1993 PLP 581 (PLC)

SYED KHURSHEED HYDER RIZVI., J.‑‑‑On the applications under section 22(2) of the Industrial Relations Ordinance, 1969 (hereinafter referred to as `the Ordinance') moved by three unions namely, Peoples Unity of PIA Employees, PIAC Employees Union (Mushahidullah Group) and PIASI Union a secret ballot in all the establishments of Pakistan International Airlines throughout Pakistan was held for cabin crew staff from 17‑8‑1992 to 27‑8‑1992 and for the ground staff on 27‑8‑1992. Out of 11,141 voters 10,177 voters exercised their right of franchise. Each union secured the votes as mentioned below:‑‑ (1) Peoples Unity of PIA Employees ..3,774 (2) PIAC Employees' Union (Mushahidullah Group) 2,720 (3) PIASI Union .3,623 (4) PIA Workers Alliance ...14 Soon after the announcement of the results of polls, the petitioner union which O' had secured the second highest votes made an application to the Registrar of Industry wise Trade Unions, Islamabad maintaining that the highest votes secured by the Peoples Unity of P.I.A. Employees (hereinafter called as PIASI Union were less than 1/3rd of the total workmen i.e. 11,825 employed in the Establishment of P.IA. as required under the first proviso to section 29(e) and, therefore, an order for second polls may be passed. This application was heard by respondent No. 1, and by order dated 5‑9‑1992, the prayer in the application was rejected and it was held that respondent No. 2 by securing 3,774 votes out of 11,141 indicated in the final voters list had secured votes of more than 1/3rd of the total number of workmen and, therefore, it was certified to be Collective Bargaining Agent. Against this order this Constitutional petition has been filed by the petitioner for the following declaration and order:-- (1) That the order of the respondent/Registrar, dated 5th of September, 1992 certifying the respondent No. 2 as collective bargaining agent to be null and void, ineffective and unenforceable. (2) The respondent/Registrar be ordered to hold a second poll strictly observing the legal requirement. (3) Any other relief that Hon'ble Court may deem fit and proper to give grant in the circumstances of the case." Respondent No. 2 filed counter‑affidavit of its General Secretary denying the case of the petitioner. It was stated that none of the Trade Unions participating in the referendum raised any objection as to the competency of the polls at any stage whatsoever. It was stated that respondent had several joint meetings with the unions and the employer in connection with the chalking out of programme of holding the referendum amongst the contestants and there had been no dispute as to finalising of the voters' list, fixing of date, place for ballot and allotment of symbols. All arrangements were made by the consent of the contesting trade unions. It was also stated that all these workers who are employed by respondent No. 5, and were otherwise qualified to vote, were included in the voters' list prepared for the purpose with consent of all concerned, therefore, on the cut off date figure was the relevant figure and after polls had completed, results were compiled undisputedly. It was also stated that no union is legally entitled to reopen the same issues after consenting to the voters' list and other steps towards the determination of C.BA. It was also submitted that the petitioners have not availed the alternate remedy available to them of filing appeal before the NIRC. Defending the judgment of respondent No. 1 it has been stated in the counter‑affidavit that this judgment has been passed in accordance with the decision of the Hon'ble Supreme Court of Pakistan in Civil Appeals Nos. 293 to 296 of 1989 and Review Petition No. 64 of 1990. Counter‑affidavit was also filed on behalf of respondent No. 3 supporting the case of the petitioner but, also taking certain other grounds with a prayer that respondent No. 1 be directed to hold referendum afresh in accordance with the law. Respondent No. 4 filed counter‑affidavit stating therein that the voters' list was prepared in violation of section 22(5) of the I.R.O. It was also stated that voters' list was not communicated four days before the polls and, therefore, the entire referendum is to be set aside and that fresh voters' list be prepared accordingly. Photo copies of the record of the proceedings, of the referendum were also filed in support of the allegation that the voters' list was not prepared in accordance with the law and that it was not communicated four days before the polls. Other pleas have also been taken but the same have already been raised in the petition filed at Lahore High Court, Rawalpindi Bench. Respondent No. 2 filed Rejoinder to the counter‑affidavit of respondent No.

3. Respondent No. 1 also filed the parawise comments to the petition maintaining that the impugned order has been passed following the dictum as laid down by the Supreme Court in Review Petitions Nos. 64 to 66 and 98 of 1990 (1991 SCMR 888). We have heard the learned counsel appearing for the parties. The main contention of Mr. Ibadat Yar Khan, learned counsel for the petitioner is that union, which receives one‑third votes of the total workmen employed in the establishment, only can be certified as Collective Bargaining Agent. He also submitted that the judgment of the Hon'ble Supreme Court reported in 1991 SCMR 888, which has been followed by respondent No. 1, in passing the impugned order, is not applicable to the facts of the present case. Mr. Muhammad Akram Zubairi, learned counsel appearing for respondent No. 3 has contended that the voters' list should have been prepared before the referendum and should have been supplied four days before the day of poll to the unions participating in the referendum. According to him, the voters' list was altered and varied till the date of the polls and as such, the referendum which had taken place from 17‑8‑1992, to 27‑8‑1992 has not been held in accordance with law. The contentions of Mr. Tanveer Shabbir, learned counsel for respondent No. 4 are almost the same that the voters' list continued to be changed and altered up to 27‑8‑1992 and that it had not been communicated four days before the commencement of the polls. According to him, since voters' list was not final, no objection had been raised. Mr. Choudhry Rashid Ahmad, learned counsel for respondent No. 2 contended that the observations of the Hon'ble Supreme Court, in the case reported in 1991 SCMR 888, are binding on this Court and that no other meaning can be given in this case as required under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973. According to him, only those workmen are included in the voters' list who are entitled to vote and that the petitioner and other respondents are estopped from challenging the voters' list as after announcement of the voters' list and other following steps towards the determination of Collective Bargaining Agent, no trade union is now entitled to reopen the same issues and challenge them at this stage. Respondent No.l has certified respondent No.2 to be the Collective Bargaining Agent on finding to have received one‑third votes out of the total voters mentioned in the voters' list. In 1991 SCMR 888 'it has been held that determination of C.BA. has to take place by the voters alone, as according to the same judgment of the Supreme Court:‑‑ "If the non‑voters are to play a part in the determination of the Collective Bargaining Agent, as is the contention, then the proviso has the effect of destroying this substantive provision. If the first proviso is treated as an independent enacting provision which, exceptionally is permissible, six anomalies would arise: Firstly, no cut off date can be located in the proviso. Necessarily we have to import it, if at all, from the enacting provision, thereby demonstrating the control and avoiding ‑the independence of the proviso; Secondly, there will be two cut off dates, one for circulating voters' list four days before the polls and the other of certification of the Collective Bargaining Agent necessarily after the polls; Thirdly, there is no provision made, none at all, for preparation and certification of a list of total number of workmen employed in such establishments or group by which the requirement of proviso can be satisfied, immediately at the conclusion of the count; Fourthly, the whole process of election of Collective Bargaining Agent is likely to become highly manipulative; Fifthly, it will be solitary, and an unprincipled case, where a category of persons, not even qualified to be voters on the crucial dates or even on the date of declaration of result will decisively influence the result of the poll; and Finally, on the poposed interpretation, the whole provision becomes unworkable. To illustrate, in an establishment `A', with 100 employees, there are two Trade Unions B' with 60 members and `C' with

40. Of these 30 workmen. being of less than three months employment are not entitled to vote. At the polls, Union B' receives 32 votes and Union `C' receives 28 votes. 10 voters do not cast their vote. Second proviso gets attracted only where there are more than two trade unions contesting the elections. None satisfies the test. Here, a repoll cannot take place nor can a Collective Bargaining Agent be declared. Take another example. In establishment A, with 100 workmen, 30 of less than three months employment, there are three trade unions with membership of 35 for Trade Union B', 25 for `C' and 10 for Union `D', Union `D' does not contest. So, the poll takes place in which Unions B' and `C' participate; B' receiving 32 and `C' receiving 28 votes. Again the same stalemate occurs. The contention of the learned counsel for petitioner therefore frustrates the very purpose of the enacting provisions."' The judgment of the Supreme Court of Pakistan is binding on us and, as such, it can neither be ignored nor any contrary interpretation is possible. The observation of the Supreme Court cannot be termed as obiter dicta, as contended by the learned counsel for the petitioner. The interpretation of provisions of section 22 of the Industrial Relations Ordinance has the binding effect as the rule laid down. . Referring to section 22(9)(e), I.R.O., Mr. Ibadat Yar Khan, learned counsel for the petitioner has submitted that the trade unions receiving one third votes of the total number of workmen employed in such establishment or group only can be certified as Collective Bargaining Agent. Interpreting section 22(9)(e), I.R.O. he has referred to Chapter II, General Principles of Interpretation, Mexwell on Interpretation of Statutes, 12th Edition in support of his contention. The Hon'ble Supreme Court has interpreted section 22(9)(e), I.R.O. in the above cited case. We cannot, therefore, give any other interpretation to the words "number of workmen employed in such establishment or group". This contention, therefore, has no force. Next ground in the petition is, that in violation and disregard of the requirements of section 22(5) of I.R.O. the respondent No. 1 had been altering the voters' list till a day prior to the polls and as many as 684 voters were added in the list. This contention is also ,supported by respondents Nos. 3 and 4 unions. This fact finds confirmation from the photostat copies of the record appended by respondent No. 4 to the counter affidavit that additions in the voters' list had been continuously made till 27‑8‑1992 which was the date of the referendum. It is the duty of the Registrar under section 22(5) of I.R.O. to prepare the list of voters after verification of the lists submitted by trade unions and include the name of every workman whose period of employment is not less than 3 months and who is a member of any trade union contesting in the referendum and to send a certified copy of the list of the voters to every trade union contesting the referendum at least four days prior to the date fixed for the poll. In a case reported in PLD 1978 Kar. 417 it was found that the list of the voters duly verified had not been supplied to the competing trade unions four days prior to the commencement of the polls and in the result it was observed that either the polls were not held or opportunity for participation in the polls was not afforded to the trade unions. In any case it was the duty of respondent No. 1 under the law to supply the copy of the list of the voters at least four days before ‑the commencement of the polls to the contesting trade unions but the record and the admission of respondents Nos. 1 and 2, in their comments and counter‑affidavits, make it clear that departure from the provisions of the relevant law has been made in holding the referendum. It appears that respondents had assured that they will not make out the list an issue before any forum. The petitioner and respondents 3 and 4 has participated in the referendum without raising any objection. Even on the date of the referendum they had not raised any objection that addition of the names of the voters in the voters' list has been made and that four days before the commencement of the polls the copy of voters' list had not been supplied to them as required under the law. There is also no prayer for holding polls afresh. They cannot, therefore, be, allowed to raise these objections at this stage. It is also pertinent to note that under section 22(b) of the Ordinance the petitioner had the remedy of filing an appeal before the Commission within thirty days of the decision determining and certifying respondent No. 1 as Collective Bargaining Agent which has not been availed of. Since this remedy has not been availed of, we are of the view that this Constitutional petition is not maintainable. For the reasons enumerated above, we dismiss this Constitutional petition. H.B.T./P‑273/K Petition dismissed.