1. It will be pertain to mention here that inspite of service of notice, Respondent No. 3 did not appear.
Therefore he was proceeded ex-parte.
2. The short facts of instant appeal are that the Respondent No. 1 filed application under Section 12(3) read with Section 24 of Balochistan Industrial Relation Act 2010. With the following prayer: "It is therefore respectfully prayed to direct the Respondent No. 2 to issue CBA certificate to the applicant under Section 24 and also cancelled the registration, pray in the interest of Justice."
' After submission of written statements the Learned Presiding Officer came to the conclusion that a same matter between the same parties is already pending before Learned Labour Court 2nd Sibi and concluded as under: "In the aforementioned discussion, situation and circumstances, I am in view that respondent Union has proved the objection 'B' therefore, it is accepted. Now there is no need to discuss the remaining two objections, because it is proved that matter in hand is not maintainable under Sections 10 and 11 read with Order II Rule 2 of CPC, therefore, I do dismissed the petition"
3. The available record reveals that the Appellant/Respondent No. 1 approached the Learned Presiding Officer 2 Sibi Labour Court with the following prayer, "It is accordingly respectfully prayed that necessary proceedings be drawn against the Respondent No. 1 and he be awarded punishment for performing illegal Labour practice on the part of worker in the interest of Justice, fair play and equity"
' Along with above petition an application for restraining the respondents for holding election of the union was also filed though the main petition was quite silent about the election. However the above-mentioned application was allowed and respondents were restrained to conduct election on 2/2/2012.
4. Such interim order was challenged before this Tribunal and after necessary proceedings the revision was allowed with the following directions, "In view of above discussion the impugned order dated 30/1/2012 became infractious which is set- aside by accepting the instant revision and the Learned Labour Court is directed to proceed with the case along with application under Section 7 Rule 11 CPC according to law as early as possible for the reason that application was filed before Learned Labour Court on 21/1/2012 and till 12/12/2012 no effective proceeding was carried out. The petitioner/respondent can raised objection with regard to jurisdiction before Learned Labour Court. However the parties are left their own cost"
' The above order was suspended till next date of hearing by Honorable High Court of Balochistan dated 7/3/2013 in CP. No. (S) 19/2013, further suspension order was not produced.
5. Though the facts of the case in hand and that of at Sibi are quite different but Respondent No. 1 who was petitioner before Learned Labour Court has not challenged that order wherein his application was dismissed under Sections 10 and 11 of CPC which attains its finality. The appellant of this appeal is aggrieved by the impugned order to the extent of holding a referendum wherein the Learned Presiding Officer after rejection of petition directed as follow, "Despite of these all the Respondent No. 2, in his reply have /requested for direction for conducting of referendum between the two rivals unions for getting the real and factual position. So, it will be better and just that Registrar Trade Union for removing the existing controversy between both the unions for determining the Collective Bargaining Agent. Thus the Respondent No. 2, is directed to conduct referendum as the application of petitioner is pending before him on the same ground within the period of one month, after issuing proper notices to the both parties, the petitioner and Respondent No. 1, and thereafter to submit his report before this Honorable Court for perusal"
6. The learned counsel for appellant contended that it's union by name and style Irrigation & Power Canal Labour Union Balochistan Quetta representing the Labour of a separate establishment which have no concern with Irrigation Department and that of Balochistan Irrigation & Power Employees Union Quetta. The learned counsel for Respondent No. 1 strongly opposed the above-mentioned contention and stated that the Irrigation Department is one with other branches and sub-branches in different part of the province. The appellant did not produce any notification of Government of Balochistan for dividing the Irrigation and Power Department in two or three separate establishments like Education and C&W department. However the representative of Respondent No. 2, produced a letter of Assistant Director (Claim) of Irrigation & Power Department which indicates that the Irrigation Department is one establishment and operative portion of letter is reproduced as under, "The Para-wise comments filed by the Registrar Trade Unions cost a lot of frustration to the Department as well as amongst the Workman of the Department because despite acknowledging the fact that Irrigation Department is the only employer of an Organ of the Government of Balochistan, duly chartered under rules of businesses Government of Balochistan for all the irrigation waters including its conservation, utilization, monitoring and development as such subject matter or nature of job for Irrigation employees engaged there to remain the one and the same however, their places of duties can be changed or in some cases referred to be restrained as that of as was at their time of appointment, with the employer i.e. Irrigation Department GOB"
7. Another letter of Irrigation Department dated 1/1/2013 addressed to Director Labour and Manpower Department with subject, "Determination of CBA under Section (24) BIRA sub-section (2)."
' It indicates that Registrar/Director was requested for action under Section 24 sub-section (2) of BIRA with the averment that there are three opposite rival unions in Irrigation Department causing inconvenience and wastage of time and energy in the Department. Further stated that the Department time and again approaches to higher forums as well as Labour Department in this regard.
8. Another notification dated 31/12/2011 is also available on record issued by Secretary Irrigation which is reproduced as under, "Performance of functions pending ascertainment of collective bargaining agent. Any act or function which is by this Act required to be performed by or has been conferred upon a collective bargaining agent may until a collectiye bargaining agent has been certified under the provisions of this Act, be performed by a registered trade union which has been recognized by the employer or employers"
9. From perusal of above available material it transpired that all branches of Irrigation Department situated at different places in the province are one establishment. Therefore the contention of learned counsel for appellant is not sustainable under the law. Another aspect of this matter is that appellant/respondent was registered on 27/9/2012 and the certificate of registration also opposed the contention of appellant which is reproduced as under, "It is hereby certified that the "Irrigation & Power Canal Labour Union, Balochistan Representing ' WORKERS/EMPLOYEES in "Irrigation and Power Department Balochistan" has been registered under the Balochistan Industrial Relations Act, 2010 on this 27th day of September, 2011"
This notification itself negates the stand of appellant.
10. The appellant challenged the jurisdiction of 1st Labour Court Balochistan for the reason that it's union situated in Naseerabad and Jaffarabad is also without force due to above material and discussion that Irrigation Department is one establishment and it's head office is at Quetta.
Furthermore in memo of appeal address of appellant is also mentioned at Quetta. Therefore the above contention of appellant is not sustainable under the law.
11. The next and last objection of learned counsel for appellant that while the petition of respondent/applicant was dismissed by the Learned Labour Judge directed the Registrar Trade Union for conducting of referendum and this relief was not sought by the respondent/applicant in his petition against the settled principle of law, but the learned counsel in this respect neither referred any provision of law nor any authority of Superior Courts. It is admitted position that Labour Courts are deemed to be Civil Court. Civil Court under CPC has inherent power with regard to relief not claimed and under the circumstances, Court can grant mould relief to avoid further litigations.
In this regard the Honorable Supreme Court of Pakistan in a reported judgment PLD 1978 Supreme Court 220 discussed the same situation. Though this authority is not a direct authority on Labour laws but a principal/dictum has been laid down as under, "Rent Controller and appellate authorities, held, in exercise of discretion vested in them, not precluded to allow bona fide amendments and take note of subsequent events in order to suitably mould relief on basis of altered circumstances in order to avoid multiplicity of litigation and shorten proceedings."
' The background of litigation as stated by the learned counsel for appellant that one petition is pending before Learned Labour Judge 2 Sibi, a CP in Honorable High Court of Balochistan and other one is under proceedings with this Tribunal. This contention itself is sufficient to justify the direction of Learned Labour Court for referendum to resolve and decide the whole litigation once for all.
12. Secondly such materials are available on record to suggest that the ultimate decision in the litigations between the parties is referendum wherein the question of CBA can easily be determined. For instance the above quoted letter of Irrigation Department dated 26/3/2012 and the observation of Learned District & Sessions Judge 1st Labour Court Balochistan on same question dated 22/6/2012 but neither the above mentioned letter of Irrigation Department nor the direction of Learned Labour Judge was complied with. In another case between the parties earlier the Learned Labour Judge observed/directed in the following manner, "According to the order of this Court dated 29/10/2011, the enquiry was directed to be conducted within 15 days. Suffice it to state here that according to record and contents of complaint, the inquiry officer has issued the notices to the parties but no inquiry whatsoever was held or conducted in such, behalf, rather instead of conducting enquiry, Respondent No. 1 has registered the Respondents No. 2 & 3 as union with the same name and style of Irrigation and Power Canal Labour Union Balochistan while this Court through its above referred order had directed the Respondent No. 1 to resolve the controversy through in quiry existed between the parties so that in future differences cannot be created and developed between the parties for just, proper and smooth functions of the office but the Registrar Trade Union/Respondent No. 1 turned down the order of this Court and has not complied with the same by registering union of the Respondents No. 2 & 3 without resolving the controversy existed between the parties through inquiry as per the directions of this Court, due to which further differences have been created only due to the act of Respondent No. 1 while not complying with the order of this Court.
' In view of the above submissions, facts and circumstances of the case, since the Respondent No. 1/Registrar Trade Union has violated the legal and lawful order of this Court dated 29/10/2011 by not conducting a fair and transparent inquiry for resolving the controversy existed between the parties, therefore, the Respondent No. 1/Registrar is warranted and strictly directed to comply with the order of this Court in its letter and spirit by conducting a fair and transparent inquiry after hearing both the parties by giving proper opportunity within 20 days after passing of this order strictly in accordance with law and procedure, otherwise proceeding under the contempt of Court will be initiated against the concerned"
' This direction too was not complied with and resulted series of differences/litigations.
13. Looking the background of litigation between the parties there is only one option of referendum available which is the mandatory provision of Labour Laws for determination of CBA.
14. Admittedly the appellant union was registered on 27/9/2011 under Section 11 of BIRA 2010 but the requirements of Section 12(3)(c) of BIRA 2010 was not complied with, which is reproduce as under, '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 a group of establishments or industry"
15.Section 24 (2) of BIRA 2010 states as under, "Where there are more registered trade unions than one in an establishment or a group of establishments or industry, the Registrar shall upon an application made in this behalf by one-fifth of the total number of workman employed in such establishment or group of establishments or industry 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 of establishments or industry"
16. Apart from above factual and legal position the appellant under its own constitution did not hold election after two years which is necessary elements of the trade unions.
17. Keeping in view the above circumstances, facts, chequered history of litigations and legal position, the Learned Labour Judge rightly directed for holding of referendum. Result of that will bring to an end the all litigations between the parties which is permissible under circumstances and law. Therefore the judgment dated 26/6/2013 passed by Learned District & Sessions Judge Presiding Officer Labour Court first Balochistan Quetta in Case No. 6/2013 is upheld. Consequently the instant appeal is dismissed having no force. However the parties are left to bear their own cost.
18. The copy of order along with original record of trial Court be sent to trial Court. Case after completion be consigned to record.