' By this writ petition the petitioner seeks a declaration to the effect that an order dated 5th August, 1982 of the Full Bench of the National Industrial Relations Commission dismissing an appeal of the petitioner for allowing it to participate in the second phase of the Referendum to determine a Collective Bargaining Agent for Pakistan Railways Open Line Establishment, an earlier order removing the petitioner's name from the contestants list, the result of the referendum, dated 11th November, 1981 and all further actions in that behalf are illegal, without lawful authority and of no legal effect.
2. The facts briefly are that the petitioner union was registered under Industrial Relations Ordinance, 1969 and to that effect a certificate No, 3/75 was issued by the Registrar, National Industrial Relations Commission Islamabad. The petitioner was associated on 5th June, 1975 with the preliminary proceedings on an application moved by the Secretary Pakistan Railways Board for a secret ballot to determine a Collective Bargaining Agent for the Open Line Establishment of Pakistan Railways under section 22(2) of Industrial Relations Ordinance, 1969.
3. A complaint under section 10 of Industrial Relations Ordinance, 1969 was lodged against the petitioner by the authorised Registrar N. I. R. C. In the Labour Court for cancellation of the petitioner's registration mainly on the ground that the petitioner had failed to submit under section 21 of the Industrial Relations Ordinance, 1969 read with Regulation 15 of the National Industrial Relations Commission (Procedure and Functions) Regulations 1973, the Annual Returns by 30th April, 1976 and 30th April, 1977 in Form 'K'.
4. The senior member N. I. R. C. Acting as a Labour Court ordered the cancellation of the registration of the petitioner vide an ex parte order, dated 17th August, 1978. The petitioner thereafter made an application for setting aside the ex parte order. The learned senior member on the application so made set aside the ex parte order vide his order, dated 31st December, 1978. The effective part of the order runs as "the ex parte order is accordingly vacated, the General Secretary of the respondent union is directed to submit the returns in question to the Registrar of the Commission and as and when he obtains a certificate from the Registrar of the Commission to the effect that the returns are in order, further appropriate orders regarding the cancellation of registration of the respondent union will be passed. The annual returns filed by the General Secretary of the respondent union in office have been received by us from the office which are being handed over to the General Secretary of the respondent union to be presented before the Registrar of the Commission. The application for cancellation of the registration of the respondent Union will remain pending till such time the General Secretary of the respondent union produces, the certificate as mentioned above, when further appropriate orders regarding the application will be passed by me. The case is to be put up before me as and when the General Secretary appears before me with the required certificate".
5. The proceedings for a secret ballot remained stayed for some time during the, determination of two Collective Bargaining Units in Pakistan Railways, the Workshop Establishment and the Open Line Establishment which matter was concluded by the N.
1. R. C. On 2nd July, 1978. The proceedings were resumed on 25th November, 1978 when fresh invitations to the registered trade unions were issued, since the petitioner's registration by the time had been cancelled, therefore no invitation was issued to the petitioner.
6. After 31st December, 1978 when the ex parte order was set aside the General Secretary of the petitioner addressed a letter, dated 26th February, 1979 to the Registrar N.
1. R. C. Stating that a meeting was held on 21st February, 1979 in connection with the referendum but he was ignored because the competent authority was presumably not in the know of the fact that the registration of the union had since been restored and requested for the supply of the minutes of the meeting and for summoning him for all such proceedings in the future (Annexure 'H-6').
Again on 27th February,1979 the General Secretary wrote to the Registrar that he had handed over the annual returns of the petitioner to the Deputy Registrar but no certificate to that effect had been issued despite the repeated requests. A request was made for an expeditious action in providing the certificate (Annexure H-4'). The General Secretary of the petitioner received a telegram, dated 8th December, 1979 with reference to a letter dated 24th August. 1979 (the nature of the letter is not disclosed) from the Deputy Registrar N. I. R. C. Qazi Ahmad Saeed asking the General Secretary to attend his office on 17th October, 1979 (Annexure '0'). A telegram dated 4th October, 1979 was addressed by the General Secretary of the petitioner to Mr. Raees Ahmad Jaffery, Senior Member N.-I. R. C. Complaining that no symbol had been allotted to the petitioner-union in the secret ballot for the Open Line Establishment (Annexure `P'). A telegram dated 8th December, 1979 was addressed by the General Secretary of the petitioner to the Chairman N. I. R. C. And the Registrar N. I. R. C. Conveying that the registration of the petitioner was restored and the Deputy Registrar exceeded his powers when he without hearing the petitioner dropped its name from the list of the contestants which was illegal and without lawful authority. It was requested that the Registrar was to be directed as not to proceed with the referendum till the petitioner was permitted to participate (Annexure 'R'). A letter, dated 9th March, 1980 was issued by the Deputy Registrar to the General Secretary of the petitioner stating. "According to the learned senior member's order, dated 31st December, 1978 you were required to submit your Annual Returns for the years 1975, 1976, 1977 to this Commission and obtain a certificate regarding their correctness from the Registrar N. I.
R. C. Since you have failed to obtain the requisite certificate from this office, the registration certificate of your union has not been restored. The matter has been submitted before the Bench of the learned Chairman N. I. R. C. Who has fixed 17th March, 1980 for bearing the case. It may be reiterated here that unless the Registration Certificate of your union which was cancelled on 17th August, 1978 is restored by the Bench of the learned Chairman you cannot be allowed to take part in the ensuing referendum". A notice dated 26th May, 1980 was issued by the Chairman N. I. R. C. To the General Secretary of the petitioner to appear before the Commission in the matter of the complaint filed by the Registrar for cancellation of the registration of the petitioner-union (Annexure 'T'). Then there was a notice conveying the adjourned date as 7th June, 1980 for the hearing of the case (Annexure 'U'). With reference to an application dated 17th September, 1980 of the General-Secretary of the petitioner a copy of the order dated 17th July, 1980 in Case No, 20(11)78 was supplied as requested for by the Secretary to Chairman N. I. R. C. (Annexure 'V'). An order, dated 17th July, 1980 was issued by the Chairman N. I. R. C. Whereby the General Secretary of the petitioner was required to appear before the Registrar N. I. R. C. In order to satisfy him as to the due compliance about the Annual Returns (Annexure 'W'). An application dated 17th July, 1980 in the matter of the compliance as to the annual returns was submitted by the General Secretary of the petitioner to the Chairman N.
1. R. C. For deputing another officer to look into the matter requesting to provide the list of the required documents and in the meantime to allow the petitioner to join the proceedings of the referendum (Annexure 'X'). An application dated 11th February, 1981 was addressed by the General Secretary of the petitioner to the senior member N. I. R. C. For the transfer of the case to some other officer and for permission in the meantime to join the referendum proceedings. The last application dated 23rd June, 1981 was addressed to the Chairman N. I. R. C. By the General Secretary of the petitioner in which a direction to the Registrar was sought for issuing a certificate as to the filing of the required Annual Returns and also a direction to the Registrar, Trade, Unions to join the petitioner as a party to the referendum proceedings as previously the petitioner was.
7. That a secret ballot to determine a Collective Bargaining Agent for Pakistan Railways Open Line Establishment was held from 20th October to 31st October, 1981. The seven Trade Unions participated in the contest. The petitioner was not among them. As a result of the Poll respondent No, 2 secured the highest numbers Of votes (18,950) and respondent No, 3 secured next to it (9,319).
Respondent No, 2 was not certified as a Collective Bargaining Agent for the establishment since the number of votes received by it were less than one-third of the total number of workmen employed in the establishment. A second Poll was to be held between respondent No, 2 and respondent No, 3 under the second proviso to subsection (9)(e) of section 22 of Industrial Relations Ordinance, 1969, where the securing of a majority of the votes cast at the Poll was to be decisive.
8. The petitioner on 22nd February, 1982 submitted an application to the Senior Member, N. I. R. C.
Stating that the petitioner was the very first trade union in the subcontinent with its branches in whole of the country as such had its historical importance. Despite the fact that the order cancelling the petitioner's registration had been set aside on 31st December, 1978 and it was restored to its status, the Commission without any notice and any justification dropped the name of the petitioner from the list of the contestants, that was not competent for the Registrar to do so.
The petitioner had been addressing various applications but all those remained unrealized. In the case of failure to obtain 1/3rd of the total member of workmen, the Commission had the power to hold the ballot all over again as to all the trade unions. The entire proceedings as to the referendum were illegal and void. The appointment of the Registrar, Trade Unions was illegal. It was finally prayed that the entire proceedings of the referendum already held were to be declared as illegal and void or in the alternative the petitioner was to be permitted to participate in the then coming ballot. The application so made was disposed of by Mr. Mahmood Akhtar, Member N.
1. R. C., on 6th June, 1982 with the text "since this application challenged the action of the Registrar of Trade Unions or the Senior Member's Bench in holding the referendum and not calling upon the petitioner union to participate in the balloting. It would not be competent for me to hear this appeal. The application is, therefore, referred to the learned Chairman for assignment to proper Bench. The petitioner is allowed to convert his application into appeal before the Full Bench of the Commission". The petitioner, therefore, filed an appeal on 29th June, 1982 maintaining that the Registrar N. I. R. C. Without any orders removed the name of the petitioner from the list of contestants and did not allow the petitioner-union to take part in the referendum. That as under the law petitioner-union had a valuable right to contest the referendum and was eligible for the same but was refused the right, despite the various representations so the petitioner Union should have been considered as qualified for the second round of the referendum. It was prayed that the petitioner-union was to be included in the second round of the referendum, the union was to be declared as qualified for that or in the alternative a fresh referendum was to be ordered after cancelling the first round of referendum already held.
9. The petitioner's main contention before the Full Bench N. I. R. C. Was that the order for cancellation of registration of the union was vacated by the learned Senior Member on 31st December, 1978, the union had a guaranteed right to be a contestant in the then coming referendum and was eligible to contest the referendum for the second Poll. The learned Full Bench was of the view that the contention had no force because ex parte order cancelling the registration of the petitioner union was vacated till such time as the General Secretary of the union produced the certificate from the Registrar that the Annual Returns were in order and as the union had failed to obtain the requisite certificate from the Registrar, the registration of the union had in fact not been restored, the application of the union for permission to participate in the second referendum was highly belated and was submitted as late as 20th February, 1982. The appeal was summarily dismissed vide order, dated 5th August, 1982.
10. During the pendency of this writ petition the second Poll took place between respondents Nos, 2 and 3 from 22nd August to 7th September 1982, in which respondent No 2 secured 22,413 votes and respondent No, 3 secured 17,115 votes.
11. There learned counsel for the petitioner has submitted that when the proceedings as to the secret ballot were commenced an invitation letter was issued to the petitioner as to indicate its zealousness to participate in the proceedings. The setting aside of the ex parte order for cancellation had automatically the effect of restoring the registration. The petitioner was required to produce a certificate issued by the Registrar as to the correctness of the annual reports submitted by it only in the application for cancellation which was kept for that purpose and which application is even now pending. Unless the registration of the petitioner was cancelled on the application moved by the Authorised Registrar it was not open to the Deputy Registrar N.
1. R. C. To say that since the petitioner had failed to obtain the requisite certificate frora the office so the registration certificate of the petitioner had not been restored. The learned Senior Member had vacated the order of cancellation in clear words with an emphasis that in view of the fact that one of the foremost functions of the Commission was formation and promotion of trade unions and once a trade union was registered a very valuable right accrued to it and cancellation of the registration of the petitioner was obviously a drastic step. As the General Secretary of the petitioner had after all submitted the annual returns so he was inclined to show it indulgence and give it one more chance. It was made clear to the General-Secretary of the petitioner that for the reasons mentioned the learned Member was vacating the ex parte order but no such omission on the part of the petitioner was to be tolerated in future. The petitioner was however, directed to submit the same returns to the Registrar of the Commission and as and when it obtained a certificate from the Registrar of the Commission to the effect that the returns were in order, further appropriate orders regarding the cancellation of the registration of the petitioner were to be passed. The application for cancellation of the registration of the petitioner was kept as pending for further appropriate orders till such, time the General Secretary of the petitioner produced the required certificate. From the tenor of the order it is clear that the application for cancellation was treated by the learned Senior Member as pending simplicitor. The Deputy Registrar misread and misconstrued the order, dated 31st December, 1978 and on a wrongful assumption that the registration of the petitioner had not been restored wrongly disallowed the petitioner to take part in the ensuing proceedings for the referendum, as such, the petitioner had been deprived of its right as guaranteed by section 22(3) of the Iadustrial Relations Ordinance, 1969, with the result that the whole referendum became illegal and void. The learned counsel has relied upon Halsbury's Laws of England III Edition Vol. 14th, page 150 whereat it is given that the wrongful rejection of the nomination papers of a candidate will avoid the election. Next he has relied upon Celluko Industries People: Labour Union v. Celluko Peoples Employees' Union, Karachi and 5 others . In this case the petitioner did not receive the letter notifying the date of holding of referendum until in the afternoon of the day following such referendum, it was held that by the referendum held without petitioner's participation a real prejudice had been caused to the petitioner and the referendum so held was declared void and without lawful authority. The learned counsel has challenged the validity of the order, dated 9th March, 1980 communicated to the petitioner as well as the result of the secret ballot held in the month of October, 1980 and communicated through a letter, dated 11th November, 1981 and the holding of the second poll between respondents Nos, 2 and 3 who had secured the two highest number of votes.
12. The learned Deputy Attorney-General appearing for respondent No, 1 has submitted in reply that the registration of the petitioner was restored conditionally as the petitioner was directed to furnish the requisite annual returns to the satisfaction of the Registrar N. I. R. C. Since the petitioner had failed to submit the requisite certificate, its registration had not been restored. The vacation of the order was in fact a conditional one regarding which the petitioner had failed to fulfil the condition.
The registration certificate which stood cancelled so had not been restored as then. At the relevant time the petitioner had no locus standi to claim itself as a registered trade union. The proceedings in the referendum were resumed on 25th November, 1978 by which time the petitioner's registration remained as cancelled. Assuming that the registration of the petitioner had been wrongly treated as cancelled or not restored by the Deputy Registrar N. I. R. C. The act of the Deputy Registrar in disallowing the petitioner to participate in the proceedings for referendum amounted to a decision/order which was appealable to the Full Bench of the Commission under section 22-D of the Industrial Relations Ordinance, 1969 because the Deputy Registrar exercised the power which was delegated to him by the Registrar under subsection (13) of section 22 of the Ordinance and as the Registrar . Functions as a Bench being a member of the Commission. The petitioner had not filed any appeal, therefore, it cannot raise this point in the writ petition at such a distance. The petitioner also did not challenge the legality of the first ballot at that time either before the Commission or through a Constitional petition. The petitioner, as such, is estopped from filing the present writ petition on the ground of its conduct and acquiescence.
13. The learned counsel appearing for respondent No, 2 has taken up more or less the same position against the petitioner. Respondent No, 3 has not chosen to take any position in this behalf.
14. The submission of the learned counsel for the petitioner is correct to this extent that the Deputy Registrar had misread and misconstrued the order, dated 31st December, 1978. After the vacation of the ex parte order the position had been reverted to the original one. It was not a conditional restoration of the registration as has been argued by the learned Deputy Attorney-General. The requirement for the filing of the returns to the satisfaction of the Deputy Registrar and the placing of ' the certificate by the petitioner as to the correctness of the annual returns was meant for1 further proceedings whether the registration was to be cancelled or not in future as is obvious from the text of the order of the learned Senior Member. The order clearly indicated to that effect, so after the vacation of the ex parte order cancelling the registration, the registration of the petitioner remained intact. In this view of the matter the failure to invite the petitioner to participate in the proceedings or dropping its name from the list of contestants or disallowing it to participate in the referendum proceedings by that time was utterly wrong. No doubt the petitioner has been addressing certain telegrams to the Commission for participation in the preliminaries of the referendum and in a telegram, dated 8th December, 1979 had complained to the Chairman and the Registrar N. I. R. C. That the Deputy Registrar exceeded his powers when he without hearing the petitioner dropped its name from the list of the contestants despite the fact that the registration of the petitioner was restored, requesting that the Registrar be directed as not to proceed with the referendum till the petitioner was permitted to participate which perhaps remained unheeded.
After the communication of the Deputy Registrar, dated 9th March, 1980 the above-said applications were addressed by the petitioner but all those three applications were directed towards the issuance of a certificate by the Registrar after verifications of the annual returns allegedly filed by the petitioner and for inquiry by some other officer though it was prayed within the two applications for allowing the petitioner in the meantime to join the proceedings of the referendum with intermittent dates requiring the appearance of the petitioner in the application for cancellation which was pending. But the question is whether the petitioner had taken a proper step after it was disallowed to take part in the proceedings by the Deputy Registrar vid letter, dated 9th March, 1980 and as submitted by the learned Deputy Attorney General whether this petition now raising these points suffers from laches, about which the learned counsel for the petitioner has submitted that the petitioner had been continuously approaching the Registrar, the Senior Member and the Chairman of the Commission requesting for participation in the referendum prior to and after the first poll till the final decision disallowing the petitioner to participate which was passed by the Full Bench on 5th August, 1982. The learned counsel has submitted that in the circumstances of this case the question of laches does not arise. He has relied in this behalf on Baqir Hussain etc. v.
Mst. Yatim Bibi etc. . In this case there was a dispute as to the sanctioning of mutation of inheritance and Mst. Yatim Bibi respondent, the widow of one Mehdi Hussain who died in India in 1938, challenged the same firstly before the revenue Courts and then by filing a civil suit. The matter went upto the Supreme Court after the writ petition of the respondent Mst. Yatim Bibi was accepted by the High Court. It was inter cilia held by the Supreme Court that "the respondent (Mst.
Yatim Bibi) had been vigilantly pursuing the matter throughout and that there was nothing to show that she was negligent or had ever acquiesced or slept over her rights. In this view of the matter the High Court was justified in repelling the contention to the effect that the writ petition filed by the respondent suffered from laches or that her conduct in any way disentitled her to the relief, Nawabzada Muhammad Umar Khan and others v. Pakistan through Secretary Cabinet Division and others in this case M. L. O. No, 47 ' issued by Mr. Hayat Muhammad Sherpao, M. L. A. Zone 'F' was challenged. Apart from other points the question as to whether the petitioner suffered from laches was considered and it was held, "besides the above fact there can be no laches when an order passed without jurisdiction is challenged for such an order is void ab initio and does not exist in the eye of law... ." we are of the view that firstly there is no intentional delay on the part of the petitioners to approach this Court ; for they were making efforts to get the wrong remedied by Mr. Bhutto himself and secondly because the impugned order is void and constitutes a continuing wrong which can be challenged any time and for challenging this order there is no limitation at all. The question of !Aches, therefore, does not arise in the present case.", Karachi Warehouse and Carriers Workers Union v. Pakistan Warehouse Carriers Workers Union and 3 others in this case no declaration was immediately issued by the Registrar after the conclusion of count of votes as to2 3 the success of the competing trade union. The matter of election of respondent as a collective bargaining agent was still in doubt for some time after the holding of the poll. In those circumstances, it was observed by the Court that no question of laches on the petitioner's part in coming to the Court, in the circumstances arose.
' In reply to the agreement of the learned Deputy Attorney-General that the petitioner ought to have filed an appeal to the Full Bench, the learned counsel has maintained that no appeal was competent against the order of the Deputy Registrar. As to the matter of appeal the learned counsel has relied upon a decision of the Full Bench of the Commission reported as Capt. (Rtd.)
Abdul Wajid and two others v. Sher Muhammad and others . In this decision the learned Full Bench analysed section 22-D, but with reference to sections 37 and 38 of the Industrial Relations Ordinance, 1969 taking into account the gradual development of law in relation to appeals under the Ordinance. The principal question in the case was whether there was a provision under the law for making an appeal against a decision of acquittal or for the enhancement of the sentence. After defining the word "decision" vis-a-vis the scope of appeal the learned Full Bench held that an appeal lay only against a decision of sentence and not against a decision of acquittal. The observation was made in respect with a Labour Court case.
15. The submission of the learned Deputy Attorney-General that the remedy lay in appeal to the Full Bench from the act of the Deputy Registrar whereby the petitioner was disallowed to participate in the proceedings, has its weight because the petitioner had been deprived of it right to participate by the Deputy Registrar who was by that time acting a delegate of the Registrar, therefore, the petitioner ought to have challenged that order through an appeal before the Full Bench N. I. R. C.
And if the appeal was not competent from such an order, then the petitioner should have approached this Court through a Constitutional petition at that time and since by that time the first phase of the referendum had not taken place the petitioner might have been made available a timely remedy. Samewise the petitioner, who did not challenge the legality of the first poll at the proper time either before the Commission or through a Constitutional petition, cannot be permitted to challenge the same through the ' present writ petition. There is another reason for not entering upon this question as pointed out by Mr. S. A. Latif, counsel for respondent No, 2 and that is the non-joinder of the employer i. e. The Pakistan Railways Board on whose application and expense the first ballot was held and the other five contestants who were proper parties.
' The decisions relied upon by the learned counsel for the petitioner as to laches cannot help him in this regard because these decisions were given with the peculiarity of the circumstances in the respective cases. In election matters delay defeats a cause because in the process of election the rights of others become involved.
16. The second point raised by the learned counsel for the petitioner is that whether the first poll or the second, the whole process is one ballot, therefore, the petitioner when approached the Full Bench in appeal, dated 29th June, 1982, ought to have been allowed by the Full Bench to participate in the second round of the referendum. The petitioner had also prayed in that appeal in the alternative for holding of a fresh referendum after cancelling the first referendum already held.
17. The petitioner had before the learned Full Bench urged only one point and that was as to the permission to the petitioner to participate in the second poll since the order for the cancellation of the registration of the petitioner was vacated by the learned Senior Member on 31st December, 1978. As to whether by that time the petitioner could be allowed to participate in the second poll, the learned Deputy Attorney-General and the learned counsel for respondent No, 2, have maintained that under the law a union which has not participated in the first ballot has no right to participate in the second ballot because the right is confined only to the two unions who secure the highest number of votes as such the appeal of the petitioner was not competent before the learned bull Bench.4
18. The relief was refused on the ground that the registration of the petitioner had in fact not been restored and moreover the application to participate in the second referendum was a belated one.
The learned Full Bench had taken a wrong view as to the position of registration about which the view has been expressed above in paragraph No, 15 of this judgment. Had it been treated by that time by the learned Full Bench that the registration was intact after the vacation of the ex parte order and the application for participating in the second round of referendum as not belated one even then the petitioner could not have been made as entitled to participate in the second ballot because the second ballot takes place under the second proviso to section 22 of the Industrial Relations Ordinance, when in the first ballot the winning contestant receives the number of votes less than one-third of the total number of workmen employed in the establishment, then in that event a second ballot is held between the two trade unions which secure the two highest number of votes in the first ballot. As the petitioner had not participated in the first ballot, as such, it was not in the run for the second ballot.
It is interesting to note that the petitioner had not made the other contestants as parties in the appeal. Respondents Nos, 2 and 3 have been impleaded only in the present writ petition and not before anywhere.
19. The next point urged by the learned counsel for the petitioner is that no proceedings for a secret ballot to determine a collective bargaining agent could be initiated on the application moved by the Secretary Railways Board under section 22 (2) of the Industrial Relations Ordinance, 1969 as there was no decision by the Railways Board to apply for the secret ballot. The petitioner did not challenge the application so made before the Commission at the time it was moved. In the absence of the Pakistan Railways Board the petitioner cannot be allowed to raise this point. The learned counsel for the petitioner has not been allowed to raise his contentions as to the legality of the determination of two Collective Bargaining Units, the non-registration of respondent No, 2 at the time of the start of the proceedings for the secret ballot, the legality of its registration during the proceedings and its entitlement on that ground to participate in the secret ballot, the effect of the limits of the Collective Bargaining Unit, the wrongful inclusion of certain persons in the voters list and non-verification of the voters list for the reason that no such exceptions were taken to, by the petitioner before the Commission respondent No, 1 at the proper stage in each case.
20. The last contention raised by the learned counsel is that no union can be declared as a collective bargaining agent unless it enjoys the confidence of one-third of the total number of workmen employed in the establishment, this ratio is needed even in the second ballot under section 22 (9) (e) second proviso of the Industrial Relations Ordinance, 1969. A plain reading of the provision belies the contention of the learned counsel . Which is being reproduced here "Provided further that, no trade union secures such number of votes in the first poll, a second poll shall be held between the trade unions which secure the two highest numbers of votes in the first poll and the trade union which secures a majority of the votes cast at the second poll shall be certified in the prescribed manner to be the collective bargaining agent."
21. This writ petition is dismissed for the reasons aforegoing with no order as to costs. 1980 PLC 785 1978 SCMR 295 PLD 1982 Pesh. 1 PLD 1978 Kar. 417 1980 PLC 8001 2 3 4 5