1. ' IBADAT YAR KHAN, 3.-This is an appeal against the judgment of a 'learned Single Judge passed in Petition No, 20 of 1976 holding that the order of respondent No, 1 dated 5-12-1975 certifying respondent No, 1 to be the Bargaining Agent for appellants Establishment at Karachi was legal and proper.
2. The appellant is a private limited company known as "Jang Publications Limited" which publishes Urdu Daily Jang, the Daily News and weekly Akhbar-e-Jehan and has its offices and establishments at Karachi, Quetta and Rawalpindi.
3. The respondent No, 2 is a registered trade union. As it happened to be the only registered trade union at Karachi, the respondent No, 1 by a certificate dated 5-12-1975 has certified it to be the Bargaining Agent for the appellants establishment at Karachi.
2. ' It is stated that at Quetta and Rawalpindi as well, the trade unions at these respective establishments have similarly been certified to be the Bargaining Agents to represent workmen working in these branches of the appellants.
4. The appellant bad challenged the decision of the Registrar/respondent No, 1 by filing the Constitutional Petition No, 20 of 1976. This petition was heard by the learned single Judge and was dismissed by an order dated 10-4-1979. Being dissatisfied by this order of the learned Single Judge the appellants have filed this appeal.
5. The main point urged before us by Mr. Mazharuddin learned counsel for the appellants is that the respondent union is not qualified to represent the workers and act as a bargaining agent on their behalf because the appointment of the respondent union as a bargaining agent by the Registrar under certificate dated 5-12-1975 is invalid, illegal and of no legal consequence. The learned counsel contends that the appellants are Owners and publishers of Jang Urdu, Daily Newi English and several other magazines and periodicals published from Karachi, Quetta and Rawalpindi. They have vast establishments at different places in different provinces of Pakistan. According to the learned counsel the bases to operate in several cities situated in different provinces are links of a single chain closely interlined. In legal terminology, it is a single Establishment consisting of several component which, the learned counsel asserts cannot be called "establishments but are merely braincase of a single establishment known as Publication Ltd." As such there should be one and only one bargaining agent to represent the entire work force reemployed under the "establishment the `Jang Publications Limited' as their employer." That if the respondent union is recognized as a bargaining agent for Karachi and several other unions are also appointed as bargaining agents by the Registrars of Quetta, and Rawalpindi for the branches of Jang Publications Limited at those places it would create a confusion and would adversely affect the hormonious working of the appellants for want of uniformity among the different branches in the different provinces.
6. In order to appreciate the contentions raised by the learned counsel for the appellants it would be necessary to refer to the relevant provisions of the Industrial Relations Ordinance. A close study of the Industrial Relations Ordinance would show that the ordinance deals with the subject of bargaining agency in three situations. Provisions have been made in the ordinance how and by whom the bargaining agents in these three situations should be appointed.
3. Section 22 (1) of the Ordinance prescribes for appointment of a bar gaining agent by the Registrar "upon an application made in this behalf" by registered trade union if the applicant initially qualifies itself by fulfilling a condition that its membership is at least 1/3rd of the total strength of workers employed in the "Establishment or a group of Establishments" for which the status of bargaining agency is desired by the union. If there is no other union in the field the Registrar would certify the applicant as a bargaining agent. If there are other rival unions, then the Registrar would hold a secret ballot to determine which of the eligible union commands majority and would then certify such union which wins the ballot as bargaining agent for such establishment. In case of plurality of unions, the Registrar may be moved by any one of the unions, claiming I/3rd membership of the workers in the establishments. The employer on even the Government can move the Registrar requesting him to bold ballot and determine the bargaining agent. It would be profitable to r produce the relevant part of section 22 for ready reference:-- "22. Collective bargaining agent.-(l) Where there is only one registered trade union in an establishment or a group of establishments, that trade union shall, if it has as its members not less than one-third of the total number of workmen employed in such establishment or group of establishments (upon an application made in this behalf be certified by the Registrar in the prescribed manner) to be collective bargaining agent for such establishment or group.
(2) Where there are more registered trade unions than one in an establishment or a group of establishments, the Registrar shall, upon an application made in this behalf by any such trade union which has as its members not less than one-third 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 : ' Provided that the Registrar may, in the case of a large establishment having its branches in more than one town, hold the secret ballot within thirty days from the making of the application."
4. The field of operation of this section appears to me to be confined to all province or even a region or area for which the Provincial Government has :8 appointed the Registrar to perform his duties under section 12 of the Ordi nance. The organizational basis of the union or unions concerned, the establishment of group of establishments visualized in these subsections is provincial and the Registrar who is the certifying authority is appointed by that Provincial Government under section 12 of the Ordinance. The first proviso to section 22(1) prescribing a time limit of one month for holding that ballot "in the case of a large establishment having its branches in more than ONE TOWN" further indicates that the authority of the Registrar to hold referendum extends to establishment in a town or in more than one town. The use of the word 'Town' in this proviso is significant and lends support to the view that the scheme of things visualized in this section is inter-town and not inter Provincial. The other authority to determine and certify a bargaining agent is the National Industrial Relations Commission constituted by the Federal Government under section 22-A of the Ordinance. Subsection (8) of section 22-A gives out the function of this Commission. Few clauses of subsection (8) may be reproduced to project the idea underlying the formation of this Commission and the nature of duties it is supposed to perform.
5. "22-A(8). The following shall be the functions of the Commission, namely:-
(a) to promote the formation of trade unions of workers within the same industry whether in establishments within a Province or in more than one Province and federations of such trade unions ;
(b) to promote the formation of federations at the national level ;
(c) to adjudicate and determine an industrial dispute to which an industry-wise trade union or a federation of (such) trade unions is a party and any other industrial dispute which is in the opinion of the (Federal Government) of national importance and is referred to it by that Government ;
(d) to register industry-wise trade unions, federations of such trade unions and federations at the national level ;
(e) to determine the collective bargaining agents amongst industry-wise trade unions, federations of (such) trade unions and federations at the national level ;".
6. The bare reading of these clauses would show that the scope of Authority exercise able in the above clauses is of National Character. The terms "Industry-wise Trade Union, Federations of such Trade Union, Federation at C National Level used in clause (e) above have been defined in "Explanation" appearing just after sub-clause (12). Let me reproduce this in verbatim :- "Explanations.-In this section and in the succeeding provisions of this Ordinance expressions "industry-wise trade unions", "federation of such trade unions," and "federation at the national level" refer to a trade union the membership of which extends to establishments in more than one Province and a federation of trade unions whose membership extends to registered trade unions in more than one Province."
7. After reading the above provision it is evident that this provision can be invoked if the formation of the prospective bargaining agency is so broad based that it enjoys a national status. It is a body of workmen having membership on all Pakistan basis. If more than one such "industry-wise trade unions" are competing, for becoming bargaining agent then the Commission should hold a ballot to determine the bargaining agent for that establishment on countrywide basis. One can think of such unions as the Railwaymen union, the union in P.
1. A., Postal and Telegraph Unions or similar unions of Banking, Petroleum Textile, Sugar, and other industrial institutions/establishments as are of a national status. The basic fact in this situation is that the organizational set up of such I union national level.
8. ' The third situation visualized by the framers of the Ordinance is when the same employer has a group of establishments belonging to the same class of industry functioning as a single unit. This situation is beyond the pale of either section 22 or section 22-A. For this provision has been made.
9. TI-Os newly-added provision is section 22-EE and deserves a close study. It is proper to reproduce it in extensor:-- "22 EE. Determination etc., of collective bargaining unit.-(1) Where the Commission, on an application made in this behalf, by a trade union of workmen or a federation of such trade unions, or on a reference made by the Federal Government, after holding such inquiry as it deems tit, is satisfied that for safeguarding the interest of the iA or kmen employed in any establishment or group of establishments belonging to the same employer and the same industry, in relation to collective bargaining, it is necessary, just and feasible to determine one or more collective bargaining units of such workmen in such establishment or group, it may, having regard to the distribution of workers, existing boundaries of the components of such establishment or group, facilities of communication, general convenience, sameness or similarity of economic activity and other cognate factors.
10. (a)determine and certify one or more collective bargaining units in such establishment or group ; .
11. (b)specify the modifications which, in consequence of the decision under this section, will take effect in regard to the registration of the trade unions and federations to trade unions affected by such decision and certification of collective bargaining agents among such unions and federations, nomination or election of shop stewards, and workers' representatives for participation in the management of the factories, if any, affected by such decision ;
(c) specify the date or dates from, and the period for which, all or any of such changes shall take effect : ' Provided that the date so specified shall not be a date falling within the period of two years specified in subsection of section 22 in its application to a collective bargaining agent certified in respect of an establishment or establishments : ' Provided further that, after the receipt of a reference for determination of a collective bargaining unit, the Commission may stop or prohibit the proceedings to determine collective bargaining agent under section 22 for any establishment or group of establishments which is likely to be affected by a decision under this section.
12. (d)take such measures or issue such directions to the Registrar as may be necessary to give effect to such modifications ; and
(e) determine and certify a collective bargaining agent for each such unit in accordance with section 22, in so far as applicable and with the necessary (1) modification, if such a unit relates to more than one Province, or direct (2) the Registrar to take such action, if such a twit relates to only one Province.
(2) Where the Commission issues any directions to the Registrar under this section, the Registrar shall comply with them within such period as the Commission may from time to time determine.
(3) After the certification of a collective bargaining unit, no trade union shall be registered in respect of that unit except for the whole of such unit and no certification or proceedings for determination of collective bargaining agent under section 22 shall take place for a part of a collective bargaining unit or a group of collective bargaining units.
(4) An order of the Commission under this section shall have effect notwithstanding anything to the contrary contained in this Ordinance.
13. This section would be available in many a situation, and the power conferred on the Commission by this provision of law would be exercisable in a variety of ways. It is neither necessary nor appropriate to analyses all its implications and possible interpretations. It would suffice to examine the case of the appellant in the light of this provision and see to what extent it effects the case of the respondent-union.
14. ' Before making an attempt to examine the case of respondent No, 2, few points may be noted.
15. By now it is clear that the Commission has power to certify bargaining agents in two different situation-one under section 29-A, subsection (8) clause (e) and second under this section 22-EE.
16. Under the former provision an Industry-wise Trade Union claiming a membership on all Pakistan basis can be appointed as bargaining agent. If there are more than one industrial trade unions then under section 22 (B) subsection 3 (a) the Commission would hold a referendum and adopt the same procedure as is provided under section 22 of the Industrial Relations Ordinance.
17. Now, a situation may arise where there is an Industry owner by same employer but spread over different places beyond the territorial limits of one or more Provinces. At each place the units are working independently. All the same they are united together by the link of a single employer. By virtue of a single employer their operational pattern must require a coherence and uniformity as far as possible. For instance the terms and conditions of service of the managerial, executive and other staff must be such as to avoid a feeling of discrimination and inspire a sense of parity and uniformity. Same should be the consideration for the labour force/workmen employed in different branches of this industry belonging to the same employer. For obvious reasons such a mass of workmen and the trade unions formed by them at each establishment can neither invoke the jurisdiction pf th G Registrar who is a Provincial Authority nor of the Commission because there is no "Industry-wise trade union, group of trade unions and federations a National level "within the meaning of subsection 8 (e) of section 22-A read with explanation appended to section 22-A.
18. ' This situation would be covered by section 22-EE. The additional power has been given to the Commission which enjoys an all Pakistan status to deal with this situation. The Commission has been empowered to determine collective bargaining units (as distinguished from bargaining agent)" for safeguarding the interest of the workmen employed in an establishment or group of establishments belonging to the same employer and the same industry.
19. ' Vast powers and discretion is given to the Commission to perform its duties in this situation. The Commission on an application made in this behalf by a trade union of workmen or a federal out of such trade unions, registered or even unregistered or on a reference made by the Federal Government, shall determine one or more bargaining units of such workmen having regard to the distribution of workers, existing boundaries of the components of such establishment or group, facilities of communication, general convenience, sameness or similarity of economic activity and other cognate factors."
20. ' If the establishment or group of establishments forming a unit for with a bargaining unit is contemplated happens to fall in one province, the Coin-mission would direct the Registrar to take such action as may be necessary to determine a bargaining unit adopting the procedure as postulated in section 29 as far as possible. In case the unit for which a bargaining agency is to be created has been delimited by the Commission in such a manner as it falls beyond the territorial limits of one province then the Commission would itself conduct a referendum among the competing trade unions existing in that limit.
21. ' This seems to be the broad scheme of the Ordinance. It is not germane to the controversy raised in this, case to analyse the other implications of the three provisions of law.
22. ' With this background if we examine the case of the appellant, it falls within the provision of section 22-EE. It is an industry w:th establishment or group of establishment existing in Karachi, Quetta and Rawalpindi. The industrial unit or undertaking with printing and publishing business operating in the above three cities of three different provinces belong to only one employer namely the "Jang Publications Limited". The management and control is common and interchangeable from one station to another at the discretion of the same employer. All the units are functioning under one Board of Directors who formulate the policy and switch the policy decisions from one center. The work force employed by this employer is spread over 'all the three provinces of Pakistan where these units' are operating. This work force is divided into three segments each independently working under the banner of its own trade union yet has a 'unity of interest because its working under one umbrella.
23. ' In this view of the matter there can be no bargaining agent under section 22-A (8) (e) because there is nobody of workmen claiming a membership from all the units. The Registrar's jurisdiction under section 22 is confined to a province. The bargaining agents appointed by him under section 22 would have but a provincial status. The different unions working in three different cities can be bargaining agents for a particular units or the establishment where they are working. But there can be no coordinating link between them all as each would be independent of the other. The remedy therefore is provided in section 22-EE.
24. ' To this extent the contention of the learned counsel seems to be correct that it is a case falling.
25. Under the authority of the Commission for exercise o powers under section 22-EE. But neither any union nor the Government have moved the Commission to invoke their jurisdiction. Under section 22-E only a union or the Government can apply to the Commission for such relief. The employer has not been given this right' to approach the Corn-,mission as in the case under section 22.
26. Whether this omission is deliberate or accidental is not clear, but so it is. The learned counsel however does not stop here. He seeks de-recognition of the respondent No, 2 and questions the powers and authority of the Registrar for determining the respondent No, 2 as a bargaining agent for the establishment of the appellants at Karachi. According to the learned counsel the application of the respondent union for claiming n bargaining status for the establishment at Karachi ought to have been refused by Registrar and the union should have been directed to form a broadbased union on National level to qualify itself for bargaining agency on all Pakistan level.
27. But the learned counsel ignores the fact that the respondent union was fully qualified to be determined as a bargaining agent and so long as the learned counsel does not show the bar in the exercise of power by the Respondent No, 1 in terms of section 22 he cannot deprive the respondent No, 2 of its valuable right of franchise and the respondent No, I of the right of exercise of power that the latter is entitled to enjoy under the Ordinance. Nor his half-hearted contention that exercise of power under section 22 is barred by "Implication" has any basis. The bar of jurisdiction by "implication" would be permissible only if the legislative intent of the framers of law cannot be spelled out from the provision of the statute itself.
28. ' If we turn to clause (c) of section 22-EE possibility of ouster of jurisdiction of Registrar by implication is completely ruled out. Clause (c) of section 22-EE visualizes that where the Commission after taking into consideration all the cognate factors a particular case. Decides to proceed with the task of determining one or more bargaining units, it may be confronted with pre- existing unions and bargaining agencies appointed by Registrar and in order to avoid conflict between the pre-existing and the proposed bargaining agencies certain change would become a necessity. The Commission has therefore been enjoined to "specify the medications which, in consequence of the decisions under this section will take effect in regard to the Registrar of the trade unions and certificates of collective bargaining agent among such unions and federation."
29. Not only this, the life of the pre-existing bargaining agent has been blessed with a full recognition for the full term of 2 years for which a bargaining agent may have been determined by the Registrar concerned under section 22 of the Ordinance. The field occupied by the hierarchy created on the regional basis would; under a phased programmer prepared by the Commission gradually be cleared to be gradually occupied by the incumbents brought about under the aegis of K the Commission under section 22-EE. Once the Commission has accomplished its task by completing the network either directly or through the Registrar, the operation of section 22 would be suspended as postulated by subsection (3) of section 22-EE which runs as follows :- "Section 22-EE (3).-After the certification of a collective bargaining unit, no trade union shall be registered in respect of that unit except for the whole of such unit and no certification or proceedings for determination of collective bargaining agent under section 22 shall take place for a part of a collective bargaining unit or a group of collective bargaining units.
30. ' The learned counsel has relied on a case reported in 1977 PLC 20. This was a case where M/s. Spencer & Co. Had a chain of business establishments spiced over the whole of Pakistan.
31. ' There were several registered trade unions registered at Provincial level by the Registrar of the various provinces. But there was also an Industry-wise trade union duly registered by the NIRC. The later approached the Commission to be declared as a CBA for the whole of the organization under section 22-A(8)(d) or the I. R.
0. On the ground that it was the only industry-wise trade union and had membership of more than 1/3rd of the total number of the workmen in the organization.
32. ' Question arose whether this union could be determined as CBA for all the branches of Spencer & Co. Ltd. To represent the workers/employees working in a large number of branches of the company spread over more than one province although this union had no membership in some of the branches and such workers had their own registered trade unions. The expression "Establishment" and "group of establishments" claimed much attention of the members of the Commission and each member individually recorded his opinion advancing his own interpretation of the expression "Establishments".
33. ' The Chairman and other members differed between themselves on the definition of "establishment". Each view is backed by persuasive reasoning's but, in the present case we are not called upon to examine the weight of opinion of each member on this part of the case because there is no industry-wise trade union before us which may be desiring for certification as a bargaining agent for the "Jang Publications Ltd." as such.
34. ' Still it is pertinent to observe that one of the learned members of the Commission namely Kazi Masud Afzal Khan has brought to bear a new and analytical approach to the case and his views have brought into sharp' focus the provisions of section 22-EE which seems to be equally relevant and germane to the point raised in the present appeal. It would not be without interest to reproduce portions of his opinion. In para. 11 at page 47 of the report the learned member stated:- "11. In introducing section 23-EE, the general and vital concept of 'group of establishments' has been specified in very definite terms differentiating between establishment belonging to the same employer and the same industry from heterogeneous combination of establishments belonging to different employers and different industries. Freedom to workmen to design 'an establishment' or 'group of establishment' of their own choosing, and not in relation to the natural association in the inherent constitution of the undertaking, could not better be expressed ' by the plural term of the term 'establishment' and (sic) be' no reason in coining the term 'group of establishments' in that context. Thus, a combination of establishments forming a harmonious whole shall fall into a group for the purposes of the industrial Relations Ordinance, and the term 'group' cannot be assigned its general dictionary meaning when it does not fit into the objectives of the law in the preamble."
35. ' Then again in para. 13 the learned member observed "13. An undertaking is either an 'establishment' or a 'group of establishments', by its own nature inherent in its composition or constitution, and this entity is respected throughout the Industrial Relations Ordinance. The I.-R. O. Has been designed, according to its preamble, for regulation of relations between workmen and employers in an orderly form or arrangement, so that the employer is enabled to negotiate with an identified entity representing all his workmen. Precisely for this very reason, the provisions of section 22-EE have been introduced. A plain reading of section 22-EE in conjunction with section 22, would show that :-
(1) there can be only ONE Collective Bargaining Agent in an undertaking to the same employer and the same industry whether it be :- (a)an establishment, or (b)a group of establishments ; and
(2) where a single Collective Bargaining Agent be not capable of safeguarding the interests of the workmen employed : (a)in an establishment, or (b)group of establishments, there can be determined more than one Collective Bargaining Unit in such establishment or group of establishments.
36. The above discussion supports the contention of the learned counsel that the case on hand was governed by section 22-EE and as and when the Commission is approached, it would be a fit case in which bargaining units should be appointed by the Commission. The learned member further discussed that whenever the Commission has (determined one or more bargaining units under section 22-EE the locally organized trade unions would have no locus standi and the authority of the Registrar to register a trade union or to determine a bargaining agent would cease to exist. This is how the learned member expressed himself.
14. It is significant that where the N. I. R. C. Has decided upon determination of more than one Collective Bargaining Unit in an establishment or group of establishments, it has to `spiffy the modifications, which, in consequence of its decision, will take effect "in regard to the registration of the Trade Unions and federations of Trade Unions affected by such decision". This provision in section 22-EE (I) (b) irresistibly establishes a direct and intimate relationship between the territorial limits of the 'establishment' or the 'group of establishments' and those of the union. Because if so was not the intention of section 6, read with section 7, and reflected in section 22, then section 22- EE would not have provided for matters of "modification in registration" in its clause (b), according to the determination made in respect to Collective Bargaining Units.
37. ' Thus, in subsection (3) of section 22-EE, it has been significantly provided that- "after certification of a Collective Bargaining Unit, no Trade Union shall be registered in respect of that unit except for the whole of such unit." and that "no certification or proceedings for determination of Collective Bargaining Agent under section 22 shall take place for a part of Collective Bargaining Unit or a group of Collective Bargaining Units."
38. ' This provision has been reflected in the amendment of the definition of the term "establishment", in clause (ix) of section 2, so that an "establishment" includes "a Collective Bargaining Unit, if any, constituted under that section (vi2. S. 22-EE) in any establishment or group of establishments". If it be presumed that a branch or a part of an establishment was meant to exercise its own independent status at the choice of the workers, the definition of "establishment" would not have been designed to include the collective bargaining unit, nor a bar placed in section 22-EE (3)."
39. ' The above view expressed by the learned member of the Commission strengthens the submission of the learned counsel for the petitioner. But as stated in earlier part of this judgment the learned counsel wants that the respondent union which has been declared to be bargaining agent for the Karachi branch should be decertified and deregistered. That cannot be done. The view of the learned member on this part of the case are not without significance and may be reproduced. In para. 16 of the report ;earned member said :- Until the provisions of section 22-EE have been invoked by any Union, the Registrar is bound to take cognizance of the existence of registered trade unions for the whole of the establishment.
40. Applicant Union can, however, claim for determination of C. B. A. Under subsection (2) of section 22, if it may so desire, in the presence of other unions registered for the establishment."
41. ' The upshot of the discussion is that the finding of the learned Judge in his judgment dated 10-4- 1979 that "I do not find anything in law providing a bar against such a situation and therefore the registration or certificate of the respondent-union was not without lawful authority" are correct. The judgment under appeal before us cannot but be upheld. This appeal is therefore dismissed but as the point raised in the appeal and argued before us was legal and of technical nature, parties are left to bear their own costs.