1989 PLP 191 (PLC)

Constitutional Petition No. 23 of 1980, decided on 20th April, 1988. ‑‑‑S. 22‑‑Referendum‑‑Application for determination of Collective Bargaining Agent ‑‑Basic requirement for making such application that the applicant union had as its members one‑third number of total workers employed by management not proved by it‑‑Allegations made by petitioner union that respondent union was not having as its members one‑third workers employed by establishment was supported by documents filed with petition which were not controverted by any of respondents‑‑Held, basic requirement of law which gave jurisdiction to Registrar Trade Unions, to order holding of referendum having not been fulfilled, order of Registrar feting date for holding of referendum was without lawful authority. Mushtaque Memon for Petitioner. Nemo for Respondents. Date of hearing: 20th April, 1988. The petitioner which is a Registered Trade Union and was certified as a C.BA. in respect of respondent No. 3 on 24‑2‑1977, has challenged in this petition, the order of respondent No. 1 conveyed to it through letter dated 22‑4‑1979. It is contended by the learned counsel for the petitioner that the order of respondent No: 1 rejecting the objection of petitioner and directing holding of a referendum for determination of a C.B.A. in respect of respondent No. 3 on the application of respondent No. 2 under section 22 of I.R.O., is without lawful authority as the respondent No. 1 before passing the above order failed to determine whether respondent No. 2 has as its members 1/3rd of the total number of workers employed with respondent No.

3. It is contended that in order to give jurisdiction to the respondent No. 1 to order holding of a referendum to determine a C.B.A. in respect of a undertaking on the application of a registered Trade Union under section 22 of I.R.O. it must be shown as a condition precedent that the Union which applied for holding of the referendum has as its members at least 1/3rd of the total number of the workers employed in the undertaking/establishment. It may be mentioned here that respondent No. 2 which is a Registered Trade Union of respondent No. 3 moved application under section 22 of I.R.O. before respondent No. 1 on 14th March, 1979 requesting that a referendum be held for the purpose of determining a C.BA. in respect of respondent No.

3. Respondent No. 4 on behalf of respondent No. 1 addressed a letter to petitioner which was already certified as C.B.A. of respondent No. 3, calling upon it to indicate whether it desired to participate in the secret ballot to be held for the purpose of determination of the Collective Bargaining Agent of respondent No.

3. The petitioner was also asked in that letter to supply the list of its members as required under section 22(3)(b) of the I.R.O. The petitioner on receipt of the above letter, on 27‑3‑1979 showed their willingness to contest the secret ballot and also raised several legal objections to the maintainability of the application filed by respondent No.

2. The main objection of the petitioner, however, was that respondent No. 2 did not have as its members the 1/3rd number of total workers employed by respondent No.

3. It was specifically pointed out by the petitioner in its objections that out of 113 workers shown in the list of members submitted by respondent No. 2 before respondent No. 1, four workers were not the employees of respondent No. 3, while names of other four workers were repeated twice in the list. Out of the remaining members of workers shown in the list of respondent No. 2, 48 workers were those who had filed their declaration asserting that they were members of the petitioner's Union. It was accordingly urged that the total membership of respondent No. 2 was thus only 57 which was far less then 1/3 of the total number of workers employed with respondent No.

3. Full details with particulars of names of workers were submitted before respondent No. 1 by the petitioner. The grievance of the petitioner is that without determining the above objection which was a basic A requirement for the entertainment of the application of respondent No. 2 under section 22 of the I.R.O. respondent No. 1 fixed the date for holding of the referendum. It is further, contended that the letter dated 22‑4‑1979 which was issued by respondent No. 4 on behalf of the respondent No. 1 neither disclosed the date of the order of respondent No. 1 overruling the objection of petitioner nor disclosed the reasons for the order. In fact it is contended by the petitioner that no formal order at all was passed by the Registrar rejecting the above objection of the petitioner and that the order communicated to the petitioner on 22‑4‑1979 by respondent No. 4 was routine and mechanical in nature. No counter ?affidavit is filed by any of the respondents to controvert the facts alleged by the petitioner in his memo of petition. Even the order rejecting the objection of petitioner by respondent No. 1 is not produced. In these circumstances, it cannot be said that the order directing holding of a referendum for determination of C.B.A. on the application of respondent No. 2 was passed in accordance with subsection (2) of the section 22 of 1.R.0. by respondent

1. It cannot be disputed that the basic requirement for making of such an application by respondent No. 2 under section 22(2) of I.R.O. was that respondent No. 2 must show that it has as its members at least 1/3 of the total number of workers employed by respondent No.

3. In view of the fact that the allegations made by the petitioner on oath in the petition which are also supported by the documents fled with the petition, were not controverted by any of the respondents, it cannot be said that this basic requirement of law which gives jurisdiction to respondent No. 1 to order holding of referendum was fulfilled. I accordingly accept this petition and declare the order of respondent No. 1 communicated by respondent No. 4 on 22‑4‑1979 fixing the date for holding of referendum as without lawful authority. It will, however, be open to the respondent No. 1 to order for holding of referendum after satisfying himself in accordance with the law that respondent No. 2 has as its members at least 1/3 of the total number of workers employed by respondent No.

3. There will be no order as to costs. " M.Y.H./F‑79/K ????????????????????????????????????????????????????????????????????????????????? Petition allowed.