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Constitutional Petition No. S. 102 of 1982, decided on 13th September, 1982.

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

----22 (10) -Application for holding referendum-Cannot be enter tained within period of two years from date of such certification of existing C. B. A.-Word "entertained"-Connotes initiation of pro ceedings-Application made before expiry of such period but letter written to other unions by Registrar after expiry of such period-No illegality in application and proceedings, in circumstances, held, committed.

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

----S. 22 (2)-Trade Union not registered on date of application by another registered union for holding referendum-Such union registered subsequently and also participating in proceedings before Registrar-- Such union, held, not debarred from taking part in referendum as an aspirant C. B. A.-Contention that such trade union did not have one-third strength of total workmen and as such its registration was illegal-Such plea involving resolution of disputed question of fact refused to be entertained in constitutional petition-Provisional Cons titution Order (P. O. 1 of 1981 , Art. 9.

M. L. Shahani for Petitioner.

Choudhary Rashid Ahmad for Respondents Nos. 1, 2 and 4.

Mir Raza Hussain Hydari for Respondents Nos. 3 & 5.

Date of hearing: 13th September, 1982.

In this petition, Karachi Transport Corporation Workers' Union (here inafter referred to as "the Workers Union") is petitioner, Registrar of Trade Unions, Sind, is respondent No. 1, Labour Officer (Trade Union) East Division, Karachi, is respondent No. 2, Karachi Transport Corporation Employees' Union (hereinafter referred to as "the Employees Union") is respondent No. 3, Karachi Transport Corporation Workmen Union (herein after referred to as "the Workmen Union") is respondent No. 4 and Karachi Transport Corporation is respondent No. 5.

2. The Workers' Union (the petition having won in the referendum proceedings under the Industrial Relations Ordinance, 1-969, held on 1Ith October, 1979, was certified as the Collective Bargaining Agent for the workmen of Karachi Transport Corporation w. e. f. 11th October, 1979 as per certificate issued by the Registrar of Trade Unions on 17th October, 1979. After nearly two years, the General Secretary of the Workmen Union (respondent No. 4) which is also a registered Union, made an application dated 8th October, 1981, for determination of the Collective. Bargaining Agent under section 22 (2) of the 1969 Ordinance for the workmen of Karachi Transport Corporation. On the basis of this application dated 8th October, 1981, on behalf of the Registrar of Trade Unions, the Labour Officer (Trade Union) East Division, Karachi, addressed a letter dated 19th October, 1981, inter alia, to the petitioner Union,, asking whether it wanted to be contestant in the ballot and was requested to attend the joint meeting on 26th October, 1981, and also was asked for the list of members of the Union. The Employees Union (respondent No. 3) was registered as a Trade Union by the Registrar on 22nd December, 1981, and the Registrar allowed the Workmen Union also to participate in the referendum for the determination of the Collective Bargaining Agent alongwith the Petitioner Union and the Employees Union (respondent No. 3). The Petitioner Union addressed a letter dated 16th March, 1982 to the Registrar informing that the Employees Union had been registered in violation of section 7 (2) (b) of the 1969 Ordinance ; the application for referendum made by the Workmen Union on 8th October, 1981 was made within two year in violation of section 22 (10) of the said Ordinance and therefore, no action could be taken on the said application ; and the Workmen Union on the date of making application for referendum did not have one-third strength of the total work men employed in the establishment and therefore no competent to make an application under section 22 (2) of the Ordinance. By his letter dated 18th May, 1982, the Labour Officer, on behalf of the Registrar, informed the Petitioner Union that the objections raised by the petitioner Union were not found valid and therefore rejected by the Registrar. 1n the circumstances the Petitioner filed the present constitutional petition in this Court on 5th June, 1982, which was admitted to regular hearing on 7th June, 1982. A stay application (Misc. S. 285 of 1982) was also filed to stay the referen dum fixed for 10th June, 1982, on which notice was issued to the respon dent for 8th June, 1982, on which date an ad interim order was passed by this Court allowing the referendum to be held but ordering that the result will not be announced until the decision of the application. By order dated 1st September, 1982, it was ordered by this Court that the stay application be heard alongwith the main petition today.

3. I have heard Mr. M. L. Shahani, Advocate for the Petitioner and Chowdhry Rashid Ahmed, Advocate for respondent No. 3 and Mir Raza Hussain Hydri Advocate for. respondent No 5. Respondent No. 2, the Labour Officer is present on his behalf and on behalf of respondent No. 1 and Waqar Ahmed, General Secretary of respondent No. 4 is present on behalf of respondent No. 4. Mr. M. L. Shahani raised the following three contentions in support of the petition :-

(i) The application made by Workmen Union on 8th October, 1981, was incompetent, as no such application could be entertained within two years of the certification of the Collective Bargaining Agent under section 22 (10) of the 1969.Ordinance ; .

(ii) At the time the application dated 8th October, 1981 was moved by the Workmen Union, the Employees' Union was not registered-it had been registered on 22nd December, 1981-and as such the Employees Union (respondent No. 3) could not take part in the referendum ; and

(iii) Employees' Union (respondent No. 3) was illegally registered by the Registrar and as such it could not take part in the referendum.

In so far as the first contention of the learned counsel for the ,petitioner is concerned, the word used in section 22 (10) of the 1969 Ordinance is "entertained" within a period of two years from the date of such certification. Although the certificate of the Registrar in respect of the Petitioner Union is dated 17th October, 1979, the certificate certifies that the petitioner Union was ascertained as the Collective Bargaining .Agent w.e.f. 11th October, 1979. In any case neither any order was passed nor was any action taken - by the Registrar of Trade Union till 19th October, 1981 when the letter was written on his behalf to the unions regarding the holding of the referendum. I am, therefore,, of the view that the application dated 8th October, 1981 of the Workmen Union (respondent No. 4) was entertained by the Registrar on 19th October, 1981, that is, clearly more than two years after the certifica tion of the Petitioner Union as the Collective Bargaining Agent. Even otherwise if the date is taken as 8th October, 1981, the cause of action matured during the proceedings initiated by the Registrar for holding the referendum and as such no illegality. has been committed in so far as the making of the application dated 8th October, 1981 by the Workmen Union is concerned. The first contention of the learned counsel for the petitioner has no merit.

As regards the second contention, Mr. M. L. Shahani, learned Counsel for the petitioner, referred to section 22 (2) of the 1969 Ordinance. Accord ing to the learned counsel only those Trade Unions could take part in the referendum, who were registered trade unions at the time the application under section 22 (2) was made by a registered trade union. Admittedly, Employees Union (respondent No. 3 ) was registered as a trade union on 22nd December, 1981, much before the date on which the referendum took place, which was 10th June, 1982, and the said Union also participated in the proceedings before the Registrar in connection with the holding of the referendum, if such interpretation is placed upon section 22 (2) of the 1969 Ordinance, as is sought to be placed by the learned counsel for the Petitioner, a large number of the employees of an establishment can stand disenfran chised and an interpretation in favour of giving the right to such workmen to exercise their vote for determination of Collective Bargaining Agent is to be preferred to 'an interpretation, ,which would disenfranchise them. In my view, if a trade union has been registered, Though after the making of the application by another registered trade union under section 22 (2) of the 19691 Ordinance, and this newly registered trade union has participated in the' proceedings before the Registrar, such new trade union is not debarred from B taking part in the referendum as an aspirant for .Collective Bargaining. Agent of the establishment. Application under section 22 (2) has to be moved by a registered trade union but all unions, which are duly registered under the Ordinance, 1969, can take part in the referendum.

In so far as the last contention of the learned counsel for the petitioner is concerned, I find that in the grounds taken in the memo. of the present peti tion, no such ground has been taken. -Learned counsel for the petitioner,. attempted to contend- that ground (d) relates to; the third contention raised by him. Reading of ground (d), however, clearly shows that it is not relat able to the third contention raised by the learned counsel for the petitioner. Further this point would require resolution of a disputed question of fact, and in the circumstances of this case, I am not inclined to decide this question, in this constitutional petition.

4. In the circumstances Const. Petition No. S. 102 of 1982 is dismiss ed but with no order as to costs. As a result Misc. No. S. 282 of 1982 also stands dismissed and the ad interim order dated 8th June, 1982 stands recalled.

Petition dismissed

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