' ABDUL GHIAS NOUSHERWAN, MEMBER --Being aggrieved by the order/judgment dated 17.11.2011 passed by learned District & Session Judge 1st Labour Court Balochistan in case No 39/2011 where appeal under Sections 12 & 15 of BIRA 2010 was dismissed preferred this appeal.
2. Precisely stating the facts of the case the appellant was an industry-wise registered union with the National Industrial Relations Commission Islamabad as well as collective bargaining agent and the appellant from the last so many decades is collective bargaining agent succeeded in referendum for 4 times and last referendum held in the year 2007, won the referendum with the remarkable majority. It is further stated that due to the 18th Amendment and promulgation of BIRA, 2010 the appellant applied under Section 86 of BIRA, 2010 which provide protection as CBA and registration of the union whereof respondent No, 1 accepted the request. Meanwhile a meeting of General counsel of the union held on 8.5.2011 wherein amendment in constitution, amendment in the name of union approved and office barrier elected and whole proceedings were submitted to the respondent No, 1 for approval but no action has been taken whereof the petitioner approached the learned Labour Court. On its order dated 15.7.2011 and 17.4.2011 approval has been granted by respondent No,
1. It is further stated that petitioner filed an application before respondent No, 1 since 2008/2009 for the de-registration of six different unions but no action has been taken. Lastly on 15.3.2011 another application submitted for de-registration of six different unions but again no action/proceedings taken by respondent No,
1. However on the direction of learned Labour Court the registrar trade union disposed of such applications wherein the registration of 4 unions were cancelled but that of respondents No, 2 & 3 were declared legal. Against this order petitioner prepared appeal before learned Labour Court which was dismissed.
3. The learned counsel for appellant contended that the respondents No, 2 & 3 in view of Section 12(3), BIRA 2010 ceased to exist on the ground that neither the respondents No, 2 & 3 participated in any referendum nor applied for the same. Further contended that the union of appellant after 18th Amendment in the Constitution of Islamic Republic of Pakistan applied for its registration and granting of CBA on the direction of learned Labour Court but no such application/order had been issued by and in favour of respondents No, 2 & 3. Conversely the learned counsel for respondent No, 2 challenged the maintainability of the revision. Secondly contended that for cancelation of registration of union only registrar trade union can approach the Labour Court by means of a complaint. Lastly contended that respondent No, 2 has been registered since 1998 but no such application had been moved. The learned counsel for respondent No, 3 adopted the argument of learned counsel of respondent No, 2 whereas the representative of respondent No, 1 submitted his parawise comments with explanation that the company has been divided and petitioner is registered on central level.
4. The learned Labour Court concluded as follows: ' "In view of Sections 12 & 15 of BIRA, 2010 as well as authority reported and quoted herein above the appeal filed by the appellant having no force nor maintainable before this Court, hence is dismissed accordingly".
' The learned Labour Court observed Section 12(1) but did not examine sub-section (3) of Section 12 of BIRA, 2010. It will be opt to reproduce the relevant provision of 12 (3), ' "The registration of a trade union shall be cancelled by the registrar if, after holding such inquiry as he deems fit, he finds that such trade union:---
(a) Has dissolved itself or has ceased to exit; or
(b) Has not been a contestant in a referendum for the determination of collective bargaining agent; or
(c) Has not applied for determination of collective bargaining agent under Section 24(2) within two months of its registration as another union or promulgation of this Act, whichever is earlier, provided there does not already exist a collective bargaining agent determined under Section 24(9)(e) in an establishment, or group of establishments or industry; or
(d) Has secured less than fifteen percent of polled votes as per final list of voters, during a referendum for the determination of collective bargaining agent."
5. The petitioner made the following prayer in instant revision: ' "It is respectfully prayed that keeping in view the above to set aside the impugned Order of respondent No, 1 dated 10.6.2011 marked as annexure A and order of respondent No, 4 dated 17.11.2011 marked as annexure G and declare respondents No, 2 and 3 as ceased to exist and directions may be issued to respondent No, 1 to cancel the registration of respondents No, 2 & 3 union to meet the equity & Justice any relief which this Tribunal may kind proper may also be allowed to the petitioner."
' The main objection of learned counsel for respondents is that the only registrar trade union may seek the remedy of cancellation of registration by means of a complaint filed before learned Labour Court, the learned Labour Court also dismissed the appeal on the same ground.
6. From bare reading of Section 12 of BIRA, 2010 narrowly speaking meaning is same but broadly speaking it is not so, for the reason that if registrar trade union with the connivance of concerned union unable to file complaint or conduct inquiry for cancellation of registration then such provision of Law losses its value as the case in hand it is stated by the petitioner that its such applications were pending with registrar trade union since 2008/2009 but no action has been taken by registrar trade union. Even on 15.3.2011 when last application was moved that was also not taken into consideration till the direction was passed by the learned Labour Court. The power of registrar trade union with regard to file complaint is in same manner like the power of Labour Appellate Tribunal under Section 55 (4) of BIRA, 2010 which is reproduced as under:--- ' "The Tribunal may on its own motion at any time, call for the record of any case or proceedings under this Act in which a Labour Court within its jurisdiction has passed an order for the purpose of satisfying itself as to the correctness, legality or propriety of such order and may pass such order in relation thereto as it think fit"
' In view of above Section 55, sub-section (4) of BIRA only the Tribunal is empower on its own motion but it is necessary that matter be brought in the knowledge and notice of the Tribunal by any aggrieved party that is why the revision petition of aggrieved party is maintainable before the Tribunal under this provision. Of course the registrar has the power to conduct inquiry and place the same before learned labour Court but the aggrieved party can also approach the learned Labour Court. For the above reason I respectfully disagree with the Judgment of learned Chairman National Industrial Relations Commission reported in 1994 PLC 771 quoted by learned Labour Court and referred by the learned counsel for respondent No, 2 wherein held,--- ' "Ss. 8 & 10---Registration of Trade Union--Cancellation---Only Registrar of Trade Union under certain circumstances could approach Labotlir Court for cancellation of registration of a Trade Union--- Employer or any other union or private party had no right to move Labour Court for deregistration of a Trade Union".
' In this connection I am supported by a Judgment reported 2007 PLC 553 wherein held,--- ' "---S. 12(3)(ii) & (iv)---Cancellation of registration of Trade Union---Three Trade Unions were in the establishment, namely; Workmen Union; Mazdoor Ittehad Union and Labour Union--- Referendum was held for determination of Collective Bargaining Agent---Labour Union did not participate in referendum---Result of referendum showed that Workmen Union secured 545 votes out of 693 votes, while Mazdoor Ittehad Union secured only 7 votes, which was less than 15% of polled votes; in view of mandatory provisions of S.12(3)(ii) and (iv) of Industrial Relations Ordinance, 2002 Registration of Mazdoor Ittehad Union which has secured less than 1'5% of polled votes and Labour Union which had not participated in referendum, were cancelled---Said two Unions were directed to surrender their registration certificates within one month".
7. The said petition has been filed by the Bank and not by registrar. In view of above discussion not only the revision is maintainable before this Tribunal but also any aggrieved party can seek the remedy of de-registration of the union in violation of the provision of Section 12, subsection (3) of BIRA before proper forum i,e, Labour Court.
8. On merit it is stated that since the registration of petitioner who was granted CBA and respondents No, 2 and 3 four referendum has been held wherein the respondent No 2 & 3 has not participated which is the violation of afore-mentioned provision of BIRA. Last referendum was held in 2007 wherein too respondents No, 2 & 3 has not participated nor applied for the same. The contention of registrar as well as respondents No, 2 & 3 that after 18th Amendment no referendum has been held is not sustainable in view of provision of BIRA. Section 86 provide protection to the trade union existing immediately before the commencement of BIRA, 2010 which was registered under the repealed Ordinance or Act shall be deemed to be register under this Act and its constitution shall continue in force until altered or rescinded. Meaning thereby that there is no gap after repealed Ordinance and commencement of BIRA, 2010. Therefore the provision of Section 12 of BIRA, 2010 are fully attractive. For the reasons that IRA, 2008 by virtue of Section 87 stood repealed on 30.4.2010 and Government of Balochistan issued Balochistan Ordinance II of 2010 Balochistan Industrial Relations Ordinance, 2010 on 22.7.2010 which was repealed by means of Balochistan Industrial Relations Act, 2010 Act No, XIII of 2010 on 15th October, 2010. The clause (b) of sub-section
(2) of Section 86 of the Act clearly gives cover inter alia to the proceedings taken. Since BIRA, 2010 is mainly a procedural law. In the light of the well-settled principles of the interpretation of statues the procedural law has to have retrospective effect unless contrary is provided expressly or impliedly. The Act of 2010 would be applicable retrospectively with effect from 22nd July, 2010 when IRA, 2008 was repealed.
9. In view of above discussion, revision under section 55 (3) of BIRA, 2010 fallowed. Resultantly the order of registrar trade union dated 10.6.2011 and order/judgment of Learned 1st Labour Court Balochistan dated 17/11/2011 are set aside with the direction that the registrar trade union (respondent No, 1) conduct inquiry in the light of aforementioned explanation with regard to violation of Section 12, sub-section (3) of BIRA, 2010 strictly according to the provision of law.
10. The copy of order along with original record of Trial Court be sent to Trial Court. Case after completion be consigned to record.
' GIVEN under my hand and seal of the Court on 21st April, 2012.