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Civil Petition No.S-47 of 1987, decided on 25th May, 1987.

---S. 22--Holding of referendum for determination of status of C. B. A. in an establishment--Registered trade union, held, could not be excluded from contesting referendum on ground on-submission of list of its members to Registrar--Procedure for holding of referendum. Where there are more than one trade unions in an establishment or group of establishments and any one of such registered union which has as its members not less than 1/3rd of the total number of workers employed in such establishment applies to the Registrar for determination of the status of a C. B. A. in respect of that establishment, the Registrar shall upon receipt of such application, call upon all the registered trade union of that establishment by a written notice to indicate whether they desired to participate in the proposed secret ballot for determination of C. B. A. In case any such union is desirous of taking part in the .proposed secret ballot it shall submit a list of its member to the Registrar with such details as are mentioned in subsection 3(b) of section 22 of I.R.O. Subsection (4) of section 22 ibid provides that on being required by the Registrar the employer shall also submit a list of all the workers employed in the establishment excluding those whose period of employment in the establishment is less than 3 months with other details about them as are mentioned in sub-clause (a) of subsection (4). On the basis of the lists of members received by the Registrar from different Trade Unions of an establishment and the list of workers obtained from the employer, the Registrar shall prepare a list of voters in accordance with subsection (5) of section 22 ibid who alone will be entitled to vote in the secret ballot. The list of voters so prepared by the Registrar will be made available to all the contesting unions of an establishment at 'least 4 days before the date of secret ballot. It is quite clear from the above-stated scheme of section 22 of the Ordinance that the object of filing of a list of its members by the contesting unions of an establishment is to facilitate and assist the Registrar in preparation of sin accurate list of the voters who would be entitled to vote in the proposed secret ballot. There is nothing in the section to construe that in the event of failure of a union to submit the list of its members, it will be debarred from taking part in the referendum proposed by the Registrar. It is quite clear from sub-clause (a) of subsection (3) of section 22 of I.R.O. that as soon as a registered trade union indicates its desire to contest the secret ballot for determination of the C. B. A. it shall be allowed to take part in the proposed secret ballot and Registrar cannot exclude such a union from contesting the referendum on the ground that it had failed to submit the list of its members as required under sub-clause (b), subsection (3) of section 22. There is no indication in the language of sub-clause (b) of subsection (3) of section 22 ibid to justify the conclusion that the consequence of non-submission of a list of its members by a contesting Trade Union would be that it would stand excluded from the contest. Sub-clause (a) of subsection (3) of section 22 is neither controlled by nor it is to be read subject to the provision of sub-clause (b) thereof. The two sub-clauses (a) and (b) of subsection (3) of section 22 deal with different situation. The only effect of the failure of a Trade Union to submit the list of its members to Registrar, when it has signified its desire to contest the secret ballot, well be that it cannot raise any objection to the list which may be prepared by the Registrar under section 22(5) on the basis of the lists received by him from other contesting Trade Unions and the employer.

---S.22--Constitution of Pakistan (1973), Art 199--Determination of status of C.B.A. in an establishment--Non-submission of list of members not to debar a registered trade union from contesting referendum--Holding of referendum in establishment for determination of status of C. B. A. wherein petitioner trade union was excluded from contesting referendum on its failure to submit list of its members to Registrar was set aside by High Court in exercise of its constitu tional jurisdiction--Registrar of trade unions was directed to hold fresh referendum for determination of C.B.A. allowing petitioner trade union to participate therein.

Riaz Hussain Baloch for Petitioner:

Rashid Akhund for Respondent.

Dates of hearing- 15th and 25th May, 1987.

The petitioner which is one of the registered trade unions of Muhammad Farooq Textile Mills, has challenged the referendum proceedings held by respondent No.l on 21-3-1987 as a result whereof respondent No. 2 has been declared as the C. B. A. in respect of the establishment known as Mohammad Farooq Textile Mills Ltd. Prior to the holding of referendum petitioner was acting as the C. B. A. of M/s Farooq Textile Mills Ltd., under a certificate issued in its favour under section 22(1) of the I.R.O. by respondent No.l on 2-5-1985. Respondent No.2 which obtained its registration as a trade union of M/s. Farooq Textile Mills Ltd. applied to respondent No.1 on 19-2-1987 to hold referendum for determining the C.B.A. of M/s Muhammad Farooq Textile Mills Ltd., Respondent No.1 on the above application of respondent No.2 issued notices to all the registered trade unions including the petitioner and fixed a joint meeting for the purposes of taking further steps on the application of respondent No.2 on 25-2-1987 In the meeting held on 25-2-1987, the petitioner expressed his desire to contest the proposed referendum and requested respondent No.1 for time to submit a list of its members which was agreed to, and accordingly the date for joint meeting was fixed on 5-3-19.87. The petitioner however, instead of attending the above joint meeting sent a letter dated 4-3-1987 requesting for extension of time upto 11-3-1987 for submitting the list of its members. Respondent No.1 by its letter dated 5-3-1987 intimated the petitioner to submit the list of its members by 9-3-1987 and fixed the joint meeting for the purposes of finalizing the date of referendum, on 11-3-1987. On 11-3-1987 the joint meeting called by respondent No.l was attended on behalf of respondents No.2 and 3 by their President, General Secretary and Adviser while on behalf of petitioner its President Mr. Bukhat Mundwar attended. Respondent No.l in the above meeting allotted symbols to respondents No.2 and 3 only and fixed the date for holding of the referendum on 21-3-1987. The petitioner was excluded from the list of the contesting unions in the referendum on the sole ground that it had failed to submit the list of its members in spite of ample opportunities provided to it. The proposed referendum was accordingly held on 21-3-1987 in which respondent No.2 emerged as the C.B.A. of M/s. Mohammad Farooq Textile Mills Limited. After the declaration of the result of election on 26-3-1987 the present petition was filed by the petitioner on the same day challenging the result of the referendum and the action of respondent No.l in excluding the petitioner from taking part in referendum on the ground that it had failed to submit the list of its members to respondent No.l.

Mr. Riaz Hussain Baloch, the learned counsel for the petitioner contends that respondent No.l had no authority to exclude the petitioner from contesting the referendum which was held on 21-3-1987 on the ground that it had failed to submit the list of its members respondent No.l within the time allowed by respondent No.1, contended by the learned counsel that as soon as the petitioner expressed its desire to contest the referendum the respondent No.l had no option but to allot it a symbol and send a certified copy of the list of voters prepared by respondent No.l under subsection (5) of Section 22 of I.R.O. I partly heard this petition on 18-5-1987 but as respondents No.2 and 3 were unrepresented and I did not have the advantage of hearing the other view, I appointed Mr. Rashid Akhund, advocate as amicus curiae in the case to assist the Court on the interpretation of Section 22 of the I.R.O. Today when the matter came up for further hearing Mr. Raja Shamsuzzaman appeared for respondent No.2 and supported the action of respondent No.l. The learned counsel for the petitioner and the learned amicus curiae jointly urged that a trade union in an establishment which expresses his desire to contest the referendum on being informed by the Registrar that a secret ballot is being held to determine the Collective Bargaining Agent of that establishment, cannot be prevented from taking part in the ballot on the ground that it had failed to furnish a list of its members as required by subsection 3(b) of Section 22 of the I.R.O. The learned counsel for the respondent No.2 and on behalf of respondent No.1 on the other hand, it is jointly contended that the effect of non-submission of the list of its members to Registrar by a trade union which has expressed his desire to participate in the referendum proposed to be held for determining the C. B. A. will be that it will stand debarred from taking part in the secret ballot. It is additionally contended on behalf of respondents No.1 and 2 jointly that the conduct of petitioner in the case amounted to acquiescence on their part in the proceedings held by respondent No.1 and as such it is disentitled to any relief in the present proceedings under Article 199 of the Constitution. It is also contended by the learned counsel for respondent No. 2 that the object of asking a union to file a list of its member, is to determine whether the said union enjoyed the support of at least 1/3rd of the total workers of the establishment which according to the learned counsel is a precondition for a union to establish his entitlement to take part in the secret ballot. After hearing the learned counsel for the petitioner, respondent No.2, representative of respondent No.1 and the learned amicus curiae, I am of the view that this petition must succeed and the referendum held on 21-3-1987 is to be declared as without any lawful authority. In order to appreciate the respective contention of the parties it is necessary to examine carefully the relevant part of Section 22 of the I.R.O. which deals with the holding of referendum for determination of a C.B.A. in an establishment. It reads as follows:-

.--(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 be certified by the Registrar in the prescribed manner to be collective bargaining agent for such establishment or group.

(2) Where there are more registered trade unions than 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, or the Government hold within fifteen days from the making of the application, a secret ballot to determine as to which one of such trade unions shall be the collective bargaining agent for the establishment or group.

Provided that the Registrar may, in the case of a large establishment having its branches in more than one town, hold the secret ballot within thirty days from the making of the application.

Provided further that the Registrar shall not entertain any application under this sub-section in respect of an establishment or group of establishment, consisting of, or including, a seasonal factory within the meaning of section 4 of the Factories Act, 1934 (XXV of 1934), unless such application is made during the month in which the number of workmen employed in such factory in a year is usually the maximum.

(3) Upon receipt of an application under sub-section (2) the Registrar shall, by notice in writing, call upon every registered trade union in the establishment or group of establishments to which the application relates:-

(a) 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 or group; and

(b) if it so desires, to submit to him within the time specified in the notice a list of its members showing, in respect of each member, his parentage, age, the section or department and the place in which he is employed, his ticket number and the date of his becoming a member and if the trade union is a federation of trade unions, a list of its affiliated trade unions together with a list of members of each such trade unions showing in respect of each such member the said particulars.

(4) Every employer shall--

(a) on being so required by the Registrar submit a list of all workmen employed in the establishment excluding those whose period of employment in the establishment is less than three months and showing, in respect of each workman, his parentage, age, the section or department and the place in which he is employed, his ticket number and the date of his employment in the establishment; and

(b) provide such facilities for verification of the list submitted by him and the trade unions as the Registrar may require

Provided that in computing the period of 3 months referred to in clause (a) in the case of a workman employed in a seasonal factory within the meaning of section 4 of the Factories Act, 1934 (XXV of 1934) the period during which he was employed in that factory during the preceding season shall also be taken into account.

(5) The Registrar shall, after verification of the lists submitted by trade unions, prepare a list of voters in which shall be included the name of every workman whose period of employment, as computed in accordance with subsection (4); is not less than three months and who is a member of any of the contesting trade unions and shall, at least 4 days prior to the date fixed for the poll, send to each of the contesting trade unions a certified copy of the list of voters so prepared.

(6) Every workman who is a member of any of the contesting trade unions and whose name appears in the list of voters prepared under subsection (5) shall be entitled to vote at the poll to determine the collective bargaining agent------------ "

A careful reading of above provision will show that where there are more than one trade unions in an establishment or group of establishments and any one of such registered union which has as its members not less than 1/3rd of the total number of workers employed in such establishment applies to the Registrar for determination of the status of a C.B.A. in respect of that establishment, the Registrar shall upon receipt of such an application call upon all the registered trade union of that establishment by a written notice to indicate whether they desired to participate in the proposed secret ballot for determination of C.B.A. In case any such union is desirous of taking part in the proposed secret ballot it shall submit a list of its member to the Registrar with such details as are mentioned in subsection 3(b) of Section 22 of I.R.O. Subsection (4) of Section 22 ibid provides that on being required by the Registrar the employer shall also) submit a list of all the workers employed in the establishment excluding those whose period of employment in the establishment is less than 3 months with other details about them as are mentioned in sub-clause (a) of subsection (4). On the basis of the lists of members received by the Registrar from different Trade Unions of an establishment and the list of workers obtained from the employer, the Registrar shall prepare a list of voters in accordance with subsection (5) of Section 22 ibid who alone will be entitled to vote in the secret ballot. The list of voters so prepared by the Registrar will be made available to all the contesting unions of an establishment at least 4 days before the date of secret ballot. It is quite clear from the above stated scheme of Section 22 ibid that the object of filing of a list of its members by the contesting unions of an establishment is to facilitate and assist the Registrar in preparation of an accurate list of they voters who would be entitled to vote in the proposed secret ballot. There is nothing in the section to construe that in the event oil failure of a union to submit the list of its member, it will be debarred from taking part in the referendum proposed by the Registrar. It is quite clear from sub-clause (a) of subsection (3) of Section 22 of I.R.O. that as soon as a registered trade union indicates its desire to contest the secret ballot for determination of the C. B. A., it shall be allowed to take part in the proposed secret ballot and Registrar cannot exclude such a union from contesting the referendum on the) ground that it had failed to submit the list of its members as require under sub-clause (b) sub-section (3) of Section 22. There is no indication in the language of sub-clause (b) of sub-section (3) oil Section 22 ibid to justify the conclusion that the consequence of non-submission of a list of its members by a contesting Trade Union) would be that it would stand excluded from the contest. I am quit clear in my mind that sub-clause (a) of sub-section (3) of Section 22 is neither controlled nor it is to be read subject to the provision of sub-clause (b) thereof. The two sub-clauses (a) and (b) of sub-section (3) of Section 22 deals with different situation. To my mind the only effect of the failure of a Trade Union to submit the list of its members to Registrar, when it has signified its desire to contest the secret ballot, will be that it cannot raise any objection to the lists which may be prepared by the Registrar under Section 22(5) ibid on the basis of the lists received by him from other contesting Unions and the employer. The learned counsel for respondent No.2 and the representative of respondent No.l jointly urged before me that in fact the petitioner's union by failing to submit the required list of voters abondoned their right to take part in the referenda and as such they cannot now raise any objection to the result of the referendum. I am unable to accept this contention. From the minutes of the meeting held on 11-3-1987, in which the date of referendum was fixed by respondent No.l and symbols were allotted to contesting unions it is quite clear that the petitioner's union never gave up it right to participate in the proposed secret ballot which was propose to be held on 21-3-1987. In the minutes of the above meeting which is on record the following observations were made by respondent No.l with regard to petitioner's union:

"The M.F.T.M. Workers Union representatives were allowed time in the joint meeting held on 25-2-1987 and further allowed on 5-3-1987 at their request, but in spite of sufficient opportunity the M.F.T.M. Workers Union representatives did not submit the list of the members and to attend the joint meeting except President. The President of the union Mr. Bakht Munawar stated that he has no objection but he cannot sign these proceedings due to absence of General Secretary.

In view of the above the name of M.F.T.M. Workers Union has been excluded from the list of contesting unions as it has failed to submit its membership list, in spite of enough opportunities provided to the union as required under the Law."

It is quite clear from the above referred observation that the exclusion1l of petitioner's union from the referendum held on 21-3-1987 was solely on the ground that it had failed to submit the required list of its member as contemplated under sub-clause (b) of sub-section (3) oft Section 22 of the I.R.O. Ire view of my conclusions, the exclusion of petitioner from secret ballot for the above reason was not legal. The last contention of the learned counsel for respondent No.2 is, that the object of calling of the list of the workers from a trade union which is desirous of taking part in referendum for determination of C. B. A. is to ascertain whether it enjoyed the support of at-least 1/3rd of the total number of the worker employed in the establishment and as the petitioner failed to submit such list of its member it was rightly excluded from the contest. I am unable to accept this contention. The requirement that a Trade Union shall submit a list of its member which show at 1/3rd of the total number of worker employed in the establishment as member of that union is applicable only when a Registered union applies to Registrar for holding of a secret ballot) for determination of C.B.A. It has no application to the case of a union which desires to contest the secret ballot for determination of C.B.A. in an establishment. I accordingly accept this petition and declare that the referendum held on 21-3-1987 by respondent, was without lawful authority. The respondent NO.1 is directed to hold a fresh secret ballot for determining the C.B.A. of M/s Farooq Textile Mills Ltd. in accordance, with the law. There will be no order as to costs.

A.A./M-167/K

Petition accepted.

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