1981 PLP 279 (PLC)

2. On 10‑11‑1979 i.e. before the expiry of the period of two years of the respondent‑Union being the C. B. A., the present appellant‑Union filed an application before registrar to hold a referendum for the determi nation of the C. B. A. in the. Establishment. On this application the Registrar issued a notice to the General Secretary of the respondent‑Union, who gave his consent to hold the said referendum. Accordingly, a joint meeting was held on 29‑11‑1979 in which both the General Secretaries of the two Unions participated in the meeting and the programme for the said referendum was prepared. Final voters list was also prepared and this list was supplied to both the Unions and a date for holding the referendum was fixed as 12‑12‑1979. Accordingly, after complying with necessary formalities, a referendum was held on 12‑12‑1979 in which the appellant‑Union secured 370 votes, while the respondent Union polled 237 votes. Consequently, the Registrar vide letter No. RTU/PR/79/3621 dated 6‑12‑1979 addressed to the respondent‑Union (Exh. P‑2) deleted the words "for a period of two years" existing in the third line of his earlier Letter No. 1808 dated 18‑11‑1978 (Exh. P‑2), from the dare of issuance. The result was that the respondent Union eased to be the C. B. A. in the establishment and instead the appellant Union acquired that status". At the relevant time Zahoor Alam Bhatti, the President of the respon dent‑Union, was under detention in Jail under Martial law regulation. He sent an application to the Registrar not to hold the referendum in his absence. However as the General Secretary of the respondent‑Union had agreed to hold the referendum the Registrar did not accede to the request of the President. After his release from Jail, the President filed an application under section 34 of the Industrial Relations Ordinance, 1969 before Punjab Labour Court No. 1, Rawalpindi, praying that the Registrar be directed to cancel the C. B. A. certificate issued to the appellant‑Union and to continue to treat the respondent‑Union as C. B. A., till the expiry of two years with effect from 2‑11‑1978. The Labour Court vide impugned decision dated 19‑4‑1980 only relying upon Mahmud Textile Mills Workers' Union v. Registrar of Trade Unions, Multan (1976 PLC 387) accepted the application and issued a direction to the Management to treat the respondent Union as C. B. A. and to ignore the registration certificate of the appellant Union as C. B. A. Hence this appeal.

2. I have heard at length the counsel for the parties and have also perused the entire material available on the record.

3. Since the impugned decision of the Labour Court is based upon the judgment of the High Court reported as 1976 P L C 387 it is vehemently contended by Mr. Naeem Sultan Butt, the learned counsel for the respondent Union that the Labour Court has rightly followed the High Court judgment as the same is binding upon the Labour Courts and the Appellate Tribunal in the Province. Thus, the first legal question which has been agitated by the parties is whether the judgment of the High Court was binding on the Labour Court and the Tribunal or not. Let us first examine the position under the Constitution. Under Article 201 of the Constitution, any decision of a High Court shall to the extent that it decides a question of law or is based upon or enunciates a principle of law shall be binding on all Courts subordinate to it. Under Article 202, a High Court may make rules regulating the practice and procedure of the High Court or any Court sub ordinate to it. According to Article 203, each High Court shall supervise and control all Courts subordinate to it. These Articles are reproduced below:‑ "

201. Subject to Article 189 any 'decision of a High Court shall, to the extent that it decides a question of Law or is based upon or enunciates a principle of law, be binding on all Courts subordinate to it.

202. Subject to the Constitution and law, a High Court may make rules regulating the practice and procedure of the Court or of any Court subordinate to it.

203. Each High Court shall supervise and control all Courts sub‑ordinate to it." From the perusal of the above, it is clear that a decision of a High Court on a question of law or enunciation of principle of law shall be binding upon Courts subordinate to it. Thus so far the Courts subordinate to the High Court are concerned, they are under the Constitution bound to follow the decision of a High Court on question of Law or enunciation of a principle of Law. In other words, only the Courts subordinate to the High Court are bound to follow its such decisions and not other Courts in the province. The language used in Article 189 regarding decisions of the Supreme Court is entirely different. This Article reads as under :‑ "(189) Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan." A perusal of the above shows that any decision of the Supreme Court shall to the extent that it decides the question of law or is based upon or enunciates a principle of law shall be binding on all other Courts in Pakistan. The words "all other Courts in Pakistan" are very wide and will include all Courts in the country, irrespective of the fact whether those Courts are sub ordinates to the Supreme Court or are under its supervision or control or not. The Legislature, therefore, has drawn a clear distinction regarding the binding nature of a decision of the Supreme Court and of a High Court. The decisions of the High Court are limited only to Courts subordinate to it and which are under its supervision and control, whereas there is no such restriction about the decision of the Supreme Court. The next question which fails for considera tion is whether the Labour Courts and the Labour Appellate Tribunal are Courts Subordinate to the High Court or otherwise are under its supervision and control. Section 3 of the Code of Civil Procedure shows subordination of Courts. According to this section, the District Court is subordinate to the High Court and every civil Court of a grade inferior to that of District Court and every Court of small causes is subordinate to the High Court and District Court. These Courts are created under the West Pakistan Civil Courts Ordinance, 1962 (Ordinance II of 1962). On the other hand, the Labour Courts and the Tribunal are Special Courts created under special law i.e. the Industrial Relations Ordinance, 1969. The decision and the orders of the Labour Courts are subject to scrutiny in appeal or revision by the Labour Appellate Tribunal, whose decisions or orders are final under the Industrial Relations Ordinance, 1969. No revision under section 115 of the Code of Civil Procedure lies before the High Court against any decision or order of the Labour Courts or the Labour Appellate Tribunal. Similarly the High Court does not supervise and control the Labour Courts and the Labour Appellate Tribunal. Further the High has no power to make rules regulating the practice and procedure of Labour Courts and Labour Appellate Tribunal in the Province. In these circumstances; keeping in view the provisions of Articles 201, 202 and 203 a of the Constitution, it can safely be held that the Labour Courts and the Labour Appellate Tribunal are not. Courts subordinate to the High Court nor are under its supervision and control.

4. The argument advanced by Mr. Naeem Sultan Butt, learned counsel for the respondent Union, is that since every decision of the Tribunal or a Labour Court can be challenged before the High Court under Article 199 of the Constitution, it should be deemed that the Labour Courts and the Labour Appellate Tribunal are subordinates to and under the supervision and control of the High Court. No doubt any decision or order of the Labour Appellate Tribunal and the Labour Courts are subject to scrutiny by the High Court under Article 199 and the High Court can set aside, alter, modify such decisions or orders or issue any appropriate orders and directions and the Tribunal and the Labour Courts undoubtedly are bound to follow such orders or directions in that particular case, still the Tribunal and the Labour Courts cannot be called Courts subordinate to the High Courts like other District Courts and the civil Courts in the Province. The Tribunal and the Labour Courts have the highest regard for any decision of the High Court, but Constitutionally speaking all such decisions of the High Court shall not be binding upon the Labour Courts and the Labour Appellate Tribunal, like the decision of the Supreme Court. However, it is undisputed that a particular decision given by the High Court against the judgment or order of the Tribunal of a Labour Court will be binding upon the Labour Courts as well as the Tribunal. It is only the general question of law or enunciation of a principle of law, where the Tribunal and the Labour Courts will not be bound to follow blindly like other District and Civil Courts in the Province.

5. Under section 22 of the Industrial Relations Ordinance, 1969 there are three types of certification to determine the status of a Union as C. B. A. in an Establishment or a group of Establishments. First under subsection (1), of section 22, where there is only one registered Trade Union in an establishment or a group of establishments, that Trade Union shall if it has as its members not less than one third of the total number of workmen employed in such establishment or group of establishments, upon an application made in this behalf be certified by the Registrar to be a C. B. A. Second, if there are more registered Trade Unions than one in an establish ment or a group of establishments and one of such Unions which has as its members not less than one third of the total number of workmen employed in such establishment or a group of a establishments submits an application to the Registrar for notifying it as C. B. A. and other Trade Unions in the said establishment are not willing to contest the referendum, then the Registrar under subsection (9‑a) shall certified the said Trade Union, which made the application under subsection (2) of section 22 to be the C. B. A. Third, when there are more registered Trade Unions than one in an establishment or a group of establishments and they all indicate their desire to be the contestant in the secret ballot to be held for determining the C. B. A, then the Registrar, after complying with necessary formalities, shall hold the referendum. According to clause (e) of subsection (9) of section 22, the Trade Union which has secured the highest number of votes shall be certified to be the C. B. A. by the Registrar. In the instant case as mentioned above. Peoples Labour Union had applied to the Registrar to certify it as C. B. A. in 1978 and the present appellant‑Union did not indicate its desire to be the contestant in the secret ballot to be held for determining the C. B. A. and consequently under subsection (9‑a) of section 22 of the Industrial Relations Ordinance, 1969, the respondent Union had certified to be the C. B. A. which effect from 2‑11‑1978 for a period of two years. The main argument advanced on behalf of the respondent‑Union is that after the certificate of being C. B. A. with effect from 2‑11‑1978 this Union was under the law to continue as C. B. A. for two years under subsection (10) of section

22. In other words, the opposite Union could not challenge the status of the respondent‑Union being the C. B. A. before the expiry of two years. Reliance in ‑this behalf is placed upon subsection (10) of section

22. On the other hand, the contention of the opposite counsel is that the case of respondent‑Union is not covered by subsection (10) but falls under subsection (9‑a), where the guarantee of two years is not protected. These subsections are reproduced below for ready reference :‑ "22.‑(9‑a) If no trade Union indicates under clause (a) of subsection (3) that it desires to be a contestant in the secret ballot, the Registrar shall certify the Trade Union which has made the application under subsection (2) to be a Collective Bargaining Agent." "22.‑'(10) Where a registered Trade Union has been certified under clause (e) of subsection (9) to be the Collective Bargaining Agent for an establishment or a group of establishments, no application for the determination of the Collective Bargaining Agent for such establishment or a 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."

6. There is no dispute that under subsection (10), the normal life of a Trade Union as C. B. A. is two years. The question which falls for consideration is whether a Trade Union certified as C. B. A. under sub section (4‑c) is covered by subsection (10) or not. It is not disputed that if a, trade Union is certified C. B. A. after the contest in the secret ballot for determining the C. B. A., then such Union would fall under sub section (10). In the instant case, however, no such secret ballot was held in 1978 as the present appellant‑Union did not indicate to the Registrar their desire to contest the secret ballot. The respondent‑Union, therefore; was declared as C. B. A., for two years under subsection (9‑a) of section

22. We have to determine, therefore, whether a Trade Union certified as C. B. A. under subsection (9‑a) can claim production of two years under subsection, (10) of the said section.

7. A perusal of subsection (10) reproduced above, shows that where a Trade Union is certified under clause (e) of subsection (9) to be the C: B. A. it shall enjoy that status for a period of two years from the date of such certification and no application for determination of C. B. A. for such establishment or group of establishments shall be entertained by the Registrar within that period of two years. There are certain exceptions to this, which are not relevant for the present case. Industrial Relations Ordi nance, 1969 was amended by Act, XV of 1975. Under this Act, section 22 was also amended. Subsection (9‑a) was added and in subsection (10) for the word "declare", the word "certify" and for the word "declaration" the word "certification" were substituted. In subsection (10) only clause (e) of subsection (9) is mentioned and there is no mention of subsection (9‑a) in this subsection. From the omission of subsection (9‑a) from subsection (10) it is argued that the intention of the Legislature is quite clear. If the Legislature wanted to give two years protection to a Trade Union certified as C. B. A. under subsection (9‑a), there could easily indicate the same in sub section (10). From the fact that subsection (10) was amended in 1975 when subsection (9‑a) was added, it is clear that the Legislature was conscious of both the situations namely, a Trade Union certified as C. B. A. under clause (e) of subsection (9) as well as under subsection (9‑a). Since sub section (10) was under discussion and was amended and subsection (9‑a) was added, it can safely be inferred that the Legislature were conscious of the changed situation and if they wanted to include the Trade Union declared as C. B. A. under subsection (9‑a), they should have specifically mentioned the same in subsection (10). The omission of subsection (9‑a) from subsection (10) is a clear indication of the intention of the Legislature that they did not want to give protection of two years to a C. B. A. Union certified under subsection (9‑a). It is well‑settled principle that a provision of a statute should be interpreted as it stands. If the argument of the counsel for the respondent‑Union is accepted, it will amount to as if subsection (9‑a) is also include in subsection (10). We came cannot read something in this subsection, which is not mentioned in it by the Legislature. A provision of the statute should be interpreted and construed as it stands without adding or omitted any word in it. Subsection (10) as it stands leaves no room for any doubt regarding the intention of the Legislature, namely that it does not apply to Union certified as C. B. A. under sub section (9‑a). The reason for the distinction between subsection (3‑a) an clause (e) of subsection (9) seems to be that if a Trade Union is certified as C. B. A. after the other. Unions have contested the referendum, then such C. B. A. Union will enjoy that status for two years and the other defendants Union cannot be allowed to agitate that issue again within that period. How ever, the position under subsection (9‑a) is entirely different. Although there are more than one Union, yet the other Unions do not indicate their desire' to contest the secret ballot for the determination of C. B, A. There can be, valid reasons for a Trade Union or Unions not to contest the secret ballot at the proper time and there may be justification subsequently to challenge the status of C. B. A. In other words, if the workers belonging to all Trade Unions in an establishment or a group of establishments, once have exercised their right of contesting the secret ballot, they are estopped from challenging that status within two years. If, however, the other Trade Unions have not contested the secret ballot for any reason then there is, no legal bar for them to challenge that status within the said period of two years. Thus the distinction drawn between two situations is in accordance with the interest of the workers in general in that establishment. After giving my anxious considerations to this aspect of the case, I am clearly of the view that .only a Trade Union certified as C. B A. under clause (e) of sub -section (9) of section 22 enjoys the protection of two years under sub section (10), while a Trade Union certified as C. B. A. under subsection (9‑a) cannot claim that protection of two years under subsection (10). In other words, subsection (10) does not cover subsection (9‑a) of section 22 of the Industrial Relations Ordinance, 1969. Accordingly, the respondent‑Union cannot claim protection of two years under subsection (10) as it was certified as C. B. A. under subsection (9‑a) of section 22.

8. As mentioned above, after receiving the application from the appellant‑Union, the Registrar issued a notice to the General Secretary of the respondent‑Union and both the General Secretaries of the two Unions were summoned by him, where the General Secretary of the respondent Union not only gave his consent to contest the referendum, but this Union actually participated in the referendum but lost. It is not denied that the General Secretary of the respondent‑Union under the Constitution was competent to give his consent to participate in the secret ballot. There is nothing on the record to show that before holding the referendum any objection or protect was made by the General Secretary or any Member of the respondent‑Union for not holding the referendum. In fact the respondent Union duly participated in the referendum. In this factual background the respondent‑Union was estopped from raising this issue before the Labour Court. The mere fact that the President of the respondent‑Union at the relevant time was under detention in Jail and had addressed a letter to the Registrar not to bold the referendum during his absence would not be sufficient to justify the postponement of the referendum and the filing of the application before the Labour Court. The President could easily issue instructions to his Union not to contest the referendum. It is not denied that if the respondent‑Union bad secured more votes than the appellant Union, then the respondent‑Union would not have any grievance and the referendum would have been valid according to it. Thus by their own conduct, the respondent‑Union has damaged its own case.

9. For the foregoing reasons, this appeal is accepted and the impugned decision of the Labour Court is set aside. Appeal accepted: