1992 PLC 125

SALAHUDDIN MIRZA, J: -- The facts of the case as per averments made in the petition are as follows:--

2. Petitioners and respondents Nos. 3 and 4 are the registered Trade Unions of the workmen employed in respondent No. 5 Corporation at Karachi where it employs 2000 workmen out of a total of 2100 which it employs throughout Pakistan. The petitioners-Union was elected Collective Bargaining Agent in the referendum held in 1983 and ever since it is being constantly so elected in the two-yearly referendum held for electing the C.B.A. The petitioners-Union was last elected C.BA. for a two-year term in the referendum held on 16th April, 1990. Respondent No. 3--Union was the runner-up in this last referendum. After their defeat in the referendum held on 16th April, 1990, some of the office-bearers of respondent No. 3--Union set-up an industry-wise trade union (respondent No. 2) and got it registered with the Registrar of Industry-wise Trade Unions (respondent No. 7). Respondent No. 2 was not qualified to be registered as it had no more than 105 members throughout Pakistan as against a minimum of 1/5 of total employees which is the minimum requirement of law. The petitioner-Union made representation to this effect before respondent No. 7 but respondent No. 7 paid no heed to it. Respondent No. 2 was thus registered vide Registration Certificate dated 5th August, 1990, Annexure `C' and subsequently C.BA. Certificate was also issued to it on 28-8-1990 (Annexure F-1). Petitioner-Union challenged this C.BA. Certificate of respondent No. 2 by filing C.P. No. 84 of 1990 which was disposed of by the consent order dated 24-9-1990 whereby C.BA. Certificate of respondent No. 2 was declared null and void because respondent No. 7 of this petition had not heard the petitioners before passing the impugned C.BA. Certificate. The operative portion of the order is quoted below:

"As the petitioner had not been heard by N.I.R.C. before passing of Order certifying respondent No.2 as CBA under section 22(1) of Industrial Relations Ordinance, 1969, by consent, the CBA Certificate issued by respondent No.l on 28-8-1990 is declared to have been issued without lawful authority and of no legal effect. The NIRC is directed to constitute a Full Bench, preferably of all the available members of the NIRC, to consider and decide whether the CBA certificate issued in favour of. the petitioner on 16-4-1990 by the Registrar, Sindh, after referendum, would be deemed to be ineffective on the registration of respondent No.2 as an Industry-wise Union. The decision will be given by the NIRC after hearing all the concerned parties and while taking such decision, it will be open to the Full Bench of NIRC to review its earlier decision reported in 197'7 PLC 25.

The petitioner had earlier raised an objection about the registration of respondent No.2 for lack of requisite membership. The petitioner shall be free to raise the said objection about the registration certificate before the Full Bench and the Full Bench of the NIRC will take a decision on such objection after hearing the petitioner, respondent No.2 and any other concerned party."

Thereafter the NIRC (respondent No.l) heard the petitioner and respondent No.2'and passed the impugned majority judgment on 6-4-1991 where under the two questions formulated by this Court and referred to NIRC for decision vide above-quoted order in C.P. No.D-846/90 were decided as under:--

(1) C.BA. Certificate issued to the petitioners on 17-4-1990 (Annexure `A') was declared void ab initio and at any rate it became ineffective on the Registration of respondent No. 2 as an industry-wise trade union.

(2) Registration of respondent No. 2 as industry-wise trade union was valid and there was no necessity to verify the strength of membership of respondent No. 2 under section 7(2)(b) of IRO because Registration of all Unions (including the petitioner and respondents Nos3 and 4) was void and for all practical purposes there was no registered union of the employees of respondent No. 5 on the date when respondent No.2 applied for registration.

3. Mr. Abdul Aziz Memon, Member NIRC, delivered minority decision where under Point No.l was decided in the negative and it was held that C.BA. Certificate issued to petitioner-Union on li-4-1990 was valid and was riot affected by the subsequent registration of respondent No.2 as an industry-wi>;; trade union and under Point No.2 it was held that registration of respondent No.2 was valid because the petitioner-union could not prove that such registration was bad for want of requisite membership. Respondent No.6 is also an industry-wise trade union which was registered after the decision of the NIRC.

4. In this petition the petitioner-Union impugnes the majority view (Annexure `J') and prays for. a declaration that its C.BA. Certificate dated 17-4-1990 (Annexure `A') continues to subsist and is effective.

5. Respondent No.2 alone has filed counter-affidavit. According to it, respondent No.5 Corporation had in all 2200 employees out of which 1800 were employed in Karachi (according to the petitioner-Union, that corresponding figures are 2100 and 2000 respectively). Respondent No.2 denied the assertion of the petitioner-Union that respondent No. 2 had a membership of only 105 members and claimed it had a membership of 1030. It was also denied that the office-bearers of respondent No.2 and its address were the same as these of respondent No.3 which was defeated in the referendum of 16-4-1990 in which the petitioner-Union was elected the C.B:A. In: paras. 10 and 12 of the counter-affidavit, two contradictory assertions were made. In the former it was stated that the aim of registration of respondent Not was in no way to sabotage or nullify the result of the referendum (of 16-4-1990) while in the latter it was stated that after its election, respondent No.2 was entitled to become C.BA. It was not explained how respondent No. 2 could assume the role of C.BA. without nullifying the result of the referendum of 16-4-1990 in which petitioner-Union was elected the C.B.A. as, surely, two C.BAs. cannot simultaneously co-exist in an establishment. The petitioner-Union has filed affidavit-in-rejoinder.

6. Learned counsel of the parties have been heard.

7. Through the C.BA. Certificates dated 5-12-1983, 18-2-1986, 28-3-1988 and 17-4-1990, copies of which were filed by the petitioner-Union alongwith its affidavit-in-rejoinder, it has been established that the petitioner-Union is being constantly elected since 1983 as C.B.A. of the employees of respondent No.5. for its Karachi establishment and the last C.B.A. Certificate is valid for a two-year term ending on 16-4-1992.

8. The main contention of the learned 'counsel of the petitioners now is that after the election of the petitioners, in the referendum held on 16-4-1990, as C.B.A. for a period of two years, an industry-wise trade union may be registered but it cannot claim the status of C.B.A. merely on the basis of its registration and therefore the status of the petitioner-Union as C.B.A. is not affected, for the duration of the validity of its C.BA. Certificate, by the subsequent registration of respondent No.2 as industry-wise trade union and in support of his view he relies on section 22 (10) of IRO which is in the following terms:--

"S.22(10).--Where a registered trade union has been (certified) under clause (e) of subsection (91 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 Aithin 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)."

As is apparent on its very face, section 22(10) is in general terms but learned counsel insists that it covers the industry-wise trade unions as well and it was argued that the petitioner-union practically stands deregistered, as a result of the impugned order of NIRC, without any recourse having beer, made to section 10(1) of IRO which is unwarranted and illegal. In support of his contention learned counsel o: the appellant has relied on the case of Syed Mushtaq Hussain Shah v. Riaz Muhammad Hazarvi (PLD 1978 Kar. 612) wherein it is held that IRO having provided authority by which and the mode in which the registration of a trade union is to be granted or cancelled, the same cannot be done in any other manner or through any other forum and therefore only a Labour Court can cancel registration, and insisted that the NIRC had no Jurisdiction to make an assumption that registration of petitioner-Union stood cancelled automatically after the registration of respondent No.2 as an industry-wise trade-union. For the same purpose reliance was also placed on the case of NBP Peoples Federation v. NIRC (PLD 1975 Kar. 56).

Learned Councel of the petitioner-Union is further of the view that respondent No.2 had only two options in the matter. Either it should under section 22-EE of IRO get declared as one `bargaining unit' for the entire area in which it is claiming membership or it should wait for the expiry of C.B.A. Certificate of the petitioner-Union which shall expire after two years from its date (17-4-1990)

10. the above averments of Learned counsel of the petitioner union were vehemently contested by learned counsel of Correspondent No.2 who is of the view that section 22(10) of IRO applies only to a local trade union and not to an industry-wise trade union and relies on an NIRC decision reported as 1988 PLC 300. He referred to NIRC ( Procedure and Functions) Regulations, 1973 and argued that Registration Certificate of respondent No.2 (Annexure `C') does not violate any provision of IRO. He however overlooked the fact that learned counsel of the petitioners had not, in his arguments, agitated the registration of respondent No.2 but the CBA Certificate granted to it just on the basis of its registration. Learned counsel of respondent No. 2 also filed a clarification dated 6-6-1991 issued by Deputy Registrar of NIRC in respect of the C.BA. Certificate dated 28-8-1990 earlier granted to respondent No 2. Finally Learned counsel was of the view that in view of section 22-E of IRO, a decision of NIRC is final and cannot be challenged in any forum.

11. Learned counsel of respondent No.4, on the whole, adopted the arguments of learned counsel of respondent No.2. He was. also of the view that there was no necessity to first declare respondent No. 5 to be one Collective Bargining Unit and that, since respondent No.6 has also been registered as industry-wise trade union of the employees of respondent No.5, a referendum at the instance of respondent No.6 may now be necessary to determine between respondent No.2 and respondent No.6 as to which of them should be. Collective Bargaining Agent. Learned counsel of respondent No-5 has also adopted the arguments of learned counsel of respondent No.2.

12. The undeniable facts of the case are that respondent' No.3 was defeated in tie referendum of 16-4-1990 in which the petitioner-Union was declared the C.B.A. but the same office-bearers of respondent No.3 then on 29-4-1990 formed respondent No.2 as an industry-wise trade union after enlisting some members from other establishments of respondent No.2 in Punjab and (established the new union in the same office premises in which respondent No3 has its office and thus tried to circumvent its defeat in the referendum (of 16-4-1990 and got respondent No.2 Union not only registered but declared as C.B.A. over the head of the petitioner-Union which had obtained its C.B,A. Certificate in a hotly contested referendum with two other unions (respondents Nos.3 and 4). The question is whether the procedure followed by respondents Nos.2 and 3 is in accordance with law.

13. To begin with, the impugned order holds that the very registration of the petitioner-Union, and the subsequent referendum of 16-4-1990 were void and illegal ab mitio because NIRC had exclusive powers, under section 22-As(8)(d) and (c) and section 22-A(ii) and Explanation to section 22-A,y to register trade unions and determine `CBAs' in 'establishments extending over more than one province. To appreciate this argument, let us go through these provisions of law.

"Section 22-A (8): .

(d) to register industry-wise trade union federations of such trade unions and federations at the national level; '

(e) to determine the Collective Bargaining Agents amongst industry-wise trade unions, federations of (such) trade unions and federations at the national level;

Section 22-A(11).--Save as provided in (subsections (10-A) and (12)) no Registrar, Labour Court or Tribunal shall take any action, or entertain any application or proceedings, in respect of any matter which falls within the jurisdiction of the Commission.

Section 22-A, Explanation : -In this section and in (the succeeding provisions of this Ordinance), the expressions "industry-wise trade union", "federation of such trade unions", and "federation at the national level" refer to a trade union the membership of which extends to establishments in more than one province and a federation of trade unions whose membership extends to registered trade unions in more than one province."

We are of the considered view that the above provisions of law lay down the powers of NIRC in so far as the registration etc. of an industry-wise trade union is concerned just as sections 5 to 7 deal with the powers of a Registrar of Trade Unions in respect of registration of a local union and both sets of provisions are independent of each other and none of them is capable of rendering the action taken under the other as redundant. In our view the 8 C.BA. status of the petitioner-Union cannot be assumed to have come to an end with the registration of respondent No.2 as an industry-wise trade union and we get support from the judgment in the case of PLD 1978 Kar. 612, already referred to above. Reference may also be made to the case of N.B.P. People's Federation v. NIRC (PLD 1975 Kar. 320) in which it is held that:--

"A certificate of registration is a very valuable right to a trade union, and the detailed provisions of section 10 for the cancellation of such a certificate manifest the Legislature's intention to protect the rights of trade unions. Therefore, in my humble opinion, the certificate can only be cancelled in the manner prescribed in section 10. Nor would such a construction render the aforesaid clause redundant because it would apply to the advisory functions of the Commission and other functions . for which no express provision has been made in the said Ordinance."

The petitioner-Union shall enjoy its status of C.BA. for the statutory period of two years from the date of its G.BA. Certificate as per section 22(10) of IRO unless its registration is earlier cancelled under section 10 thereof. We are also of the view that before registration of respondent No.2 as industry wise C trade union, the NIRC should have first determined the Collective Bargaining Unit in the establishment of respondent No.5, keeping in view the provisions of section (1)(c) of section 22-EE which is quoted below:--

Section 22-EE(1):

(a) . .............................................

(b). .............................................

(c) specify the date or dates from, and the period for which, all or any of such changes shall take effect:

Provided that the date so specified shall not be a date falling within the period of two years specified in subsection (10) of section 22 in its application to a Collective Bargaining Agent certified in respect of an establishment or establishments:

Provided further that, after the receipt of a reference for determination of a Collective Bargaining Unit, the Commission may stop or prohibit the proceedings to determine Collective Bargaining Agent under section 22 for any extablishment or group of establishments which is likely to be affected by a decision under this section."

In this we get support from the judgment in the case of M/s. Jang Publications v. Registrar of Trade Unions (PLD 1984 Kar. 292) which envisages action under section 22-EE and which change is to take effect gradually through a phased programme. It is thus evident that any such change, brought about under section 22-EE of IRO shall not affect the CBA status of the petitioner-Union for the period of currency of its C.B.A. Certificate. However, no action under section 22-EE has been taken by NIRC in the present case.

14. Learned counsel of respondent No.2 referred to Regulations 8 and 9 of NIRC (Procedure and Functions) Regulations, 1973 and maintained that registration of respondent No.2--Union was in accordance with law which only required that an industry-wise trade Union needs only show that it had membership in more than one province but it was not necessary for it to show that it had membership of not less than 1/5th of the workers in the Collective Bargaining Unit which it was representing, as envisaged in section 7(2)(b) of IRO. He, however, conveniently overlooked Regulation No.10 which provided that the Commission in registering an industry-wise trade union, shall follow the same procedure as laid down in IRO for the registration of a trade union which means that, given the fact that three other trade unions are also in the field, albeit on local basis, the condition of having at least one-fifth membership applies to industry-wise trade union as well.

15. Summing up the case, we hold that there cannot be two CBAs. in an establishment at one and the same time (one a local CBA and the other an industry-wise CBA), that the C.BA. status of the petitioner-Union did not come to an end with the registration of respondent No. 2 as an industry-wise trade union and that C.BA. status of the petitioner-Union shall hold field for the full two-year period of currency of its C.BA. Certificate unless its registration is earlier cancelled under section 10 of IRO and that any action by p NIRC under section 22-EE for determination of Collective Bargaining Unit, whenever taken, will not affect the CBA status of petitioner-Union until the expiry of two years from the date it was granted CBA Certificate. Learned NIRC, while granting CBA Certificate to respondent No.2, did not look into the circumstances under which it was formed and whether it was a representative body of Karachi Establishment of respondent No.5, when the Karachi Establishment consisted of about 1900 out about 2100 employees of respondent No.5.

16. The decision of NIRC, being based on misinterpretation of law and resulting in miscarriage of justice is declared null and void. For the same reasons, the CBA Certificate granted to respondent No.2 by respondent No.l, is also declared to be null and void and of no legal effect. Parties are left to bear their own costs.

H.B.T./R-187/K Petition accepted.