be cancelled, under section 10, if, inter alia, its membership has fallen short of the said thirty percent. The whole purpose of the legislative exercise is not to restrict the right to form associations or unions, but to give the trade union shape and to chart out a well‑ordered territory for their operation.
 
12. The appellants have not in any manner challenged any provisions of section 7(1) and section 7(2) (unamended) or section 10 as violative of fundamental rights. The burden of submissions or Dr. Kamal Hossain, Mr. Rafique-ul-Huq and Mr. Syed Amirul Islam, learned Counsels for the appellant-unions, is that the impugned legislation has the inevitable effect of bringing to an end an extinguishing the appellant-unions, particularly in view of section 11A of the Ordinance, 1969 which is as follows:
 
"11A. (1). No trade union which is unregistered or whose registration has been cancelled shall function as a trade union.
(2) No person shall collect any subscription for any fund of a trade union mentioned in sub‑section (1)."
 
They argued that the right to form an association or union, guaranteed by Article 38 of the Constitution, includes the right to its continuance which is now being denied by the impugned legislation. The threatened cancellation of registration is tantamount to negating the effective existence of the fundamental right and as such it is violative of the constitutional guarantee which cannot be extinguished by law and on which reasonable restrictions may be imposed only in the interest of public order or morality.
 
13. It is the common cause of the appellant-‑unions that their respective trade unions are separate and distinct from the other registered trade unions in that their respective members are rendering distinct and separate species of services to the Biman. They are special categories of professionals owing to their qualifications, mode of recruitment, conditions of service and rights and obligations. They are governed by special agreements between the Biman and the said appellants. The members of these appellants' trade unions cannot be equated with any other class of employees of the Biman. Each of them is affiliated to and recognised by separate international organisations. They are the local components of global professional groups and if they lose their registration they lose their international affiliations and thereby lose their capacity to serve the Biman.
 
14. It is clear that the specialised professional groups of the Biman organised their trade unions along professional lines and what is more, obtained registration from the Registrar and have been acting as Collective Bargaining Agents for a long period. There may well be very good pragmatic reasons for allowing them to do so, but was their registration fully in accord with the provisions of the Ordinance, 1969? Were they, each of them individually, an "establishment" within the meaning of section 2(iv)? We had no satisfactory answer from the learned Counsel for the appellants on this score. Before any group can claim to be an "establishment" it must first be "an office, firm, industrial unit, undertaking, shop or premises" and it is obvious that none of these groups except the appellant in CA No. 15 of 1993 answers any of the above descriptions. The plain fact is that those appellant unions did not establish themselves "establishment‑wise" as is required under the Ordinance, 1969.
 
15. Contrast the provisions of the Trade Unions Act, 1926, a predecessor to the Ordinance, 1969. Any seven or more persons actually engaged or employed in an "industry" could form a trade union and apply for registration under the said Act. 'Industry', under the said Act, "means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial or agricultural occupation or avocation of workman". This definition of "Industry" in the Trade Unions Act, 1926 is the same as in the Industrial Disputes Act, 1947 (of India) and the Indian Supreme Court in the case of Secretary, Madras Gymkhana Club Employees' Union Vs. Management of the Gymkhana Club, 1968 AIR (SC) 554 held in respect of the two parts of this definition, "If the activity can be described as an industry with reference to the occupations of the employers, the ambit of the ­industry, under the force of the second part, takes in the different kinds of activity of the employees mentioned in the second part". It is not difficult to see that in the organisational structure of trade unions under the Trade Unions Act, 1926, trade unions formed by the specialised professionals of an industry perfectly fitted in with the statutory pattern, which is not the case in their application to the Ordinance, 1969. Under the latter, a trade union's registration is contingent upon its constitution 'establishment‑wise', and there, except for the appellant in CA No. 15 of 1993, the other four professional groups fail the test. The said appellant‑unions' right of continuance does not stand on the same footing as in the case of Hindi Sahitya Sammelan Vs. Jagdish Swarup, 1971 AIR (SC) 966 and their reliance upon this case is misconceived.
 
16. The original organisational scheme of the Ordinance, 1969 was that there could be at least three registered trade unions in each establishment of an industry. If an employer had more than one establishment under the unamended Ordinance, 1969, the workers, without any distinction whatsoever, had the right to form trade unions in each establishment, however inconvenient it may have been for the employers. The submission on behalf of the Biman‑respondent that the Biman was "one establishment" all throughout, is not correct. The Biman employees may have had one employer all throughout, but at least three registered trade unions were permissible in each establishment of the Biman, provide the trade union was established in an "establishment" within the meaning of section 2(iv). The newly-introduced provisos to sub‑section (2) of section 7, recognises the organisational structure of trade unions and provided that if an employer has more than one establishment, allied to and connected with one another for the purpose of carrying on the same industry, irrespective of their place of situation, then all these establishments shall be deemed to be one establishment for the purpose of sub‑section (2) of section 7. This new legislation contains no restriction upon the workers' right to form a trade union and consequently there is no necessity to show that there is a nexus between the new legislation and public order or morality. It is necessary to show the nexus only when a restriction is imposed. The workers of more than one establishment under the same employer are free to form trade unions, as before. No doubt the existing trade unions lose their registrations in the process and are unable to continue in their old form, but as we said earlier, the organisational structure of trade unions is a legitimate domain of legislative exercise and no worker has a fundamental right to a particular form of organisational set-up. To hold otherwise will be tantamount to holding that once trade unions are formed along a particular organisation pattern and registration given, there can be no further changes in the organisational set-up and that the Trade Union structure will remain frozen as long as fundamental rights exist, howsoever desirable or necessary it may be for a change to meet the changing needs of changing times or situations.
 
17. Invoking section 11A of the Ordinance, 1969 (quoted earlier), the learned Counsels for the appellant-unions have argued that once the appellants lose their registration, they cease to exist altogether and cannot function as a trade union. Hence their right to registration is not the same as in the case of M/s. Raghubar Dayal Vs. Union of India, 1962 AIR (SC) 263, in which it has been held that the right to obtain recognition from the Government is not a fundamental right, but in Raghubar Dayal's case, an association could exist as an association, though not as a "recognized association". In the present cases, they cannot exist at all. The appellants have relied upon the case of Eastern Railway Employees Congress Vs. General Manager, Eastern Railway, 1965 AIR (Cal) 3, in which it has been held that recognition of the Government may attain constitutional importance, where without such recognition the fundamental right to form an association would be illusory. In that case recognition of a trade union was withdrawn on two charges, the first of which was found to be without basis, and the second charge was found to have been accepted without affording the trade union concerned an opportunity to show cause. It is in this connection that the nature of the right which is liable to be affected by the withdrawal of the recognition was considered. The present cases are not cases of withdrawal of recognition after framing charges, as in section 10 of the Ordinance, 1969, but a loss of registration owing to change in the organisational set‑up of trade unions. The basic right involved in these appeals is not so much a right of registration, but a right to a particular form of organisational set‑up of trade unions. If the appellant trade unions had organised themselves along the lines indicated in the amended legislation and has wanted to survive as a trade union simpliciter, without being registered, then perhaps the validity of section 11A of the Ordinance, 1969 could be considered. But that is not their case. Nor is section 11A under challenge in these appeals.
 
18. What has been sought to be achieved by the amended legislation is that it aims to put an end to the concept of “as many trade unions as establishments" and introduce a scheme of "one employer, one establishment". The erstwhile registered trade unions can claim a fundamental right to their continuance only if they can establish that they have a fundamental right to the continuation of the old concept of organisational set-up. The changed concept is applicable to all employers and all then allied and connected establishments, without any distinction whatsoever, Neither is this concept I totally new one nor a radical departure from the past. This changed concept has its origin in section 28B of the Trade Unions Act, 1926. This Act contained no provision for determination of collective bargaining agent as in the Ordinance, 1969. After registration, there was a further need of recognition by the employer. And the employer was to follow the concept of "same or allied industries, one trade union". Section 28‑B of the Trade Unions Act, 1926 was as follows:
 
"28B.- (1) An employer shall recognise a Trade Union if it fulfils the following conditions, namely:
(a) that it is a registered Trade Union and has complied with all the provisions of this Act;
(b) that all its ordinary members are workmen employed in the same industry or in industries allied to or connected with one another;
(c) that, where there are more than one Trade Union, the number of its members is not less than ten per cent of the total number of workmen employed in such industry or industries, and exceeds that number of members of every other Trade Union in such industry or industries;
(Other conditions are omitted).
 
19. Note clause (b) above. It is only when a trade union was recognised by an employer that it acquired the right to negotiate with the employer in respect of trade union matters, a right given to collective bargaining agents under section 22(12) of the Ordinance, 1969. The point to notice is that to meet the requirement of recognition of an employer under the Trade Unions Act, 1926, members of a trade union had to be employed in the same industry or in industries allied to or connected with one another and also had to have not less than ten percent of the total number of workmen employed in such industry or industries and also had to exceed the number of members of every other trade union in such industry or industries. What was sought to be achieved at the employees level (after registration) under the Trade Unions Act, 1926 is now sought to be achieved at the Registrar's level under the newly‑amended Ordinance, 1969, because recogni­tion by the employer is no longer necessary and a collective bargaining agent is determined either by operation of law (section 22(1) or by the Registrar in secret ballot (section 22(2) to 22(10). The amended legislation has thus nothing to do with restrictions on the right of association or union or restrictions on its continuance. It is a re­-organisational statute and no one has a fundamental right to a particular form of trade union. The appellant‑union in CA No. 15 of 1993, Aircraft Workshop Technical Workers Union, was no doubt an "establishment" within the meaning of section 2 (iv) of the Ordinance, 1969, because its members were drawn up from an aircraft workshop of the Biman, but its apprehended loss of registration is similarly due to an organisational re-structuring and not due either to any restrictions on its members' right to association or union or to any restrictions on its continuance. The re‑structuring is not arbitrary or fanciful or even innvovative. It is applicable to all industries with one employer. It was there previously, only resuscitated anew.
 
20. As for the argument that the appellant­-unions will lose their international affiliations if they lose registration, the short answer will be that the consequence, if any, will no doubt be unfortunate but the right to constitute a separate trade union for workers with international affiliations is simply not provided for, either in the unamended Ordinance, 1969 or in the Amendment Act, 1990. The amended legislation cannot be said to be violative of the fundamental right guaranteed under Article 38 of the Constitution on the ground of loss of international affiliation.
 
21. Mr. Rafique-ul-Huq, learned Counsel for the appellants in CA No. 14 of 1993, additionally submits that the added second proviso to sub‑section (2) of section 7 and section 5 of the Amendment Act, 1990 are also violative of Article 27 of the Constitution as they give an arbitrary, unchartered, unfettered and unguided discretion to the Registrar to cancel the registration of an existing trade union. It is also discriminatory in nature, in that it allows the Registrar a non‑appealable "final" power to cancel the registration of a trade union whereas the registration of an existing trade union can be cancelled under section 10 of the Ordinance, 1969 on certain grounds upon submission by the Registrar of an application to the Labour Court which the Labour Court may or may not grant after hearing the affected trade union and an appeal also lies to the Labour Appellate Tribunal against an order of cancellation by the Registrar, The less advantageous procedure provided in the impugned legislation is thus ex facie discriminatory. Mr. Rafique ul‑Huq also submits that section 5 of the Amendment Act, 1990 is, furthermore, capable of being exercised discrimin­atorily and the power given to the Registrar may also be abused.
 
22. Under the newly‑introduced first proviso to sub‑section (2) of section 7, the Registrar has to consider the cases of more than one establishment under the same employer, which are allied to and connected with one another for the purpose of carrying on the same industry, irrespective of their place of situation. Under section 28‑B of the Trade Unions Act, 1926, an employer had to consider about the same, if not fully the same, while according recognition to a registered trade union. The guideline is provided in the first proviso itself and it cannot be said that the Registrar has been given an arbitrary, unguided and unfettered power in an unchartered territory. Nor is the submission regarding discrimination between the more advantageous procedure provided in section 10 and the less advantageous procedure provided in section 5 (of the Amendment Act, 1990) is valid, because section 10 is a continuous power maintained in the Ordinance, 1969 whereas section 5 of the Amendment Act, 1990 a power which is to be exercised only once after which it exhausts itself and that is why section 5 has been given a heading "special provisions" and has not been incorporated in the Ordinance, 1969. The‑two types of power given to the Registrar under section 10 and section 5 (of the Amendment Act, 1990) are dissimilar in their operation and field of application and therefore there can be no parity of application of the two sections. Article 27 of the Constitution has not been violated at all.
 
23. The High Court Division has struck down the Registrar's Order dated 2.5.90 on the ground that in the Order, it did not appear that there was any doubt or dispute as to whether any two or more establishments of the Biman are under the same employer or whether they are allied to or connected with one another for the purpose of carrying on the industry. It has not noticed the affidavits‑in­-opposition of the Biman‑respondent. Consequent upon the passage of the Amendment Act, 1990 the management of the Biman itself wrote to the Registrar stating that it was one establishment and asking the Registrar to determine its collective bargaining agent. The order dated 2.5.90 was the result of a correspondence between the Biman and the Registrar, interspersed unfortunately with some unseemly interference by the administrative ministry which is uncalled for in the scheme of the Ordinance, 1969. But the Registrar's Order dated 2.5.90 is plainly illegal not because there dispute, but because he had no jurisdiction, under the amended legislation, to consider the commercial management of the Biman and the characteristics of the services of its employees in determining how many "establishments" it will have. The learned Counsel for the Biman‑respondent has rightly pointed out that under section 8 of the Bangladesh Biman Corporation Ordinance, 1977(Ordinance No. XIX of 1977) all the employees of the Biman are under the control of one authority and that all its employees have only one employer and as such the Biman is one establishment under the Amendment Act, 1990. The Registrar's Order dated 2.5.90 is unsustainable on merit and the appellants contention in CA No. 16 of 1993 has no merit either.
 
24. Before we part, however, we wish to observe that if it is found desirable by the authority that in view of the special nature of services rendered by its employees the organisational set up of trade unions of the Biman or any other organisation containing similar professional groups should receive special consideration so as to meet their special situations, then the authority may consider whether, consistent with the constitutional provisions and the statute, their special needs in respect of trade union matters can be met by an appropriate legislation. In the meanwhile, all existing agreements between any of the appellant‑Unions and the Biman shall remain operative for, the duration of the respective agreements.
 
In the result all the appeals are dismissed without costs. However, this Judgment will not affect the existing Agreements, if any, between any of the appellants and the Biman.
 
Ed.