1988 PLP 890 (PLC)

M. S. H. OURAISHI (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, being pre‑occupied. The appellant, a Trade Union, registered with and certified as C.BA. by the Registrar of Trade Unions, Karachi, for the workmen employed/engaged by the Handling Contractors of the Rice Export Corporation of Pakistan Limited and the Directorate of Food, Government of Pakistan, has filed this appeal to challenge the order of a Single Bench of this Commission, dated 2‑11‑1987, whereby the Pakistan Wharehouses Workers Federation (respondent No. 10 in this appeal) was certified as Collective Bargaining Agent for the workmen engaged in rice handling and carrier work by the Rice Export Corporation Pakistan (Pvt) Limited to its warehouses and godowns directly or through Agents/Contractors in various establishments of the Corporation, with effect from 2nd November, 1987. It appears from the record of the Single Bench, performing functions of Registrar of Trade Unions, that respondent No.10 first got itself registered as a Federation of Industry‑wise Trade Unions on 18‑4‑1987. Thereafter, it made an application on 7‑5‑1987 for the grant of Certificate as C.B.A. under section 22(1) of the I.R.O., claiming membership of more than one‑third of the total number of workmen engaged in the industry and there being no other industry‑wise trade union or Federation of such unions having been registered with the Commission. No notice of the application was sent to the existing C.BA. or the Employer. However, being satisfied with the claim of respondent No.10, the impugned order was passed granting the required certificate of C.BA. The ground taken by the appellant is that respondent No.10 had not demonstrated by positive evidence that it had met the requirement of section 22(1) of the I.R.O., that it had no membership among the workers engaged by the handling contractors and that the order granting certificate of C.BA. had been issued without the participation of the appellant union which was the already existing C.BA. Although there were no parties other than respondent No.10 before the Single Bench, the appellant has made 11 parties as respondents in the appeal. At his request the names of respondent No.3 that is the Director General of Food, Government of Pakistan and respondent No. 9 i.e. M/s AA. Ahmed & Company, Karachi were deleted. Respondent No.10 who is the main contestant in the appeal, in its comments, raised a preliminary objection as to the maintainability of the appeal on the ground that no such appeal could lie against grant of certificate of C.BA. and also that the appellant union was "an illegally constituted Trade Union/Collective Bargaining Agent". The Rice Export Corporation of Pakistan respondent No. 2, in its comments, expressed that it did not come in the pricture directly or indirectly in the controversy and as such would not like to take sides with the contesting unions. Respondents Nos. 4 and 5 who claim to be handling agents/contractors, asserted in their comments that "no union/federation is entitled to be certified as C.BA. unless the employer/establishment to which such union/federation relates, is/are associated at least for determination of one‑third membership of the total strength of workers". They, therefore, prayed that the question of grant of C.BA. Certificate in favour of respondent No.10 be heard "afresh after due notice to the parties concerned". The maintainability of the appeal was assailed by respondent No.10 on the grounds first that as no such appeal could lie from a similar order made by a Registrar Trade Unions, the Commission enjoying the same powers under section 22‑B(3)(b) of the I.R.O. could not entertain such appeal and secondly that as under section 22‑D(1) only an order determining and certifying a C.B.U. had been made appealable it would exclude the appealability of an order certifying a C.BA. Clause (b) of subsection (3) of section 22‑B reads: "(3) The Benches shall‑ (a) ......................... (b) in relation to industry‑wise trade unions, federations of such trade unions, federations at the national level and cases referred to the Commission, perform such functions and exercise such powers as are performed and exercised by a Registrar, a Labour Court or a Tribunal in relation to trade unions and federations of trade unions within a Province, and, for this purpose, any reference in this Ordinance to a `Registrar', 'Labour Court', or, as the case may be, `Tribunal' shall be deemed to be a reference to the appropriate Bench of the Commission to which such functions are assigned: " In interpreting the above provision of law it must be kept in view that section 22‑B does not create jurisdiction but contains procedural provisions "for the efficient performance of the functions of the Commission". In other words, it lays down how the functions of the Commission shall be discharged. The functions of the Commission themselves are not enumerated in this section but are to be found elsewhere in the I.R.O. It has also to be kept in view that there are no three tiers in the Commission corresponding to "Registrar", "Labour Court" and "Tribunal". All such functions of these three forums, as are relatable to the Commission are to be discharged by the Commission itself in accordance with section 22‑B and the procedure laid down in the Regulations made under section 22‑F. Where a matter has been decided by a Bench of the Commission, remedy against the decision lies only before a Full Bench of the Commission in terms of section 22‑D. An appeal which passes the test of admissibility under that section cannot be thrown out on the ground that an appeal from a similar order of RTU would not lie. The provisions for appeal from the order of RTU and Labour Court are contained elsewhere in the I.R.O. and do not control appeals in the Commission. However, when an appeal does lie under section 22‑D, the Full Bench will have all the powers for disposal of such appeal as are available to a Labour Court or a Tribunal, as the case may be, in terms of section 22‑B(3)(b) read with section 22‑D(2). There is also no force in the contention that as an appeal has been provided against an order determining and certifying a C.B.U., the same would operate to exclude an appeal from grant of a C.BA. certificate. Such plea had been raised but repelled in General Secretary, Karachi Electric Supply Ltd. Corporation Labour Union v. Registrar, National Industrial Relations Commission, Islamabad and two others 1987 P L C

340. Nor is there any force in the next objection taken that the grant of a Certificate of C.BA. under section 22(1) did not constitute a "decision" but was only an "order" and as such not appealable under section 22‑D. None of the terms "Order" or "Decision" is defined in the I.R.O., 1969. Learned counsel for respondent No.10, however, sought to make a distinction between the two on the ground that since no adjudication was involved in granting a certificate of C.BA. under section 22(1) the same could not be termed to be a "decision". The contention proceeds from an assumption that in dealing under the said subsection there is no other party involved, but as will be presently seen such assumption is not warranted. Other parties may become proper or even necessary for ascertaining whether the condition of having members not less than one‑third of the total number of workmen employed in the establishment was fulfilled. We, therefore, reject the objections to the maintainability of the appeal. As stated earlier, respondents 4 and 5, claiming to be employers, had urged that they were directly interested in the proceedings before the Single Bench inasmuch as they could show that none of their workers was a member of the union seeking grant of a certificate of C.BA. A collective bargaining agent has certain rights under the law particularly the right to enter into bargaining with the management on behalf of all the workers of the establishment. The grant of certificate in favour of a union, therefore, does concern the employer inasmuch as he is compelled under the law to negotiate with the C.BA. and not with any other union. Moreover, in view of the decision of a Full Bench of this Commission in the case of Pakistan Spensers Employees' Union 1977 P L C 20, a Union can be certified as C.BA. only for those branches of the organization in which it has membership. An ascertainment whether this condition is fulfilled by the union can only be properly made in the presence of the employer. The claim by a union to be possessed of the required membership of the minimum one‑third of the total number of workmen in the establishment or membership in each and every establishment of the organization for which the grant of the certificate is claimed, ,:an hardly be effectively or safely ascertained in the absence of the employer. The question of an employer being made a party had been examined in Bata Shoe Co. (Pakistan) Ltd. Karachi v. Registrar of Trade Unions of Sind and 2 others P L D 1978 Kar. 567 in which it had been observed "No doubt that a registered trade union under section 22 of the Ordinance may aspire to become a Collective Bargaining Agent but not without notice to the employer and when that occasion arises, the employer can certainly raise the objection as to the legality of the registration of the Union or that the Union does not have as its members at least one‑third of the total number of workmen employed in the establishment". The employer, therefore, is a proper party and ought to have been impleaded. The plea of the appellant in regard to the legal necessity of their impleadment in the proceedings relating to grant of C B.A. Certificate was that being C.BA. already certified by the RTU, they were directly and adversely Jaffected by the impugned order which, therefore, ought not to have been passed without impleading them. There is force in the contention because a union certified as C.B.A. by the RTU in an establishment loses its entity as a C.B.A. upon the grant of a certificate to another union by the Commission in respect of the same establishment. The exclusion of such C.B.A. from the proceedings would thus, militate against the very principles of natural justice. It is true that ‑a C.BA., certified by the RTU, cannot compete with a Federation/Union registered with the Commission for the grant of certificate by the Commission under section 22(1), but this may not mean that it has to be denied even the opportunity of being heard when its rights and existence as such C.B.A. are directly threatened. 4,04 For the above reasons, the impugned order is not sustainable in law and is, accordingly, set aside. The case is now remanded to Single Bench for a fresh decision with notice to the employer and the existing C.B.As. in the organization. S.Q./122/NIRC Case remanded.