' SHAHID ANWAR BAJWA, J.--- Factual background of this Constitutional Petition is that a Trade Union by the name of Hertz Optimus Limited Workers Union was registered by the Registrar of Trade Unions, Sindh on 29-1-2009. Subsequently the same Union was granted certificate bf Collective Bargaining Agent on 28-4-2009. Through this constitutional petition both these acts have been challenged.
2. It is submitted by the petitioner that petitioner is a Company having name of Optimus Limited. It is stated in the petition that there is no company by name the Hertz Optimus Ltd. Registrar of the Trade Unions has registered a union under the name Hertz Optimus Workers Union. It is stated in the petition that none of the persons employed by the petitioner have formed this Union or are members thereof. It is further submitted that establishment as defined in the Industrial Relations Act, 2008 includes all its branches and offices wherever located. It is further submitted that there is an Industry-wise Trade Union registered by the Registrar of Trade Unions National Industrial Relations Commission (hereinafter referred to as the N.I.R.C.) and such Union has been granted registration certificate in 2009 and has been determined as Collective Bargaining Agent on May 7th 2009. It is further stated in the petition that this Union registered by N.I.R.C, submitted a charter of demands in May, 2009 and in pursuance of that charter of demands a settlement was signed on June 30th 2009 copies whereof were sent to prescribed authorities including the respondent No,1 who also is Director of Labour Welfare for the Province of Sindh. It is further submitted that Hertz Optimus Workers Union had also submitted a charter of demand on 4-5-2009.
3. Notice of this writ petition was ordered on 28-7-2009. When this writ petition again came up for hearing on 28-10-2009. Bailiff reported that notice could not be served because the office was found closed. Consequently on 28-10-2009 the respondent No,2 Union were ordered to be served through publication. Publication in daily Nawa-i-Waqt on 7-11-2009 was duly made. No one entered appearance. Consequently on 16-11-2009 ex parte arguments were heard and judgment was reserved.
4. Learned counsel for the petitioner's first submission was that there is no company by the name of Hertz Optimus Limited and therefore there could not be any Union by the name of Hertz Optimus Ltd. Workers Union. Learned counsel submitted that the name of the petitioner is Optimus Limited.
There may not be a company by the name of Hertz Optimus Limited but I have not been able to find any provision in the Industrial Relations Ordinance, 1969, Industrial Relations Ordinance, 2002 and Industrial Relations Act, 2008 requiring that where the employer is a company the Trade Union must have correct name of the company as part of its name. There is no such requirement. The Trade Union can have any name that it may choose provided that the name is not in violation of any provision contained in the Industrial Relations Act, 2008 or is not a name identical with name of any other Trade Union. Therefore, contention of the learned counsel for the petitioner that since.
Word "Hertz" is included in the name of the Union, the registration of the name is without lawful authority and of no legal effect, is without any force.
5. Next contention of the learned counsel was that under the law where can be only one Collective Bargaining Agent in an establishment. He submitted that one Collective Bargaining Agent in his establishment had been determined by the Provincial Registrar of Trade Unions vide certificate dated 20-4-2009 and another Collective Bargaining Agent has been determined by the Registrar of Industry-wise Trade Unions (N.I.R.C.) vide certificate issued on 7-5-2009. Certificate of registration of the second Union was issued on 26-2-2009. Can there be more than one Collective Bargaining Agent in an establishment? Answer to this question lies in definition of Collective Bargaining Agent' given in section 2(iii), section 15(c), and section 24(2) of the Industrial Relations Act, 2008.
' The above three provisions are reproduced below:--"Section 2.
(iii) "Collective bargaining agent", in relation to an establishment or industry, means the trade union of the workmen which, under section 24, is the agent of the workmen in the establishment or, as the case may be, industry, kin the matter of collective bargaining"; ' Section 15.
(c) the determination of the quetion as to which one of the trade unions in an establishment or an industry is entitled to be certified as collective bargaining agent in relation to that establishment or industry."
' Section 24.
(2) Where there are more registered trade unions than one in an establishment or group of establishments, the Registrar shall, upon an application made in this behalf by one fifth 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."
6. A cursory look at the above three provisions indicates that when lawmakers chose to define Collective Bargaining Agent it said that it means Trade Union, which under section 24 is the agent of the workmen. The word 'is' is used in singular sense in the definition of Collective Bargaining Agent. No doubt, under the General Clauses Act, singular includes plural and plural includes singular, but what has to be seen is whether the context in which work 'is' has been used in the definition permits is to be read "are". For answer to this question one can go to section 24(2). This section provides that where there are more than one Trade Unions in an establishment etc., the Registrar shall hold a secrete ballot to determine as to which one of such Trade Unions shall be the Collective Bargaining Agent. Therefore, the Registrar can determine only one Trade Union as Collective Bargaining Agent and not more than one Union. When the law-makers were delineating functions of the Registrar, in respect of determination of Collective Bargaining Agent, the lawmakers stated that one of the functions of the Registrar is to determine as to which one of Trade Union is entitled to be certified as Collective Bargaining Agent. Therefore, the above provisions make it very clear that in one establishment there can be only one Collective Bargaining Agent. I am fortified in my view by a judgment of Division Bench of this Court in Muslim Commercial Bank Limited v. R.A.T.U. And 2 others 2002 PLC 145. The only exception to the rule of one Collective Bargaining Agent in one establishment is when a Collective Bargaining Unit has been determined under section 30 of the Industrial Relations Act, 2008, which section empowers the National Industrial Relations Commission to determine one or more Collective Bargaining Units in various establishments. Once the N.I.R.C. Determines Collective Bargaining Unit in an establishment, thereafter there can be only one Collective Bargaining Agent in each of these units. Since in the present case, no Collective Bargaining Unit has been determined therefore, this aspect need not detain me any more from holding that under the law there can only one Collective Bargaining Agent in the establishment of the present petitioner.
7. What is an establishment? Establishment was defined in section 2(ix) of I.R.O. 1969, in section 2(xi) of I.R.O.2002, and section 2(ix) of the I.R.A.
2008. The three definitions are reproduced below:--- ' Section 2(ix) of I.R.O., 1969.
(ix) "Establishment" means any office, firm, industrial unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying on any industry and, except in section 22-EE, includes a collective bargaining unit, if any, constituted under that section in any establishment or group of establishments; ' Section 2(xi) of I. R.0.2002.
(xi) "establishment" means any office, firm, factory, society, undertaking, company, shop, premises or enterprise which employees workmen directly or through a contractor for the purpose of carrying on any business or industry and includes all its departments and branches, whether situated in the same place or in different places having a common balance sheet and profit and loss account and, except in section 54, includes a collective bargaining unit, if any, constituted under that section in any establishment; Section 2(ix) of the I.R.A.
2008.
(ix) "Establishment" means any office, firm, factory, society, undertaking, company, shop, premises or enterprise, which employees workmen directly or through a contractor for the purpose of carrying on any business or industry and includes all its branches and establishments, whether situated in the same place or different places and except in section 30, includes a collective bargaining unit, if any, constituted by an establishment or group of establishments.'
8. As far as, Industrial Relations Ordinance, 1969 is concerned under that definition every office, Units, shop and premises was called establishment. It was held in Muhammad Aqil's case 1974 PLC 194 that an employer may have more than one establishment. In Habib Bank Ltd. Employees Union, Multan Zone's case 1992 PLC 289 and Grindlays Bank (Lloyds Branch) Employees' Union v. RTU, Lahore Region, Lahore and others 1980 PLC 8001, it has been held that each branch of bank would constituted a separate establishment. There was thus multiplicity of Unions and multiplicity of Collective Bargaining Agents. There were some organization in which at one time there used to 44 Collective Bargaining Agents. In order to cure this malady the Legislature in its wisdom, in 2002 brought a new definition of establishment. Under this new definition of establishment all branches and offices wherever situated to be treated as a single establishment.
9. Industrial Relations Act, 2008 retained this feature of definition of establishment and stated that establishment includes a company or society etc., and includes all its branches and offices whether situated in the same place or at different places. Thus, giving an example: if a bank had 1500 offices and bank branches in Pakistan, they constituted 1500 establishments under the I.R.O.
1969. However, with the onset of I.R.O., 2002 and more particularly with the promulgation of Act of 2008 all the offices and branches of the bank constitute one establishment. Therefore, since there can be only one Collective Bargaining Agent in one establishment and since in case of a company (amongst others) all its offices and branches constitute one establishment, there can only one Collective Bargaining Agent for workmen employed by a company wherever in Pakistan, those workmen my be employed.
10. In the present case, one Trade Union has been registered by the Provincial Registrar of Trade Unions and one Trade Union has been registered by the Registrar of Industry-wise Trade Unions. I may quickly add that under section 25 of the I.R.A. 2008, an Industry-wise Trade Union means a Trade Union whose membership extends to establishments in more than one province. Thereafter scheme of the I.R.A. Is that if membership of a Trade .Union extend only to within territory of a single province, it is 'the Provincial Registrar of Trade Unions who is vested with the powers of registration and determination of Collective Bargaining Agent, and the Labour Court who has the judicial powers in respect of various issues relating to registration and continued existence including cancellation of registration of the Trade Union. On the other hand, if membership of the Trade Union extends to more than one province it is Registrar of Industry-wise Trade Unions which is a Bench of National Industrial Relations Commission under section 26 of the Industrial Relations Act, 2008 which exercises powers in respect of Industry-wise Trade Union which powers are exercised in respect of Provincial Trade Unions by the provincially registered of Trade Unions. Concomitantly appropriate bench of N.I.R.C. Exercises powers in respect of Industry-wise Trade Union which powers are exercised by Labour Court in respect of Provincial Registrar Trade Unions. Thus a clear dichotomy is provided between Industry-wise Trade Union and provincially registered Trade Unions.
11. In order to remove any confusion which this dichotomy may cause provision was made in section 25(12) of the I.R .A.2008. Said subsection is in the following words:--- "25(12). Save as provided in subsections (11) and (13) no Registrar, Labour Court or Tribunal shall take any action, or entertain any application or proceedings, in respect of any matter which falls within the jurisdiction of the Commission."
12. Since this section has referred to subsections (11) and (13) of the same section, they are also reproduced below:--- "25(11). The Labour Court to whom the case is so referred shall enquire into it and, if the case was referred to it for report, forward its report thereon to the Commission or, if the case was referred to it for disposal, continue the proceedings and dispose of the case as if the proceedings had originally commenced before it and grant such relief as the Commission has the power to grant."
"25(13). Nothing in this section shall be deemed to exclude the jurisdiction of a Labour Court to entertain cases of unfair labour practices on the part of employers or workmen, whether individually or collectively."
13. Subsection (11) of section 25 of the Industrial Relations Act, 2008 refers to a situation where a case of unfair labour practice is referred by the Commission to the Labour Court. Subsection (13) confers jurisdiction on the Labour Court to deal with cases of unfair labour practices. Both these are not material for the purpose of present controversy. It is subsection (12) which has loaded and very significant connotations for the present case. The subsection states that no Registrar shall take any action or entertain any application or proceedings, in respect of any matter which falls within the jurisdiction of the Commission. One of the functions of the Commission is to register Industry-wise Trade Union and to determine Collective Bargaining Agents among such Trade Union. Therefore, where jurisdiction of NIRC starts jurisdiction of Provincial Registrar Trade Unions comes to an end and any act done or order passed by a Provincial Registrar of Trade Unions in respect of an issue, a thing, or a matter which falls within jurisdiction of the Commission would be without lawful authority and of no legal effect. Section 5 of the I.R.A.2008 which section states the requirement of application for registration of Trade Union, requires in its clause (v) name of the establishment, or group of establishments, or the industry, as the case may be to which the trade union relates.
Definition of Collective Bargaining Agent has been reproduced above. Again it talks or establishment etc. Law needs no authority that whereas there can be no Trade Union for a number of establishments, there cannot be a Trade Union for a part of an establishment except when a Collective Bargaining Unit has been determined. The reason is not far to seek. A Trade Union in a establishment can do nothing for the workers unless it has been determined and certified as Collective Bargaining Agent. As stated above in one establishment there can be only one Collective Bargaining Agent. Therefore if a Trade Union is registered for a part of an establishment, the very scheme of the Industrial Relations Act, would be defeated. Thus, a Trade Union can be registered for whole of an establishment or a group of establishments or industry but not for a part of an establishment. Situation was different when there was I.R.O.
1969. As stated above, under that law each premises, each branch of bank, each office was a separate establishment. However under the Act, of 2008 (as also under the Ordinance of 1969) all branches and offices of a company or society etc., constitute one establishment. Therefore, if a company or society etc. Has offices in more than one provinces and workmen are employed in such offices in more than one provinces, a Trade Union can only be registered for all such offices and branches and no Trade Union can be registered only for that part of offices and branches who are within the territories of one province. Therefore, registration of Trade Unions in case of such establishments by Provincial Registrar's Trade Unions would be without lawful authority and of no legal effect establishment spread over more than one provinces must be taken as a single entity.
That is how the Act of 2008 defines. They fall within jurisdiction of N.I.R.C. And section 25(12) specifically bars jurisdiction of the Registrar to take any action.
14. Since there can only one Collective Bargaining Agent in one establishment order dated 28-4- 2009 passed by the Registrar of Trade Unions Sindh is declared as without lawful authority and of no legal effect. As far as registration of the Trade Union is concerned, it would be a question of fact as to whether different offices and branches of the petitioner exist in Pakistan and as to whether workmen are employed in different offices and branches. This question of fact cannot be decided in exercise of Constitutional jurisdiction, respondent No,1, is directed to look into the matter and if he comes to the conclusion, after such inquiry as he may deem appropriate but in accordance with the law, that offices and branches of the petitioner company exist in more than one provinces and establishment employees workmen in more than one provinces, he shall file a complaint under section 12 of the Industrial Relations Act, 2008 in the Labour Court having jurisdiction in the matter.
' The Constitutional Petition is allowed in the above terms.