1976 PLP 585 (PLC)

(5) That the workshops establishment, on the one hand, and the open line establishment (including Sheds establishment), on the other hand, constitute different industries. (6). That on an application made by the Railway Administration, the Commission is making arrangements to hold referenda to determine off, one Collective Bargaining Agent for the Workshops and another; such agent for the Open Line. The application for determining C.B.Us., so as to revise the existing positions of the constituencies has been made with a view to delaying the referenda. (7) That some of the Sheds are not covered by the Factories Act ; and, in any case, the conditions of service of the workers employed in the Workshops and Sheds are different in many respects e.g.- (a) the workers employed in the Workshops are entitled to earn additional wages on piece-rate system, while their counterparts employed in the Loco Sheds, Carriage Depots and Diesel Sheds, are deprived of such benefits; (b) the workers in the Workshops enjoy twenty festival holidays in addition to thirty days' casual leave, while the workers in the Loco Sheds and Carriage Depots are disentitled to festival holidays, as they have to keep the trains moving round the clock (c) the Staff of Loco Sheds and Carriage Depots have to rush to the place of accident, if and when an accident occurs, while the duties of the Workshops Staff are confined within the premises of the workshops ; (d) all the workers employed in the Workshops are factory workers, while those employed in the sheds include non-factory workers, such as civil servants ; (e) the workers employed in the Sheds, being responsible for the operation of all trains within their respective Divisions, are under the control of more than one Divisional Superintendents; while the workers employed in the Workshops, being concerned only with manufacturing process, function under a common Divisional Superintendent (W) stationed at one place.

5. On the 15th July 1975 which was the first day of hearing, the learned Chairman heard arguments of the representatives of the contesting parties. Besides, he supplied copies of the written statements of the contestant respondent, to the representative of the appellant/applicant. The learned Chairman of the Commission, finding necessary to get assistance from some competent officer of the Railway Administration to determine whether the Sheds form part or the Workshops, directed the Chairman, Pakistan Railways either to appear in person before him or to depute some competent Railway Officer to appear, on the 22nd July 1975. On the later day, Mr. M Kaiam, Chief Mechanical Engineer, described by the Chairman of the Pakistan Railways in his written statement dated the 21st July 1975 as "a senior officer", appeared before the learned Chairman of the Commission, on being so deputed. The learned Chairman of the Commission, after hearing arguments of the learned counsel for the Pakistan Railways, directed Mr. Mohammad Amin, Junior Welfare Officer of Pakistan Railways, to supply the following to the Commission : (1) A copy of the notification whereby the Workshops were separated from the Open Line. (2) A copy of the rules, regulating the transfers of workers from a Workshop to a Shed and vice versa. (3) The names of the employees transferred from the workshops to Sheds and vice versa in the years 1974 and 1975, alongwith the reasons for the transfers. (4) A list of the registered Trade Unions operating in Open Line estab lishment all over the Pakistan Railways. After filing of the requisite documents to his satisfaction, the learned Chairman noted in his order dated the 16th August, 1975 that "about 81 employees were transferred from sheds to workshops and vice versa". He further noted the contention of the learned counsel for the Railways that "these transfers were made on compassionate grounds". The material order passed by him on that day is that "Proper orders would be passed after I have visited workshops etc.". In the course of the inspection done on the 18th August 197.5, admittedly in the presence of the representatives of the contesting parties, and confined to the Loco Shed, Lahore, the Divisional Superintendent, Pakistan Railways, Lahore, as appears from his memorandum on the file, explained to the learned Chairman as follows:- (a) That the Shed Staff can be divided into two main categories, namely (i) the Running Staff, and (ii) the Maintenance Staff "The former works the trains on Open Line, for instance the Lahore Crews Work, the Mail, Express and Passenger Trains from Lahore to Rawalpindi, Lahore to Khanewal, Lahore to Pakpattan, Lahore to Shorkot Road, etc." The latter staff mainly attends to running repairs in shed. This work, however, includes trip inspection schedules involving repairs which can be finished within 8 hours at the most. It can also include turning of wheels and removal of brasses (if required), but it cannot include more serious repairs, such as alignment of the excessively bent frames, or repairs of the main frame where the cracks are more than 12 inches long. (b) That existence of two Collective Bargaining Agents in one Shed-- one for the Running Staff and the other for the Maintenance Staff will be cumbersome. If it leads to combination of the seniority of the Shed Staff with that of the Workshop Staff, it would res,1lt in frequent transfers of the staff from one place to another. It paves the way for uniformity of service conditions, it may result in grant of Gazetted holidays for the Shed Staff and the consequential stoppage of trains on the holidays. (c) That the Shed Staff has no "affiliation" with the Workshop Staff as is evidenced by the former's omission to join the strike of the Workshop Staff occurred in June last.

6. The learned Chairman on the basis of the aforesaid inquiry, found that "the functions of the Sheds are more akin to those of Open Line establishment because of the fact that the workers employed in the Sheds have to worn all tie era and carry out necessary repairs excepting major ones." He further found that the conditions of service of these workers are different frown those of the workers employed in the Workshops. Feeling, in consequence, that "the sheds should continue to remain in the Open Line Establishment". the learned Chairman dismissed the application as said before.

7. The appellant has assailed these findings and added that the learned Chairman, having, in some previous proceedings, directed amalga mation of the Shed Workers with Workshop workers, and his said decision having been set aside by a Full Bench merely on the technical ground that such amalgamation could not be directed in the said proceedings which were only for holding a referendum, the learned Chairman has erred in recanting in the present proceedings his previous view about the amalgamation. He. has further urged that "the factors essential for determining Collective Bargaining Units such as distribution of work, nature of the jobs, sameness or similarity of work, nature of working and economic conditions were not taken into consideration by the learned Chairman".

8. We have given anxious consideration to these points, together with all the other points raised in the arguments advanced before us on behalf of the contesting parties, respondent 3 stir being ex parte despite sufficient service of a fresh notice. We have also taken into account all the matters on record, including two other documents which have not found men tion in the impugned order, on account of being regarded either as insignificant or as unduly placed on the file. In regard to them, it appears from the office copy of the letter of the Secretary of the Commission to the address of the Zonal Director, Directorate of Labour Welfare, Lahore that during the visit of the learned Chairman to the Shed some office-bearers of the Pakistan Railway Technical Staff Union Engine Sheds, handed over to the Secretary a representation which the Secretary forwarded to the Zonal Director and of which a copy is on the file. This document besides demanding enforce ment of the National Pay Scales in the Railway and certain other reforms irrelevant for the inquiry, further demands that the Loco Shed also be given the status of a workshop, because it involves heavy work such as overhauling of the engine of rail cars. The other document, which is original, states, in connection with the referendum, that the work done in the Workshops and Sheds are of one and the same nature ; and that the Government, through a recent declaration, had amalgamated the Workshops and Sheds. We have also keenly studied the provisions of section 22-EE of the Ordinance, which are of recent origin in Pakistan and which may, usefully be expounded at some length.

9. In the result, we propose, firstly, to dispose of the preliminary points raised by the parties and secondly, to set out the aims and objects of section 22-E, I. R. O. together with the scheme of the section, before dealing with the merits of the appeal.

10. The first preliminary point, which is a composite one, has been raised differently by both sides. It is based on the earlier order dated the 13th January 1975, of the learned Chairman, which was set aside by a Full Bench on a technical ground. That order, as appears from the appellate judgment dated the 17th June 1975 of the Full Bench, on the records, directed teat the Diesel Sheds, Karachi, and other sheds which are registered under the Factories Act should be included in the workshops establishment" for the purposes of the referendum to be held to elect the Collective bargaining Agent for the Workshops. This order was set-aside on the ground that it could not be passed in the proceedings which were only for a referendum under section 22, I. R. O. The appellant urges, on this basis, that the learned Chairman, when seized of subsequent proceedings under section 22-EE. should not have changed his previous view to the effect that the workers of the Sheds and Workshop should form a common Collective Bargaining Unit. This contention, we must at once hold, is without substance inasmuch as every case has to be decided on the basis of the evidence recorded on its own file and this is to be done with a judicial A equilibrium unbiased by any previously held view. The counter contention of the respondents' side is that the application made under section 22-EE was barred by the appellate decision of the previous application which was made under section

22. This contention is also without force ; because the said appellate decision did not determine whether there should be one or more Collective Bargaining Units in the Railways, and if so, what should be their components. On the other hand, the appellate decision was to the effect that this question could not be decided either way in the previous proceedings. For this reason, we would repel both these contentions.

11. The second preliminary section we propose to dispose of is that the existing constituencies, one called the Workshops, and the other referred to as Open Line, were determined by an executive order of the Government, and the Commission has no jurisdiction to disturb the situation. The history' of this matter, as unanimously stated before us, is that under section 26B of the Trade Unions Act, 1926 (since repealed), an employer was obliged to recognize a Trade Union only if all its ordinary members were "workmen employed in the same industry or in industry allied to or connected with one another" In case of doubt, it was to be decided by the "central Government" under Regulation 13 of the Central Trade Unions Regulations, 1961 (since repealed), whether the given industries were allied to and not connected with one another. Such a doubt having arisen in regard to the Railway Workshops and Railway Open Line, the late Ministry of Health decided it. Labour and Social Welfare (Labour and Social Welfare Division) of the Government of Pakistan, through its Notification No. S. R. O. 1192 (K/61 dated the 7th December, 1961 (copy on the records), that "the Railway Workshops and Railway Open Lines shall, for the purposes of the said section, be deemed different industries not allied to and not connected with one another". The further question as to whether Sheds form a part of the Railway Workshops by that of Open Line was decided by necessary implication, by the late Ministry of Railways and Communications (Railway Board), through its memorandum No. E-20-AT-61/I-I dated the 16th January 1962. It was declared by this communication that only the following undertakings would be treated as workshops for the purposes of formation of Trade Unions Mughalpura Workshop. Hyderabad Workshop. Steel Shop. Bridge Workshop, Jhelum. Signal Shop, Lahore. Since the Sheds were not mentioned as amounting to workshops for the aforesaid purpose, they, by necessary implication, were treated as a part of the Open Line. The overall position boiling down from these two declara tions was in accord with the same position stated in the General Manager, Lahore's memorandum No. E-444/1-P5-11 (L) dated the 21st November 1961, to the address of the Secretary (Establishment), Railway Board (copy on the file), reading, to the material extent, as follows : " . . . . the issue was discussed by the General Manager with the Chair man, Railway Board during his visit to Lahore. The Chairman has agreed that the proposed Union for the Workshops would represent staff from all the Workshops on the entire system and the Union for Open Line would be for all other Establishments. The Factories Act, therefore, will not be taken as a criterion for deciding jurisdiction of the two Unions." This position according to which the Trade Union of that time acquired recognition of the Railway Administration, has persisted till date. The subsequent legislative changes have been far-reaching, but they have not ipso facto disturbed the de facto constituencies. Under the present law (section 22-E, I. R. O.), however the constituencies are modifiable, by way of determination of one or more C. B. Us. in the Railway. The Commission is competent to determine or refuse to determine such C. B. U. or C. B. Us. and to exercise its discretion judiciously in this behalf. The objection, therefore, is overruled.

12. The third preliminary objection to be disposed of is that the referendum having been sought by the employer (instead of the Federal Government or any of the Trade Unions concerned) the application for determination of C. B. Us. was not maintainable. This objection is patently misconceived; because, firstly, under section 22 (2), I. R. O., an employer is also competent to seek determination of a Collective Bargaining Agent C through a ballot ; and, secondly, maintainability of an application for determination of C. B. Us. is not dependent upon the pendency of any pro ceedings for determination of a Collective Bargaining Agent. The objection, therefore, is repelled.

13. The fourth preliminary point arisen for disposal is that, according to the appellant, the learned Chairman, if not disposed to determine two C.B.Us. in accordance with the application, should have declared all the Railways workers as single C.B.U. For this, the representative of the appellant has drawn our attention to the mention of such a course in the written statement of respondent No.

4. We find this mention made vaguely to the effect that when all the qualified Railway workers will have voted in the coming referendum "the question of determining the Collective Bargain ing Agent for different establishments will become obsolete". Such a plea taken, in a written statement (instead of an application or a cross-application) and not pressed by the party raising the plea, cannot be pressed into service by the Commission for determining a single C.B.U., in the proceedings which are brought definitely for determination of the C.B.Us. The appellant, whose case throughout has been for determination of two C.B.Us. be re-adjustment of the present constituencies in a particular manner, cannot be allowed to make a somersault at the appellate stage and say that the learned Chairman should have alternatively determined a single C.B.U., in view of the mention of such a C.B.U. before him in a vague manner. The learned Chairman might have acted otherwise, if all the parties before him and some other Trade Unions which also might have been interested in the issue of determination of a single C.B.U. bad filed a compromise deed in this behalf and if the learned Chairman, after holding the inquiry on some further lines, had felt satisfied that the determination of a single C.B.U. was called for. This was, however not the case. It is not the practice of the Commission to be too technical in the matter of pleadings, but in the present circumstances it cannot allow the appellant to make a radical departure from his own caee, which must stand on its own legs. For' these reasons we are constrained to repel the contention that the learned Chairman should have determined a single C.B.U., if not disposed to determine two C.B.Us. in the manner prayed by the appellant.

14. The fifth preliminary objection to be disposed of is that the Workshops and Open Line are different industries, and that consequently the application for determination of C.B.Us. in them, taken together, does not lie. This objection is pertinent, though not forceful (as will be seen in the sequel, in view of the provisions of section 22-EE, I. R. O., to the effect that the Commission may determine Collective Bargaining Units "in an establishment or group of establishments belonging to . . . . . . the same industry". "Industry" here means, according to section 2 (xiv), ibid., "any business, trade, manufacture, calling, service, employment or occupation". In this sense, we are inclined to hold, all the employments under the Railways are an industry. By the aforementioned notification issued by the late Labour and Social Welfare Division, the Workshops and Open Line were declared as different industries 1 but this was done not with reference to the foregoing definition of "industry" which is in point, or entirely with reference to the definition of the term in the Trade Unions Act, 1926 (since repealed), which was slightly different, but mainly to fulfil a lacuna by an executive order as permitted by the Regulations. Furthermore, the notification only created a fiction of law by saying that the Workshops and Open Line shall be "deemed" to re different industries, It did not say positively that they are different. The maxim "res judicata pro veritate accipites (a thing decided is received as truth), therefore, is inapplicable to the case. For these reasons, we overrule this objection on too.

15. The last preliminary objection arising for consideration is that the application for determination of the C.B.Us. has been made with a view to delaying the referendum aforementioned. There is no finding of the learned Chairman on this point, which, as will appear from our finding in the sequel, is redundant. It is, therefore, left undisposed of.

16. The basic aims and objects of section 22-EE, as we see are two-fold (a) To avoid or remove the confusion which may be created by the claim; of a large establishment-wise Trade Union to collectively bargain for the whole of such establishment and the counter-claim of a smaller Trade Union having membership confined to a smaller establishment within former establishment, to collectively bargain for the smaller establishment the definition of establishment, according to sec tion 2 (ix), I. R. O., being "any office, firm, industrial unit, under taking, shop or premises in which workmen are employed for the purpose of carrying on any industry .... ; " To solve the problem, the Commission can either declare the large establishment as a single C.B.U. and render the smaller Trade Unions claim ineffective, or declare the smaller establishment as one C.B.U. and the rest of the larger establishment as the other C.B.U. and thus demarcate the areas in which the two Trade Unions are to respectively bargain. (b) To safeguard the interest of a class of workers, in minority, in an establishment, exposed to jeopardisation at the hands of the other class in majority, in the matter of collective bargaining. If the Commission finds that the majority brings into power a Collective Bargaining Agent favourably disposed towards the majority but not so disposed towards the minority, the Commission may determine the class of workers in minority as a. C.B.U. distinct from the majority class which may be declared as a seprate C.B.U. In such an event, both classes of workers can collectively bargain for themselves, respectively." In order to safeguard against the employers' exploiting this power o the Commission to their own advantage, it has been provided that the Commission can determine C B.Us. only (a) on the application of a Trad Union of Workers or a Federation of Trade Unions, or (b) on a reference made by the Federal Government. The criterion for the Commission's deciding whether to determine or not determine one or more Collective Bargaining Units is whether it feels satisfied that "for safeguarding the interest of the workmen employed in an establishment or group of establish ments" such determination is "necessary, just and feasible". The decision in this behalf is to be made "after Bolding such inquiry as it (the Com mission) deems fit". If and when the Commission feels satisfied that they determination is necessary, just and feasible for the aforesaid purpose, on of proving which fact is on the party seeking determination of C.B.Us., the Commission has to determine one or more C.B.Us. "having regard to the distribution of the workers, existing boundaries of the components of such establishment or group, facilities of communication, general convenienc and sameness of similarity of economic activity and other cognate factors". It is only on fulfilment of three conditions indicated by the words "necessary, just and feasible" that the question of determining C.B.Us. and having regard, for this purpose to the distribution of workers existing boundaries of the establishment or group. facilities of communication, general convenience and sameness or similarily of economic activity and other cognate factors arises.

17. In the present case, we find, that each contesting party has concentrated upon endeavouring to prove that the factors to be considered for the mode of determining the Collective Bargaining Units, favour determi nation of the C.B.Us. in the manner desired by the party. In particular, each party has laid stress on the factor of "sameness or similarity of economic activity" in disregard, to some extent or other of the other factors, and almost total disregard of the pre-requisites of the words "necessary, just and feasible". In doing so, they, with the exception of the Pakistan Railways, have even confused sameness or similarity of economic activity with sameness or similarity of the nature of the duties performed in connection with economic activity. We would dispose of the merits of the appeal with due regard to the foregoing exposition of the law.

18. The dominant circumstance of the case is that the present position of the constituencies for formation of Trade Unions and determination of Collective Bargaining Agents among them, hits lasted for the last about 14 years, the letter of the General Manager aforementioned being dated the 21st November 1961. Before venturing to disturb this long standing situation, we have to be satisfied by the appellant/applicant that for safeguarding the interest of the workmen concerned ; it is (a) necessary, (b) just and (c) feasible to make such interference. The matters on the record do not show to our satisfaction that the long standing arrangement, with which all concerned must be taken to have become familiar, has caused injustice to the Railway workers in general o: to any class of them. The Workshop workers and the Open Line workers are sufficiently large in number to constitute two C.B.Us. (informally determined by tradition) and to have adequate power of collective bargaining. The Shed workers, being peculiarly situated, have perforce to join one of the informal C.B.Us. and it is not shown that their interest has suffered on account of their erstwhile inclusion in the Open Line. They are, contrarily, shown to have a greater bargaining power in association with their colleagues in the Open Line ; because the Open Line workers can bring the trains to a stand-still, while the Workshop workers are not able to do so. They seem to be satisfied with the present position, as is evidenced by their omission to join the strike undertaken by the Workshop workers in June last. The appellant's contention is that the Shed workers also struck work for some hours ; but this is belied by the matters on record. It is true that some of the benefits available to the Workshop workers are inadmissible to the Shed workers a g., festival holidays and overtime wages ; but the amalgamation of the Shed workers is no guarantee for extension of the benefits in question to the Shed workers. This is because, in a collective bargaining, different benefits are grantable to different classes of workers in one and the same establishment. It is, therefore, conceivable that in view of the emergent nature of the duties of the Shed workers, they would not be granted Gazetted holidays etc, even in the event of their amalgamation with the Worshop workers. The distinguished feature of their duties is that the duties are required to be continued to be performed round the clock : and this feature is in common with the same striking feature of the duties of the other workers of Open Line. With a view to getting compensation for this aspect of the duties, a the Shed workers have a common cause with the other Open Line workers, rather than the Workshop workers. Such compensation may be other than in the form of holidays or overtime wages but adequate. If the Factories Act applies to all or some of the Shed workers and it also applies to the Workshop workers, it makes no material difference for purposes of collective bargaining. The two documents produced by the office-bearers of the Pakistan Railways Technical Staff Union to the Secretary of the Commission during the visit of the learned Chairman to the Loco Shed, do not derogate this position ; because their material parts merely state that the works done in the Workshop and Sheds are similar. The similarity of these works even if taken for granted, cannot per se prov that amalgamation of the doers of these works is necessary, just and feasible for safeguarding the interest of the workers in relation to collective bargaining. It is the uniform practice of judicial and quasi judicial forums that they do not disturb the status quo, unless a clear case is made out for the interference. Adhering to the same practice, and finding that none of the three conditions necessary to be proved for determination of one or more C.B.Us. stands sufficiently proved, we uphold the refusal of the learned Chairman to interfere with the existing position.

19. The only other point requiring determination is whether the inquiry held by the learned Chairman was sufficient in the eye of law, the appellant's representative having urged before us that be was not given adequate opportunity to prove his case. We find that the words "after holding such inquiry as it deems fit" have been used in section 22-EE, in contradistinction to the different words used in some other sections a g, section 36, requiring a more elaborate inquiry for some other classes, of cases. They, therefore, bring to mind the observation in Judicial Review of Administrative Authority, by S. A. de Smith (Second Edition), pp. 171 and 177, that "where legislation expressly requires notice and hearing for certain purposes but imposes no procedural requirements for other purpose", it excludes by implication the application of the principle of natural justice Audi alteram partem (no person should be condemned unheard). Neither H I. R. O. nor the Regulations optionally made by the Commission under section 22-F of the Ordinance having prescribed any procedure for such proceedings, the power of the learned Chairman to evolve his own pro cedure was not lesser than that of an arbitrator. It is a well-established proposition of law that if a party allows an arbitrator to adopt a particular procedure and takes the chance of getting a favourable award, the party is estopped, upon getting an unfavourable award, from assailing the award on the ground of defective procedure, provided that the procedure adopted does not amount to 'misconducting the proceedings'. In the present case, the appellant/applicant remained associated with all the proceedings of the learned Chairman and had full opportunity to volunteer such further evidence as he liked. In fact, however, he is not shown by the records to have offered to file either replication, or an affidavit or any interlocutory application. Had he wished to produce any evidence which the learned Chairman was disinclined to receive, he could have brought this fact on the record through an application. He, however, did not choose to do so. He, therefore, is estopped by his conduct from saying at this stage that the inquiry as held by the learned Chairman and participated in by himself without objection, was inadequate. Otherwise also we find that the inquiry, whose control and limits were liberally vested by the hands of the learned Chairman, was elaborate enough to amply meet the minimum requirements of law.

20. The result is that the appeal is dismissed, leaving the parties to bear their own costs, in view of the legal intricacies involved.