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Application No.l of 1985, decided on 18th February, 1985.

‑‑‑Ss.22 and 34‑‑Dispute between unions regarding determination of Collective Bargaining Agent‑‑Within jurisdiction of Registrar‑‑Application of Trade Union under S.34 to Labour Court hat Registrar be restrained from declaring other union eligible to take part in referendum‑‑Not maintainable.

This is an application, under section 34 of the Industrial Relations Ordinance filed by the employees union of Trust Ceramic Industries, against the Trust Ceramic Industries Labour Union and the Registrar of Trade Union, for seeking' declaration, that the Labour Union respondent No.l is not legally constituted body as laid down in section 7 (1) (d) of the I.R.O., 1969 and the Labour Union is not, competent to invoke proceedings under section E2, I.R.O. and to direct respondent No.2 from the proceeding in the matter of holding referendum pending decision of this Court.

2. Applicant claims that applicant is a registered trade union and is also Collective Bargaining Agent.

3. Applicant claims that there is also another trade union by the name and title of Trust Ceramic Industries Labour Union who has applied on 11‑7‑1984 for holding referendum and declaration of the Collective Bargaining Agent.

4. Applicant claims that the Registrar of Trade Union called both parties for the joint meeting to determine the Collective Bargaining Agent and the Management of Messrs Trust. Ceramic Industries on the direction of the respondent No.2 filed list of employees on 27‑10‑1984 which included 84 persons who had already resigned and collected their dues. The persons who had been retrenched is from 13‑10‑1984.

5. Applicant claims that their union when found list of employees, submitted by the Management raised the legal objections that the resigned workers and the retrenched workers are not the workmen as laid down under section 22 of I.R.O.

6. Applicant claims that the Labour Union respondent No.l is not competent to move application under section 22, I.R.O. for the determination of C.B.A. because its membership is less than 1/3rd of the total employees and that more than 25% of the office‑bearers are outsiders. Consequently the referendum has become in fructuous and it has no jurisdiction to challenge the present status of the C.B.A. of applicant union.

7. Applicant union has raised certain legal aspect namely the Labour Union respondent No.l has more than 25% outsiders as the office‑bearers and, therefore, it is not a legally constituted body. Secondly the Registrar is lawfully competent to proceed further on the application of the respondent.

8. Respondent No.l which is the Labour Union has raised the legal objections first, that the application is not maintainable under law as no right of declaration guaranteed under law has been infringed by the respondent. Secondly the respondent No.l and respondent No.2 are not the employers nor the applicant union is the union of workers. Thirdly the cases of retrenched workers are pending before this Court in which the re‑instatement is sought as such they are workmen. According to the respondent, the retrenchment of the workers have led to the dispute between employer and the workmen and the matter is pending under section 25‑A as an industrial dispute. Regarding facts it is contended that the retrenched workers‑are workmen and they can cast the vote in the referendum. They have also continued to hold the union offices and they cannot be termed as outsiders.

9. I have heard Mr. Khadim Hussain, Mr. Shafique Qureshi and Mr. Mir Mohammad Balouch.

10. Before I proceed to determine the legality of jurisdiction, I refer the letter of the Registrar of Trade Union. Registrar Trade Union, in its letter on 8‑1‑1985 has stated that the retrenched workers and the list: of voters will not be considered in the list of voters but at the same time contended that the referendum proceeding will go ahead to determine C.B.A.

11. There is also the letter of the applicant Union's General Secretary where in para. 3 General Secretary has stated that they are prepared to contest secret ballot in the list of voters if does not include retrenched workers because they are not governed by the definition of workmen.

12. Section 7, clause (d) provides that the number of persona forming the executive which shall not exceed the prescribed limit and which include not less than 75% from amongst the workmen actually engaged are employed in the establishment or the industry for which the Trade Union has been formed. Section 7, subsection (2) further reveals:‑

"Without prejudice to the provisions of subsection (1) a trade union of workmen shall not be entitled to registration unless all its members are workmen actually engaged or employed in the industry."

13. By virtue of this provision this is legal position that the workmen must be actually engaged in the industry of which the trade union is formed to participate in the election. It is only with regard to the office‑bearers that the number of persons shall not exceed the limit and shall include not less than 75%.

14. If this is the legal position of factual nature that the workers have been retrenched after the application filed for registration and before the referendum, the strength of the workers is to be determined from the position on the pay roll, despite the fact that application is pending before the Labour Court and whatever may‑ be the result for further action. Consequently the objection of Mr. Khadim Hussain appears to hold legal force.

15. But the main question is whether Court can grant relief when the question of jurisdiction comes under section 34. The Court is of the view that section 34 is applicable only when the right guaranteed or secured in enforced against the employer not against the union. The right enforced is regarding the terms of employment and conditions of employment and not between union regarding the determination of Collective Bargaining Agent or holding referendum which also is the jurisdiction given to the Registrar. Consequently this application, on the point of law regarding it s applicable has no legal position for the relief, and is accordingly dismissed.

Mr. Khadim Hussain has also referred the decision, the facts of that case are distinguishable.

A . E.

Application dismissed.

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