1988 PLP 894 (PLC)

M. S. H. QURAISHI (CHAIRMAN).‑‑This appeal was heard under subsection (4) of section 22‑B of I.R.O. 1969, in the absence of Mr. Ashraf Ali, Joint Secretary, Labour Division, who was pre‑occupied. The appeal preferred by the Employees Union, FFC Limited is directed against the order of a Single Bench of this Commission, dated 3t;‑6‑1 987 whereby on the petition filed under section 22‑EE of the I.R.O., by the Workers Uni(Hr FFC Limited (C.BA.), Goth Machhi (hereinafter called the "Workers Union"), two CBUs were determined, one for the workers of F.F.C. Limited employed n: Goth Machhi and the other for the workers of the same company employed in the Head Office and other cities. It was also directed by the order that the existing trade unions in F.F.C. shall modify their constitution within a period of two months from the date of the order, whereafter a referendum in the two Unions will be held to determine C.BA. for the two units. The order is to remain in force for a period of four years and any application for determination of a new CBU can be entertained only after expiry of that period. The F.F.C. Limited manufactures and markets fertilizers. It has its plant at Goth Machhi which is run by highly skilled personnel comprising technicians, plant personnel, operators, draftsmen, analysts, laboratory attendants, ministerial staff and security guards. The company has its Head Office at Rawalpindi and offices in other cities of the country. The workers employed in these offices include clerical staff, drivers and security guards. It appears from the pleadings of the parties that the Workers Union which is registered with the local Registrar of Trade Unions has been functioning as C.BA. for the Goth Machhi establishment and has entered into two settlements with the management one in 1983 and the other in 1987. The Employees Union, which is the appellant before us, has been registered with the Commission as an industrywise trade union and was also certified as a C.BA. for the establishment of the F:F.C. excluding the Goth Machhi establishment. The Union, however, sought certificate of C.B.A. for the whole of the establishment which prompted the Workers Union to move the petition under section 22‑EE for determination of a separate C.B.U. for (foil. Machhi. The petition found support from the management but was opposed by the Employees Union. The learned Single Bench, however, rejected their objections and held that the terms applicable to the workers at Goth Machhi had no sameness or similarity with those applicable to workers at other places, that the workers employed at Goth Machhi were mostly highly skilled technicians in the manufacturing process whereas the workers at other stations did mainly administrative work and that as such the two sets of workers could not be equated. On this conclusion the Bench ordered the creation of the two C.B.Us. one for the workers employed at Goth Machhi and the other for worker, employed at the Head Office and other places. The first point raised by the appellant Union is that the petition of the Workers Union under section 22‑EE having been filed through its President was not competently filed. No provision of the constitution of the Workers Union was, however, brought to our notice to support the contention. 1n fact the constitution, of which a copy was placed on the file of the Single Bench and which we had the opportunity to peruse, is silent on this point and does not specifically authorise any particular officer in regard to institution of a case. It is also to be seen that no one among the office‑bearers of that Union came up to oppose the petition. Every registered trade union is, according to section 14 of the I.R.O., ‑Body Corporate. The pleadings in a case instituted by a Union can, therefore, of the principle of Order XXIX, Rule 1, C.P.C. be signed and verified on behalf o: the Union by any of its principal officers who was able to depose to the facts of the case. It was on this basis that the Sind High Court, in Karachi Warehouse and Carriers Workers Union v. Pakistan Warehouse Carriers Workers Union and others 1980 L L C 355 had held that: "A Trade Union no doubt by virtue of section 14 of the Ordinance is a body corporate and can sue or be sued in its registered name. The present petition has been brought in the registered name of the Trade Union. According to Rule 1 of Order XXIX, C.P.C. in proceedings by a Corporation the pleadings may be signed and verified on behalf of' corporation by the Secretary or by any Director or `other Principal Officer' of the Corporation. The President and Vice‑President of al Trade Union would obviously be the Principal Officers of the Trade, Union there can be no doubt whatsoever that the President and Vice‑President of the Trade Union are the Principal Officers thereof within the meaning of Order XXIX, Rule 1, C.P.C. and, therefore, are competent to sign and verify the pleading on behalf of Trade Union." In the light of the view of law as expressed above, we find no force in the objection which we repel. The next point raised was that the Workers Union had stood merged in, the appellant union by resolutions of their General Council, dated 12‑11‑1986 and 9‑12‑1.986 and, therefore, that union had no independent existence. This point had been duly dealt with and rejected by the learned Bench upon the finding that the' resolutions had not been implemented. In this connection it was pointed out with the help of photostat of the minutes of the proceeding of a meeting of the General Body held on 8‑2‑1987 that the resolution of merger had in fact been placed before the said General Body but had been rejected with strong expression of disapproval. Even if, the minutes of the proceedings of the General Council, having been filed without obtaining express permission of this Bench, be not looked into, the fact remains that the onus to establish the alleged merger was on the appellant which onus they totally failed to discharge. Under Article 15 (?~, ) of the constitution the General Council was required to place before the General Body any move to end the union. No material was placed by the appellant union that the resolution of the General Council had been so placed before the General Body and if so with what result. The passing of a resolution by the General Council was, therefore, not enough for bringing about an end of the union. The next contention was that the Single Bench had reached its finding without holding an enquiry as required by section 22‑EE of the I.R.O. We see no force in this contention, for we find from the impugned order that the material points raised and facts brought out before the Bench had been duly considered and discussed before reaching its decision. All that section 22‑EE requires is that the Commission should reach its satisfaction as to the necessity and feasibility for determining one or more C.B.Us., "after holding such enquiry, as it deems fit". The scope of the enquiry had come up for discussion before a Full Bench of this Commission in Railway Mazdoor Union case 1976 P L C 585 in which it had been observed: "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 word used in some other sections e.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. 17 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 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 procedure was no lesser than that of an arbitrator. 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 . . The point had again come up before a Full Bench. in Appeal No. 12(541 of 1986, decided on 3‑2‑1987 and after a discussion of the interpretation of similar expression in other laws it was held that "the enquiry contemplated in section 22 EE is not to be equated with a trial involving framing of issues and recording of evidence. Calling the parties concerned, ascertaining their views for or against the proposal, hearing and considering their arguments before taking the decision does constitute an enquiry". Judging on this basis, the impugned order cannot be said to suffer from want of an enquiry as contemplated by law. Both parties had been allowed to make their submissions by way of comments/affidavits and the substantial points raised had been taken note of. A grievance in this connection was raised that the affidavit filed by the appellant Union on 15‑6‑1987 had not been considered. This is again not true because a number of points taken in the affidavit such as inter transferability of the employees, their control by the Head Office and the numerical strength of the two unions had been examined in paras 10 and i respectively of the order. In fact the whole order running into 8 pages deals with the various points raised by the parties for and against the proposition of creating a separate C.B.U. at Goth Machhi. We are satisfied that the requirement of the law regarding enquiry is fully met with. The objection, therefore, is ruled out. There is yet another reason for dismissing this appeal. The appellant Union had first filed Petition No.2(1) of 1987 for grant of C.BA. certificate for the whole of the establishment of F.F.C. on the ground that the union was the only one registered with the Commission as industry‑wise trade union. This petition was dismissed on 11‑1‑1987 on noticing that there was another trade union registered with Registrar, Trade Unions, Bahawalpur, and that, therefore, the appellant union did not fulfil the qualifications required of it under section 22(1) of the I.R.O. Against this order they filed Appeal No. 12(11) of 1987 and while this appeal was pending, they moved another petition on 2‑2‑1987 bearing No. 2(11) of 1987 under subsection (2) of section 22 giving up their stand that they were the only registered trade union but they failed to state the establishment or establishments for which they sought the certificate of C.B.A. They sought withdrawal of the petition whereupon it was dismissed on 18‑2‑1987. But before this withdrawal, they had already filed on 3‑2‑1987 yet another Application No. 2(13) of 1987 and though it was filed under subsection (1) of section 22 yet they gave up their claim as regards Goth Machhi and sought certificate of C.BA. only in respect of the other areas in Pakistan. A certificate so prayed was, accordingly, granted to them on 10‑3‑1987. It was in this background that their aforesaid Appeal No. 12(11) of 1987 came up for hearing on 8‑4‑1987 and noticing that as by their Petition No. 2(13) of 1987 they had abandoned their Original‑ Petition 2(1) of 1987 from which .that appeal had arisen, they could not maintain that petition, the appeal was dismissed. Despite the dismissal of the appeal, the appellant Union moved afresh petition, on 16‑4‑1987, bearing No. 2(16) of 1987 under subsection (1) of section 22 for grant of C.B.A. certificate also in respect of Goth Machhi. The learned Bench seized of this petition ordered on 19‑4‑1987 for issuing a notice to the applicant union and all other unions registered in the establishment for which the C.BA. certificate was sought, to show‑cause why suo motu proceedings should not be initiated to determine the whole of the establishment or a group of it as one C.B.U. Nevertheless, the petition itself was dismissed on 15‑6‑1987'on the principle of Order II,. Rule.2(2), C.P.C., against which dismissal no appeal is shown to have been filed. In the suo motu proceedings which was allotted Case No. 19(5) of 1987, the appellant union expressed its no objection to the determination of the whole of the F.F.C. Establishment comprising 6 groups of establishment including that of Goth Machhi, as one C.B.U. However, noticing that a regular petition for the same purpose had already been filed by the Workers Union (i.e. Petition No.19(2) of 1987 from which the present appeal arises) which was pending before another Bench, the suo motu notice was withdrawn on 18‑8‑1987. The recital of the facts above clearly shows that the appellant union had, of its accord, relinquished its claim to represent as C.BA. the Goth Machhi establishment and that judicial proceedings as to their claim, if any, for representing as C.B.A. the entire organization of the F.F.C. Limited had come to an end by the dismissal of their Appeal No. 12(11)/87, on 8‑4‑1987. Thus, they are not only estopped, by their own conduct, from seeking CBA‑ship for whole of the establishment of F.F.C. Limited but .are also barred from reagitating the matter after dismissal of their Appeal No. 12(11)/87 on 8‑4‑1987. On merits we find that the facts brought out before the learned Single Bench and discussed by him, sufficiently justify the determination of .a separate C.B.U. for the Goth Machhi Establishment. For a considerable number of years, that establishment has been represented by the Workers Union and settlements had been reached between the management and that Union. The view taken that l the creation of a separate C.B.U. for the Goth Machhi establishment, would help safeguard the interest of the workmen employed in that establishment is thus, not open to interference. The appeal fails and is accordingly dismissed. S.Q./127/NIRC Appeal dismissed.