1086 PLP 2911 (CLC)

(c)....the determination of the question as to which one of the trade unions in an establishment or an industry is entitled to be certified as the Collective Bargaining Agent in relation to that establishment or industry; (c) ............................................................... (d) ............................................................... Sections 22 of the said Ordinance provides for the determination of Collective Bargaining Agent and detailed procedure has been provided for holding referendum if there are more than one trade union in an establishment. The relevant provisions of section 22 are also reproduced below: ‑ "

22. Collective bargaining agent.‑‑ (1) Where there is only one registered trade union in an establishment or a group of establishments, that trade union shall if it has as its members not less than one‑third of the total number of workmen employed in such establishment or group of establishments, upon an application made in this behalf he certified by the Registrar in the prescribed manner to be the Collective Bargaining Agent for such establishment or group. (2) where there are more registered trade unions that one in an establishment or a group of establishments, the Registrar shall upon an application made in this behalf by any such trade union which has as its members not less than one‑third of the total number of workmen employed in such establishment or group of establishments or by the employer for the Government hold within fifteen days from the making of the application, as secret ballot to determine as to which one of such trade unions shall be the use Collective Bargaining Agent for the establishment or group." Provided....................................................... Provided further ............................................. (3) ............................................................... (4) ............................................................... (5) ......... ............. ....................................... (6) ............................................................... (7) ................... .......................................... (8) ............................................................... (9) ............................................................... (10) ............................................................... (11) ................................................... .......... (12) ............................................................... (13) ....The Registrar may authorise in writing an officer to perform all or any of his functions under this section," Subsection (3) to subsection (12) of this section pertains to the procedure as how and in what manner a referendum is to be conducted and the same are not relevant for our purposes.

6. It would also be pertinent to reproduce the authorisations made by the respondent No.1in favour of the respondent No.2 in both the (Nazir Ahmad Bhatti J) Petitions Nos. 3 and

4. The relevant portion in order dated 21‑11‑1985 in this respect in Constitutional Petition No.3 is as under:‑ "I also autaorise Mr. Muhammad Ayub Baluch, Assistant Mines Labour Welfare Commissioner Baluchistan, to exercise the powers of the Registrar Trade Unions under section 22(13) of Industrial Relations Ordinance, 1969. He is directed to hold referendum within one month of the receipt of this order." The order dated 5‑12‑1985 in this respect in Constitutional Petition No. 4 is as under:‑ "No. 116 RTU/DLW/QTA/8992.‑‑ In exercise with powers vested in section 22 (13) of Industrial Relations Ordinance, 1969, 1 hereby delegate the powers of Registrar Trade Unions for holding Referendum between two registered Trade Unions namely Pioneer Cables Limited Azad Labour Union and Pioneer Cables Employees Union to Mr. Abdul Wahid, Baluch, Assistant Director Labour Welfare Kalat/Mekran Division at Hub."

7. The perusal of the aforesaid provisions of section 13 and section 22 of the said Ordinance will show that the Registrar has the power to determine a Collective Bargaining Agent and for that purpose he had also been given the power to authorise under subsection (13) of section 22 to authorise in writing an officer to perform all or any of his functions under this section. As such the moot point is whether the powers and functions are two different connotations and can function be performed without having any powers.

8. The word "power" has been defined in Black's Law Dictionary, Revised 4th Edition, at page 1332, and it means "the right, ability, or faculty of doing some thing, authority to do any act". The word "function" has been defined in the same dictionary at page 801 as "to perform, execute, administer; the occupation of an office and by the performance of its duties, the officer is said to fill his function". Similarly the word "authorise" has been defined in the same dictionary at page 169, "as to empower; to give a right or authority, warrant or legal power". It has further been defined to mean that "the word indicates merely possessed of authority, that is, possessed of legal or rightful power". The word "function" has also been defined in the Stroud's Judicial Dictionary, 3rd Edition, at page 1196 and it includes powers and duties. 9.From the definitions of the aforesaid words in the Black's and Stroud's Dictionaries it can fairly be concluded without any fear of contradiction that a person can only function if he has power and performance of function is the necessary corollary of power. We can also say that a person functions and performs certain duty when he has the power to perform that duty. No functionary can function unless he has the power in that respect. The Registrar has the power under section 13 of the said Ordinance to determine a collective bargaining agent of an establishment whereas under section 22 the procedure has been prescribed for such determination and subsection (13) thereof empowers the Registrar to delegate his function of such determination to any officer. It can, therefore, safely be concluded that the Registrar could competently delegate his powers to any other officer to determine the Collective Bargaining Agent, out of the two rival unions in the petition and in this behalf he could authorise any other office to perform his functions regarding the procedure to be followed for such determination. If the Registrar did not have the power to determine a Collective Bargaining Agent, he could definitely not carry out this function under section 22 of the said Ordinance. As such it is unthinkable that any function can be carried out by any person without having any power and when an officer authorises any other officer to perform his functions by necessary intendment he delegates his powers to function as such authority. We are, therefore, unable to go alongwith the learned counsel for the petitioner in the interpretation of the words "power" and "function". These two words are not only synonymous to each other but also complement and supplement each other. An officer can only function if he has any power in that regard. The Registrar could, therefore, validly delegate his power to any other officer and could also authorise him to function as Registrar for the purpose of section 22 of the said Ordinance. We would, therefore, discard the contention of the learned counsel for the petitioner and would hold that the authority conferred by the Registrar on respondent No. 2 to exercise his powers under sections 13 and 22 of the said Ordinance was perfectly legal and valid and there was no jurisdictional defect therein.

10. There is yet another aspect of the matter. It is possible that there may be more than one Registrar of trade unions in a province. This circumstance was also in the mind of the Legislature when a provisions was made in the law for appointment of more registrars than one. However, if there is only one registrar in a province then it would be difficult for him to carry out the functions of determination of a Collective Bargaining Agent in all the numerous establishments in the Province. Even on that score it was necessary for the Legislature to make provision in the said Ordinance for conferring authority on any other officer by the Registrar to perform his functions foe determination of Collective Bargaining Agent in an establishment.

11. It was urged by the learned counsel for the respondent that the petitioner has not come with clean hands inasmuch as that they had moved the Labour Court by a petition under section 34 of the said Ordinance and the same was pending when the present petition was filed in this Court. We have very carefully perused the provisions of section 34 of the said Ordinance and the same empower any Collective Bargaining Agent or employer to apply to the Labour Court for the enforcement of any right guaranteed or secured to it or him by or under any law or any award of settlement. In the present petition the question for determination is as which one of the two rival unions is a Collective Bargaining Agent and it is not a question of the enforcement of any right guaranteed or secured under any law or any award or settlement. As such the application to the Labour Court was misconstrued. This argument of the learned counsel for the respondent is without any force.

12. We have also noted that the petitioner had participated in the election for determination of the collective bargainig agent. No objection of any kind regarding the validity of the power of respondent No.2 to function as Registrar nor any objection of any other nature was raised before or on the day of polling. The petitioner had also lost the election by considerable number of votes. No illegality or irregularity has been pointed out in the election proceedings. As such substantial justice was done and no prejudice of any kind was caused to any party

13. For the aforesaid reasons we would dismiss both the petitions with no order as to costs. M.Y.H. Petitions dismissed.