1993 PLP 312 (PLC)

(2) That members of the respondent No. 2 being "dock workers" are not the employees of the petitioners and as such their Union could not be registered as the trade union of the petitioners' establishments. C.P. No. S‑107/91 was filed in Court on 19‑12‑1991 while on 18‑12‑1991 two other similar petitions were filed by Messrs Marine Services (Pvt.) Limited and Messrs Premier Mercantile Services (Pvt.) Limited respectively being C.P. No. S.108/91 and C.P. No. S‑109/91 on similar grounds. C.P. No. S‑107/91 was filed by the 7 petitioners to question the appointment of Karachi Port All Equipments Operating Workers Union (respondent No. 2 in that petition) as the Collective Bargaining Agents for all the establishments of the petitioners in that petition. The Registrar of Trade Unions, Sindh had issued certificate to the said Trade Union on 23rd September, 1989. Messrs Marine Services (Pvt.) Limited, who are the petitioner No. 2 in C.P. No. S‑107/91 have filed C.P. No. S‑108/91 to impugn the certificate granted by the Registrar of Trade Unions, Sindh under section 22(2) of the Industrial Relations Ordinance, 1969 on 6th October, 1991 to Marine Services Workers Union, Karachi to have been certified to be the Collective Bargaining Agents for the petitioners in that petition. Messrs Premier Mercantile Services (Pvt.) Limited, who are the petitioners Nos. 1 in C.P. No. S‑107/91, have also filed another petition C.P. No. S‑109/91 to question the appointment of Premier Mercantile Services Workers Union as their Collective Bargaining Agents on 29th September, 1991 by the Registrar of Trade Unions, Sindh. The points that need consideration in all the 3 Constitutional Petitions mentioned above are common. These petitions have been heard together and are being decided by this common judgment. In view of the facts stated above it will be noticed that out of 7 petitioners in C.P. No. S‑107/91, 5 petitioners have questioned the appointment of the Karachi Port All Equipments Operating Workers Union as the Collective Bargaining Agents for their establishments while remaining two petitioners, Messrs Marine Services (Pvt.) Limited and Messrs Premier Mercantile Services (Pvt.) Limited, the petitioners in C.P. No. S‑108/91 and C.P. No. S=109/91, have additionally questioned the appointment of Marine Services (Pvt.) Limited Workers Union and Premier Mercantile Services Workers Union as Collective Bargaining Agents for their respective establishments besides appointment of Karachi Port All Equipments Operating Workers Union. In Petition No. S‑107/91 Karachi Port All Equipments Workers Union have been impleaded as respondent No.

2. Neither of the other 2 trade unions have been joined as respondents in that petition. Similarly in the two other Constitutional petitions the Trade Unions subsequently appointed as the Collective Bargaining Agents have been joined in the respective petitions without impleading the respondent No. 2 in C.P. No. S‑107/91, who were earlier certified to be the CBA for all such establishments. The Karachi Port All Equipments Operating Workers Union, the respondent No. 2 in C.P. No. S‑107/91, have filed a counter‑affidavit in that petition refuting all the contentions raised by the petitioners. They have taken a stand that the petition filed to question their appointment as the Collective Bargaining Agent for all the establishments can only fail because the petitioners have taken delayed action and are guilty of laches. They have pointed out that their Trade Union was registered on 26th July, 1987 while they were certified to be the Collective Bargaining Agent for all such establishments on 23rd September, 1989 and the petition to question their appointment as Collective Bargaining Agent has been filed on 19‑12‑1992. They have specifically denied that at the time of registration of their Trade Union or when the certificate of their appointment as Collective Bargaining gent was issued there was no other registered Trade Union for the Establishments of the petitioners and certain trade unions mentioned in paragraph 6 of the petition were not in existence at that time. The other two Trade Unions who are the main contesting respondent in the other two petitions did not file any counter‑affidavit. Similarly the official respondents have also omitted to file any counter‑affidavit on their behalf. Mr. Muhammad Humayun, Advocate appeared for all the petitioners in the 3 petitions and contended as under:‑ (1) That the members of all the Trade Unions in the 3 petitions are dock workers and therefore they cannot be treated to be the employees of `" the petitioners. He referred to the cases reported in PLD 1990 SC 435, 1991 PLC 846 and 1984 PLC 1645. (2) That the establishments belonging to the petitioners are separate and independent entities having no connection between them and a solitary Trade Union could not be registered to be the Trade Union for all such establishments. (3) That the respondent No. 2 in C.P. No. S‑107/91 has been registered as the Union of operators of Fork‑lifts and machines. No union could be registered on the basis of classification of job under the law. Mr. Mirza Muhammad Kazim, Advocate for respondent No. '2 in C.P No. S‑107/91 contended as under:‑‑ (1) That the petitioners are guilty of laches and the petition is. Gable to be dismissed on that ground alone. He referred to the cases reported in 1975 PLC 371 and 1990 PLC 37. (2) That the members of the respondent‑Union are not only the dock workers but are the employees of the petitioners. The respondent No.2 in C.P. No. S‑107/91 at the time it was registered as a Collective Bargaining Agent for all the petitioners when the other two Trade Unions in C.P. No. S‑108/91 and C.P. No. S‑109/91 were not in existence. (3) That once a Trade Union is registered its registration can only be cancelled in terms of section 10 of the Industrial Relations Ordinances, 1969. He referred to the case reported in 1983 PLC

171. Mr. Muhammad Saleem Khan, Advocate appearing for respondent No. 2 in C.P. No. S‑108/91 and C.P. No. S‑109/91 adopted the arguments of Mr. Mirza Muhammad Kazim, Advocate for respondent No.2 in C.P. No. S?107/91. The petitioners in C.P. No. S‑107/91 as mentioned hereinabove have questioned the appointment of respondent No. 2 shown therein as the collective bargaining agent on the ground that certain other Trade Unions including the 2 Trade Unions mentioned in the other 2 petitions as respondent No. 2 were already appointed as the Collective Bargaining Agent, for their establishments. Under the circumstances it was the duty of the petitioners to have also impleaded all those Trade Unions as necessary parties in that petition. The petitioners have mentioned certain other Trade Unions including the 2 Trade Unions mentioned in the other 2 petitions as respondent No. 2 but in spite of specific denial by respondent No. 2 in that petition about the existence of such Trade Unions they neither joined them as a respondent in the petition nor have produced copy of any certificate of their registration as CBA, Similarly, in the other 2 petitions the respondent No. 2 in C.P. No. S‑107/91 have not been joined as respondents in those petitions. Such material defect in pleadings was never removed by the petitioners in spite of specific denial by respondent No.

2. Petitioners in this petition have also not been specific in their averments particularly para. 6 of their petition. The contesting respondents in these petitions too have preferred to remain silent on important issues. From the facts as those transpire on the reading of 3 petitions and the counter‑affidavit of respondent No. 2 filed in C.P. No. S‑107/91, it appears that certificate of appointment of Karachi Port All Equipments Operating Workers Union Karachi was granted on 23rd September, 1989 under subsection (1) of section 22 of the Industrial Relations Ordinance, 1969. It, therefore, follow that at the relevant time there was only one registered Trade Union for a number of establishments according to the list attached with the certificate, The establishments mentioned in the list include the establishments of the petitioners. The certification of Collective Bargaining Agent, in case there is only one registered Trade Union in an establishment or a group of establishments provided it has not less than one‑third of the total number of workmen employed in such establishment or group of establishments, is granted by the Registrar of Trade Unions under section 22(1) of the Industrial Relations Ordinance, 1969. The petitioners in C.P. No. S‑107/1991 did not produce evidence to show that at the time when the Registrar had granted the certificate under section 22(1) of the Industrial Relations Ordinance, 1969 on 22nd July, 1987 to respondent No. 2 in that petition any other Trade Union or Collective Bargaining Agent for any of their establishments was in existence. The petitioners in that petition have also not alleged that any illegality has been committed by the Registrar in granting such to respondent No.

2. Under the circumstance there can be no objection to grant of certificate to them under section 22(1) of the Industrial Relations Ordinance, 1969. The 2 respondents in the other 2 petitions as is evident from the record were granted certificates under section 22(2) of the Industrial Relations he collective bargaining agents for their respective establishments. Marine Services Workers United, Karachi, the respondent No.2 in C.P. No. S‑108/91 were granted such certificate on 6th October, 1991 to be the Collective Bargaining Agent for the petitioners in that petition while Premier Mercantile Services Workers Union were also granted such certificate under section 22(2) of the Industrial Relations Ordinance, 1969 to be the collective bargaining agent for the petitioners in C.P. No. S‑109/91 on 29th September, 1991. It is not the case of the petitioners in these two petitions that the Registrar of Trade Unions, Sindh, has granted the certificate to such Trade Unions in violation of any provision of law. In case where there are more registered Trade Unions than one in an establishment or group of establishments and an application for grant of certificate of being collective bargaining agent is made by any one of such Trade Unions and if the Registrar of Trade Unions is satisfied that such Trade Union has members not less than one‑third of the total number of workmen employed in such establishment or group of establishments, he shall hold a secret ballot to determine the appointment of collective bargaining agent. Subsection (3) of section 22 prescribes a procedure for grant of certificate in such cases and in case ac Trade Union indicates under section 22(3)(a) of the Industrial Relations Ordinance, 1969 to desire to be the contestant in the secret ballot the Registrar has to grant application and appoint the applicant to be the collective bargaining agent as provided under section 22(9‑a) of the Industrial Relation Ordinance, 1969. It is evident from the certificates that the 2 Trade Unions it the other 2 petitions have been granted the certificates under such latter provision. The certification of the other two Trade Unions to be the collective bargaining agents for their respective establishments under section 22(9‑a) of the Industrial Relations Ordinance, 1969 by the Registrar of Trade Unions ha; not been questioned on any ground. The record, however, indicates that the respondent No. 2 in C.P. No. S‑107/91 were earlier appointed as collective bargaining agent for all the establishments of the petitioners in that petition There can be no doubt that at a time only one CBA can be certified for an establishment. It appears that in the present case respondent No. 2 in C.P. No S‑107/91 did not indicate their intention to contest the secret ballot that was to be held by the Registrar of Trade Unions, Sindh on the application of the respondents in the other 2 petitions. It will only mean that the respondent No. in C.P. No. S‑107/91 by their conduct had waived their right to be the CBA for the two establishments the petitioners in the two petitions would stand cancelled. Mr. Muhammad Humayun, Advocate for the petitioners, heavily relied on the case of Verra and others v. M. Qazi and Qazi Limited and others reported in PLD 1990 SC 435 to show that members of all the 3 Trade Unions who have been certified to be the collective bargaining agents for the respective establishments are not employees of the petitioners but "dock workers" who can only be treated as the employees of the Board constituted under a scheme prepared under the Dock Workers (Regulations of Employment) Act, 1974. The case under reference basically decided the issue if the Tindals and Sarrangs under the new system introduced under that Act continued to be the employees of the Stevedoring Companies. Under the scheme prepared under that enactment, the Board constituted thereunder is required to maintain registers of workers under clause (15) of the Scheme. The workers registered under the Scheme are required to be classified as: (a) Warf Sarang, (b) Ship Tindal, (c) Winch Men, and (d) Dock workers. The members of the respondents Unions who are operators of Fork‑lifts would be included in the definition of "worker" given in the said enactment. The Dock workers tinder the Scheme are required to be employed by the Stevedoring Companies on their requisition from the Board constituted under that enactment by rotation. It is not the case of the petitioners that the members of the respondent Trade Unions in these petitions are classified and registered as Dock workers under any of the 4 classifications mentioned above. On the contrary the respondent No. 2 in C.P. No. S‑107/91 have filed documents to show that a number of their workers were being appointed by the petitioners directly on certain terms and conditions. Under such circumstances as it appears from the record of these petitions the members of respondent Trade Unions cannot be treated to be such Dock workers to exclude them from being the employees of the petitioners. The judgment of the Supreme Court of Pakistan mentioned hereinabove is also not relevant to the facts of the present petitions. For the foregoing reasons the C.P. No. S‑107/91 is allowed only to the extent that respondent No. 2 therein on grant of certificate to respondent No. 2 in other two petitions to be the collective bargaining agents for the establishments of the two petitioners in C.P. No. S‑108/91 and‑ C.P. No.S‑109/91 shall cease to be Collective Bargaining Agents for the said two establishments. C.P. No. S‑108/91 and C.P. No. S‑109/91 are dismissed with costs. H.B.T./P‑256/K?????????????????????????????????????????????????????????????????????? ??????????? Order accordingly.