Find a Lawyer

Appeal No. 67 of 1982, decided on 16th November, 1982.

(a) Industrial Relations Ordinance (XXIII of 1969)‑--

‑‑ S. 22(2), proviso and subsection (10)‑Application for holding referendum‑Expression entertain" ‑Means not only filing of applica tion or initiation of proceedings but would mean "adjudicate upon" or proceed to consider on merits' Application filed before expiry of 2 years commencing from date of certification of existing collective bargaining agent but notices' to all trade unions in establishment issued after expiry of such period‑Plea that Registrar had no juris diction to entertain such premature application, in circumstances, held, not sustainable.

Hindusthan Commercial Bank Ltd. v. Pannu Sahu A I R 1970 S C 1384; Kufdan Lal v. Jagannath Sharma A I R 1962 All. 547 ; Abdullah Bhai and others v. Ahmad Din P L D 1964 S C 106 and Abdul Razzaq v, Abdul Hdmid 1979 S C M R 534 rel.

(b) Industrial Relations Ordinance (XXIII of 1969)‑--

---‑Ss. 8 & 22‑Holding of referendum for determining collective. bargaining agent‑Every registered trade union in the establishment eligible to participate‑Trade Union registered subsequent to applica tion for holding referendum but allowed to participate in referendum by Registrar‑Action of Registrar challenged before High Court in constitutional petition‑Contention that (l) being not in existence on date of application such union could not have been allowed to participate and (2) registration of such union was illegal for reason that it did not have as its members 1 /5th of total number of employees of the establishment‑Contentions rejected ‑Held : Certificate of registration issued by Registrar under S. 8 shall be conclusive evidence of fact that such trade union was duly registered and every registered union was eligible to participate‑Inquiry into question of fact regarding number of members of such union, farther, held, could not be embarked upon by High Court in exercise of its constitutional jurisdiction‑‑Constitution of Pakistan (1973), Art, 199.

Indian Company Law by Ghosh, (11th Edn p. 154 and Landale and Morgan v. Chairman Jute Board 1970 S C M R 853 rel.

M. L. Shahani for Appellant.

Date of hearing : 16th November, 1982.

K. A. GHANI, J.‑‑

This appeal has been filed under section 3 of the Law Reforms Ordinance. 1972 against the judgment dated 13th September, 1982 passed by a learned Single Judge of this Court dismissing the Constitutional Petition No. S‑120/82.

The facts briefly stated are that the appellant/union was certified on 17th October, 1979 to be the Collective Bargaining Agent in the establish ment of Karachi Road Transport Corporation.

On 8th October, 1981 the respondent No. 4 one of the trade unions in the above‑mentioned establishment, made an application to the Registrar to hold fresh referendum for determination of collective bargaining agent under section 22 of the industrial Relations Ordinance, 1969 (hereinafter referred to as I. R. O., 1969). The Registrar on receipt of the said applica tion on 19th' October, 1981 issued notices to the trade unions in the above establishment to attend a joint meeting on 26th October, 1981 to complete the formalities.

In the meantime on 22nd December, 1981 the respondent No. 3 namely Karachi Transport Corporation Employees Union was also registered as a trade union in the same establishment under section 8 of the I. R. O., 1969 and a certificate of registration was issued in its favour by the Registrar. The respondent No. 3 in the circumstances was also allowed to participate in the various joint ‑ meetings which took place for finalising the requisite formalities for holding the referendum to determine the collective bargaining agent. The last meeting took place in May, 1972 and the referendum was scheduled to be held on 10th June, 1982.

2. Before the referendum could be held the appellant on the June, 1982 filed Constitutional Petition No. S‑102 of 1982 challenging the proceedings for holding the proposed referendum as void ab initio. The said Petition was admitted for hearing and by interlocutory orders passed on 8th June, 1982 and 1st September, 1982; the referendum was allowed to be held but it was directed that the result would not be announced until the Petition was decided by the Court.

The case then came up for hearing before the learned Single Judge who by judgment passed on 13th September, 1982 dismissed the same and interim orders passed on 8th June. 1982 and 1st September, 1982 were vacated.

3. The above judgment has been ' challenged by the appellant by preferring this inter‑Court appeal.

4. The learned counsel for the appellant in support of this appeal urged the following three grounds which he had earlier raised before the learned Single Judge as well :‑‑

(1) that the application made on 8th October, 1981 by the respondent No. 4 union was premature and could not have been entertained inasmuch as the period of two years commencing from 17th October; 1979 (the date on which the appellant union was certified to be the collective bargaining agent) had by that time not expired,

(2) that the respondent No. 3 union was registered on 22nd December, 1991 and thus being not in existence on 8th October, 1981, when the application for holding the referendum was made, could not have been allowed to participate in the proposed referendum, and

(3) that the registration of the respondent No. 3 union was illegal for the reason that it did not have as its members 1/5th of the total number of employees in the establishment.

5. We have carefully considered the above arguments advanced by the learned. counsel but do not find any reason to disagree with the findings reached by the learned Single Judge.

While making the observation as above, we may note that the learned counsel for the appellant sought to place reliance on the proviso to subsection (2) and subsection (10) of section 22 of I. R. O., 1969 in support of his plea that the Registrar had no jurisdiction to entertain' any applica tion for holding the referendum before the expiry of the period of two years from the date the appellant union was certified to be the collective bargaining agent. It was accordingly argued that the application filed by the Respondent No. 4 on 8th October, 1981 for holding the referendum was premature and liable to be dismissed as such. This argument is devoid of any force as the expression entertain' used in the statute means not merely filing of an application or initiation of proceedings but would mean adjudicate upon or proceed to consider on merits'. Reference, if needed be made to the case of Hindusthan Commercial Bank Ltd. v. Pannu) Sahu(A I R 1970 S C 1384).

In the said case proviso to section 9 of the U. P. Sales Tax Act, which required that no appeal shall be entertained' unless it is accompanied by satisfactory proof of the payment of tax admitted by the appellant to be due, came up for. consideration. The learned Judges interpreting the term "entertained" observed :‑

" . . . . . . the proviso merely requires that the appeal shall not be entertained unless it is accompanied by satisfactory proof of the payment of the amount of tax admitted by the appellant to be due. A question thus arises what is the meaning of the word entertained' in this context Does it mean that no appeal shall be received or filed or does it, mean that no appeal shall be admitted or heard and disposed of unless satisfactory proof is available The dictionary meaning of the word entertain' was brought to our notice by the parties, and both sides agreed that it means either "to deal with or admit to consideration. We are also of the same opinion. The question, therefore, is at what stage can the appeal be said to be entertained for the purpose of the application of the proviso Is it entertained' when it is filed or is it entertained' when it is admitted and the date is fixed for hearing or is it finally entertained' when it is heard and disposed of."

The learned Judges then observed that if the legislature intended that the word file' or receive' was to be used there was n0 difficulty in using those words. The interpretation placed on the term "entertained" in Kundan Lal v. Jegannath Sharma (1979 S C M R 534) was approved and it was held: ‑

"The word "entertain' is explained by a Divisional Bench of the Allahaliad High Court as denoting the point of time at which an application to set aside the sale is heard by the Court. The expres sion entertain', it is stated, does not mean the same thing as the filing of the application or admission of the application by the Court."

6. Even otherwise we find that though the application was made on 8th January, 1981 by the respondent No. 3 for holding the referendum, no action was taken thereon till 19th October, 1981 when notices were for the first time issued to the concerned trade unions in the establishment to attend the joint meeting fixed for 26th October, 1981. Admittedly by this time the period of two years mentioned in subsection (10) of section 22 of I. R. O., 1969 during which period according to the appellants an application 8 for determination of the collective bargaining agent could not have been entertained. had expired. Thus, on the principle laid down by the Honour able Supreme Court of Pakistan in the case of Abdullah Bhai and others Ahmad Din (P L D 1964 S. Q 106) to the effect that premature claim having ripened into a right during the course of the litigation between the parties, the authority would be justified in proceeding to pass the necessary order, the objection of the petitioner bad thus ceased to exist.

The above principle again came up for consideration 4 in Abdul Razzaq v. Abdul Hamid (A I R 1962 All. 547) a case under the West Pakistan Urban Rent Restriction Ordinance. 1959, to which provisions of C. P. C. were not applicable, and the Honourable Supreme Court was pleased to hold :‑

"The principles laid down in the case of Abdullah Bhai would be applicable with greater force to proceedings under the said Ordinance because the technicalities of the Civil Procedure Code are not applicable to cases under the said Ordinance, and because the Rent Controller is not a Court in the strict sense of the word.

Thus, we find that the first contention raised on behalf of the petitioner has no force.

7. As regards the second contention which relates to the objection to the participation of respondent No. 3, a registered trade union in the establishment in proceedings for finalising formalities for holding the referendum, we find that the same also cannot succeed for the reason recorded by the learned Single Judge, with which we find ourselves in agreement. that if the interpretation sought to be placed by the learned counsel is accepted a large number of the employees of an establishment can be disenfranchised, and that such an interpretation is not warranted by the provisions of the law relied upon. We also find that there is no bar, rather it is imperative for the Registrar to call upon every registered trade union in the establishment or group of establishments as laid down in subsection (3) and other relevant provisions of section 22 of I. R. O. 1969, to ascertain if they desire to be contestants in the referendum and in case they so desire, to submit lists of their members with the requisite particulars, and after completing other formalities and verification of "the lists submitted by the trade unions, prepare list of voters in which shall be included the name of every workman" whose period of employment (computed in the prescribed manner) is dot less than three months and who is a member of any of the contesting trade unions. and then to sending to each of the contesting trade unions a certified copy of the lists of voters so prepared., These provisions of law as incorporated in section 22 of 1. R. O. 1969 manifest the intention of the Legislature, that every registered trade union in the establishment shall be eligible to participate in the referendum held for determining the collective bargaining agent.

8. The last contention is equally without any force. The respondent No. 3 is duly registered trade union, section 9 of I. R. O., 1969 provides that a certificate of registration issued by the Registrar to a trade union registered under section 8 or in the prescribed form, shall be conclusive evidence of the fact that the said trade union has been duly registered under the said Ordinance. The argument advanced by the learned counsel for the appel lant that respondent No. 3 is not a legally registered trade union is neither supported by any evidence on record nor by any rule of law. Reference be made hereto the commentary on Indian Company Law by Ghosh (11th Edition) at p. 154 under section 35 of the Indian Companies Act where the learned author has summarised the law as follows :‑

"The certificate of incorporation is conclusive on the following points, viz. (1) that all the requirements of the Act in respect of registration and of matters precedent and incidental thereto have been complied with, (2) that the association is a Company authorised to be registered under the Act ; (3) that it has been duly registered. Even though a Company is formed for the mere purpose of being registered, the question cannot be raised whether it was authorised to be registered under the Act."

9. Finally, we observes hat even otherwise the High Court is not' expected to embark upon art inquiry in disputed questions of fact in exercise of its constitutional jurisdiction as laid down to the case of Landale and Morgan v. Chairman Jute Board (1970 S C M R 853). The Honourable Supreme Court in the said case while refusing to grant leave to appeal, held :‑

The question raised in the writ petition was, a controversial one of fact as to the status of the Petitioner Company qua the consignees r of the shipment, which required investigation and proof, and did not fall appropriately within the writ jurisdiction of the High Court. The writ Petition was rightly dismissed."

10. ‑ The upshot of the discussion as above is that there is no merit in this appeal which is accordingly dismissed in limine.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.