' SYED HAMID ALI SHAH, J.--- Facts of the petition are that the petitioner union was functioning as Collective Bargaining Agent in the respondent No,2 establishment. Upon expiry of its tenure an, application was made to respondent No,1, Registrar of Trade Unions for holding referendum. The Registrar called upon the employer to submit the lists, required by law and after due process prepared a list of voters and ultimately referendum was held on 17-3-2005. Since the numbers are critical for deciding this matter, they are referred to as under:-- {{TABLE}} 1473 Votes casted 1279 Votes obtained by respondent No,3 499 Votes obtained by petitioner {{TABLE}} 425
2. As a consequence of referendum, vide order, dated March 18, 2005, respondent No,3 was declared as Collective Bargaining Agent. Initially an appeal was filed by the petitioner before the Punjab Labour Court-IV at Faisalabad. Thereafter, probably, it was realized that order under section 20 is not appealable order and appeal was sought to be withdrawn which was dismissed as withdrawn vide order, dated 21-9-2005. Thereafter the present writ petition has been filed.
3. The counsel for the petitioner has contended that under the provisions of Industrial Relations Ordinance, 1969 the employer was required to give only one list, whereas under the provisions of Industrial Relations Ordinance, 2002, the employer is required to give two lists but the employer provided only one list. He has further contended that there are 300 work charge employees who have not been included in the list of voters. He has consequently prayed that the work charge employee with more than three months of service, are entitled to cast votes and since they have been disenfranchised, the Collective Bargaining Agent Certificate, dated 18-3-2005, may be declared without lawful authority and consequently may be quashed. He has further argued that the requirement of 1/3rd votes is out of the total number of workers and not the total registered votes.
4. On the other hand, learned counsel for the respondents argued that there is no material difference in the relevant provisions of Industrial Relations Ordinance, 1969 and Industrial Relations Ordinance, 2002. They have further argued that referendum has already taken place. They have emphasized that requirement of 1/3rd of votes is out of the total number of registered votes and not the total number of workers.
5. I have heard learned' counsel for the parties and examined the record with their assistance.
6. Before adverting to the controversy between the parties I think it appropriate to reproduce the provisions of section 22(4)(a) of Industrial Relations Ordinance, 1969 and section 20(4)(a) of Industrial Relations Ordinance, 2002:- "22(4)(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"
"20(4)(a). Every employer shall, 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."
7. A perusal of the above two indicates that' the only difference between the provisions of Industrial Relations Ordinance, 2002 is that a period of 15 days has been prescribed for submission of list by the employer, while in Industrial Relations Ordinance, 1969 such prescription of period was not there. Apart from this change both the provisions are identical.
8. A compound reading of the provisions indicates that employer is required to furnish the list of all workmen employed by him, excluding those whose period of employment is less than three months. On the other and the applicant trade union as well as the contesting trade unions are required to submit list of their members giving the prescribed details. B Thereafter a duty is cast upon the Registrar under subsection (5) of section 20, to prepare a list of voters. In order, to be included in the list of voters, a workman is to fulfill twin records; firstly that he has been in the service of employer for not less than three months and secondly he has been a member of one of contesting trade unions.
9. The Registrar is required to prepare the list of voters after due verification. Nowhere in the memo.
Of petition it has been pleaded that the work charge employees are members of the petitioner or any other trade union. Although the petitioner has pleaded in para.4(1) of the petition that there is existence of work and there is existence of work charge employees. Be that as it may, it has not been pleaded that any of such work charge employee is the member of petitioner trade union, therefore, even if there were work charge employees and even if the work charge employees have been in employment for more than three months, since the factum of their being member of the trade union has not been pleaded in the petition, the question becomes only academic. Because they were not members of union or at least it has not been pleaded, therefore, they were not entitled to be voters in the referendum.
10. Besides the referendum has already taken place and the petitioner union has participated in the referendum without any protest or E at lest no such protest has been placed on record or pleaded in the petition.
11. Now coming to the question as to the requirement of 1/3rd votes as prescribed in first the proviso to subsection (9) of section 20 of I.R.O.
2002. The proviso is reproduced below:-- "Provided that no trade union shall be certified to be the collective bargaining agent for an establishment or group of establishments unless the number of votes received by it is not less than one-third of the total number of workmen employed in such establishment or, as the case may be, group of establishment."
12. It is the contention of Mr. Asmat Kamal Khan that requirement of 1/3rd is of total number of workmen. It is contention of the respondents that requirement is of 1/3rd of the registered voters.
This question came up for consideration before the Honourable Supreme Court of Pakistan in the case of "KESC Progressive Workers Union through its Chairman and others v. KESC Labour Union through its General Secretary and others" 1991 SCM R 888. The Honourable Supreme Court of Pakistan in this judgment referred to first proviso to subsection (9) of section 22 of Industrial Relations Ordinance, 1969, which is identical to first proviso of subsection (9) of section 20 of Industrial Relations Ordinance, 2002 and observed as under:-- "(9) In the first proviso to subsection (9) of section 22 of the I.R.O., 1969 the expression "total number of workmen employed in such establishment or group" must be read as qualified by the following which have preceded--
(i) whose period of employment is not less than three months;
(ii) who is a member of any of the contesting trade unions;
(iii) on the cut off date "four days prior to the date fixed for the polls."
10. Apart from these controlling features to which the proviso is subordinate, there is substantive provision in subsection (6) of section 22 of the I.R.O. 1969 whereunder the determination of Collective Bargaining Agent is to take place by the voters alone. It provides as hereunder:-- "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."
11. If the non-voters are to play a part in the determination of the Collective Bargaining Agent, as is the contention, then the proviso has the effect of destroying this substantive provision. If the first proviso is treated as an independent enacting provision which exceptionally is permissible, six anomalies would arise:- ' firstly, no cut off date can be located in the proviso. Necessarily we have to import it, if at all, from the enacting provision, thereby demonstrating the control and avoiding the independence of the proviso; ' secondly, there will be two cut off dates; one for circulating voters list four days before the polls and the other of certification of the Collective Bargaining Agent necessarily after the polls; ' thirdly, there is no provision made, none at all, for preparation and certification of a list of total number of workmen employed in such establishments or group by which the requirement of proviso can be satisfied, immediately at the conclusion of the count; ' fourthly, the whole process of election of Collective Bargaining Agent is likely to become highly manipulative; ' fifthly, it will be solitary, and an unprincipled case, where a category of persons, not even qualified to be voters on the crucial dates or even on the date of declaration of result will decisively influence the result of the poll; and ' finally, on the proposed interpretation, the whole provision becomes unworkable. To illustrate, in an establishment 'A', with 100 employees, there are two trade Unions 'B' with 60 members and 'C' with 40. Of these 30 workmen being of less than three months employment are not entitled to vote.
At the poll, union `B' receives 32 votes and Union 'C' receives 28 votes. 10 voters do not cast their vote. Second proviso gets attracted only where there are more than two trade unions contesting the election. None satisfies the test. Here, a repoll cannot take place nor can a Collective Bargaining Agent be declared.
' Take another example. In establishment A, with 100 workmen, 30 of less than three months employment, there are three trade unions with membership of 35 for Trade Union 'B', 25 for 'C' and 10 for Union 'D'. Union 'D' does not contest. So, the poll takes place in which Unions 'B' and 'C' participate; 'B' receiving 32 and 'C' receiving 28 votes. Again the same stalemate occurs. The contention of the learned counsel for the petitioner therefore frustrates the very purpose of the enacting provisions.
13. Therefore it is settled that 1/3rd is of the list of voters and not 1/3rd of the total workmen. In the present case the list of voters contained 1473 and respondent No,3 has secured 499 votes. 499 may not be 1/3rd of the total number of workmen but is certainly more than 1/3rd of the names in the list of the voters.
14. I, therefore, find no irregularity in the order of respondent No,1 and consequently dismiss this petition with no order as to costs.