KHUDA BAKHSH MARRI, J.-This Constitutional Petition is directed against the order dated 12-9-70, of learned Chairman, First West Pakistan Industrial Court, Karachi, by which petitioner was "prohibited from continuing the lock-out and in all fairness it is expected that it will allow its workmen aforesaid to resume their duty forthwith."
2. The facts giving rise to this petition briefly are, that respondent No. 1, Karachi Hotel Workers' Union, a registered Trade Union under West Pakistan Trade Unions Ordinance, 1968, claiming to represent workers employed in petitioner's hotel issued him a notice of demand. Under section 26 (1) of Industrial Relations Ordinance, 1969 on 1-1-1970, and subsequently on 15-1-1970 issued a notice of strike under section 28 (1) of Industrial Relations Ordinance, 1969, as a result, Assistant Director, Labour Welfare Government of West Pakistan, Karachi, called upon petitioner to attend a joint meeting with workers to be held on 26-1-1970 for discussion on strike notice.
3. The petitioner however, challenged the locus standi of respondent No. 1 Karachi Hotel Workers'
Union for being incompetent under law, either to issue notice of demand or notice to call a strike, this intimation was sent duly to respon--dents Nos. 1 and 2 by letters Annexures 'C' and 'D' dated 23rd and 21st January 1970 respectively, which are reproduced as under: "ANNEXURE 'C'
January 23, 1970 The Assistant Director, Labour Welfare.
Government of West Pakistan, Karachi.
Dear Sir, With reference to your letter No. AD/Con-E-11 (Misc.)/70 of the nineteenth, we invite your kind attention to our letter of January 21, addressed to the General Secretary, Karachi Hotel Workers'
Union, a copy of which was endorsed to you.
It is requested that your honour will please, advise the Union that the strike notice is invalid and incompetent.
Thanking you, Yours truly.
Hotel Columbus Limited (Sd.)
Haji E. Dossa, Managing Director.
ANNEXURE 'D'
January 21,1970 The General Secretary, Karachi Hotel Workers' Union, 29, K. M. C. Lea Market, Karachi Dear Sir, With reference to your letter No. KH/WU/70-7 dated 15th January 1970 received by us in the afternoon on 19th January 1970 whereunder you have given us a strike notice.
We have to advise you that yours is not a Trade Union of the workmen employed in the Hotel Columbus.
You have therefore no locus standi to at as the collective bargaining agent for the workmen in Hotel Columbus.
The strike notice given by you is not valid and operative in law and calls for no action.
We hope you will withdraw the strike notice and any action initiated by you in connection with the illegal strike notice.
Thanking you, Yours truly, Hotel Columbus Limited, Haji E. Dossa, Managing Director.
Copy forwarded to: The Conciliator,
520. Talpur House
4. It appears however, that on 7-2-1970, certain workers of the petitioner hotel went on strike and respondent No. 1 moved an application under section 45 of Industrial Relations Ordinance, 1970, before respondent No. 2, this application was however, rejected by his order dated 10-3-1970 Annexure 'E' reproduced as under: "ORDER This application has been filed by the Karachi Hotel Workers' Union in which a prayer has been made that an order under section 45 may be issued to prohibit the continuance of the strike by the workmen with a further prayer that the Management of Hotel Columbus, Clifton Road, Karachi, hereinafter referred to as a respondent, be directed to take back the workmen on duty.
This application is liable to be rejected for the short and simple reason that a prohibitory order can be issued against the opposite-party. This case is of a novel nature. The workmen of the respondent hotel are on strike and it is they who want that the strike be ordered to be called of. It is exclusively within their means to call of the strike. They can call of the strike without even coming to the Court. The petitioner-Union has nowhere alleged it this application that the workmen have been locked out. In that view of the matter, how can an order be issued to the respondent under section 45 of the Ordinance to take back the workmen on duty if and when they chose to call of the strike.
This application is, therefore, rejected."
The workers, through respondent No. 1 called of the strike and intimated the petitioner of the same vide Annexure 'F' dated 10-3-1970, which is as under: "KARACHI HOTEL WORKERS' UNION, KARACHI 10th March. 1970 KH/ W U/lU/70.143 M/s. Hotel Columbus, Clifton Road, Karachi.
Subject:-Industrial Dispute.
Dear Sirs, As suggested by the West Pakistan Second Labour Court, Karachi, the Union and the workers of your establishment have decided to call of the strike and resume duties immediately. You are requested to please take all workers and oblige.
The workers will resume work from 10th March 1970.
Thanking you, Yours faithfully, General Secretary. c. c.The S. H. O., Frere Police . Station, Karachi for information."
5. On 15-4-1970, vide Gazette of West Pakistan No. 3-117 (L-11) 68, respondent No. 3 Secretary, Government of West Pakistan, Labour Department, prohibited the- strike in petitioner's hotel and referred the demand under section 32 (2) of Industrial Relations Ordinance, 1969, to the West Pakistan Labour Court No. 1, Karachi for determination under section 32 (3) of the Ordinance, 1969.
Thereafter Karachi Hotel Workers' Union respondent No. 1 moved an application on 1-5-1970 under section 45 of Industrial Relations Ordinance, 1969, praying: "11. That the demands in dispute referred for adjudication by this Honourable Court vide Provincial Government's Orders dated 15th April 1970, in accordance with the provisions of section 32 (3) of the Industrial Relations Ordinance, 196,9 are pending before this Honourable Court.
12. It Is, therefore, prayed that in view of the facts stated above as also disclosed in the accompanying application, this Honourable Court be pleased to prohibit the continuance of lock- out of workers named in the enclosed list and direct the respondents to take back all workers on duty immediately."
A reply was filed on behalf of petitioner in the Labour Court raising amongst others the following objections "(a) That the applicant-Union is a general Union and is not Trade Union of the workmen employed in the establishment of the respondents.
(b) That the applicant-Union has no right or locus standi to represent the workmen employed in the respondent's establish--ment nor it can take up any case on their behalf as it is not a 'Collective Bargaining Agent' within the meaning of section 2(v) of the Industrial Relations Ordinance, 1969.
(c) That the strike notice which was given by the said Union was illegal and inoperative.
(d) That the demands contained in the reference relate to matters covered under statutory provisions and do not consti--tute industrial disputes.
(e) That there is or has been no lock-out in the respondent's establishment.
(f) That the resignation from service or termination of service cannot be termed as 'lock-out'."
The learned Industrial Court however rejected petitioner's objections and passed the impugned judgment dated 12-9-1970.
6. Mrs. Rashida Patel, Advocate represented the petitioner, while respondent No. 3, the Secretary Labour, Government of Sind was represented by Mr. Kazi Akhtar Ahmed, Advocate --General Sind, Mr. Khaliq-uz-Zaman Advocate appeared for respondent No. 1, Karachi Hotel Workers' Union, while Mr. Nasius Ahmad appeared in person on behalf of respondent No. 2, the Labour Court, he also produced certain files of the department.
7. Mrs. Rashida Patel, the learned counsel for petitioner, attacked the order of respondent No. 2 as inoperative, without lawful authority and void ab initio on the ground the respondent-- Union was an illegally constituted body, having no locus standi could not in law raise any industrial dispute on behalf of workers' Union of petitioner's Hotel under the Ordinance of 1969. In this connection the learned counsel drew our attention to provision of section 22 of Ordinance, 1969 and contended that respondent No. 1 does riot represent employees of petitioner's establishment, nor it has been declared by the Registrar as Bargaining Agent for a group of establishments as claimed.
8. To appreciate the objections raised by the learned coun--sel for the petitioner, it is necessary to see what are the legal pre-requisites, to be able to raise an industrial dispute. Under Ordinance XXIII of 1969 (Industrial Relations Ordinance, 1969) first of all these must be an industrial dispute under the Ordinance, then there must be a Collective Bargaining Agent as defined by the Ordinance, then and only then, a Labour Court or other relevant authorities can be moved for conciliation and final determination of the dispute between the employer and the workers.
Collective Bargaining Agent is defined under section 2, subsection (5) of the Ordinance as under: "Collective Bargaining Agent, in relation to an establishment or industry, means the Trade Union of workmen which, under section, 22 is the agent of the workman in the establishment or, as the case may be industry in the matter of collective bargaining."
A Specific procedure is provided for declaration; by a Registrar of collective bargaining agent' under section 22 which provides as under : ---22. Collective Bargaining Agent. (1) Where there is only one registered Trade Union in au establishment, or a group of esta--blishments, that Trade Union shall, if it has as its members not less than one-third of the total number of workman employed in such establishment or group of establishments, be deemed to lie collective bargaining agent for such establishment or group.
Where they are mare 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, hold a secret ballot to determine as to which one of such Trade Unions shall be the collective bargaining agent for the establishment or group.
(3) Upon receipt of an application under subsection (2) the Registrar shall, by notice in writing, call upon every registered Trade Union in the establishment or group of establishments to which the application relates--(a) to indicate whether it desires to be a contestant in the secret ballot to be held for determining the, collective bargaining agent in relation to such establishment or group; and (b) if it so desires, to submit to him within the the specified in the notice a list of its members showing; in respect of each member, his parentage, age, the section or department and the place in which he is employed, his ticket number and the date of his becoming a member and, if the Trade Union is a federation of Trade Unions, a list of its affiliated Trade Unions together with a list of members of each such Trade Union showing in respect of each such mem--bers the said particulars.
(4) Every employer shall--
(a) on being so required by the Registrar, submit a list of all workmen employed in the establishment excluding those whose period of employment in the establishment is less than -- three months and showing, in respect of each workman, his parentage, age, the section or department and the place in which be is employed his ticket number and the date of his employment in the establishment; and
(b) provided such facilities for verification on the lists sub--mitted by him and the Trade Unions as the Registrar may require.
(5) The Registrar shall, after verification of the lists sub--mitted by Trade Unions, prepare a list of voters in which shall be included the name of every workman whose period of -employment 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.
(6) Every workman who is a member of any of the contesting Trade-Unions and whose name appears in the list of voters prepared under subsection (5) shall be entitled to vote at the poll to determine the collective bargaining agent.
(7) Every employer shall provide all such facilities in his-- establishment as may be required by the Registrar for the con, duct of the poll but shall not interfere with or in any way, influence, the voting.
(3) No person shall convass for vote within a radius of fifty yards of the polling station.
(9) For the purpose of holding secret ballot to determine the collective bargaining agent, the Registrar shall-
(a) fix the date for the poll and intimate the same to each of the contesting Trade Unions and also to every employer
(b) on the date fixed for the poll so place in the polling station set up for the purpose the ballot boxes which shall be sealed in the presence of the representatives of the contesting Trade Unions as to receive the ballot papers;
(c) conduct the poll at the polling station at which the representatives of the contesting Trade Unions shall have the right to be present;
(d) after the conclusion of the poll and in the presence of such of the representatives of the contesting Trade Unions as tray bi present, open the ballot boxes and count the votes ; and
(e) after the conclusion of the count, declare the Trade Union which has received the highest numb6r of votes to be the collective bargaining agent: Provided-that no Trade Union shall be declared to be the collective bargaining agent for an establishment or group of establishments unless the number of votes received by it s not less than one-third of the total number of workmen employed in such establishment or group."
Admittedly no such declaration by the Registrar has been given in favour of respondent No. 1 Karachi Hotel Workers Union, therefore, the objections of the learned counsel for the petitioner are valid that the respondent-Union has no locus standi either to give a notice of demand or invoke section 26 of the Ordinance for negotiations relating to industrial disputes. It is therefore, clear that in absence of any existing industrial dispute as well as of collective bargaining agent under the Ordinance a Provincial Government cannot issue any notifica--tion prohibiting strike or lock-out under section 33 nor it can legally refer such a matter for final determination to a Labour Court because under section 43 of the Ordinance "no industrial dispute shall be deemed to exist unless it has been raised in the, prescribed manner by a collective bargaining agent".
9. In view of the legal position, when respondent, No. 1 Karachi Hotel Workers' Onion. Has not been declared by the proper authorities as collective bargaining agent, no industrial dispute legally could be raised by it, this incapacity of the Union has been further observed by us after perusal of the original record produced before us by Mr. Naseem Ahmed, Assistant Director, Labour Welfare on behalf of respondent No. 2.
10. The Karachi Hotel Workers' Union respondent No. 1, was issued registration certificate under West Pakistan Trade Unions Ordinance, 1968 on 5-9-1969. In its application for registration in Form 'A' he was required to file according to Schedule 1, a list of officers and their addresses, which was filed on 11-4-1969. A perusal of this list from the official record, goes to show, not a single office-bearer has been shown as to belonging to petitioner's establishment i.e. Hotel Columbus, although 26 persons named from different Hotels and Cafes in Karachi either office-bearers or members of Managing Committee. After dis--covery of this very important fact, when counsel for respondent Union as well as for Government of Sind was asked, as to under what law or rules respondent could claim by bargaining Agent for petitioner's Hotel, and as to how the then Government of West Pakistan did issue the notification and referred the dispute for determination to Labour Court, in reply the learned Advocate. General very rightly showed, his inability to support the notifica--tion of the Government, while learned counsel for respondent. Union had simply no arguments to make as he had not. At this stage we wish to observe, that how this vital fact has escaped the notice for such a long the of various authorities including Government of the then West Pakistan, who embarked upon issuing a notification which had no legal sanctity at all or the learned industrial Court. The petitioner, very rightly as stated ear--lier had objection to respondent-Union's locus stands to raise any Industrial dispute and it appears, his objections were not properly examined and no due weight was given to them by the relevant authorities. Had it been otherwise, the petitioner as well as the Government would have been saved from the unnecessary cost of a dispute which had no legal basis whatsoever. There is another application under signature of General Secretary of respondent --Union dated 26-8-1969, endorsed to. Registrar, Trade Union with it, is attached a list of members of their Union which total up to 480, not a single member having been sh6wn as employee of petitioner's Hotel Columbus, this fact by itself goes to show that me incapacity of respondent-Union to represent petitioner's employee under Ordinance, 1962. In our opinion the entire proceedings, starting from the Labour Court to Notification of West Pakistan Government of 15-4-1970 leading to impugned judgment of Labour Court is void ab initio illegal and without jurisdiction.
11. The result is, we accept this petition with costs and bold the entire proceedings leading up to the judgment of Indus--trial Court as void and of no legal effect. Order accordingly.