1. ' JUSTICE, (RTD.) TANVIR AHMED KHAN (CHAIRMAN).--- This judgment shall dispose of Appeals Nos.12(5) of 2004 and 12(7) of 2004 as both of them are directed against the certification of C.B.A.
2. Of respondent Pakistan Telecommunication Employees Union by the learned Registrar of Industry- wise Trade Union (hereinafter called RITU) through his 'order dated 17-3-2004.
3. ' Facts briefly are that an application dated 30-4-2001 was given before the Commission under section 22(2) of the I.R.O., 1969. Since repealed for the determination of C.B.A. By Pakistan Telecommunication Company Lions Staff Union in the establishment of P.T.C.L. During the pendency of this application election of the office-bearers of Pakistan Telecommunication Company Lions Staff Union C.T.O. Compound Karachi and P.T.C.L. Employees Union were approved by the learned RITU, Mr. Ghulam Nauman Shaikh through his separate orders dated 11-11-2000 and 20-1-2001 respectively. These approvals were challenged through Appeals Nos.12(10) of 2000, 12(11) of 2000 and 12(12) of 2000 before the Full Bench. Two of these appeals were filed by P.T.C.L. Against the change of office-bearers and one by Mr. Maqbool Hussain of Telecom Technician ITR, Rawalpindi. Learned Full Bench through a short order, dated 3-6-2002 dismissed the appeals upholding the approval of change of office-bearers of Pakistan Telecommunication Company Lions Staff Union and Pakistan Telecommunication Employees Union. However, the status of Engineering Supervisors in the P.T..C.L. Claiming to be workmen was left to be decided by the learned RITU. The Full Bench further directed that since the holding of referendum was pending since long as such it be determined without loss of time within a period of two months. The detailed reasons for the short order were given by the Full Bench on 18-6-2002.
4. ' It is pertinent to mention here that aforementioned Full Bench comprised of Mr. Justice (Rtd.) Zia Mahmood Mirza as its Chairman and Mr. Abdul Qayyum Raja along with Syed Altaf Hussain were its learned Members. Since Mr. Abdul Qayyum Raja who was member of the Full Bench which remanded the case was also RITU at that time as such an order was passed on 15-6-2002 by the then learned Chairman in exercise of his powers under section 22(2)(b) of the repealed Ordinance nominating Mr. Ali Nawaz Channa as RITU specially for holding the secret ballot to determine the C.B.A. In P.T.C.L. Syed Altaf Hussain also could not have been nominated as he was also member of the Full Bench which remanded the case. This order of 15-6-2002 is still holding the field and has neither been modified nor rescinded.
5. ' The P.T.C.L. Management 'filed Writ Petition No,1782 of 2000 against the order of the Full Bench before the Honourable Lahore High Court, Rawalpindi Bench. The learned High Court through its order dated' 3-12-2003 upheld the order of the Full Bench qua the holding of secret ballot for determination of C.B.A. In the P.T.C.L. As also the question whether Engineering Supervisors were workers within the meaning of the Ordinance. The operative part of the Honourable High Court is as under:-- "After making some submissions, learned counsel for the parties have agreed to the disposal of this writ petition in the following terms:--
(i) RITU shall, in compliance with the orders passed by the learned Full Bench, first proceed to decide the question as to whether Engineering Supervisors are workers within the meaning of I.R.O., 1969. RITU shall also consider the legal impact of the change brought about in law because of enactment of I.R.O., 2002 after hearing all the concerned parties.
(ii) In the process of deciding the said questions of the RITU shall take on record the evidence to be produced by the petitioner in the form of affidavits of the competent officers/officials and such other material/documents which they wish to produce in support of their plea. Similarly the respondents shall be given a chance to lead evidence in rebuttal. After so recording the evidence, the RITU shall hear all concerned and decide the matter in accordance with law and thereafter to pass an appropriate order regarding impending referendum.
6. ' It is hoped that the needful will be done preferably within two months of the receipt of this order."
7. ' By the time the matter was disposed of by the Honourable High Court Mr. Abdul Qayyum Raja, learned Member was repatriated and the then Chairman Mr. Justice (Rtd.) Zia Mahmood Mirza notified Syed Altaf Hussain as RITU.
8. ' The later took up the matter of Engineering Supervisors after remand and through his order dated 10th of January, 2004 held them workmen within the definition as contained in clause (xxx) read with clause (x) of the Ordinance. He also authorized Mr. Zakaullah Khan Khalil, Deputy Registrar (R) to proceed with the referendum proceedings by issuing notices to all the parties concerned with a direction that the proceedings be finalized within a period of one month.
9. ' Mr. Zakaullah Khan Khalil, Deputy Registrar as well as Registrar of the Commission brought to the notice of the learned Member Syed Altaf Hussain Shah that the matter of referendum had already been assigned by the then learned Chairman in exercise of his powers to the learned Member Karachi Bench, Mr. Ali Nawaz Channa specifically as RITU. It is reflected from the record that at that time Mr. Ali Nawaz Channa also assumed the charge of Acting Chairman. He requisitioned the file of referendum from Syed Altaf Hussain Shah through his order, dated 27-1-2004. However the learned Member did not adhere to the orders of the then learned Acting Chairman for the reasons best known to him. The situation became so tense and volatile that the matter was also brought to the notice of the then Acting Secretary of Labour and Manpower division. The working condition became so worse in the Commission that the police was called to maintain law and order within the precinct of the Commission because of the opposing attitude of the Acting Chairman on the one hand and Syed Altaf Hussain Shah learned Member on the other.
10. ' In this clear gloomy and agitated atmosphere even the list as required under the Ordinance was not prepared and the referendum was held on 16-3-2004 on an incomplete list as provided by the management of P.T.C.L. Because the daily wagers and Engineering Supervisors were not included therein. Surprisingly the certificate of C.B.A. Was issued to the Pakistan Telecommunication Employees Union on the very next day i,e, 17-3-2004 in spite of the fact that the appellant's objections were already on file respecting the referendum wherein various allegations were made.
11. ' P.T.C.L. Management being dissatisfied with the mode of referendum took exception to the same by filing Writ Petition No,1656 of 2004 before the Honourable Lahore High Court Rawalpindi Bench.
12. Similarly the appellant union filed Writ petition No,637 of 2004 before Honourable, Peshawar High Court. Both the learned High Courts took strong exception to the determination of C.BA. And suspended the operation of the C.B.A. Certificate. It was argued both by P.T.C.L. And the appellants union that the whole proceedings were coram non judice and the C.B.A. Certificate had been issued in clear violation of provisions of section 20(9)(e) of the Industrial Relations Ordinance, 2002 (hereinafter referred to as Ordinance) which requires that C.B.A. Should be issued in favour of the union which secure 173rd of the total number of workmen employed in the establishment. It was also agitated that the Commission directed the management to submit list of workmen within three days in a very hasty manner in violation of law and in this haphazard manner no voters list as required by law was prepared. Ultimately the Honourable Peshawar High Court Division Bench disposed of the Writ Petition No,637 of 2004 on 27-5-2004 holding as under:-- "Points raised before us by learned counsel for the petitioner are similarly raised in his appeal pending before the Commission. Although he has relied on a reported judgment published in 1989 MLD 3745 but the situation before us is quite different because it has been admitted at the bar that Chairman of the Commission has been appointed and he will assume the charge by tomorrow. We are also informed that summary for the appointment of five members of the Commission is also in the process and shall be finalized within a week.
13. ' In order to avoid recording of any finding on any question of law or fact and when in the near future a proper forum will be reconstituted, we for the time being' keep this writ petition as pending and direct that as soon as the Commission is properly constituted and hopefully within a week, after its reconstitution it shall positively decide the appeal within 15 days thereafter.", ' Thereafter the learned Lahore High Court Rawalpindi Bench disposed of the Writ Petition No,1656 of 2004 by noting the determination of a Division Bench of Honourable Peshawar High. Court in Writ Petition No,637 of 2004. The operative part is as under:-- "In view of directions issued by the Peshawar High Court, prayer of the petitioner and in order to avoid conflict of judgments, besides avoiding to prompt jurisdiction of the respondents, it is appropriate, that matter be taken up and decided by the respondents in their statutory jurisdiction in view of the judgment of the Peshawar High Court dated 27-5-2004. In order to avoid further complication, Collective Bargain Agent (C.B.A.) certificate dated 17-3-2004; issued in absence of the 'Chairman N.I.R.C. Shall remain suspended till the time any decision is taken by the Full Bench of N.I.R.C. And would be subject to that decision. With these observations this writ petition is disposed of."
14. ' Hence these appeals before this Commission.
15. ' It is inter alia argued by the learned counsel Raja Muhammad Ibrahim Satti appearing on behalf of the appellant that the entire proceedings qua the conduct of referendum were coram non judice as Syed Altaf, Hussain Shah, learned Member/RJTU did not have any authority to embark upon this exercise of holding referendum because he was not so authorized under section 22B(2)
(b) of the repealed Ordinance. The provision is as under:-- "22B. Benches of the Commission etc.-- (1) The Chairman of the Commission shall exercise general superintendence over its al lairs.
(2) For the efficient performance of the functions of the Commission, the Chairman shall constitute---
(a) ..
(b) as many other Benches of the Commission consisting of one or more members of the Commission as he may deem fit."
16. ' Mr. Ali Nawaz Channa, learned Member at Karachi was specially assigned the holding of referendum in the P.T.C.L. By the then learned Chairman, Mr. Justice (Rtd.) Zia Mahmood Mirza through his order, dated 15-6-2002. He strenuously contended that the learned Member did not prepare the voters list for the conduct of referendum as required by law. He also stated that the learned Member/RITU acted in haste to hold the secret ballot. To substantiate this assertion, he has made reference to a letter under the signature of the Deputy Registrar (R) of the Commission dated 19-1-2004 calling upon the management to supply the list of workmen within three days while the law has provided 15 days for the same. The referendum was only held on the basis of list provided by the management. The verification of the list as provided by the law was not at all conducted because no lists were provided by the contesting unions. Furthermore the daily wagers as well as Engineering Supervisors who were declared workers by this very learned Member were not included in the list of the voters by the management who itself has stated that they are more than 11000. The so-called referendum according to him was conducted on 16-3-2004, while the certificate was hurriedly issued by the learned Member on the very next day i,e, 17th of March, 2004 without adverting to the objections which were admittedly on this file raised by the other side. He has further argued that the respondent No,1 did not take into account the provision of law which require issuance of certificate of C.B.A. Only to that union which secure 1/3rd of the total number of workmen employed in the establishment. He has relied upon certain precedents of superior Courts.
17. ' Mr. S. Naeem Bokhari, learned counsel appearing for the P.T.C.L. Management frankly admitted the fact that the P.T.C.L. Earlier filed Writ Petition No,1656 of 2004 before Honourable High Court in which strong exception to the issuance of certificate of C.B.A. By the learned Member to Pakistan Telecommunication Employees Union was taken having been issued fraudulently and coram non judice. The management even filed two Applications Nos.7A(33) of 2004 and 7A(34) of 2004 in these appeals reiterating their stance taken before the Honourable High Court Rawalpindi Bench in the aforementioned writ petition stating:--
(a) That the Pakistan Telecommunication Employees Union had got no approved list of office- bearers.
(b) that none of the participating union submitted their list of voters.
(c) that the voters list as required by law was not prepared by him. The referendum was held only on the basis of the list provided by the management.
18. ' Furthermore he took even exception to the appointment of Syed Altaf Hussain Shah as Member N.I.R.C. In view of the Notification No,S.R.O.(l) of 2002 dated 16th September, 2002 issued by the Government of Pakistan Labour, Manpower and Overseas Pakistanis Division. The Management also went upto the Lahore High Court Rawalpindi Bench to get the registration of Pakistan Telecommunication Employees Union cancelled.
19. ' However, today before the Full Bench in these appeals he has taken complete somersault and has argued that the certificate of C.B.A. Was issued rightly by the learned Member to Pakistan Telecommunication Employees Union.
20. ' Mr. Tariq Mahmood Khan, learned counsel appearing on behalf of the respondent Pakistan Telecommunication Employees Union has stated that the respondent union submitted that list of members before the Deputy Registrar so appointed by the respondent No,1 for that purpose. The voters list according to him was prepared by the Commission with the help of the contesting trade unions, on the basis of which the referendum was held on 16th of March, 2004. He further argued that the C.B.A. Certificate was issued in accordance with law by the respondent No,1 as the respondent union secured 18000 votes which is the highest number of votes mentioned in the voters list on the basis secret ballot was conducted. Sh. Abdul Hameed, learned counsel also appeared on behalf of Employees Union and supported the arguments advanced by Mr. Tariq Mahmood Khan.
21. ' We have considered the contention and have gone through all the documents appended with these appeals. The first argument of the appellant that Syed Altaf Hussain Shah was not authorized to hold the secret ballot has got force. It is pointed out that the question of status of Engineering Supervisors in the P.T.C.L. Was taken before the Full Bench which decided the issue vide its judgment dated 18-6-2002. The then learned Chairman through his order dated 15-6-2002 in exercise of his power under subsection (b)(2) of section 22-B of the repealed Ordinance, keeping in view the principle of natural justice, specially nominated Mr. Ali Nawaz Channa, learned Member Karachi Bench to hold referendum as Mr. Abdul Qayyum Raja who was at that time RITU and Syed Altaf Hussain Shah, were members of the said Full Bench which remanded the case of referendum and Engineering Supervisors. The said order is still holding the field and has neither been set aside nor modified. This aspect was brought to the notice of Syed Altaf Hussain Shah not only by the Deputy Registrar (R) but also by the Registrar of this Commission. Even Mr. Ali Nawaz Channa who at that time was acting' as Chairman passed an order in exercise of his powers requisitioning the file of referendum from him. However, Syed Altaf Hussain blatantly refused to hand over the file. This matter was also brought to the notice of Acting Secretary of Labour and Manpower Division. The situation became so worse in the Commission that the police help was sought to maintain the law and order within the precinct of the Commission because of the opposing attitude demonstrated by the. Acting Chairman on the one hand and Syed Altaf Hussain Shah on the other hand. In this respect reference is made to case-law reported in Town Committee, Oakhar Mandl-vs- Authority under the Payment of Wages Act, Gujranwala and 57 others PLD 2002 SC 452, wherein it was held as under:- ' Jurisdiction of any forum, Court or Tribunal holding any proceedings is always the core question. It is, therefore, obligatory for officers presiding over such fora to determine the question of their jurisdiction whenever some doubt exists or is expressed about it, irrespective of the stage of the proceedings at which such an objection is raised. The respondent authority was, thus, in grave error in having ignored and having failed to resolve the issue of its jurisdiction when it was sought to be urged. Its order, dated 24-8-1994 cannot, therefore, be justified and sustained in law."
22. This being the situation if the initial assumption of jurisdiction is illegal then the whole superstructure built thereupon has got no efficacy in law. It would be appropriate to reproduce the observations of the five , Honourable Judges of the Supreme Court in a case reported in Yousaf Ali, v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak.) 104, wherein at page .117 it as held as under:-- "And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must unless some statute or principle of law recognizing as legal the changed position of the parties is in operation fall to the ground because such orders have as little legal foundation as the void order on which they are founded."
23. ' The Ordinance has laid down the procedure which has to be followed to hold secret ballot for determination of collective bargaining agent. Some of the provisions of section 20 are as under:- "(3) Upon receipt of an application under subsection (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 a. Contestant in the secret ballot to be held for determining the collective bargaining agent in relation to such establishment or group of establishments, as the case may be; and
(b) 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 union showing in respect of each such member the said particulars.
(4) Every employer shall---
(a) on being so required by the Registrar, within fifteen days, 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. However a separate list of workmen whose period of employment is less than three months showing the said particulars in respect of each workman may also be submitted; and
(b) provide such facilities for verification of list submitted by him and the trade unions as the Registrar may require:.
24. ' Provided that in computing the period of three 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 four 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.
25. (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."
26. ' Admittedly the above procedure laid down by the law was not followed in preparing the list. Even the total number of workers were not brought on record as reflected from a letter No,19-2/01-SW/Pt dated 8th of March, 2004 written by Muhammad Tariq Qamniar Director (Labour and Welfare) to the. Deputy Registrar, N.I.R.C. The contents of the said letter are as under:-- "Please provide specimen for printing of ballot papers (black and white not coloured). There are estimated 55000 regular employees in P.T.C.L. (BPS 1 to 15), in case daily wagers/ contract employees are allowed the right to cost vote, the figure would raise to 70,000 (seventy thousand) approximately."
27. ' It is apparent from the aforementioned letter that the management of P.T.C.L. Informed the Deputy Registrar (R) N.I.R.C. That the number of workers would be 70,000 if Engineering Supervisors and Daily Wagers are allowed to cast their votes. Mr. Altaf Hussain learned Member himself through his order dated 10-1-2004 held both of them workers within the provision of the Ordinance. In this view of the matter, we failed to understand why the referendum was got conducted with a list of 50,000 of regular employees without participation of Engineering Supervisors and daily wagers.. This act on the part of the learned Member has deprived the Engineering Supervisors and daily wagers from their fundamental right of votes. However, as reflected from the preceding paragraphs the learned Member conducted the secret ballot on the basis of list provided by the management. The work charge employees and Engineering supervisors were not included in the list.
28. ' Further as reflected from subsection (5) of section 20 quoted above the voters list was not prepared by comparing/verifying the list of members provided by the contesting trade unions and the management. An incomplete list provided by the management was made basis for referendum. Furthermore the so-called list was not provided as required by law in time to the contesting unions. Even as quoted above the management was only provided three days to submit the list of the workers and in this short span of time the daily wagers and Engineering Supervisors were totally excluded. Last but not the least the certificate of C.B.A. Was issued without noticing that the union did not secure 1/3rd votes of the workmen employed in the establishment as required under the law. The workmen employed in the establishment, as apparent from the preceding paragraphs were more than 70,000 while the learned Member based his decision on the strength of 50,000 workers. The law has mandated that if procedure is prescribed to do a thing in certain manner it must be done in that manner and not otherwise. Reliance in this respect is placed upon PLC 1964 SC 536, PLD 2003 Pesh. 77, PLD 1994' Pesh. 48, 1979 PLC 416, PLD 1995. Page 53 and PLD 1974 Lah.
29. 217.
30. ' It is also reflected from the record that the result was announced in hasty manner. The secret ballot was conducted throughout Pakistan on 16-3-2004 while the. C.B.A. Certificate was ordered to be issued to Pakistan Telecommunication Employees Union on the very, next day i,e, 17th of March, 2004 without deciding the objections raised by the appellant union which are admittedly on file.' In a case reported Karachi Warehouse and Carriers Workers Union v. Pakistan Warehouse Carriers Workers Union and 3 others PLD 1978 Kar. 417 where in respect of para material provisions of I.R.O.
31. The learned Judges held as under:-- "In subsection (9) of section 22 of the Ordinance, the Legislature has prescribed in detail the procedure for holding the secret ballot to determined the Collective Bargaining Agent.. In clause
(a) of the aforesaid subsection it is provided that the date of the poll shall be fixed and intimated to each of the contesting trade unions and also to every employer. As discussed above, there is no evidence that the petitioner-Union was intimated the date of the 'poll except the minutes of the meeting which are signed by someone whose identity has 'not been established. According to subsection'(5) of section 22 of the Ordinance the verified list of voters is to be supplied to each of the contesting trade unions at least four days prior to the date fixed for the poll. There is nothing on record to establish that the verified list of voters was supplied to the petitioner-Union in terms of the above said provisions of law."
32. ' It is pertinent to mention here that the learned Judges of the Peshawar High Court well as Lahore High Court also took serious notice of these illegalities committed in holding of secret ballot and suspended the C.B.A. Certificate at the very preliminary hearing and ordered to be remained suspended till the matter is decided by this Bench.
33. ' The foretasted resume brings us to an irresistible conclusion that the referendum so held on 16th of March, 1994 was without jurisdiction and was not conducted in accordance with the provisions of the Ordinance.
34. ' Resultantly the same is set aside, with a direction to RITU to hold the referendum as per law within two months as already most of, the period has been lost in litigation.
35. ' Fore mentioned are the reasons for our short order dated 21-10-2005.
36. ' Before parting with this judgment so as to safeguard the interest of workers as well as P.T.C.L.
37. Establishment at large, we have noted with regret that the office of C.B.A. In P.T.C.L. Remained under protracted litigations between the unions. The respondent Pakistan Telecommunication Employees Union was determined as C.B.A. In a referendum held in the year, 1998. However, it could not perform its functions smoothly due to the litigations before different forums. The Ordinance has taken care of meeting such-like eventualities as envisaged under section 22 of the Ordinance which is in the following terms:-- "Performance of functions pending ascertainment of collective bargaining agent: any act or function which is by this Ordinance required to be performed by or has been conferred upon, a collective bargaining agent may, until a collective bargaining agent has been certified under the provisions of this Ordinance be performed by a registered trade union which has been recognized by the employer or employers."
38. 'The aforementioned section has provided that any act or function during the interregnum period till the ascertainment of C.B.A. May be performed by a registered trade union. The word "any" mentioned in the aforementioned section has been elaborated/defined in the case of Mr. Manzoor Qadir v. Mst. Amtul Hussain and others PLD 1971 Lah. 537 that it, has got wider meanings. It connotes wide generality and excludes limitation or qualification.
39. ' In these circumstances, P.T.C.L. Management during the interregnum period till the ascertainment of C.B.A. Would be well within its right to deal with Pakistan Telecommunication Employees Union for any act/function which in two preceding referendums secured majority votes. This would not only avoid further litigations but also bad blood between the opposing unions and would also safeguard the interest of the workers.