2015 PLP 68 (PLC)

AMIR HANI MUSLIM, J.

This Petition for leave to appeal is directed against order dated 9-4-2014 of the learned Islamabad High Court, Islamabad, whereby the Writ Petition filed by the petitioner was dismissed.

2. The Petitioner-Union filed a Writ Petition before the learned Islamabad High Court, claiming therein that under the Proviso to subsection (11) of section 19 of the Industrial Relations Act, 2012 (hereinafter referred to as the Act), they were entitled to function as C.B.A. for a term of three years, inter alia, on the ground that membership of the Union as verified by G.M Industrial Relations Division vide his certificate dated 11-3-2014 was more than 5000 at the time of Referendum and thereafter the petitioner sought withholding of Referendum for C.B.A and retrieval of facilities withheld by the Registrar vide its order dated 21-3-2014. The Writ Petition was dismissed, vide impugned judgment. Hence this Petition for leave to appeal.

3. The learned Counsel for the petitioner has contended that the learned High Court as well as the Chairman, N.I.R.C. and the Registrar Trade Unions have misconstrued the Proviso to subsection (11) of section 19 of the Act by denying them right to act as C.B.A for a period of three years. He further contended that pursuant to the Referendum in P.I.A.C. held on 14-3-2012, the Petitioner-Union was declared successful, as it secured 3648 votes against total 8162 votes and was issued C.B.A certificate, which did not specify the term for which they were to act as C.B.A. He next contended that the Petitioner-Union having more than 5000 Members and presence in different provinces was entitled to act as C.B.A for a term of three years. He submits that within their term of two years on 7-3-2014, an application was made by the Petitioner-Union to the Registrar, Trade Unions requesting that since their certificate do not spell out the period, therefore, in terms of Proviso to subsection (11) of section 19, they were entitled to act as C.B.A for a term of three years.

4. The learned Counsel for the petitioners further contends that the forums below did not correctly dilate upon the interpretation of Proviso to subsection (11) of section 19, whereas the learned High Court, without touching the material issue, has misdirected itself by holding that the Registrar has correctly taken steps to ensure democratic process for determination of C.B.A, therefore, the grievance of the Petitioner-Union is without merit.

5. The learned Counsel appearing for the respondent No.2 has supported the impugned judgment.

6. We have heard the learned counsel for the parties at length and have perused the record. For convenience sake, Proviso to subsection (11) of section 19 is reproduced below:-- "(11) Where a registered trade union has been certified under clause (e) of section (9) and subsection (10) 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 shall be entertained within a period of two years from the date of such certification except where the registration of such a registered trade union is cancelled before the expiration of the period: Provided that for the trade unions having membership of more than five thousand and presence in more than one province, the period of two years will be enhanced to three years."

7. The Proviso referred to hereinabove speaks about the term of trade union for a period of 3 years subject to the conditions mentioned therein. In this respect, the Registrar of the Trade Unions is provided list of Members of each contesting Trade Union as is reflected from the language of subsection (6) of section 19, and the wisdom behind the Proviso to subsection (11) of section 19 is that on the date of Referendum, if a Trade Union which has more than 5000 Members and has its presence in more than one province, contests the election and succeeds, then such a Trade Union can seek benefit to act as C.B.A for a term of 3 years instead of 2 years. Admittedly, in the case in hand, on the date when the Petitioner-Union was declared as C.B.A, it did not make request to the Registrar for a the for three years.

8. According to the learned Counsel for the petitioner, the Petitioner-Union was issued certificate to act as C.B.A without specifying its term, therefore, the Petitioner-Union on 7-3-2014 applied for the clarification. It appears that on the date when the Referendum was held, the Registrar had examined the number of Members of the Petitioner-Union which was not more than 5000 so as to grant 3 years term. A plane reading of aforesaid Proviso to subsection (11) suggests that a Trade Union claiming the Membership of more than 5000 and its presence in more than one province is required to provide details before holding of the Referendum and once such details are available, the Registrar, in law, is required to extend the term for three years by issuance of a certificate, as contemplated in section 19(9)(e). But this Proviso does not mandate that such trade union shall automatically get the term of three years to act as C.B.A. The Proviso to the subsection has to be read with the subsection (11) of section 19 of the Act. It clearly shows that a trade union claiming three years term under the said Proviso must approach the Registrar with an application within reasonable time in case the Registrar does not issue the requisite certificate for the term of three years. The Petitioner-Union admittedly remained mum on this issue after the Referendum and approached the Registrar in March 2014 after the expiry of its term.

9. In the present case, the certificate issued to the Petitioner-Union on 11-3-2014 by the General Manager, Industrial Relations Division would be of no help when the term of the Petitioner-Union has expired in March 2014 and date of Referendum has been announced in June, 2014. In the given circumstances, the Petitioner-Union has failed to make out a case for grant of leave. The issue of number of members claimed by the Petitioner-Union ought to have been agitated before the relevant forum, the moment the Petitioner Trade-Union was declared as C.B.A and this having not been done for more than 20 months and the Registrar has already announced the date of Referendum, the Petitioner-Union cannot avail the benefit of the afore-referred Proviso.

10. For the aforesaid reasons, we do not find any infirmity in the impugned judgment of the High Court, which could warrant interference by this Court. Consequently, this Petition is dismissed and leave refused. MWA/P-11/SC Petition dismissed.