MA. BAQI KHAN Versus NATIONAL INDUSTRIAL RELATIONS COMMISSION
1. MUKHTAR AHMED JUNEJO, J: ‑‑Petitioner MA. Baqi Khan, President Regional Body of K.T.R. and Member, Pakistan Telecommunication Union (Traffic) has filed this Constitution Petition with following prayers:‑
(a) the impugned orders/Circular dated 24‑5‑1990 in Case No. 2(14)/90 and 6‑6‑1990 issued by respondents Nos. 3 and 4 as illegal, without lawful authority, void ab initio, and in violation of section 22 of the industrial Relations Ordinance, 1969.
(b) the respondent No. 3 has issued the impugned order/circular in utter disregard and disobedience of the judgment dated 7‑3‑1989, passed in C.P. No. D‑350/83 by the Hon'ble High Court of Sindh, Karachi.
(c) the respondent No. 4 as an Employer cannot file application under section 22 of Industrial Relations Ordinance, 1969 before respondent No. 3 or even otherwise before the respondent No. 1.
(d) the order dated 26‑5‑1982, passed in Cases Nos. 19(8)/81 and 19(10)/81 by the Single Bench of respondent No. 1 has been expired, ceased to exist inoperative.
(e) Any other relief which this Hon'ble Court may deem suitable in the interest of justice.
2. National Industrial Relations Commission (NIRC) is empowered under section 22‑EE of Industrial Relations Ordinance (I.R.O.) to determine one or more collective bargaining units of workmen in an establishment or group of establishments belonging to the same employer and the same industry, in relation to collective bargaining for safeguarding the interest of the workmen employed in the same. In exercise of such powers, a Member of NIRC passed an order on 4‑8‑1976 declaring three collective bargaining units, namely T&T Engineering Branch, T&T Traffic Branch and T&T Administration Branch, for workers of Pakistan Telegraph and Telephone Department except those employed in Telegraph Workshop Kotri, Telephone Industries, Kotri, Carrier Telephone Industries, Islamabad and National Radio and Telecommunication Corporation, Haripur Said Units were determined at the outset for five years but were to continue even beyond five years till there was a move for fresh determination. All this was subject to right of the Federal Government to move NIRC for review of the Collective Bargaining Units.
2. With this background, the Pakistan Telecommunication Engineering Line Staff Union moved an application on 4‑11‑1981 before the NIRC under section 2.EE of I.R.O. for determining establishment of the T&T Department as one collective bargaining unit. Again on 19‑11‑1981 the All Pakistan Telegraph and Telephone (Traffic) Association moved an application under section 22‑EE of IRO before NIRC for determining a separate Collective Bargaining Unit for establishment of Telegraph Offices Traffic Branch T & T and another separate collective bargaining unit for establishment of Telephone Offices Traffic Branch of T&T Department. Both the applications were decided under a common order dated 26‑5‑1982 by the Senior Member, NIRC who determined one collective bargaining unit for the establishment of Telegraph and Telephone Department with the exception of the workers employed in Carrier Telephone Industry, Islamabad, Telephone Industries of Pakistan Haripur, National Radio Telecommunication Corporation, Haripur and Telegraph Workshop, Kotri. Said order dated 26‑5‑1982 was challenged in Appeal No. 12(26)/82‑NIRC filed by the Petitioner before Full Bench of NIRC. The appeal was dismissed under an order dated 2‑2‑1983 and not by a Union.
3. Both these orders dated 26‑5‑1982 and 2‑2‑1983 were challenged by the petitioner in this Court in Constitution Petition No. D‑350 of 1983 which was disposed of by a D.B. on 7‑3‑1989 in the following words:‑
4. "We would, therefore, remand the case to Full Bench with the direction to decide the, appeal after hearing both the parties on all the points which may be urged, within a period of two months from the date of receipt of the copy of this order and thereafter referendum will be held in accordance with the order which may be passed. However, there will be no order as to costs."
5. After remand, appeal of the Petitioner No. 12(26)/82 was fixed for hearing on 8‑4‑1989 but it was adjourned to 29‑4‑1989. On 29‑4‑1989, the appeal was adjourned at the request of counsel for the appellant/petitioner to 8‑6‑1989. On 8‑6‑1989 neither the petitioner nor his counsel appeared before the NIRC and the appeal was dismissed for non‑prosecution. The petitioner moved restoration application which was heard on 4‑7‑1989 and the appeal was restored and it was fixed for hearing on 8‑8‑1989. Again on 8‑8‑1989, the petitioner did not appear and his counsel has no instructions and the matter was adjourned to 4‑9‑1989. On 4‑9‑1989 petitioner's counsel sought adjournment to file objections against an application praying for dismissal of the appeal and the matter was adjourned to 9‑10‑1989. On 9‑10‑1989 neither the petitioner appeared before the NIRC nor his counsel and the matter was again dismissed for non‑prosecution. Thereafter, the petitioner moved another application for restoration of appeal but the same was dismissed under an order dated 5‑5‑1990, which was signed by two Members of NIRC although the matter was being heard by Chairman and two Members of NIRC. Subsequently on 6‑6‑1990 respondent No. 4 issued a circular letter for holding of referendum to determine one CBA in the T&T Department. Said circular letter has been assailed in this Constitution petition besides an order dated 24‑5‑1990 issued by the Registrar NIRC calling upon the different unions to state whether they are contesting in the secret ballot for determining the C.B.A. in relation to the workmen employed in T&T Department.
6. Mr. Suleman Habibullah, learned counsel for the petitioner argued that NIRC had not decided the appeal on all the points which could be urged in terms of order of this Court dated 7‑3‑1989 passed in C.P. D‑350/83. It was next argued that the appeal of the petitioner was to be heard by a Full Bench of NIRC but it was disposed of by two Members only without the Chairman being included in it. Learned counsel for petitioner referred to the definition of "Full Bench" given in clause (a) of subsection (2) of section 22‑B of IRO and argued that disposal of appeal of the petitioner was by two Members of NIRC which did not constitute Full Bench. It was further argued that two Members of NIRC had not given any decision on merits of the case but they had dismissed restoration application.
7. Mr. Umer Qureshi; learned counsel for respondents 4 and 5 argued that petitioner MA. Baqi Khan was not competent to move a Constitution petition because he as an individual was not competent to take part in the contest for CBA and that only a trade union can participate in the referendum for determination of CBA. In respect of the impugned letter dated 24‑5‑1990 it was argued that such letter can be issued by that Registrar of NIRC who was incharge of registration of the trade unions and it was rightly issued by the correct person. Learned counsel for respondents 4 and 5 further argued that a Registrar can also authorise any other officer to perform his functions in view of section 22(13) of IRO. Learned counsel for respondents 4 and 5 lastly contended that present litigation by the petitioner was motivated to delay holding of the referendum. '
8. Mr. A.G. Mangi, learned Additional Advocate‑General adopted the arguments of Mr. Umer Qureshi. Same arguments were also adopted by Mr. Khalid Athar, learned Advocate for respondent No. 6.
9. Registrar of Trade Unions on receiving an application under subsection (2) of section 22 of the I.R.O. shall issue a notice in writing, calling upon every registered trade union in the establishment or group of establishments to which the application relates, 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 of group, vide clause (a) below subsection (3) of section 22 of I.R.O. The impugned notice dated 24‑5‑1990 has been issued in pursuance of the provisions contained in clause (a) below subsection (3) of section 22 of I.R.O read with clause (e) below subsection (8) of section 22‑A of I.R.O.
10. It may be pointed out that order of the NIRC dated 26‑5‑1982 deciding applications moved under section 22‑EE was assailed in C.P. No. D 350/83 with order dated 2‑2‑1983 by the appellate authority. While remanding the matter to the NIRC this Court under an order dated 7‑3‑1989 had required the referendum to be held in accordance with the order to be passed by Full Bench of N.I.R.C, after hearing the parties on all the points which may be urged and after deciding the appeal filed by the petitioner. However, the N.I.R.C. did not decide the appeal on merits as would appear from its order dated 5‑5‑1990, which has been challenged in this Court in C.P. No. D‑586 of 1990. Hence in terms of order passed on 7‑3‑1989 in C.P. No. D‑350 of 1983, the referendum to determine C.B.A. can take place only after the matter about collective bargaining units is decided by Full Bench of the N.I.R.C. In the connected C.P. No. D‑586 of 1990, we have remanded the matter to the NIRC after declaring the order of NIRC dated 5‑5‑1990 to have been passed without lawful authority and to be of no legal effect. Before the collective bargaining units are finally determined by the NIRC in terms of section 22‑EE of I.R.O., there can be no referendum in terms of subsection (2) of section 22 of I.R.O.
11. As a result of above discussion we accept this Constitution petition and declare the impugned notice dated 24‑5‑1990 by the respondent No.l (NIRC) and the impugned circular dated 6‑6‑1990 by the respondent No. 4, to have been issued without lawful authority and to be of no legal effect. Respondents Nos. 1 and 4 can issue such notice and the circular respectively after the collective bargaining units are finally determined by the NIRC as per section 22‑EE of I.R.O. There shall be no order as to costs.
12. H.B.T./M‑1735/K Petition accepted.