1988 PLP 880 (PLC)

M. S. H. QURAISHI (CHAIRMAN).‑‑This appeal came up for hearing under subsection (4) of section 22‑B of I.R.O., 1969 in the absence of Mr. Ashraf Ali, Joint Secretary, Labour Division, being pre‑occupied. The appeal arises out of a petition made by All Pakistan DECO Workers Union, Lahore (respondent No. 1‑A in the appeal) under section 22‑EE of the I.R.O., 1969 praying for determination of three C.B.Us. in the establishments of M/s. PECO Limited. It was stated in the petition that the PECO consists of four establishments, that is, (i) the factory at Badami Bagh, Lahore, (ii) the factory at Kot Lakhpat, Lahore, (iii) PECO's Head Office, Lahore, and (iv) PECO's Office at Karachi; that there were 18 registered trade unions in the said establishments, five of them including the petitioner being registered with the .NIRC while the others with the local Registrar Trade Unions at Lahore or Karachi; that presently there were four C.B.As. in the aforesaid four establishments i.e. one for the Factory at Badami Bagh, the other. for the Factory at Kot Lakhpat, the third for the Head Office at Lahore and the fourth for the office at Karachi; that although some of the Unions have been registered with the NIRC no referendum for determination of C.BA. has taken place uptil now; that the economic activity in the two factories at Lahore being the same the production of one being connected with that of the' other and the workers being intertransferable, they should constitute one CBU, while the offices at Lahore and Karachi should constitute separate CBUs. It was, therefore, prayed in the; petition that three CBUs be created, namely, one for the two Factories at Lahore, the second for the Head Office at Lahore, and the third for the Office at Karachi. In their comments, received, sonic of the unions supported the petition while some others including the appellants advocated the creation of four CBUs corresponding to the aforesaid four establishments. The Management opposed the petition and in their reply stated that the Karachi Office had been practically closed, there remaining only 28 workers, that the Management was one for all organizational and administrative purposes, that the pay scales and other facilities of the workers whether working at Lahore or elsewhere were one and the same with the exception of big city allowance and that all the CBAs generally served joint demand notices resulting in single settlements for all the factories and offices of PECO Limited. The Management, therefore, urged that it would be convenient both to the workers as well as the Management if the whole of the PECO was declared one CBU. The learned Single Member seized of the petition made enquiries and after hearing the parties and going through their replies, considered the following four possibilities "(a) 4 CBUs viz. (i) Karachi Office (ii) Head Office, Lahore, (iii) Badami Bagh Works, and (iv) Kot Lakhpat Works, (b) 3 CBUs viz. (i) Karachi Office, (ii) Head Office, Lahore, and (iii) Badami Bagh and Kot‑Lakhpat Works, (c) 2 CBUs (i)Karachi and Lahore Offices should be one CBU and (ii) both works at Badami Bagh and Kot Lakhpat another C.B.U.". (d) 1 CBU Whole of the establishments of PECO should be one CBU" He noted that "The present practice was that though the C.B.As. gave their demands notices sometimes jointly and sometimes separately but whenever they give separate demand notice they are asked to submit it jointly because all the benefits agreed to between the parties are applicable to the employees of total establishment. One settlement is always made out for all the establishments, as stated by Manager, Industrial Relations of PECO, in his statement before me." He felt that the creation of three CBUs would lead to harmful results for collective bargaining because the CBU at Karachi Office would be small and its separation would also dissipate the bargaining strength of the Head Office workers and similarly the bargaining strength of the Head Office would be reduced if they were left without the support of the workers of the remaining establishments. He noticed that "As it is, the practical requirements have already given birth to a workable modus vivendi and the unions and the employer have already worked out that arrangement informally; rejecting the four C.B.A. arrangement due to its cumbersome nature. I, therefore, feel little hesitation in formalising the existing position which has withstood the test of times". The learned Member, therefore, by his impugned order, dated 29‑11 1987 determined all the four establishments of PECO as constituting one C.B.U. for a period of 4 years and directed all the existing trade unions to amend their constitution and extend their sphere of operation to the whole of the C.B.U. so determined. The petitioner did not appeal but three of the other unions preferred this appeal in which they have prayed that the impugned order be set aside and four C.B.Us. corresponding to the four establishments of PECO be determined and certified. Mr. Asmat Kamal Khan, Advocate appearing for the appellants has raised the following four points in support of the appeal,‑‑ (i) the exercise of power under section 22‑EE was for the whole Commission and as such a Single Bench had no jurisdiction to adjudicate upon the petition; (ii) the Single Bench could not decide the question of CAU. also because a direction may have to be given under section 22‑EE to the Registrar which the learned Single Bench in the present case could not do as he was himself Registrar of Trade Unions in relation to the functions of the Commission; (iii) no proper enquiry as envisaged in section 22‑EE had been held; and (iv) the required satisfaction that it was "necessary just and feasible" to determine one or more C.B.Us. "for safeguarding the interest of the workmen" had not been reached on any proper material or reasoning. In regard to the first point it is necessary to explain the scheme of the Industrial Relations Ordinance, 1969 in relation to registration of trade unions. Such registration can take place either with the Registrar, Trade Unions set up by the Provinces or with the Commission. Registration with the Commission is confined to industry‑wise trade unnions, federation of such trade unions or federations at the national level, membership of which extends to establishments or registered trade unions, as the case may be, in more than one Province. All other trade unions must seek their registration with the Registrar, Trade Unions in the Provinces. There is provision for remedy before the Labour Court against certain decisions of the Registrar in the matter of registration or cancellation of registration of a trade union. The Appellate Tribunal has been given power to correct the orders of a Labour Court. No such three tiers exist in the Commission. All the functions of the Commission under the I.R.O. are to be performed by it in accordance with the provisions of that law. For the efficient performance of its functions, the Chairman of the Commission has been authorized by section 22‑B to constitute Benches consisting of one or more Members of the Commission and a Full Bench consisting of not less than three Members. Such Benches can, in relation to the trade unions which are to be registered with the Commission, perform all such functions and exercise all such powers as are performed and exercised by Registrar, a Labour Court or a Tribunal and for this purpose any reference in the Ordinance to "Registrar" "Labour Court" or as the case may be "Tribunal" shall be deemed to be a reference to the appropriate Bench of the Commission to which such functions are assigned. It is also provided that these Benches shall unless otherwise provided in the Ordinance, follow the procedure laid down in the regulations to be made under section 22‑F. Under subsection (6) of‑section 22‑B, the decisions made, the functions performed or proceedings taken by any Bench of the Commission in accordance with the Ordinance, shall be deemed to be the decision made function performed or proceedings taken as the case may be, by the Commission. The petition of the petitioner (respondent No. 1‑A) had been duly tiled in the Commission and then assigned by the Chairman by his order, dated 4‑6 1987 to the learned Single Bench for disposal. That Bench, therefore, had jurisdiction under the law to proceed with and decide the petition. The contention, therefore, that the Single Bench had no jurisdiction is not tenable. Nor can the validity of the order passed by the Single Member be questioned on the ground that he also, performing the duty of Registrar, cannot give a direction to himself. Such analogy is not called for and if any such directions are to issue he can himself proceed with the same being possessed of the powers of Registrar. It is also to be noticed that none of the two points above had been raised before the learned Bench where the appellants had duly participated in the proceedings culminating in the impugned order. As for merits, which concern points Nos. 3 and 4 raised before this Bench, the same proceed more upon technicality than substance. Section 22‑EE' requires that the Commission should be satisfied (i) after holding such enquiry as it deems fit, (ii) that for safeguarding the interest of the workmen in relation to collective bargaining, (iii) it is necessary, just and feasible to determine one or more C.B.Us. of such workmen. I he nature of the enquiry has not been specified but has been left in the discretion of the Commission. Whether an appropriate enquiry had been held and whether there was material on record to justify the view formed by the Commission is to be gauged by the proceedings and the record of the case. We find that notices had been issued to all the trade unions made parties in the petition and they had been given opportunity to present their view point, produce documents and also to appear and argue in favour of their respective points. There is nothing on record to suggest that the appellant or for that matter any of the parties had been denied such opportunity. Nor is there any such allegation made. There is also nothing to contradict the statement of the Management that all the four C.B.As. used to make a joint demand and reach a single settlement for all the offices and the factories. With this undisputed background, it cannot be said that there was no proper or adequate material before the learned Single Bench to reach his satisfaction and to pass the order creating only one C.B.U. for all the establishments of the PECO Limited. The most important factor in determining a C.B.U. as enjoined upon by section 22‑EE is the safeguarding of interest of the workmen in relation to collective bargaining. The past practice of joint collective bargaining has thus, an important bearing in the present case particularly when it has not been shown that such practice had operated to the prejudice of any group of workers. For these reasons we rind no substance in this appeal which is, hereby, dismissed. The stay earlier granted stands vacated. S.Q./125/NIRC Appeal dismissed.