1988 PLP 286 (PLC)

KESC Labour Union 3228 Progressive Mazdoor Workers Union 1781 NWSPEM Union 4 Mr. Mahmood Ahmad Member of the Commission authorised Qazi Ahmad Saeed Deputy Registrar with the powers of the Registrar. After the election was over the Registrar issued certificate in favour of the petitioner declaring it a Collective Bargaining Agent for the workmen employed in the establishment of respondent No.5. The respondent No.3 filed an appeal against the decision of the Registrar before the respondent No.

1. A preliminary objection was taken by the petitioner that the appeal was not competent. The respondent No.1 rejected the objection and held that the appeal was competent as the declaration of the ballot and in consequence thereof the determining and certifying of Collective Bargaining Agent is definitely a decision. The appeal was accepted on merits. It was held that the relevant date for the purpose of holding the election would be the closing hour of 23‑7‑1987 and as the certificate had been issued on the basis of list-dated 30‑6‑1986, therefore, the certificate issued in favour of the petitioner was illegal. The certificate was recalled and it was directed that the second poll be held between the trade unions which secured the two highest number of votes in the first poll as provided in the second proviso to clause (3) of subsection (9) of section 22 of the Industrial Relations Ordinance, 1969.

2. We have heard learned counsel for the parties. Learned counsel for the petitioner has raised two contentions. First, that the respondent No.1 was not competent, ad second that the, respondent No.1 has taken an erroneous view of the matter that the apprentices employed by the respondent No.5 are workers. They cannot be termed as workmen. The apprentices were neither entitled to vote nor can be considered in determining the total number of workers in an establishment.

3. In order to decide the first question it is necessary to refer to various provisions of the Industrial Relations ordinance (hereinafter referred to as the Ordinance) and National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 (hereinafter referred to as the Regulations). Under subsection (2) of section 22 when there are more trade unions than one in an establishment or a group of establishments the Registrar on application made in this behalf by any such trade union which has as its members not less than 1/3rd of the total number of workmen employed in such establishment or group hold a secret ballot to determine as to which one of such trade unions shall be the Collective bargaining agent. Under section 22(9)(e) after the conclusion of the count the Registrar shall certify the trade union which has received highest ember of votes to be the Collective Bargaining Agent provided that trade union shall be certified to be the collective Bargaining agent for an establishment or group of establishments unless the number of votes received by it is not less than one‑third of the total umber of workmen employed in such establishment or group The provisions of Ordinance would apply in case where the Collective Bargaining Agent is to be certified in an establishment or group of establishments. Establishment has been defined in section 2(ix) as any office, firm, industrial unit, undertaking shop or premises in which workmen are employed for the purpose of carrying on any industry and except in section 22‑EE includes a Collective Bargaining Unit, if any constituted under that section in any establishment or group of establishments. Under section 12 of the Ordinance Registrar is appointed by the Provincial Government. The powers and functions of Registrar have been mentioned in section 13(a) and it includes the determination cf the question as to which one of the trade unions is entitled to be certified as Collective Bargaining Agent. Therefore, a Registrar has the authority to issue the certificate as the collective bargaining agent. No procedure has been provided in section 22 as to how the lists are to be prepared and who is competent to cast his vote. The procedure for holding election under the Ordinance is provided in the Industrial Relations (Sind Rules). In the present case the election was not held under the Ordinance. The election has been held under provision of the National Industrial Relations Commission and the procedure for the purpose of determining the collective bargaining agent amongst the registered industry wise trade unions has been laid down in section 16 of the Regulations. The definition of Registrar includes the Deputy Registrar of the Commission appointed under section 6 of the Regulation and according to this section the Federal Government or if authorised by it the Chairman may appoint a Secretary, a Registrar and one or more Registrars of the Commission. The functions of the National Industrial Relations Commission have been defined in section 22‑A of the Ordinance and under section 22‑A(8)(e) the Commission is to determine the collective bargaining agent amongst industry‑wise trade unions, federations of such trade unions and federations at the national level. The Registrar under the Ordinance is a distinct entity than the Registrar under the Regulation. Under the Ordinance the Registrar is authorised to issue certificate after completing the legal formalities. The Registrar under the Regulation does not have such powers. However, under section 22‑B(3)(b) the Commission performs such functions and exercises such powers as are performed and exercised by a Registrar, a Labour Court or a Tribunal in relation to trade unions and federation of trade unions within a Province. As stated earlier a Registrar under the Ordinance is authorised to determine the collective bargaining agent in an establishment or group of establishments but the Commission by virtue of section 22‑B(3)(b) of the Ordinance read with section 22‑A (8)(e) has the authority to determine the collective bargaining agent amongst the industry wise trade unions. The question then arises whether the Registrar who had conducted the election had the authority to hold the election? Learned counsel for the respondent No.1 has submitted that the Registrar could only conduct the elections but the Commission has to give its decision and the Registrar has no power to declare the result or determine the Collective Bargaining Agent. This contention has no force. The Deputy Registrar had been authorised in this behalf by one of the members of the Commission. Under section 22‑BB(3)(b) for any reference under this Ordinance to 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 functions are assigned. Under section 16 (21) of the regulations the Commission or its authorised agent shall declare the trade union which has received the highest number of votes to be the Collective Bargaining Agent in accordance with clause (e) of subsection (9) of section 22 and issue a certificate to this effect in Form 'F'. It is thus clear that the Deputy Registrar was authorised by a member of the Commission to hold the election for the purpose of determining the Collective Bargaining Agent. As such certificate issued by the Registrar shall be considered as a certificate issued by a Bench of q the Commission. It is now to be seen whether the certificate issued by the Deputy Registrar as an appointee of the member of the Commission is appeal-able before the Commission. Section 22‑D deals with appeal and it reads as under:‑ "22‑D. Appeals.‑‑(1) Notwithstanding anything contained in this Ordinance, or in any other law for the time being in force, any person aggrieved by an award or decision given or (a sentence or order determination and certifying a collective bargaining unit) passed by any Bench of the Commission, other than a Full Bench, may, within thirty days of such award, decision or (sentence or order), prefer an appeal to the Commission. (2) An appeal preferred to the Commission under subsection (1) shall be disposed of by the Full Bench of the Commission, which shall‑‑ (a) if the appeal is from an order determining and certifying a collective bargaining units, have the power to confirm, set aside, vary or modify such an order; (b) if the appeal relates to any other matter, have the same power in relation to the appeal as the Labour Court, the Tribunal or the High Court, as the case may be, would have had if the matter to which the appeal relates were a matter in relation to which an appeal can be preferred to the Labour Court, the Tribunal or the High Court." The respondent No.1 has stated that the issuance of certificate amounts to decision, therefore, the appeal is competent. Under section 22‑B(3)(b) certain powers have been given to the Commission but this provision in no way enhances the power of the Commission. According to this provision the Full Bench of the Commission shall have the same powers in relation to Industry‑wise trade unions etc. and perform such functions as are performed by a Registrar, a Labour Court or a Tribunal as the case may be. Section 35 of the Ordinance prescribes the power of the Labour Court and this power does not include power to examine the legality of the certificate issued by a Registrar of the Commission. Section 38 of the Ordinance speaks of the power of the Labour Appellate Tribunal. Under subsection (5) the Tribunal shall have authority to punish for contempt s of its authority or that of any Labour Court subject to its appellate jurisdiction as if it were a High Court. Under subsection (6) any person convicted and sentenced by Tribunal may prefer an appeal to the High Court. Under section 12 any Trade Union aggrieved by a decision given by the Labour Court or by the Registrar may challenge the same to the Tribunal or to the Labour Court, as the case may be. The Commission shall exercise only those powers under section 22 which the Labour Court, the Tribunal or the High Court can exercise under the provisions of the Ordinance, therefore, by no stretch of imagination it can be said that the Commission would exercise powers under these provisions. The provision relating to the disposal of appeal in section 22‑D (1) which prescribes that an appeal is competent in cases if an award or decision given or a sentence or an order determining and certifying a collective bargaining unit has been made. The certificate of the Registrar is neither an award nor a decision. The appeal is only competent if a certificate has been issued determining a collective bargaining unit. The legislature has not mentioned the collective bargaining agent in subsection (1) of section 22‑D and a word or expression which has not been used by the legislature in an enactment cannot be imported to extend the powers. If the legislature can use the term collective bargaining unit it can also say that the appeal is competent against a certificate declaring a trade union as a bargaining agent. Mr. Akhund, the learned counsel for the respondent No.1 has supported the contention of‑Mr. Khalid M. Ishaque that appeal before the Commission was not competent. But he has submitted that the order is not illegal as the jurisdiction to the Commission is available under section 22‑EE of the Ordinance and Regulation No. 18 of the N.I.R.C. Regulations. This contention has no force because under section 22‑EE, the Commission has to determine and certify one or more collective bargaining units in such establishment or group of establishments. This provision is not extended to the determination of the collective bargaining agent as such Regulation No. 18 does not apply in this case. He further submitted that the Registrar should have submitted his report to the Commission who is empowered to give the decision as the Registrar has no power to declare the result determining the C.P.A. This contention is without any substance because as already observed the Deputy Registrar was authorised by a Member of the Commission to hold the election for determining the collective bargaining agent. After the poll the certificate was issued by the nominee of the Commission and it would be considered as the certificate issued by the Commission. The learned counsel for the respondent No.3 took a preliminary objection that the present petition is not competent because the petitioner had not objected to the jurisdiction of the respondent No.1 Now he cannot challenge the decision of the respondent No.1 on the ground that the appeal was not: competent. The order of the Commission becomes final in terms of section 22‑E of the Ordinance. The petitioner has submitted to the jurisdiction of respondent No.1, now he is precluded to invoke Article 199 of the Constitution. The petitioner cannot question the decision of the respondent No.1. In support of his contention the learned counsel has referred to P L D 1974 SC C 139, P L D 1960 SC 113 and P L D 1971 Lah

858. This contention has been challenged by the learned counsel for the petitioner on the ground that the petitioner had merely submitted to the jurisdiction of Commission as respondent. The jurisdiction of the Commission was challenged before it, as such the petition is competent. The cases cited by Mr. Farooqui are not applicable. In Muhammad Hussain Munir's case P L D 1974 SC 139 it was observed that "where a Court or a tribunal has jurisdiction and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law." It is, therefore, first to be seen whether the respondent No.l had the jurisdiction over the subject‑matter of the controversy. The case of A. Hamid P L D 1971 Lah. 858 is also not applicable as the legislature had clearly ousted the jurisdiction. The ratio in the case of Zafarul Ahsan P L D 1960 SC 113 is also not applicable to the facts of the present case. On the other hand the learned counsel for the petitioner has referred to the case of Chittaranjan Cotton Mills Ltd. v. Staff Union P L D 1971 S C 197 wherein it has been held that "where the Court is not properly constituted at all, the proceedings must be held to be coram non judice and, therefore, non‑existent in the eye of law". In the case of Muhammad Afzal v. Board of Revenue, West Pakistan and another P L D 1967 S C 314, it has been held that "by mere submission, in the capacity "of a respondent, to the authority of the Member, the petitioner could not be thought to have conferred a jurisdiction on the Member which he did not possess, or to have waived his right to challenge the Member's power to interfere with the order of Commissioner". I, therefore, see no force in the preliminary objection that the present petition is not maintainable. The second contention of the learned counsel for the petitioner is that the respondent No.1 has erred in law by including the Trainees and Apprentices as the workmen. It is submitted that 228 Apprentices and the Trainees were appointed from 1‑7‑1986 to 24‑7‑1986. These persons could not be termed as worker. Before considering this contention, we would refer to Regulation 16 of the regulations which provides the procedure for determination of the collective bargaining agent. Under Regulation 16(1) the Trade Unions applying for determination of Collective Bargaining Agent shall submit list of their members. Under Regulation 16(21) the Commission or its, authorised agent shall declare the trade union which has received the highest number of votes to be the Collective Bargaining Agent in accordance, with clause (e) of subsection (9) of section 22 and issue a certificate to this effect. Under Regulation 16(22) it is provided that if the number of votes received by the winning trade union is less than, one‑third of the total number of workmen employed in the establishment, such trade union shall not be declared as Collective Bargaining Agent and the ballot shall be held a fresh on such date and time as may be fixed by the Commission; provided that the fresh ballot may be held on the basis of a fresh list of voters to be prepared by the Commission in the manner provided in section

22. The provisions of section 22(9)(e) of the Ordinance are applicable by virtue of clause (21) of Regulation

16. Here it may be mentioned that the election in the present case has been conducted by the Deputy Registrar National Industrial Relations Commission (respondent No.2), therefore, provisions of Regulation would apply. It has been held by the respondent No.1 that since the term "workman" as defined in the Ordinance, is not restricted by any length of the period of employment, the provisions of subsection (1), subsection (2) and subsection (9)(e) are not to be confused within the provisions of subsection (4). Such list is relevant only for the preparation of the list of voters, who under subsection (5), have to be workmen, whose period of employment is inter alia not less than three months. Therefore a workman as defined in the Ordinance is one who is employed in the establishment at the relevant time. The requirement of membership of not less than one‑third of the total number of workmen under subsection (2) is relevant only to the competency of the application seeking the holding of a secret ballot. Under subsection (9)(e) it is the winning trade union which has to demonstrate that the votes, it has received, are not less than one‑third of the total number of workmen. The bare perusal of the provision of Regulation would show that the winning trade union must secure one‑third votes from the total number of workmen employed in the establishment. The list prepared under section 22(5) of the Ordinance is for the purpose of allowing a worker to cast his vote. Under section 22(5) of the Ordinance, the Registrar shall, after verification of the lists submitted by trade unions, prepare a list of voters in which shall be included the name of every workman whose period of employment is not less than three months and who is a member of any of the contesting trade unions. But only that trade union would be declared as collective bargaining agent who has secured votes not less than one‑third of the total number of workmen. Therefore, the preparation of the list of voters for the purpose of poll cannot be considered for the purpose of clause (22) of Regulation

16. Here it may also be noted that under proviso of clause (22) if a fresh ballot is held that would be held on the basis of a fresh list of voters to be prepared by the Commission in the manner provided in section

22. We would also make it clear that the intention of the legislature is that every workman must have some say in the affairs of the union either directly or indirectly and those workers who become qualified during this period may also be entitled to have their names in the list for the purpose of casting the vote. Now we would deal with the contention of the learned counsel that the Trainees and Apprentices are not workers and, therefore, they could not, be considered under clause (22) of Regulation

16. The learned counsel has referred to section 2(a) of the Apprenticeship Ordinance, 1962 where "apprentice" has been defined as a person undergoing training through ‑the system of apprenticeship. It is, therefore, submitted that apprentice cannot be worker by any provision of law. This contention has to force. Workman has been defined in section 2(xxviii) as under: ‑ "Worker" and "workman" means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid‑off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay‑off removal has led to that dispute (but does not include any person)‑‑ (a) who is employed mainly in a managerial or administrative capacity, or (b) who, being employed in a superivsory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature." The perusal of the definition would show that an apprentice is also included in this definition and apprentice would be a workman; therefore, he cannot be excluded while determining the question of collective bargaining agent under clause (22). The learned counsel for ‑the petitioner has submitted that under, section 22(10) of the Ordinance where a registered trade union has been certified under clause (e) of subsection (9) to be the collective bargaining agent for an establishment or group of establishments, no application for the determination of the collective bargaining agent for such establishment or group of establishments shall be entertained within a period of two years from the date of such certificate This contention has no force because the election has not been held under provision of Ordinance but the same was held under the provision of Regulation. Therefore, apart from the other infirmities as would be pointed out in latter part of the judgment, this provision is not applicable. It would be fair and equitable if the conclusion arrived at by the respondent No.1 may be accepted by which he recalled the certificate issued in favour of the petitioner in violation of the provision of law. Another feature of the case is that some of the apprentices have been included in the list of voters prepared by the Registrar and they had also cast their votes in favour of their contesting trade union. Some of those persons had also cast their votes in favour of the petitioner, As the result was to be declared in accordance with clauses (21) and (22) of Regulation 16 read with subsection (9)(e) of section 22 of the Ordinance, therefore, issuance of certificate in favour of the petitioner was against the provision of Ordinance and Regulations. The petitioner could not be certified as collective bargaining agent in violation of provision of law, as such the order of respondent No.1 is proper. The order is not open to any challenge as the finding is based on the correct interpretation of law. In the case of Airport Dev. Agency, F/M Labour Union v. Registrar Trade Unions, Karachi and others 1982 P L C 26, it has been observed that "list prepared in violation of provisions can be set aside and question as to it employee is entitled to‑cast vote, is a question of law." In the case of Karachi Warehouse and Carriers Workers Union v. Pakistan Warehouse Carriers Workers Union and 3 others P L D 1976 Kar. 417, it has been held that "question raised is capable of being decided with reference to documentary evidence on record, or absence of documents required to be prepared by mandate of law, and High Court can go into questions in exercise of its constitutional jurisdiction. " The basic requirement of the law is that a successful trade union entitled to C.B.A. certificate must secure not less than one‑third of the total number of workmen employed in an establishment. As this requirement is lacking, therefore, it would be considered that the certificate had been issued in violation of law. As such the C.B.A. certificate is non‑existent in the eye of law. The question then arises what relief should be given in they circumstances of the case. The respondent No.1 has directed that a second poll be held between the trade unions, which secured the two highest numbers of votes in the first poll, as provided in the second proviso to clause (c) of subsection (9) of section 22 of the Industrial Relations Ordinance, 1969 Such direction is contrary to clause (22) of Regulation

16. The second proviso attached to section 22(9)(c) of the Ordinance would not apply because under Regulation 16(22) it has. been specifically stated that the ballot shall be held afresh. There is no provision in the Regulation analogous to two provisos attached to section 22(9)(e). There is no provision of second poll between the trade unions, which secured two highest numbers of votes. The necessary conclusion would be that fresh poll amongst all the contesting trade unions shall be held for the purpose of determining the collective bargaining agent. The petition is dismissed in the above term with no order as to costs. H. B. T./ K‑36/ K