1990 SCMR 32 (PLP)

The order of the Commission was challenged by the petitioner in a Constitution Petition in Sind High Court on the grounds that the appeal before the Commission was not competent and also that the view that had prevailed with the Commission with regard to the crucial date for determining the requisite one -third number of votes secured by the Trade Union having polled the highest votes is not to be the date of immediately before the poll, but the date on which voters list is finalised on the basis of list of workmen supplied by the Establishment under the provisions of section 22 (4) of the Act, (Ordinance) and which forms the basis for the preparation of the voters list in terms of subsection (S). On the first point raised by the appellant, learned Judges of the Division Bench of the High Court who heard the Constitution petition took the view that the appeal against the Certificate of Collective Bargaining Agent issued under section 22(9)(e) of I.R.O. is not competent as Certificate is a mere declaration, and it does not amount to an Award or Decision in the meaning of section 22-D-(I) of the Ordinance. Having taken this view, learned. Judges however fully agreed with order of the Commission recalling the Certificate issued in appellant's favour and dismissed the petition, subject to the modification that a fresh poll among all the contesting trade unions shall be held for the purpose of determining the Collective Bargaining Agent. It is in these circumstances that petitions: filed this petition for leave to appeal from the judgment of the High Court. Mr. Khalid M. Ishaque, learned counsel appearing in support of the petition raised several pleas before us, foremost being that once the High Court held that no appeal was competent before the Full Bench of the Commission, it should have allowed the petition, without going further into the matter with regard to the validity of the Certificate of Collective Bargaining Agent issued to the petitioner. on merits of the case. Learned counsel submitted that the High Court erred in reaching the conclusion that the relevant date for the purpose of proving of entitlement of the petitioner to be the Bargaining Agent was 23rd July 1986, when the provisions of section 22 of I.R.O. point to the contrary direction. In this regard, learned counsel urged that the interpretation placed by the High Court is not only contrary to the statute, but is also contrary to the objectives of the labour laws, for the employer would then be able to prevent every successful trade union not to his liking, from becoming Collective Bargaining Agent by hiring temporary workers or apprentices just before the date of the poll. In such circumstances the will of the voters would be defeated by the will of the employer, by increasing or decreasing the number of apprentices in the Establishment. In the light of the argument addressed at the Bar, the crucial question that arose was regarding the date in relation to which the trade union which has received the highest number of votes has to demonstrate that the number of votes secured by it in the ballot held for determination of Collective Bargaining Agent was not less then one-third of the total number of workmen employed in the Establishment as required by the First Proviso of Section 22(9) (e) of the I.R.O. In order to determine this question it is necessary to refer to the Scheme underlined by the legislature in section 22 of the I.R.O. which reads as under: "

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 be certified by the Registrar in the prescribed manner) to be collective bargaining agent for such establishment or group. (2) Where there are more registered trade unions than 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, (or the Government) hold within fifteen days from the making of the application) a secret ballot to determine as to which one of such trade unions shall b;, the collective bargaining agent for the establishment or group: (Provided that the Registrar may, in the case of a large establishment having its branches in more than one town, hold the secret ballot within thirty days from the making of the application): (Provided further that the Registrar shall not entertain any application under this subsection in respect of an establishment or group of establishments, consisting of, or including, a seasonal factory within the meaning of section 4 of the Factories Act, 1934 (XXV, of 1934), unless such application is made during the month in which the number of workmen employed in such factory in a year is usually the maximum). (3) Upon receipt of an application under subsection (2) the Registrar shall, by notice in writing, call upon every registered trade union in the establishment or group of establishments to which the application relates-- (a) to indicate whether it desires to be contestant in the secret ballot to be held for determining the collective bargaining agent in relation to such establishment or group; and (b) if it so desires, to submit to him within the time specified in the notice a list of its members showing, in respect of each member, his parentage, age, the section of department and the place in which he is employed, his ticket number and the date of his becoming a member and if the trade union is a federation of trade unions, a list of its affiliated trade unions together with a list of members of each such trade union showing in respect of each such member the said particulars. (4) Every employee shall-- (a) on being so required by the Registrar, submit a list of all workmen employed in the stablishment excluding those whose period of employment in the establishment is less than three months and showing in respect of each workman, his parentage, age, the section or department and the place in which he is employed, his ticket number and the date of his employment in the establishment; and (b) provide such facilities for verification of the list submitted by him and the trade unions as the Registrar may require: (Provided that in computing the period of three months referred to in clause (a) in the case of a workman employed in a seasonal factory within the meaning of section 4 of the Factories Act, 1934, (XXV of 1934), the period during which he was employed in that factory during the preceding season shall also be taken into account). (5) The Registrar shall, after verification of the lists submitted by the trade unions, prepare a list of voters in which shall be included the name of every workman whose period of employment (as computed in accordance with subsection (4) is not less than three months and who is a member of any of the contesting trade unions and shall, at least four days prior to the date fixed for the poll, send to each of the contesting trade unions a certified copy of the list of voters so prepared. (6) Every workman who is a member of any of the contesting trade unions and whose name appears in the list of voters prepared under subsection (5) shall be entitled to vote at the poll to determine the collective bargaining agent. (7) Every employer shall provide all such facilities in his establishment as may be required by the Registrar for the conduct of the poll but shall not interfere with, or in any way, influence, the voting. (8) No person shall canvass for vote within a radius of fifty yards of the polling station. (9) For the purpose of holding secret ballot to determine the collective bargaining agent, the Registrar shall-- (a) fix the date of the poll and intimate the same to each of the contesting trade unions and also to every employer; (b)on the date fixed for the poll so place in the polling station set up for' the purpose the ballot-boxes which shall be sealed in the presence of the representatives of the contesting trade unions as to receive the ballot- papers; (c) conduct the poll at the polling station at which the representatives of the contesting trade unions shall have the right to be present; (d) after the conclusion of the poll and in the presence of such of the representatives of the contesting trade unions as may be present, open the ballot-boxes and count the votes; and (e) after the conclusion of the count (certify) the trade union which has received the highest numbers of votes to be the collective bargaining agent: Provided that no trade union shall be (certified) to be collective bargaining agent for an establishment or group of establishments unless the number of votes received by it is not less than one-third of the total number of workmen employed in such establishment or group: Provided further that, if no trade union secures such number of votes in the first poll, a second poll shall be held between the trade unions which secured the two highest numbers of votes in the first poll and the trade union which secures a majority of the votes cast at that second poll shall be certified in the prescribed manner to be the collective bargaining agent: Provided further that, if the number of votes secured by two or more trade unions securing the highest number of votes is equal, further poll shall be held between them until one of them secures a majority of the votes cast at such further poll. As observed earlier, there is no provision under the Scheme of section 22 of the Ordinance for the preparation or submission of any list of voters except the one under subsection (5). If, therefore, the Trade Union having received the highest number of votes has to demonstrate that the number of votes secured by it in the secret ballot is not less than one-third of the total number of workmen employed in the Establishment, there is no escape from the conclusion that there can be no other list of voters other than the one aforesaid. This interpretation flows from the language of section 22 of the Ordinance itself, if read as a whole. Any other interpretation or the one that found favour with the Commission and the High Court that the date in relation to which the Trade Union is to demonstrate itself membership of not less than one-third of the total number of workmen is to be one day earlier than the poll would be open to great mischief, for, the employer would then be able to frustrate or defeat every successful Trade Union from being declared as the Collective Bargaining Agent by hiring temporary workers or apprentices just before the date of poll. In that situation, the will of the employer will surely defeat the will of the voters. It is the admitted position that petitioner Union successfully secured the requisite number of votes of not being less than one-third of the total number of workmen employed in the Establishment on 30th June, 1986. The Deputy Registrar, therefore, very rightly declared the petitioner Union as duly elected and certified it to be the Collective Bargaining Agent. On this view of the case, we would not like to embark upon the question whether the appeal before the Commission was competent or not since the conclusion reached by us should, in our opinion, cover the fate of the controversy between the parties before us. For these reasons, this petition is converted into an appeal and the appeal is allowed and the impugned judgment of the High Court, dated 28-3-1987 and also order of the National Industrial Relations Commission, dated 23-11-1986 are set aside with the result that the Certificate of Collective Bargaining Agent, dated 31-7-1986, issued by the Deputy Registrar of the Commission certifying the appellant as the Collective Bargaining Agent under section 22(9)(e) of the I.R.O. stands restored. The parties are left to bear their own costs. M.Y.M./K-126/S Appeal accepted.