1973 PLP 136 (PLC)

7. The respondent-Union was registered on 16th March 1970, while another Union was registered on 26 h March 1970. Mr. Mehar Ilahi, the Senior Clerk of the Labour Directorate stated that the respondent-Union made an application for referendum. The Registrar wrote to the Management for supplying a list of all the workmen. The Management refused to accept the first letter. Another letter was sent to the Management to supply the list of the workers. The Management in reply wrote that the factory was closed 'the Management ultimately wrote that It could not supply a list of the workers as the factory was closed and the services of the workmen had been dispensed with.

8. The learned Court on the evidence before it came to the conclusion, firstly, that the Management had been avoiding to give a list of the workers and secondly, that there were only two members of Hamdard Labour Union. On these grounds the learned Court, as already observed, came to the conclusion that the Management having avoided the holding of the referendum cannot take shelter under the plea that the Union is not the Collective Bargaining Agent. The finding of the learned Court amounts to bolding that the respondent-Union was the Collective Bargaining Agent.

9. Section 34 of the Ordinance, as it stood on 29th October 1970, when the application wits made, reads as under:- "Any collective bargaining agent or any employer or workman may 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 or settlement"

10. The admitted position is that the Registrar of Trade Unions could not hold the secret ballot to determine as to whether the respondent-Union was the Collective Bargaining Agent or the Hamdard Labour Union. 1l. Relevant portion of section 22 of the Ordinance, reads as under:

"(l) Where there is only one registered Trade Union is an establishment or a group of establishments that Trade Union shall, if it bas as its members not less than one-third of the total number of workmen employed in such establish. want or group of establishments, be doomed to be the collective bargaining-- agent for such establishment or group. (2) Where there are more registered Trade Unions than one in as 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 workman employed in such establishment or group of establishments or by the employer, hold a secret ballot to determine as to which one of such Trade Unions shall be the collective bargaining agent for the establishment or group."

12. Under subsection (3) of section 22, the Registrar was bound to call upon every registered Trade Union in the establishment to indicate whether it desired to be a contestant in the secret ballot to be hold for determining the Collective Bargaining Agent.

13. Under subsection (4) of section 23 of the Ordinance, every ~employer shall submit a list of all workmen employed in the establishment.

14. Under subsection (S) of section 22 of the Ordinance, the Registrar, after verification of the lists submitted by the Trade' Union Was 10 prepare a list of voters and has to supply the same at least four days before the polls to each of the unions.

15. A perusal of section 22 of the Ordinance would show that there was no bar on the Registrar's power to hole secret ballot in the absence of non-supply of workmen's list by the employer. There is nothing on the record to show that the Registrar could not hold the election unless workmen's list was supplied by the employer she Registrar could have called upon too two registered Trade Unions to supply a list of its members showing the particulars require) under section 22(3)(b) of the Ordinance. It is true that the Registrar had to verify the list submitted by the Trade Unions and could have called upon the Management to provide him facility for verification of the lists submitted by the Trade Unions. What I wish to make out is that it was not impossible for the Registrar to hold the secret ballot on the mere ground that the employer had failed to supply the list of workmen. The main question, however, is as to whether the Labour Court could usurp the functions of the Registrar of Trade Unions to hold that the respondent-Union was the Collective Bargaining Agent. The functions of the Labour Court are given under section 35(5) of the Ordinance. It shall- "(a) adjudicate and determine an industrial dispute which has been referred to or brought before it under this Ordinance ; b) enquire into and adjudicate any matter relating to the ,implementation or violation of a settlement which Is referred to it by the Provincial Government ; (c) try offences under this Ordinance and such other offences under any other law as the Provincial Government may, by notification in the official Gazette, specify in this behalf; and (d) exercise and perform such other powers and functions as are or may be conferred upon or assigned to It by or under this Ordinance, or any other taw." '

16. On the other hand, under section 22 of the Ordinance a specific jurisdiction has been conferred on the Registrar of the Trade Unions appointed under section 12 of the Ordinance to hold secret ballot to determine the Collective Bargaining Agent. The Ordinance confers distinct jurisdiction on two individuals.

17. Mr. Ghani, the learned Representative for the Manage ment filed three orders of the learned Labour Court, i e. (1) Miscellaneous Application No. 51 of 1972. in Application No. 28s of 1972, under sect-on 34 of the Ordinance, (2) Miscellaneous Application No. 22 of 1972, In Application No. 153 of 1972, under section 34 of the Ordinance, and (3) Miscellaneous Application No 22 of 1972, in Application No. 4?6 of 1972, under section 34 of the Ordinance. In ail these three applications, the learned Court carne to the conclusion that the proper authority was the Registrar of Trade Unions, who had been authorised under the provisions of section 22 of the Ordinance to hold referendum and declare the Collective Bargaining Agent, when there were more than one registered Trade Union in the same establishment.

18. Mr. S. P. Lodhi, the learned Representative for the respondent, contended that Hamdard Labour Union was only a pocket Union and, therefore, there was only one registered Union. The registration of Hamdard Labour union fur all intent and purposes should be ignored. There is no force in this contention. Admittedly, the respondent-Union had made an application for holding secret ballot to determine the question as to which of the Unions was the Collective Bargaining Agent. This Court could not ignore the fact that Hamdard Labour Union wags also a registered Union. In the second place Mr. Lodhi contended that the respondent-Union had no control over the Registrar If he did not perform his duty to hold secret ballot. If the Registrar did not perform his duty by holding secret ballot, the Labour Court or the Tribunal have no jurisdiction to perform the functions of the Registrar of Trade Unions.

19. The Labour Court has a limited authority under the provisions of the Industrial Relations Ordinance, 1969. It cannot assume the jurisdiction, which has been conferred under the same Industrial Relations Ordinance, 1969, on the Registrar of Trade Union. These are two distinct authorities under the Ordinance. They cannot perform the duties conferred on the other. In that view of the matter, I have come to the conclusion that the learned Labour Court could not hold that the respondent-Union was the Collection Bargaining Agent. The respondent Union being not the Collective Bargaining Agent, the application under section 34 of the Ordinance was not maintainable.

20. The appeal is allowed. The award of the learned Labour Court dated 26th April 1972, is set aside.