HAHID ANWAR BAJWA, J.--- A matter pertaining to determination of Collective Bargaining Unit meandered its way to the Supreme Court and the Honourable Supreme Court in Civil Petition No,629 of 2008 on 28-4-2009 passed the following orders:- "Thus in view of the above position, the petition is disposed of with the observation that although the period of two years has already expired, therefore, the Commission shall undertake fresh elections simultaneously of all the CBUs within a period of two months in order to promote healthy activities of the Trade Unions in the National Bank of Pakistan, however, till the elections, present set up of the trade union shall remain operative/continue."
2. After this order was passed the Registrar, National Industrial Relation Commission wrote a letter to respondent No,2 on 4-6-2009. Respondent No,2 consequently on 23-6-2009 authorized Mr. Tanveer Sultan, District Officer, Labour -II, South Division, Karachi to perform his functions in connection with internal elections of the National Bank of Pakistan Employees Front, Sindh. Said authorized officer called meeting of all the contestants and by consent of the party's nomination fee of Rs,3, 000 was fixed. Consequently, elections were held on 30-7-2009 and results were announced on the same day. Result indicated that the petitioners were elected to various posts of office-bearers. A letter was written by respondents Nos.5 and 20 to respondent No,2 and it was stated in the letter that total number of voters was 496 but the result showed that 3253 votes were cast. Matter was brought to this Court but constitutional petition was withdrawn. An order was passed by the respondent No,2 which was communicated to the petitioners vide letter dated 29th August, 2009. Material part of said letter reads as under:--- "I have been directed by the Registrar of Trade Unions Sindh, Karachi, to inform you that for the various irregularities observed during the earlier held poll on 30-7-2009, and for the detailed reasons recorded thereto separately by the Registrar of Trade Unions Sindh on 28-8-2009, the result of the Poll/ Election/Communication of List of Office-bearers by the Saeed Haider Panel, :has been rejected by the Registrar of Trade Unions Sindh, Karachi. It has further been held by the Registrar of Trade Unions Sindh, that fresh polling for conducting elections of office-bearers of said union be held at very earliest."
2. This order was challenged before the Sindh Labour Court No,V by filing an appeal under section 9(7) of the Industrial Relations Act, 2008. The following were principal reasons recorded by the learned Labour Court: --- ".... Ballot papers were also not printed validly being without counterfoil in order to mention the particulars as per Rule-11(1) and Form VI of as provided in The Representation of The People (Conduct of Elections) Rules, 1977 and the Ballot Papers were not stamped on its back with the official mark and signed by the Polling Officer, as provided under section 33(2) (d) of The Representation of The People (Conduct of Election) Rules, 1976 (Act No,LXXXV of 1976) which was mandatory procedure for voting, because word "shall" has been used, therefore, invalid Ballot Papers were used for conducting election. It is also observed no statement of the count as provided under Rule-24 and Form XIV of the Representation of the People (Conduct of Election)
Rules, 1997 appears to have been prepared as the same has not been brought on record, showing total number of Ballot Papers issued to the Polling Officer and thereby the Registrar has committed mistake in authorizing an inexperienced official to hold the elections. Since, the Registrar was appointed by NIRC, Islamabad as per orders of honorable Supreme Court of Pakistan, hence it was incumbent upon the Registrar to have conduct the election process himself rather to authorize Mr. Tan veer Sultan District Officer Labour II, South Division Karachi in peculiar circumstances of the above case in hand"
' It is admitted fact that authorized person while conducted elections has received an amount of Rs,3000 from each of 44 candidates in total Rs,1,32,000 on account of expenses to be incurred on holding the election which were not provided under the rules and such facts was not brought to the knowledge of the Registrar, therefore, such arrangements might have been made on initiative of the candidates belonging to any panel in order to get sympathies, therefore, in such circumstances element of illegal practice in election can not be ruled out and the act of printing Ballot Papers without counterfoil, stamping and signature of Pollipg Officer on its back, is sufficient to create doubt about and transparency of the election of National Bank of Pakistan Employees Front Sindh.----"
"... Thus, the order dated 29-8-2009 of Registrar for holding fresh poll does not require any interference and the above appeal being without merits is dismissed with no order as to cost in the terms that respondent No,1, shall personally hold election by appointing competent polling staff, in accordance with the law within a period of (2) two months from today. The Management and all concerned shall co-operate with the respondent No,l."
4. These orders have been challenged in this constitutional petition.
5. Mr. Faiz Ghangro learned counsel for petitioners made the following submissions:---
(i) That Representation of the People Act is not applicable to election for electing office-bearers of a Trade Union for which complete procedure exists in the Industrial Relation Law and Rules made thereunder. There is no such provision as requiring, signature etc. As observed by the Court below under the Sindh Industrial Relation Rules, 1975.
(ii) Under section 15 of the Industrial Relations Act, 2008 read with section 24(14) of the same Act a Registrar can authorize a person to perform functions on his behalf. Registrar has no power to order that a fresh election be held.
(iii) Under section 9 of the Industrial Relation Act, 2008 in respect of office-bearer of Trade Unions, Registrar can refuse to register a change of office-bearer but he has no power to order that elections be held again.
6. Mr. Khalid Imran learned counsel for the private respondents submitted that mandate of Supreme Court was that the Commission shall undertake exercise of conducting elections and, therefore, it was not available to NIRC to have passed such responsibility to the provincial Registrar of Trade Unions. He further submitted that Registrar did not "refuse" to register change but "rejected" result of election and, therefore, it was not available to petitioners to approach Labour Court. He submitted that_ once Labour Court had ordered re-polling; the order of the Registrar has merged in the order of the Labour Court. Learned counsel next contended that the Industrial Relations Act prescribed period of two years for office bearers and such period has already passed and, therefore, new elections are due and it would be in the interest of justice that new elections be ordered rather than petition be proceeded on technicalities.
7. I have considered submissions made by learned counsel for the parties and have also gone through the record.
8. In subsection (4) of section 9 of the Industrial Relations Act, 2008 it is provided that every alternation made in the constitution of a registered trade union and every change of its officers shall be notified by registered post by the trade union to the Registrar within 15 days of such change. Thereafter subsection (5) of the Act provided that Registrar may refuse to register such change or alternation if it is in contravention of any of the provisions of this Act, or if it is in violation of the constitution of the trade union. Thereafter comes subsection (7) which provides as under:- "In case there is a dispute in relation to the change of officers of a trade union, or any trade union is aggrieved by the refusal of the Registrar under subsection (5), any officer or member of the trade union may apply or appeal to the Labour Court, who shall within seven days of the receipt of the application or appeal, as the case may be, pass an order either directing the Registrar to register the change or alternation in the constitution or in the officers of the trade union or may, for reasons to be recorded in writing, direct the Registrar to hold fresh elections of the union under his supervision."
9. A reading of above indicates that subsection (7) is attracted in the following situations;-- -(a) When there is dispute in 'relation to change of officers of trade union.
(b) Any trade union is aggrieved by the refusal of the Registrar to register such change.
(c) Any officer or member of the trade union may apply or appeal to the Labour Court.
10. If seems obvious that if there is dispute, it shall be 'apply' and if there is 'refusal' it shall be appeal. There is no provision in section 9 requiring approving of the Registrar respect of change of office bearers of trade union. Though it is available to Registrar to refuse to register such change but if Registrar remains silent the mandate of law appears to be that the change is to be deemed to have been registered. Once Registrar has registered change it has no power to call back or recall his order as has been done in present case. It has been held in Haji Khan Bhatti v. N.I.R.C.
And others (1992 PLC 594) that once Registrar has given effect to the change, party aggrieved can approach the Labour Court under subsection (7) of section 9 and it is jurisdiction of Labour Court to, if it comes to the conclusion that while registering the change some illegality has been committed, to order fresh elections under the supervision of Registrar, Registrar on its own has no power to recall order passed by it, There are so far three reasons; firstly no power of review has been conferred upon Registrar, And secondly in Pakistan Telecom Lions Staff Union, Lahore v. The NIRC and 2 others (1999 PLC 320) where Registrar first registered the change and thereafter recalled its order, it was called a situation of "judicial anarchy" by a Single Bench of Lahore High Court. Consequently, no power of review has been conferred by any of provision contained in Industrial Relations Ordinance on the Registrar. Thirdly, even under the doctrine of locus poenitentaie as enshrined in section 21 of the General Clauses Act, 1872 once decisive steps have been taken and vested rights have been created it is no longer available to departmental or executive authority to retrace its steps and to recall its order. In the present case once change of office-bearers has been notified in consequence of the result of elections it was not available to Registrar to recall its order. Therefore, impugned order cannot be sustained on this ground alone.
11. There is another aspect of the matter and it is that the order by which Registrar ordered that fresh elections be held was never placed either before the Labour Court or before this Court. In the letter dated August 29, 2009 (reproduced above) although subordinate functionary has stated for various irregularities observed and for detailed reason recorded separately by the Registrar of Trade Union results have been rejected. Neither such detailed reasons nor any record was placed before Labour Court nor such irregularities have been pointed out before this Court. Therefore, even for that reason the order passed by the Labour Court cannot be sustained.
12. Contention that there were only 496 votes and total of 3253 votes have been cast is misplaced, to say the least. Maximum number of votes cast was 220. There were 15 positions and each voter could cast one vote for each of these positions. 3253 is total of votes for all 15 positions. Each candidate's tally of votes is also stated.
13. Another reason which has prevailed before the Labour Court is that the ballot papers were not stamped nor were they on their back carry official mark or signature of Polling Officer as required by the Representation of the People (Conduct of Elections) Rules, 1977. In my view, learned Labour Court misconstrued the law in applying provision of the Representation of the People (Conduct of Elections) Rules, 1977. It should have looked at form enclosed as Form "K" of the Industrial Relations Sindh Rules, 1973 or Form "L" of the National Industrial Relations Commission (Procedure and Function) Regulations, 1973. Neither in any of these forms nor in Rule 14 of the Sindh Rules and Regulations 16 of the NIRC Regulation is there any requirement that the ballot papers must bear stamp at the back and must carry signatures of the Polling Officer. In any case, if any office bearer or member of trade unions is aggrieved by order of Registrar registering change or disputed the result it was available to him to challenge the same under subsection (7) of section 9 before the Labour Court. It was not available to the Registrar to recall its order.
14. Another reason which prevailed with Labour Court was that an amount of Rs,3000 was taken from each of the candidates for the purpose of conduct of elections. The Industrial Relations Act, 2008 has no provision for such collection. At the same time if there are no funds available with trade union how elections are going to be held. After all there are expenses to be incurred in connection with holding elections; such as preparation of polling stations, preparation of ballot papers and other incidental expenses. In any case, in the present matter Mr. Faiz Ghangro has successfully demonstrated that this was decision made by consent of all the parties. Mr. Khalid Imran has not argued that any candidate who did not contribute has been discriminated against in any manner whatsoever. Therefore, mere fact that contribution was collected cannot be held to have invalidated result of elections. Needless to observe that officer conducting elections should have, in time, submitted statement stating all the expenses incurred and refunded balance amount.
15. Another contention of Mr. Ghangro was that the Registrar notified/authorized Additional Registrar to conduct elections. Since none of the parties has been able to demonstrate as to what prejudice has been caused to either party by such act of Registrar nothing shall turn on this aspect of argument.
16. This brings me to the contention of Mr. Khalid Imran that elections were held as long ago as on 30-7-2009. Under section 6(1)(j) of the Industrial Relations Act, 2008 maximum tenure of office bearers is two years and it has been held in MCB Staff Union v. Senior Membe. NIRC, 2001 PLC 131 that beyond the period of two years holding of office shall be deemed to have been without lawful authority' and usurpation by the office-bearers of the union and it has been held in Muttehida Tele Staff Union Port Qasim v. Director of Labour (2002 PLC 292) that if trade union does hold election within time as required it would create doubt about competence of office-bearers to file writ petition. Office-bearers who have ever shot their tenure fixed by law would be firstly usurpers and consequently have no mandate from their electorate. An electoral mandate is in accordance with constitution and law in this case, section 6(1)(j) prescribes maximum period of two years. Therefore office bearers if they continue beyond 2 years cannot be said to be occupying their offices with lawful authority.
17. Therefore, while I set aside impugned order passed by Labour Court on 24-2-2010 and the order passed by respondent No,2 on 29-8-2009, I direct the petitioners/office-bearers of trade union to Conduct elections of the trade union in accordance with Constitution of Trade Union and the Law within a period of two months of the date of this judgment.
18.
18.This constitutional petition is disposed of in the above terms.