This is a petition under Article 199 of the Constitution by PECO Head Office Staff Union, a Trade Union registered under the provisions of the Industrial Relations Ordinance, 1969. The petitioner is aggrieved by an order dated I1-3-1979 passed by the Registrar of Trade Unions, Lahore Region, respondent No. 1, appointing PECO Head Office Workers Union, respondent No. 2, as the Collective Bargaining Agent in respect of the establishment of PECO Head Office, Lahore, in purported exercise of powers under clause (a) of subsection (9) of section 22 of the Industrial Relations Ordinance, 1969.
2. The brief facts of the case are that the establishment of the PECO Head Office had three Trade Unions, the petitioner, the PECO Head Office Workers Union, respondent No. 2 and the PECO Head Office Finance Staff Union, Lahore. Before 11-3-1979 the petitioner was the Collective Bargaining Agent in pursuance of the certificate dated 2-5-1975 issued by the Registrar, Trade Unions, respondent No. 1. The respondent No. 2 was registered in the month of .February, 1979 and on 20-2- 1979 applied to the respondent No. I for holding a referendum under the provisions of section 22 ofthe Industrial Relations Ordinance, 1969 for determining the Collective Bargaining Agent. The Registrar issued a letter dated 27-2-1979 asking all the registered Trade Unions to appear before him on 6-3-1979. The General Secretary of the petitioner Trade Union appeared before the respondent No. 1 and conveyed the intention of the petitioner Trade Union to participate in the referendum and promised to supply a list of its members on 10-3-1979. It may be mentioned that by that time the period of 15 days fixed by the statute for holding a secret ballot had already expired. The respondent No. 1 had not even fixed any date for holding the secret ballot.
3. According to the petitioner, the General Secretary of the petitioner Trade Union was required to appear before the Punjab Labour Court No. 2 on that date in connection with some dispute pending before that Court. He appears to have sent his representative to the respondent No. 1 with the request that the meeting be adjourned but the request was declined. On 11-3-1979, the respondent No. 1 passed the impugned order appointing the PECO Head Office Workers' Union, respondent No. 2, as the Collective Bargaining Agent in respect of the establishment of the PECO Head Office, Lahore, for a period of 2 years from the date of order without holding any referendum under the provisions of section 22 of the Industrial Relations Ordinance, 1969. .
4. The main ground on which the order of the respondent No. I, is attacked is that as an application under subsection (2) of section 22 of the Industrial Relations Ordinance had been moved and the petitioner had already conveyed to the respondent No. 1 its desire to be a contestant in the secret ballot, it was incumbent on the Registrar to organise a referendum to enable the workers, by a secret ballot, to determine as to which one of the Trade Unions shall be the Collective Bargaining Agent of the establishment. It is contended that the action of the respondent No. 1 in issuing a certificate declaring respondent Trade Union as a Collective Bargaining Agent without holding any secret ballot is an act without lawful authority and void at law.
5. On receipt of an application under subsection (2) from any of the registered Trade Unions of the establishment qualified in this behalf, the Registrar is obliged to inquire from each of the registered Trade Unions to indicate whether it desires to contest in the secret ballot and where any of the Trade Unions wishes to contest the election, it has to supply a list of its members with necessary particulars. Under subsection (4) of section 22, the employer is also required to supply a list of all workmen employed in the establishment whose period of employment in the establishment is not less than 3 months. The obligations of the Registrar in regard to the conduct of the election are contained in subsection (5) of section 22 which lays down that the Registrar shall after verification of the lists submitted by the Trade Unions, prepare a list of voters in which shall be included the name of every workman whose period of employment is not less than 3 months and who is also a member of any of the contesting Trade Unions. The Registrar is further obliged to :end a certified copy of the list of voters to each of the contesting Trade Unions at least 4 days prior to the date fixed for the poll. Under subsection (6) of that section every workman, who is a member of any of the contesting Trade Unions and whose name appears in the list of voters, is entitled to vote at the poll to determine the Collective Bargaining Agent.
6. In the impugned order the respondent No. 1 stated the fact that the third Trade Union, viz. PECO Head Office Finance Stall' Union had earlier expressed its desire not to participate in the referendum. The order does not show that by then the Registrar had secured the list of members from the respondent No. 2 or the list of workmen from the employer.
7. By virtue of the provisions of subsection (4) of section 22 every employer comes under an obligation to supply a list of all workmen employed in the establishment excluding those whose period of employment in the establishment is less than 3 months and to afford the Registrar such facilities for veri-fication of the lists submitted by him or the Trade Union as the Registrar may require. In drawing up the list of voters, the Registrar is obliged to take into consideration the list of workers submitted by the employer as well as the list of members submitted by the contesting Trade Unions.
8. Upon a careful consideration of the provisions of section 22 of the Industrial Relations Ordinance, I am of the view that responsibility for preparing the list of voters is cast on the Registrar who is obliged to prepare such list strictly in accordance with the requirements of subsection (5ll a of that section. In order to safeguard their rights, the contesting Trade Unions are required to submit lists of their respective members. The law does not lay down that any penal consequences will follow if any of the) contesting Trade Unions fails to supply a list of its members.
9. The learned counsel for the petitioner has strenuously argued that the conduct of the respondent No. 1 in refusing to grant further time for supply of list of members is mala fide and, in any case; arbitrary. It is contended that the respondent No. 1 had himself allowed the statutory period of 15 days to expire before the rival Trade Unions were supposed to meet him in an attempt to organise the referendum. The impugned order does not indicate that the rival Trade Unions had submitted a list of workmen or even the employer had submitted a list of workmen. The plea of the petitioner's Secretary for adjournment was turned down on the ground that the application pending before the Labour Court had been earlier dismissed for default. Such an order is neither final nor conclusive and proceedings for/ after restoration could not be ruled out. The petitioner was an existing Collective Bargaining Agent and could not reasonably be held to be not a bona fide contestant. The argument, that under the circumstances the order of the respondent No. 1 was arbitrary though it has its merit, need not detain me. The impugned order records the fact that the petitioner Trade Union had expressed its willingness to participate in the election. Once that is done, the Registrar has got to hold a referendum.
10. The mere fact that the petitioner committed a default in the submission of a list of its members is hardly a ground for depriving the workers from exercising their franchise under .Subsection (6) of section 22. There is nothing in section 22 of the Industrial Relations Ordinance to invest the Registrar with the authority to strike off the candidature of any Trade Union in the event of its failure to supply the list of its members within the time allowed by him under subsection (3) of section 22. The referendum is to be held on the basis of a list of voters prepared by the Registrar under subsection
(5) read with subsection (6) of section 22 of the Industrial Relations Ordinance. The law invests the Registrar with powers under section 13 (cc) to inspect the accounts and records of a registered Trade Union or to investigate or to hold an inquiry either himself or through his subordinates and if any difficulty were felt by the Registrar in the performance of his obligation of preparing a list of voters which has per force to be prepared upon verification of the facts whether the workman is or is not a member of any of the Trade Unions, the same could be easily overcome by recourse to section 13 (cc) of the Industrial Relations Ordinance.
11. Be that as it may, the provisions of clause (a) of subsection (9) of section 22 only enable the Registrar to fix the date for the poll and to intimate the same to each of the contesting Trade Unions and also to the employer. This provision cannot by any stretch of imagination be construed E so as to confer any power on the Registrar to oust a Trade Union from participating in the referendum and to declare its rival as duly elected. Where an establishment has more than one registered Trade Unions ands an application is moved by a Trade Union which has as its members not P less than 1/3 of the total number of workmen employed in the establishment the Registrar has no option but to settle the question of appointment of the Collective Bargaining Agent by holding a secret ballot. The argument a that where one or more of the Trade Unions of an industry refuse or omit to supply a list of their members, the Registrar may refuse to hold the referendum is not warranted by any of the provisions of the Industrial Relations Ordinance, 1969. The power to declare a Trade Union as Collective Bargaining Agent without holding any secret ballot is exercisable only where no other registered Trade Union conveys to the Registrar its desire to contest the secret ballot. The facts found by the Registrar establish beyond any doubt that the petitioner Trade Union had conveyed its desire to contest the elections. Under the circumstances, I feel no hesitation in agreeing with the learned counsel for the petitioner that the action of the respondent No. 1 in declaring the respondent No. 2 as duly elected Collective Bargaining Agent was without lawful authority.
12. At this stage, the learned counsel for the respondent and the representative appearing on behalf of the Registrar consented to the vacation of the order dated 11-3-1979 and prayed for a direction that the referendum may be held at an early date.
13. Upon consideration of the facts and arguments on behalf of the parties, I find that the Registrar had failed to perform his obligation of holding a secret ballot to determine the question of appointment of a Collective Bargaining Agent. The order dated 11-3-1919 declaring the respondent No. 2 as Collective Bargaining Agent without holding any secret ballot is accordingly quashed and the Registrar, respondent No. 1, is directed to hold a referendum after obtaining or securing the list of members from the rival Union and preparation of the list of voters after obtaining the list of workers from the employer and fixing a date for holding the referendum well in time.
14. Under the circumstances, the writ petition is allowed with costs.