' This application under Order XXXIX, rules 1 and 2, C. P. C. Has been filed on behalf of the petitioners seeking stay of the holding of Referendum for the purpose of determining the Collective Bargaining Agent of the petitioners' Establishment scheduled to be held on the 13th September, 1981.
' In the main petition a declaration that 27 named and specified employees do not constitute workmen and are not entitled to be included in the list of voters for the purpose of determining the Collective Bargaining Agent has been sought. Since the petition and the Application were presented on 9th September, 1981 and were put up for urgent orders in chamber that very day and the Referendum and consequent selection Were scheduled for the 13th, notice of hearing of this Application was issued to the respondents for 12th September, 1981 as 11th September was a closed holiday being a Friday. On 12th September, 1981 counteraffidavits were filed by Syed Niazuddin.
General Secretary of respondent 5, Union and Ghulam Qadir, Labor Officer for respondents 1 and 2, and the learned counsel for the petitioners wanted time to enable him to file rejoinder. On the undertaking given by Mr. Ali Amjad, the learned counsel for respondent 5 and Mr. Ghulam Qadir for respondents 1 and 2 that certificate of C.B.A. Will not be issued till hearing of Application and orders thereon it was considered proper not to interfere with the holding of the Referendum for which all arrangements had already been made. On behalf of the respondents it was contended that the previous C. B. A. Had been declared on 9th July, 1979 the statutory period of two years had since expired, and further, that the votes of 27 disputed persons would not make any difference in the result of election of C.
13. A. Looking to the total number of voters.
' I have heard Mr. Namazi holding brief for Mr. Muhammad Ali Sayeed, the learned counsel for the petitioners, who is stated to have gone abroad. And Mr. Ali Amjad, the learned counsel for respondent 5. I have also perused the affidavits, counter-affidavits and affidavits by way of rejoinder filed by the different parties.
' On behalf of the petitioners it was argued that there was a strong prima fade case in favour of the petitioners mainly on two grounds : firstly, that the orders passed by the Registrar, Trade Unions are a nullity inasmuch as the present Registrar, was not nominated under section 12 of the Industrial Relations Ordinance, 1969 'and therefore he had no authority as such to verify the list of voters under section 22(5) of the aforesaid Ordinance. Secondly, that in any case, he had failed to exercise powers under section 22(5) of the I. R.
0. Inasmuch as at first he had appointed Mr. Abdul Qadir, the Labour Officer to hold enquiry and submit report with regard to the disputed cases of 27 employees of the Establishment and after Mr. Abdul Qadir had submitted his report giving that 15 out of the 27 employees were non-workers, the aforesaid report was suppressed and the Registrar entrusted the same enquiry to S. Shahabuddin, Labour Officer who had nothing to do with registration of voters. It is further contended that on receiving the report from S. Shahabuddin on 1st September, 1981, respondent 1 passed the order merely stating that he agreed as proposed. It is therefore further argued that the aforesaid order not being a speaking order, was on that short ground alone illegal and not in the proper exercise of his functions for which he should have heard the parties concerned and assessed the factual position giving reasons.
' With regard to the first contention, Mr. Ali Amjad, the learned counsel for respondent 5, has pointed out that respondent 1 was nominated in exercise of powers conferred by section 12 of the Industrial Relations Ordinance, 1969 as the Government of Sind were pleased to appoint with effect from 23rd June, 1979 the Joint Directors, Labour Welfare, West Division, East Division and Central Division to be Registrars of Trade Unions within their respective jurisdictions till further orders. Reference has been made to Notification No, SO (L-II) 3-6/75, dated 21st June, 1979 which was published in the Sind Government Gazette, dated 13th March, 1980.
' With regard to the second contention, it would appear that no patent non-exercise of jurisdiction under section 22 (5) has been indicated, in that subsection (13) of that section which gives the power to the Registrar to authorise in writing an officer to perform all or any of his functions.
' It was contended by Mr. Namazi, the learned counsel for the petitioners, that for verification of the lists submitted by Trade Unions since objection with regard to the 27 disputed persons had been taken he should have taken into consideration the various factors indicated in the decision of this Court in Muhammad Usman v, the Sind Labour Court, Karachi and another (1) with regard to definition of a "workman" given in the Industrial Relations Ordinance and for that purpose the {{FOOT NOTE}}
(1) PLD 1977 Kar. 449 {{FOOT NOTE}} ' Registrar should have heard the parties concerned before making his decision. Subsection (5) of section 22 of the I. R.
0. Under which the Registrar acted reads as under : "The Registrar shall, after verification of the lists submitted by Trade Unions, prepare a list of voters in which shall be included the name of every workman whose period of employment, as computed in accordance with subsection (4), is not less than three months and who is a member of any of the contesting Trade Unions and shall at least four days prior to the date fixed for the poll send to each of the contesting Trade Unions a certified copy of the list of voters so prepared."
' It is contended by Mr. All Amjad, the learned counsel for respondent 5 that he list prepared by the Registrar can be challenged by only a voter or contester. He has relied on the decision of this Court in Khairpur Textile Mills Employees Union Khairpur v. Registrar of Trade Unions, Karachi and two others (1) in which it was inter alia held that lists of voters prepared by Registrar is not open to challenge in writ jurisdiction. It is contended that the names of all the 27 disputed persons had been shown in the list of workers by the petitioner during the holding of the previous Referendum.
Subscriptions were deducted at source by the Management from their salaries and that the remedy of the petitioners is clearly provided for in subsection (2) of section 15 of the I. R.
0. 1969 which provides that tae employer is not precluded from requiring that a person upon his appointment or promotion to managerial position shall cease to be and shall be disqualified from being member or officer of a Trade Union of workmen. The learned counsel for the petitioners has however argued that no estoppel can be pleaded against the law and, therefore, the petitioner has the right to question whether the disputed persons should or should not be considered as workmen. However the question about the status of the 27 disputed persons and also about whether the Registrar of Trade Unions acted within the ambit of his powers under the law in deciding the same is a matter which will come up for decision when the main petition is heard and decided.
With regard to balance of convenience, the only contention on the-part of petitioners was that if the 27 disputed employees who are employed in supervisory category are included in the category of workmen it will lead to serious disciplinary and administrative problems. On that ground however it would not have been fair and proper to hold up the Referendum for the election of C.B.A.
Which would have affected all the members of the three Trade Unions. It has been argued by Mr. Ali Amjad, the learned counsel for respondent 5 that the result of the election has revealed that whereas respondent 5 got 333 votes and respondent 3 got 111 votes, respondent 4, which was the previous C.B.A. Received only 11 votes. The withholding of the Referendum would, therefore, have meant that respondent obviously having no backing of the workmen of the Establishment would have continued to represent them. It may also be pointed out that all the three Trade Unions in their affidavits filed before this Court have stated that the elections were legal and fair. The balance of convenience is, therefore, definitely in favour of the respondents.
' For the reasons given, the application is dismissed.
(1) PLD 1975 Kar. 225