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Constitutional Petitions Nos. 3 and 4 of 1986, decided on 28th May, 1986.

‑‑‑Ss. 13 & 22‑‑Collective Bargaining Agent‑‑Power to determine a collective bargaining agent rested with Registrar and for that purpose he is also, empowered to authorise in writing an Officer to perform all or any functions under S.22 of Ordinance.

‑‑‑Word 'power'‑‑Meanings explained and defined.

‑‑‑Ss. 13 t, 22‑‑'Power'‑‑A person can only function if he has power, and performance of function is necessary corollary of power‑‑No functionary could function unless he had power in that respect.

‑‑‑Ss. 13 a, 22‑‑Collective Bargaining Agent‑‑Power of Registrar to determine a collective bargaining agent of an establishment‑‑Registrar, held, could competently delegate his power to any other, officer, to determine collective bargaining agent out of two rival unions and he could authorise in this behalf any other officer to perform his functions regarding procedure to be followed for such determination.

No function can be carried out by any person without having any power and when an officer authorises any other officer to perform his functions by necessary intendment he delegates his powers to function as such authority. Words 'power' and 'function' are not only synonymous to each other but also complement and supplement each other. An officer can only function if he has any power in that regard. The Registrar could, therefore, validly delegate his power to any other officer and could also authorise him to function as registrar for purpose of S.22 of Industrial Relations Ordinance, 1969.

Art. 199‑‑Industrial Relations Ordinance (XXIII of 1969), Ss.13 22/34‑‑Constitutional petition‑‑Question for determination in petition being as to which one of two rival unions was collective bargaining agent‑‑No question arose about enforcement of any right guaranteed or secured under any law or any award or settlement‑‑Contention that petitioners had not come with clean hands inasmuch as they had moved Labour Court by a petition under S.34 of Industrial Relations Ordinance and same was pending when constitutional petition was filed, held, was without force, petition before Labour Court having been misconstrued.

‑‑‑Art. 199‑‑Industrial Relations Ordinance (XXIII of 196:1), Ss.13 s 22‑‑Collective Bargaining Agent‑‑Election for determination of‑‑Petitioner participating in election for determination of collective bargaining agent and no objection of any kind regarding validity or power to function as Registrar taken by petitioner‑‑Petitioner lost election by considerable number of votes‑‑No illegality or irregularity pointed out in election proceedings either‑‑Substantial justice having been done and no prejudice of any kind having been caused to any party interference declined by High Court in constitutional jurisdiction.

M . L . Shahani for Petitioner (in both petitions).

K.N. Kohli for Respondent No.3 (in Civil Petition No. 3 of 1986).

Muhammad Nawaz Ahmed for Respondent No.l.

Respondent No.2 in person (in both Petitions). Shafiq Ahmed for Respondent No. 3.

Date of hearing: 13th May, 1986.

United Bank Progressive Employees' Union Quetta Circle petitioner in the present Constitutional Petition No. 3 of 1986 filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 have challenged the order, dated 21st November, 1985 of the Registrar Trade Unions, Baluchistan, respondent No.1herein, whereby he had authorised Muhammad Ayub Baluch, respondent No. 2 herein, to exercise the powers of Registrar for conducting referendum to determine the Collective Bargaining Agent between the petitioner and United Bank Employees' Union, Shahrah‑e Bohra, Quetta respondent No.3 herein, and the proceedings conducted on 20‑12‑1985 for determining the Collective Bargaining Agent.

2. The facts relevant for the purpose of this petition are that the petitioner and respondent No.3 are two registered trade unions of the employees of the United Bank, Quetta Circle. The petitioners applied to the respondent No.1for holding a referendum to determine as to which of the two trade unions could not as collective bargaining agent. The respondent No.1vide letter dated 21st November, 1985 ordered holding of the referendum and for that purpose authorised respondent No. 2 to exercise the powers of the Registrar Trade Unions under sections 13 and 22 of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the "said Ordinance" and hold referendum within one month. A final list of voters was given on 15‑12‑1985 but on 17‑12‑1985 an additional list of voters was also prepared. The referendum was held on 20‑12‑1985 wherein the respondent No.3 received 143 votes and the petitioner received 91 votes whereupon the respondent No.3 was declared as Collective Bargaining Agent. Since under the law the Registrar had the power to hold the referendum he could not delegate this power to respondent No.2 and hence the referendum was held by respondent tro.2 without lawful authority and was void. Similarly the delegation of the authority on 21‑11‑1985 was also void.

3. Another Constitutional Petition No.4 of 1986 has also been filed by Pioneer Cables Employees Union, the petitioner herein, to challenge the election of Pioneer Cables Limited, Azad Labour Union, respondent No.3 as Collective Bargaining Agent. The legal and factual objections to the said referendum are also the same as in the present Constitutional Petition No.3 of 1986, hence both the petitioners were heard together. The judgment in the present Constitutional Petition No.3 of 1986 will also dispose of Constitutional Petition No.4 of 1986. However, the brief facts of Constitutional Petition No.4 of 1986 are that in the first referendum both the unions got equal votes each secured 58 votes. A second referendum was held on 6‑1‑1986 wherein the respondent No.3 secured 63 votes and the petitioner secured 51 votes. Hence the respondent No.3 was declared Collective Bargaining Agent. For this referendum Wahid Bakhsh Baluch, respondent No.2 in this petition was delegated the powers of Registrar under section 22(13) of the said Ordinance vide order of the Registrar Trade Union, respondent No.1dated 5‑12‑1986.

4. We have heard learned counsel for the parties at great length. The grave‑men of the case of the petitioners as argued by Mr. M.L. Shahani learned counsel is that under section 13 of the said Ordinance it is the power of the Registrar to hold a referendum, whereas under section 22 he has to determine a Collective Bargaining Agent and under subsection (13) thereof the Registrar may authorise in writing an officer to perform all or any of his functions under the section. The contention of Mr. Shahani is that under subsection (13) of section 22 of the said Ordinance the Registrar can only authorise any officer to perform his functions under section 22 whereas determination of a Collective Bargaining Agent is his power under section 13 and so he could not delegate his powers under section 13 but could only authorise an officer to perform his function under section 22.

5. In order to properly appreciate the points in question it would be more appropriate to reproduce here the relevant provisions of sections 13 and 22 of the said Ordinance. Needless to say that under section 12, the Provincial Government has the powers to appoint for the purpose of the said Ordinance as many persons as it considers necessary to be Registrars of Trade Unions and, where it appoints more than one Registrar, shall specify in the notification the area within which each one of them shall exercise and perform the powers and functions under the said Ordinance. Section 13 relates to powers and functions of the Registrar and its provisions relevant for the matter in hand are as under:‑

"13. Powers and functions of Registrar.‑‑ (1) The following shall be the powers and functions of the Registrar:‑

(a) the registration of trade unions under this Ordinance and the maintenance of a registrar for this purpose;

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

(c)....the determination of the question as to which one of the trade unions in an establishment or an industry is entitled to be certified as the Collective Bargaining Agent in relation to that establishment or industry;

(c) ...............................................................

(d) ...............................................................

Sections 22 of the said Ordinance provides for the determination of Collective Bargaining Agent and detailed procedure has been provided for holding referendum if there are more than one trade union in an establishment. The relevant provisions of section 22 are also reproduced below: ‑

"22. Collective bargaining agent.‑‑ (1) Where there is only one registered trade union in an establishment or a group of establishments, that trade union shall if it has as its members not less than one‑third of the total number of workmen employed in such establishment or group of establishments, upon an application made in this behalf he certified by the Registrar in the prescribed manner to be the Collective Bargaining Agent for such establishment or group.

(2) where there are more registered trade unions that one in an establishment or a group of establishments, the Registrar shall upon an application made in this behalf by any such trade union which has as its members not less than one‑third of the total number of workmen employed in such establishment or group of establishments or by the employer for the Government hold within fifteen days from the making of the application, as secret ballot to determine as to which one of such trade unions shall be the use Collective Bargaining Agent for the establishment or group."

Provided.......................................................

Provided further .............................................

(3) ...............................................................

(4) ...............................................................

(5) ......... ............. .......................................

(6) ...............................................................

(7) ................... ..........................................

(8) ...............................................................

(9) ...............................................................

(10) ...............................................................

(11) ................................................... ..........

(12) ...............................................................

(13) ....The Registrar may authorise in writing an officer to perform all or any of his functions under this section,"

Subsection (3) to subsection (12) of this section pertains to the procedure as how and in what manner a referendum is to be conducted and the same are not relevant for our purposes.

6. It would also be pertinent to reproduce the authorisations made by the respondent No.1in favour of the respondent No.2 in both the (Nazir Ahmad Bhatti J)

Petitions Nos. 3 and 4. The relevant portion in order dated 21‑11‑1985 in this respect in Constitutional Petition No.3 is as under:‑

"I also autaorise Mr. Muhammad Ayub Baluch, Assistant Mines Labour Welfare Commissioner Baluchistan, to exercise the powers of the Registrar Trade Unions under section 22(13) of Industrial Relations Ordinance, 1969. He is directed to hold referendum within one month of the receipt of this order."

The order dated 5‑12‑1985 in this respect in Constitutional Petition No. 4 is as under:‑

"No. 116 RTU/DLW/QTA/8992.‑‑ In exercise with powers vested in section 22 (13) of Industrial Relations Ordinance, 1969, 1 hereby delegate the powers of Registrar Trade Unions for holding Referendum between two registered Trade Unions namely Pioneer Cables Limited Azad Labour Union and Pioneer Cables Employees Union to Mr. Abdul Wahid, Baluch, Assistant Director Labour Welfare Kalat/Mekran Division at Hub."

7. The perusal of the aforesaid provisions of section 13 and section 22 of the said Ordinance will show that the Registrar has the power to determine a Collective Bargaining Agent and for that purpose he had also been given the power to authorise under subsection (13) of section 22 to authorise in writing an officer to perform all or any of his functions under this section. As such the moot point is whether the powers and functions are two different connotations and can function be performed without having any powers.

8. The word "power" has been defined in Black's Law Dictionary, Revised 4th Edition, at page 1332, and it means "the right, ability, or faculty of doing some thing, authority to do any act". The word "function" has been defined in the same dictionary at page 801 as "to perform, execute, administer; the occupation of an office and by the performance of its duties, the officer is said to fill his function". Similarly the word "authorise" has been defined in the same dictionary at page 169, "as to empower; to give a right or authority, warrant or legal power". It has further been defined to mean that "the word indicates merely possessed of authority, that is, possessed of legal or rightful power". The word "function" has also been defined in the Stroud's Judicial Dictionary, 3rd Edition, at page 1196 and it includes powers and duties.

9.From the definitions of the aforesaid words in the Black's and Stroud's Dictionaries it can fairly be concluded without any fear of contradiction that a person can only function if he has power and performance of function is the necessary corollary of power. We can also say that a person functions and performs certain duty when he has the power to perform that duty. No functionary can function unless he has the power in that respect. The Registrar has the power under section 13 of the said Ordinance to determine a collective bargaining agent of an establishment whereas under section 22 the procedure has been prescribed for such determination and subsection (13) thereof empowers the Registrar to delegate his function of such determination to any officer. It can, therefore, safely be concluded that the Registrar could competently delegate his powers to any other officer to determine the Collective Bargaining Agent, out of the two rival unions in the petition and in this behalf he could authorise any other office to perform his functions regarding the procedure to be followed for such determination. If the Registrar did not have the power to determine a Collective Bargaining Agent, he could definitely not carry out this function under section 22 of the said Ordinance. As such it is unthinkable that any function can be carried out by any person without having any power and when an officer authorises any other officer to perform his functions by necessary intendment he delegates his powers to function as such authority. We are, therefore, unable to go alongwith the learned counsel for the petitioner in the interpretation of the words "power" and "function". These two words are not only synonymous to each other but also complement and supplement each other. An officer can only function if he has any power in that regard. The Registrar could, therefore, validly delegate his power to any other officer and could also authorise him to function as Registrar for the purpose of section 22 of the said Ordinance. We would, therefore, discard the contention of the learned counsel for the petitioner and would hold that the authority conferred by the Registrar on respondent No. 2 to exercise his powers under sections 13 and 22 of the said Ordinance was perfectly legal and valid and there was no jurisdictional defect therein.

10. There is yet another aspect of the matter. It is possible that there may be more than one Registrar of trade unions in a province. This circumstance was also in the mind of the Legislature when a provisions was made in the law for appointment of more registrars than one. However, if there is only one registrar in a province then it would be difficult for him to carry out the functions of determination of a Collective Bargaining Agent in all the numerous establishments in the Province. Even on that score it was necessary for the Legislature to make provision in the said Ordinance for conferring authority on any other officer by the Registrar to perform his functions foe determination of Collective Bargaining Agent in an establishment.

11. It was urged by the learned counsel for the respondent that the petitioner has not come with clean hands inasmuch as that they had moved the Labour Court by a petition under section 34 of the said Ordinance and the same was pending when the present petition was filed in this Court. We have very carefully perused the provisions of section 34 of the said Ordinance and the same empower any Collective Bargaining Agent or employer to apply to the Labour Court for the enforcement of any right guaranteed or secured to it or him by or under any law or any award of settlement. In the present petition the question for determination is as which one of the two rival unions is a Collective Bargaining Agent and it is not a question of the enforcement of any right guaranteed or secured under any law or any award or settlement. As such the application to the Labour Court was misconstrued. This argument of the learned counsel for the respondent is without any force.

12. We have also noted that the petitioner had participated in the election for determination of the collective bargainig agent. No objection of any kind regarding the validity of the power of respondent No.2 to function as Registrar nor any objection of any other nature was raised before or on the day of polling. The petitioner had also lost the election by considerable number of votes. No illegality or irregularity has been pointed out in the election proceedings. As such substantial justice was done and no prejudice of any kind was caused to any party

13. For the aforesaid reasons we would dismiss both the petitions with no order as to costs.

M.Y.H. Petitions dismissed.

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