1988 PLP 280 (PLC)

Laws Cited

Representation

• Riaz Hussain Baloch for Petitioner.
• Dates of hearing: 15th and 25th May, 1987.
• 2. Mr. Riaz Hussain Baloch, the learned counsel for the petitioner contends that respondents No.1 had no authority to exclude the Petitioner from contesting the referendum which was held on 21‑3‑1987 on the ground that it had failed to submit the list of its members to respondent No.1 within the time allowed by respondent No.1. It is contended by the learned counsel that as soon as the petitioner expressed its desire to contest the referendum the respondent No.1 had no option but to allot it a symbol and send a certified copy of the list of voters prepared by respondent No.1 under subsection (5) of section 22 of I.R.O., I partly heard this petition on 18‑5‑1987 but as respondents Nos. 2 and 3 were un-represented and I did not have the advantage of hearing the other view I appointed Mr. Rashid Akhund, Advocate as amicus curiae in the case to assist the Court on the interpretation of section 22 of the I.R.O. Today when the matter came up for further hearing Mr. Raja Shamsuzzaman appeared for respondent No.2 and supported the action of respondent No.1. The learned counsel for the petitioner and the learned amicus curie jointly urged that a Trade Union in an establishment which expresses his desire to contest the referendum on being informed by the Registrar that a secret ballot is being held to determine the Collective Bargaining Agent of that establishment, cannot be prevented from taking part in the ballot on the ground that it had failed to furnish a list of its members as required by subsection 3(b) of section 22 of the I.R.O. The learned counsel for respondent No.2 and on behalf of respondent No.1 on the other hand, it is jointly contended that the effect of non‑submission of the list of its members to Registrar by a Trade Union which has expressed his desire to participate in the referandum proposed to be held for determining the C.B.A. will be that it will stand debarred from taking part in the secret ballot. It is additionally contended on behalf of respondents No. l and 2 jointly that the conduct of petitioner in the case amounted to acquiescence on their part in ,the proceedings held by respondent No.1 and as such it is di8entitled to any relief in the present proceedings under Article 199 of the Constitution. It is also contended by the learned counsel for respondent No. 2 that the object of asking a union to file list of its members is to determine whether the said union enjoyed the support of at least 1/3rd of the total workers of the establishment which according to the learned counsel is a precondition for a union to establish his entitlement to take part in the secret ballot. After hearing the learned counsel for the petitioner, respondent No.2, representative of respondent No.1 and the learned amicus Curiae, I am of the view that this petition must succeed and the referendum held on 21‑3‑1987 A is to be declared as without any lawful authority. In order to appreciate the respective contentions of the parties it is necessary to examine carefully the relevant part of section 22 of the I. R. O. which deals with holding of referendum for determination of a C. B. A. in an establishment. It reads as follows:‑
• 4. A careful reading of above provision will show that where there are more than one trade unions in an establishment or group of establishments and any one of such registered union which has as its members not less than 1/3rd of the total number of workers employed in such establishment applies to the Registrar for determination of the status of a C. B. A. in respect of that establishment, the Registrar shall upon receipt of such an application call upon all the registered trade unions of that establishment by a written notice to indicate whether they desired to participate in the proposed secret ballot for determination of C. B. A. In case any such union is desirous of taking part in the proposed secret ballot it shall submit a list of its members to the Registrar with such details as are mentioned in subsection (3)(b) of section 22 of I.R.O. Subsection (41 of section 22 ibid provides that on being required by the Registrar the employer, shall also submit a list of all the workers employed in the establishment including those whose period of employment in the establishment is less than 3 months with other details about them as are mentioned in sub-clause (a) of subsection (4). On the basis of the lists of members received by the Registrar from different Trade Unions of an establishment and the list of workers obtained from the employer, the Registrar shall prepare a list of voters in accordance with subsection (5) of section 22 ibid who alone will be entitled to vote in the secret ballot. The list of voters so prepared by the Registrar will be made available to all the contesting unions of an establishment at least 4 days before the date of secret ballot. It is quite clear from the above stated scheme of section 22 ibid that the object of filing of a list of its members by the contesting unions of an establishment is to facilitate and assist the Registrar in preparation of an accurate list of the voters who would be entitled to vote in the proposed secret ballot. There is nothing in the section to construe that in the event of failure of a union to submit the list of its members, it will be debarred from taking part in the referendum proposed by the Registrar. It is quite clear from sub‑clause (a) of subsection (3) of section 22 of I.R.O. that as soon as a registered trade union indicates its desire to contest the secret ballot for determination of the C. B. A., it shall be allowed to take part in the proposed secret ballot and Registrar cannot exclude such a union from contesting the referendum on the ground that it had failed to submit the list of its members as required under sub-clause (b) subsection (3) of section 22. There is no indication in the language of sub‑clause (b) of subsection (3) of section 22 ibid to justify the conclusion that the consequence of non‑submission of a list of its members by a contesting Trade Union would be that it would stand excluded from the contest. I am quite clear in my mind that sub‑clause (a) of subsection (3) of section 22 is neither controlled nor it is to be read subject to the provision of sub‑clause (b) thereof. The two sub‑clauses (a) and (b) of subsection (3) of section 22 deals with different situation. To my mind the only effect of the failure of a Trade Union to submit the list of its members to Registrar, when it has signified its desire to contest the secret ballot, will be that it cannot raise any objection to the list which may be prepared by the Registrar under section 22(5) ibid on the basis of the lists received by him from other contesting Trade Unions and the employer. The learned counsel for respondent No.2 and the representative of respondent No.l jointly urged before me that in fact the petitioner's union by failing to submit the required list of voters abandoned their right to take part in the referendum and as such they cannot show raise any objection to the result of the referendum. I am unable to accept this contention. From the minutes of the meeting held on 1‑3‑1987, in which the date of referendum was fixed by respondent No.1 and symbols were allotted to contesting unions it is quite clear that the petitioner's union never gave up its right to participate in the proposed secret ballot which was proposed to be held on 21‑3‑1987. In the minutes of the above meeting which is on record the following observations were made by respondent No.1 with .regard to petitioner's union:
• 5. It is quite clear from the above‑referred observation that the exclusion of petitioner's union from the referendum held on 21‑3‑1987 was solely on the ground that it had failed to submit the required list of its member as contemplated under sub‑clause (b) of subsection (3) of section 22 of the I. R. O. In view of s my conclusions, the exclusion of petitioner from secret ballot for the above reason was not legal. The last contention of the learned counsel for respondent No.2 is, that the object of calling of the list of the workers from a trade union .which is desirous of taking part in a referendum for determinate of C . B. A. is to ascertain whether it enjoyed the support of at least 1/3rd of the total number of the worker employed in the establishment and as the petitioner failed to submit such list of its member it was rightly excluded from the contest. I am unable to accept this contention. The requirement that a Trade Union shall submit a list of its member which show at 1/3rd of the total number of worker employed in the establishment as member of that union is applicable only when a Registered Union applies to Registrar for holding of a secret ballot for determination of C. B. A. It has no application to the case of a union which desires to contest the secret ballot for determinate of C.B.A. in an establishment. I accordingly accept this petition and declare that the referendum held on 21‑3‑1987 by respondent No.1 was without lawful authority. The respondent No.1 is directed to hold a fresh secret ballot for determining the C.B.A. of Messrs Farooq Textile Mills Ltd. in accordance with the law. There will be no order as to costs.

Headnotes / Summary

Judgment & Decree