1982 PLP 256 (PLC)

This writ petition challenges the validity of the order of the Presiding officer of the Punjab Labour Court No. 3, Lahore, at Ferozwala, respondent 1, dated the 28th July, 1981, accepting respondent 2's petition under section 34 of the Industrial Relations Ordinance, 1969, and directing the Registrar of Trade Unions, Lahore Region, respondent 5, to hold refe rendum for determination of collective bargaining agent within a month.

2. Pioneer Steel Mills Employees Union, petitioner, and Pioneer Steel Mills Inqilabi Union, respondent 2, are registered unions of the employees of Messrs Steel Mills Limited, Muridke respondent

3. The petitioner maintains that consequent upon the exit of the rival Pioneer Steel Mills Workers Union from the contest of referendum it was declared and certified to be the collective bargaining agent vide certificate issued by the Registrar of Trade Unions, respondent 5, under section 22 (9a) of the Industrial Relations Ordinance on the 6thApril, 1980. The election of the office bearers of the petitioner Union was held on the 6thJuly, 1980, and as a result thereof Muhammad Islam lost office of General Secretary Ship. Thereafter he is alleged to have formed another union, namely, Pioneer Steel Mills Inqilabi Union, respondent 2, which approached res pondent 5, ostensibly under section 22(2) of the Ordinance, for holding a referendum in the establishment of the Pioneer Steel Mills to determine the collective bargaining agent. Respondent 5, reliving upon the rule laid down by this Court in Mahmood Textile Mills Workers' Union v. Registrar of Trade Unions, Multan Region, Multan (1976 P L C 387), declined to oblige respondent 2 on the ground that under section 22 (10) of the Ordinance no fresh determination of collective bargaining agent could be made before the expiry of a period of two years of certification of the petitioner as collective bargaining agent. An attempt by respondent 2 to persuade respondent 5 to review its decision having failed the former moved the Labour Court No. 3, Lahore, with application under section 34 of the Ordinance seeking issuance of directions to respondent 5 to hold referendum in the establishment. The petitioner was not impleaded as party in the application by respondent 2 m the first instance. It was Muhammad Ismail, respondent 4, President of the petitioner, who made an application for impleadment of the peti tioner as party to that application. On its having been joined as respondent he confessed judgment and the learned Presiding Officer accepted respondent 2's application and ordered respondent 5 to hold referendum. No formal notice was issued to the petitioner in respect of respondent 2's application. Feeling aggrieved the petitioner has invoked the extraordi nary jurisdiction of this Court.

3. The petitioner maintained that respondent 2's application for determination of collective bargaining agent was not sustainable because no such application could have been moved, as mandated by sec tion 2,2 (10) of the Ordinance, within two years of certification of the petitioner as collective bargaining agent. The petitioner questioned the locus stands of respondent 2 to apply to the Labour Court. as it did, for enforcement of any right guaranteed or secured to it much less to pro cure an order for holding a referendum because under section 34 it was only the collective bargaining agent, as the petitioner was, who could approach the Labour Court for enforcement of any right. Mere consent of respondent 4 to hold referendum, it was submitted, could not endow jurisdiction upon the Labour Court if it had otherwise none.

4. To appreciate the petitioner's view point it may be advantageous to consider the relevant provisions of section 22(9), (9a) (10) and section 34 of the Industrial Relations Ordinance which for facility of reference are reproduced below. Section 22 (9).‑For the purpose of holding secret ballot to determine the collective bargaining agent, the Registrar shall‑.‑ (a) fix the date of the poll and intimate the same to each ‑of the contesting Trade Unions and also to every employer; (b) on the date fixed for the poll so place in the polling station up for the purpose the ballot boxes which shall be sealed in the presence of the representatives of the contesting Trade Unions as to receive the ballot papers ; (c) conduct the poll at the polling station at which the representatives of the contesting Trade Unions shall have the right to be present; (d) after the conclusion of the poll and in the presence of such of the representatives of the contesting Trade Unions as may be .present open the ballot boxes and count the votes; and (e) after the conclusion of the count' certify the Trade Union which has received the highest number ,of votes to be the collective bargaining agent Provided that no trade union shall be certified to be the collective bargaining agent for an establishment or group of establishments unless the number of votes received by it is not less than one third of the total number of workmen employed in such establishment or group: Provided further that, if no trade union secures such number of votes in the first poll, a second poll shall be held between the Trade Unions which secure the two highest numbers of votes in the first poll and the trade union which secures a majority of the votes cast at the second poll shall be certified in the prescribed. manner to be the collective bargaining agent . Provided further that, if the number of votes secured by two or more trade unions securing the highest number of votes is equal, further poll shall be held between them until one of them secures a majority of the votes cast at such further poll. Section 22 (9a).‑If no Trade Union indicates under clause (a) of subsection (3) that it desires to be a contesting in the secret ballot, the Registrar shall certify the trade union which has made the application under subsection (2) to be the collective bargaining agent. Section 22 (10)‑Where a registered Trade Union has been certified under clause (a) of subsection (9) to be the collective bargaining agent for an establishment or group of establishments, no application for the determination of the collective bargaining agent for such establishment or group shall be entertained within a period of two years from the date of such certification except where the registration of such a registered trade union is cancelled before the expiration of that period. Section 34: Application to Labour Court. Any collective bargain ing agent or any employer may apply to the Labour Court for the enforce ment of any right guaranteed or secured to it or him by or under any law or any award or settlement.

5. The petitioner was not certified to be the collective bargaining agent as a result of poll under clause (e) of subsection (9) of section 22 of the Ordinance but it was given certification under subsection (9a) of section 22 because there was no other trade union in the field to contest the secret ballot. Therefore, the application for determination of collec tion bargaining agent before the expiry of two years of the petitioner's certification was not barred under subsection (10) of section 22 because the last mentioned provision places a bar on moving application only in the case where the collective bargaining agent has been certified after a regular poll under clause (e) of subsection (9) has been held, The peti tioner's objection that the application made to respondent 5 for determi nation of collective bargaining agent was premature is, in my humble view, not tenable.

6. With utmost respect I am unable to persuade myself to share the view expressed in Mahmood Textile Mills Workers Union v. Registrar of Trade Union, Multan Region, Multan (1) that the certification of a trade union to be a collective bargaining agent under subsection (9a) of section 22 of the Industrial Relations Ordinance, 1969, is to be treated certification under clause (e) of subsection (9) of section 22 of the Ordin ance and that no application for determination of collective bargaining agent in the establishment is to be entertained for a period of two years from the date of such certification as envisaged by subsection (10), By dealing with the certification of a trade union without any contest by secret ballot in a separate subsection (9a) and placing an embargo on moving an application only in the case of determination of collective bargaining agent for an establishment wherein the trade union has beep certified to be a collective bargaining agent in consequence of wining election by secret ballot under clause (e) of subsection (9) the Legislature intended creating the collective bargaining agent certified without any contest by poll and the one who emerged successful out of contest secret ballot differently ; the tenure of the latter office was secured for a period of two years whereas the authority of the former could be challenged and tested by contest by casting votes by secret ballot in the lawful manner even before the expiry of two years.

7. An approach to the Labour Court under section 34 is open to only the collective bargaining agent or the employer; no one else includ ing a worker is competent to move the Court for the enforcement of any' right guaranteed or secured to it or him by or under any law or any award or settlement. Respondent 2 was admittedly not a collective bargaining; agent and as such was not competent to make application under section 34 to the respondent Labour Court and the latter had no jurisdic tion t0 deal with the formers application. Joining of the petitioner Union as respondent in that petition on the move of respondent 4 an admission of claim by him could hardly cure the initial defect touching non‑maintainability of the petition of respondent 2 for want of its locus and. Consequently the respondent Labour Court could not entertain the application and grant any relief thereon. The impugned order assed by the Labour Court on an incompetent application was without awful authority and is declared to be of no legal effect. This petition accepted leaving the parties to bear their own costs. Petition accepted.