1. ' The petitioner through this petition has sought the following relief:-- "It is, therefore, in the light of the aforesaid Judgment the petitioner humbly prays that this Hon'ble Court may be pleased:--
(a) to direct the respondents Nos.1 and 2 to accept all the names submitted by the petitioner on 19- 6-2000 as the office-bearers of the petitioner- union.
(b) To allow the petitioner to perform their duties as CBA in Karachi Port Trust from the day of acceptance of the list showing the names of new office-bearers for a period of two years.
(c) To declare that all the actions/decisions taken by the Board of Trustees of KPT are illegal, showing the surplus pool of employees in KPT
(d) To declare that the act of the respondents by not issuing the acceptance certificate/notification in respect of the change of the office-bearers of the petitioner-union is illegal, unlawful and against the provision of law.
(e) To restrain the respondents Nos.1 and 2 from holding any referendum on the basis of impugned notice dated 26-12-2001 in respect of the CBA and further allow the petitioner to function as CBA for two years from the day the change is.--
(f) To grant costs.
(g) To grant any other relief (s) that this Hon'ble Court may deem fit and proper under the circumstances of the case."
2. ' The organization of Karachi Port Trust Workers. Registered Trade Union through its General Secretary Mr. Bashir Khan Bungash have filed this petition stating therein that it is a registered trade union under the provisions of Industrial Relations Ordinance, 1969 (hereinafter referred to as I.R.O.) and is collective bargaining agent (hereinafter referred to as CBA) for the workers employed in Karachi Port Trust as per CBA Certificate dated 13-12-1999 duly issued by respondent No,1. After issuance of certificate the petitioner worked as CBA.
3. ' That the election of union of petitioner was due in February, 2000. It was held on 3-6-2000. The record of aforementioned election was communicated to respondents Nos.1 and 2.
4. ' The office-bearers were elected on 3-6-2000 and respondent No,1 was intimated vide letter dated 19-6-2000. Mr. Malik Haq Nawaz was elected as President. Petitioner's union in place of former President Fazal Waheed who had earlier resigned from Presidentship on 20-5-2000. The respondent No,1 was supplied the list of change of office-bearers on the same day. It is further averred that respondents Nos.1 and 2 neither rejected the change of office-bearers nor pointed out any discrepancy towards the election held by petitioner's union on 3-6-2000. The petitioner moved an application under section 34 of I.R.O. Read with section 8(7) of I.R.O. 1969 before the Hon'ble Vth Sindh Labour Court bearing Application No,7 of 2000 on 25-11-2000 and since then the application is pending decision.
5. It is further urged in the petition that although CBA certificate was granted to the petitioner's union on 13-'12-1999. But the petitioner's union could not work as CBA due to non-issuance of acceptance certificate on the basis of subsequent change of office-bearers. Under subsection (10) of section 22 of I.R.O., 1969, it is manifestly clear that CBA union can work for 2 years from the date of issuance of certificate.
6. ' On 6-12-2001, the respondents Nos.3 and 4 who were the rival unions with the connivance of establishment, applied for holding referendum for determining the collective bargaining agent. The petitioner, time and again, approached the respondents Nos.1 and 2 to accept the change of office-bearers but they failed to give any response and thereby deprived the petitioner to exercise its lawful right. It is further stated that the decisions were being taken by the K.P.T. Management which were detriment and adverse to the interests of the petitioner, as KPT Board of Trustees had declared the surplus pool of workers. The number of employees is 410 including the petitioner in traffic department. The surplus pool had been created with the object to deprive the petitioner of his majority. The respondent No,1 vide its letter dated 26-12-2001 issued a circular for determination of CBA to hold referendum and fixed a meeting of all the unions on 2-1-2002. It is further asserted that petitioner could not work as CBA due to delay caused by respondents Nos.1 and 2 not accepting and/or rejecting the acceptance of change and also the matter is pending adjudication before Vth Sindh Labour Court. The petitioner has not worked properly as CBA and the two years time has been wasted by respondents Nos.1 and 2 as, they did not allow them to work as CBA.
7. ' The respondent No,4 General Secretary KPT Labour Union has filed its reply wherein he has denied all the aforesaid specified/substantial allegations and have stated that the petitioner has worked and enjoyed its period of two years CBA. It has enjoyed its all benefits and facilities such as fully furnished CBA office, telephone facilities, 5 vehicles provided by the KPT employer. The petitioner participated and negotiated in all types of meetings. On 31-5-2001, the petitioner's union entered into an agreement on charter of demands/dispute under section 26(1). The petitioner negotiated on 14-2-2001 with KPT Management of different types of proceedings relating to allotment of quarters. The meeting of CBA was held on 7-10-2001 on the matter relating to Allotment Committee. It has enjoyed its statutory period of two years as required under section 22(2) of the Ordinance. The CBA certificate as issued on 13-124999. It is stated that it is legal right of any trade union to challenge the legality of CBA on expiry of its two years legal period and can demand a fresh referendum to be held under section 22 (2) of I.R.O. The period of two years started on 6-12- 1999 which expired on 6-12-2001 and fresh CBA referendum be held. The meeting in this regard was conducted on 2-12-2002 and was adjourned to 14-1-2002. The period of CBA cannot be extended for another two years due to the internal dispute and change between the same trade union as office-bearers. The petitioner has filed this petition malafidely in order to cause delay in the referendum intended to be held legally. It is stated that list of voters have been finalized and symbols have been allotted to the candidates. The petitioner-union is participating in the referendum which is scheduled to be held on 7-3-2002.
8. ' I have heard learned counsel for the parties at length and have perused the record.
9. ' The learned counsel for respondent No,3 and the Intervenor respondent No,5 have adopted the arguments of learned counsel appearing for respondent No,4.
10. ' The learned counsel for the parties have reiterated their respective pleas stated above and I see no need to reproduce the same.
11. The petitioner's union was issued certificate by the respondent No,1 on 13-12-1999 which was to take effect from 6-12-1999 since then it has been functioning as CBA and enjoying all the facilities provided to it under the law. After that the election of petitioner's union was held on 3-6-2000 and some replacement of office-bearers was made. The petitioner informed the respondent No,1 regarding the change of office-bearers but no certificate was issued as required under section 8 of I.R.O. The petitioner preferred an appeal before Labour Court but the same is still pending adjudication.
12. ' The alleged fresh election held on 3-6-2000 was not amongst the unions of establishment but it was an internal replacement in their own union and election was held amongst the members of the trade union of petitioner.
13. ' The petitioner intimated this replacement of previous President and have come with a plea that fresh certificate is to be issued by Registrar which has not yet been issued and as such its period of two years of CBA has not yet commenced. Such type of internal replacement cannot be held to be the change in union. This plea is untenable and has no force. The petitioner's union wants to take advantage of technicality which should not come in the way of advancement of justice.
14. ' The record further shows that KPT Management prepared an agreement on its charter of demands/industrial dispute under section 26(1) of I.R.O. On 31-5-2001. It was signed by the petitioner's General Secretary Bashir Khan Bungash through whom the trade union has filed present petition and Mr. Malik Haq Nawaz President of petitioner's union. The minutes of the meeting of Allotment Committee held on 14-2-2001 have been produced which indicate that. Mr. Malik Haq Nawaz and Mr. Bashir Khan Bungash participated in the meeting being the members of CBA which is signed by both of them. Another meeting of Allotment Committee was held on 17-1- 2001. Wherein office President Malik Haq Nawaz attended the same as office President (CBA) the meeting was also held in regard to the employees benevolent fund on 6-11-2001 wherein Mr. Abid Ali and Mr. Muhammad Nawaz of present petitioner union attended as the representative of the CBA. The CBA of present petitioner had issued certain pamphlets on 8-1-2002 for the workers and employees of the establishment. Similarly, pamphlets were published on various dates which have been brought on record. The petitioner in its para. 14 of the petition has mentioned that the petitioner could not function properly as CBA in the legal two years time and the same has been wanted by respondents Nos.1 and 2. The petitioner could function properly or not cannot be determined through Constitutional petition.
15. ' In fact the petitioner enjoyed statutory period of two years as CBA. The date of referendum is fixed in which petitioner's union is participating. The petitioner has joined the meetings, held at various times even after the alleged replacement in their union and functioning as CBA. The petitioner wants to prolong period of its office. The documents produced on the record indicate that it has enjoyed CBA Office since 6-12-1999, which period has expired about more than a year back. The word change in provision implies the meaning thereby the major change amongst the unions of establishment and not a minor artificial internal replacement in the union itself. On the one hand the petitioner has been functioning as CBA and on the other, he states that he has not yet been issued certificate. The petitioner cannot be allowed to express and plead approbate and reprobate.
16. The controverted question of facts are involved in the matter which need evidence and detailed inquiries which cannot be resolved in exercise of Constitutional jurisdiction. This petition is not maintainable and stands dismissed in limine with no orders as to costs.