M.S.H. QURAISHI (CHAIRMAN).--The main controversy in this appeal is in regard to the date in relation to which a contesting union has to demonstrate that the number of votes received by it in the ballot held for determining the Collective Bargaining Agent was not less than one-third of the total number of workmen, as required by the First Proviso to section 22(9e) of the Industrial Relations Ordinance, 1969.
2. The controversy arose in the following circumstance. On an application made on 9-2-1986 by the K. E. S. C. Progressive Workers Union (respondent No.3), the Registrar, proceeded to hold a secret ballot for determining the C.B.A. For the establishment of the Karachi Electric Supply Corporation Limited. The Management of the K.E.S.C. Furnished a list of workmen in its establishment excluding those whose period of employment in the establishment was less than three months, as on 30-6- 1986 and on this basis the voters' list was finalised. The ballot was held on 24-7-1986. The participating unions secured the following number of votes, in the result of the final Count: - (1)K.E.S.C. Democratic Mazdoor Union (respondent No. 2) 3601 (2)K.E.S.C. Labour Unionappellant3228 3.K.E.S.C. Progressive Workers Union (respondent No. 3)1781 (4)NASPEM.Respondent No. 4)4
3. A question arose before Qazi Ahmed Saeed Deputy Registrar of the Commission, who had been authorised in this behalf by Mr. Mahmood Akhter, Member of the Commission with powers of Registrar, as to the date in relation to which the requirement of the first Proviso to clause (e) of subsection (9) of section 22, that is, of having received votes not less than one-third of the total number of workmen employed in the establishment, was to be fulfilled. The appellant as also the Progressive Workers Union urged that it should be 23-7-1986 which was the date closest to the polling date, but according to the Democratic Mazdoor Union it would be 30-6-1986 on which date the voters list had been finalised. The contention of Democratic Mazdoor Union prevailed and in the result that union having polled more than one-third of total number of workmen as on 30-6-1986 was declared elected and was certified as C. B. A. By order dated 31-7-1986. It is to be noted that Democratic Mazdoor Union could not be declared elected if the basis were the total strength of workers as on 23-7-1986 which was 10,969 as against 10,690 on 30-6-1986 Hence this appeal.
4. Two points were raised in the memorandum of appeal. First that the application made on 9-2- 1986 by the Progressive Workers Union was not competent as that Union did not fulfil the requirement of having one-third of the total number of workers as its members under subsection
(2) of section 22 of the I.R.O., 1969. Secondly, that the impugned order dated 31st July, 1986 was neither legal nor valid as the minimum number of votes required was not received by the Democratic Mazdoor Union. It was, therefore, prayed that the certificate of Collective Bargaining Agent issued in favour of that union be recalled and a further poll be ordered to be held.
5. The plea of infirmity, if any, in the application moved on 9-2-1986 was not pressed during the hearing of the appeal. Moreover, the appellant union having duly participated in the ballot can hardly raise that question at this stage.
6. Before examining the second point raised, we may first deal with the objection to the maintainability of the appeal taken on behalf of the Management. It was first urged in this connection, that section 22-D(1), did not provide for an appeal from an order determining a Collective Bargaining Agent, but permitted appeal only from an order determining a Collective Bargaining Unit. The fact that an appeal can A lie under section 22-D(1) from an order determining a C.B.U, cannot be taken to exclude an appeal from an order determining a C . B. A ., if such appeal could, otherwise, lie under that subsection.
7. It was, then, submitted that there being no provision for appeal from an order determining a C.B.A., to the Labour Court or the Tribunal, neither the Labour Court nor the Tribunal would have power to entertain or decide such appeal, if any, filed and that, therefore, as under section 22-D(2)
(b) a Full Bench of the Commission has the same power as the Labour Court or the Tribunal, the Full Bench, too, would have no power to entertain or decide such appeal.
8. In order to examine the contention, it may be useful to reproduce the entire section 22-D which is as follows: - 22-1.Appeals.--(1) Notwithstanding anything contained in this Ordinance, or in any other law for the time being in fore, any person aggrieved by an award or decision given or a sentence or order determining and certifying a collective bargaining unit passed by any Bench of the Commission, other than a Full Bench, may, within thirty days of such award, decision or sentence of order, prefer an appeal to the Commission.
(2)An appeal preferred toy the Commission under subsection (1) shall be disposed of by the Full Bench of the Commission, which shall, (a)if the appeal is from an order determining, and certifying a collective bargaining unit, have the power to confirm, set aside, vary or modify such an order; and (b)if the appeal relates to any other matter, have the same power in relation to the appeal as the Labour Court, the Tribunal or the High Court, as the case may be, would have had if the matter to which the appeal relates were a matter in relation to which an appeal can be preferred to the Labour Court, the Tribunal or the High Court.
9. In providing for appeal, a Statute normally (1) creates the right of appeal, (2) prescribes a forum for disposal of such appeal and (3) spells out the power which that forum can exercise in respect of the appeal. A reading of the above provision shows that subsection (1) creates a right of appeal in favour of any person who is aggrieved by (1) an award or (2) a decision given, or (3) a sentence or (4) an order determining and certifying a C. B. U., passed by any Bench of the Commission other than a Full Bench. This right has been made available "notwithstanding anything contained in this Ordinance or in any other law for the time being in force". In the presence of this non-obstante clause, the absence of a provision for appeal in respect of a particular matter to a Labour Court or Tribunal would have no bearing whatsoever on the right of appeal conferred under subsection B (1). And if the matter were to end here, there would be no difficulty in declaring the appeal to be maintainable if it otherwise passed the test of subsection (1).
10. However, in support of the contention, reliance has been placed on the provision of clause (b) of subsection ('?) of section 22-D. But as we will presently see, this is upon a misconception of that subsection. Subsection (2) only provides the forum, that is the Full Bench of the Commission and spells out the power exercisable by that Bench in disposing of the appeal. It begins with the words "An appeal preferred to the Commission under subsection (1) shall be disposed of by the Full Bench of the Commission". This would mean that once the appeal, has passed the test of subsection (1) then, it "shall be disposed of" by the Full Bench That Bench, as the appellate forum, shall have power specified in clauses (a) and (b). If the appeal be from an order determining and certifying a C .B .U . , the Full Bench will under clause (a), have the power to confirm, set aside, vary or modify the order.
Clause (b) which concerns, appeals relating to any of the other three matters namely; an "award" a "decision", or a "sentence" lays down that in such appeal the Full Bench will have the same power as the Labour Court etc., would have had if the matter to which the appeal relates were a matter in relation to which an appeal can be preferred to the Labour Court etc Clause (b), thus, defines and limits the power of the Full Bench in respect of appeals which relate to a matter in relation to which an appeal can lie before the Labour Court etc, and gives the Full Bench, in such appeals, the same power. Neither more nor less than that available to a Labour Court , a Tribunal or the High Court as the case may be. Appeals in respect of the said three matters may be of two categories viz. (1) relating to a matter in relation to which an appeal can lie before the Labour Court etc and (2) an appeal relating to a matter in relation to which an appeal cannot so lie to the Labour Court etc . The power conferred by clause (b) is in respect of the first category while it is silent as regards the second category. This implies that in respect of appeals in a matter in relation to which an appeal does not lie before the Labour Court etc. , the power of the Full Bench is neither defined nor does it suffer from any constraint. There is, therefore, no warrant for inferring from the provision of clause (b) that it provides an additional, test of maintainability by excluding an appeal relating to a matter in relation to which an appeal does not lie before the Labour Court etc
11. The arrangement of the subsections in section 22-D, too, is against any such construction. The creation of right of appeal is controlled entirely by subsection (1) which defines by whom and when an appeal could lie. This is further strengthened by the opening words of subsection (2). There is no indication whatsoever that after an appeal has passed the test of maintainability under subsection (1), it is to pass yet another such test under subsection (2). The purpose of clause (b) of subsection
(2) is not to lay down that if an appeal relates to a matter in relation to which an appeal does not lie before a Labour Court etc. , it would be incompetent. Any such interpretation would also render nugatory the effect of the non-obstante clause in subsection (1). Clause (b) does not more than to define the power of the Bench in respect of appeal from matters in relation to which an appeal can be preferred to a Labour Court etc , and does not concern an appeal from matters in relation to which an appeal cannot lie to a Labour Court etc . The contention of the Management, therefore, is without merit and is accordingly rejected.
12. If the test of maintainability is to be found is subsection (1), and I hold so, then all that the appellant has to do is to show that it is relates to one of the four matters specified in that subsection. Obviously, it does not relate to either an award, a sentence, or an order determining and certifying a C.B.U. We have, therefore, to see, as has been urged on behalf of the appellant, if it comes under the term "decision given". The word "decision" is not defined in the Ordinance.
According to the Shorter Oxford Dictionary, it means "the action of deciding (a contest, question, etc.), a Settlement determination or conclusion or judgment". According to Ballentinell's Law Dictionary, "decision" means "report of a conclusion reached, specially conclusion of a Court in the adjudication of a case or the conclusion reached in an arbitration". A "decision" is a judicial determining, of a dispute, the setting at rest of a controversy or the conclusion of a proceeding. The declaration of the result of the ballot and in consequence thereof, the determination and certifying of a Collective Bargaining Agent is definitely a decision g and a final one, too. The appeal, therefore, is fully covered by subsection (1) and as such is competent.
13. We may now advert to the second point raised by the appellant, which involves the question as to what is the date in relation to which a contesting union has to show that the votes received by it in the ballot are not less than one-third-of the total number of workmen employed in the establishment, as is required by the first Proviso to clause (e), subsection (9) of section 22. Under subsection (1) of this section, a trade union, which happens to be the only registered trade union in the establishment, is entitled to be certified as C . B.A provided "it has as its members not less than one-third of the total number of workmen employed in the establishment". Where there are more than one registered trade union, any such union can under subsection (2) apply for holding a secret ballot for determining the C. B. A. For the establishment, but no such application shall be competent unless the union has "as its members not less than one-third of the total number of workmen" employed in the establishment and where a ballot is held on such application, the successful union has under the first Proviso to subsection (9)(e), again to show that "the number of votes received by it is not less than one-third of the total number of workmen employed in the establishment". If no trade union secures the required number of votes, a second poll has to be held between the trade unions which secure the two highest number of votes in the first poll. It is thus, clear that in the case of sole registered trade union, it has under subsection (1) to command membership of at least one-third of the total number of workmen in the establishment and in the case of more than one such trade union, where a ballot has to be held, it has under subsection (9e) to secure votes not less than one-third of total number of workmen in the establishment. Since the term "Workmen" as defined in the Ordinance, is not restricted by any length of the period of employment, the provisions of subsection (1), subsection (2) and subsection (9)(e) are not to be confused with the provision of subsection (4). Under subsection (4), every employer shall, on being 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". Such list is relevant only for the preparation of the list of voters, who under subsection (5), have to be workmen, whose period of employment is inter alia not less than three months. The date of submission of the list of such workmen under subsection (4), and the list of voters prepared under subsection (5) have, therefore, no relevance to the point in controversy.
15. The date in relation to which the trade union has to demonstrate its membership of not less than one-third of the total number of workmen has not been specified either in subsection (1) , subsection (2) or subsection (9)(e). The relevant date would, therefore, be the one on which the trade union has to so demonstrate its strength and if this be not possible, then the most proximate date. So, when a trade Union makes an application for declaring it to be the C. B. A. Under subsection I (1) or applies for holding of secret ballot under subsection (2), the relevant date would be the date of the application. If any other date, prior or subsequent, were intended by the law, the same would obviously have been specified. That not having been done by the legislature, it is not warranted, by way of interpretation, to prescribe any other date. Similarly, the relevant date for the purpose of subsection (9e) would be the date on which the ballot takes place. As held by the Sind High Court in Pakistan Railway v. Junior Labour Court and others 1979 PLC 320 a workman as defined in the Ordinance is one who is employed in the establishment at the relevant time. The relevant time in the context of subsection (9e) cannot be other than the date of the ballot.
16. It could be argued that if the relevant date be the date of the ballot, the election can be manipulated and even subverted by the Management or by any of the contesting trade unions in collusion with the Management by hiring workmen only for a few days immediately before the polling for the purpose of influencing the ballot in favour of a particular trade union. It was, therefore, suggested that the relevant date should be some other date such as the date of making the application or if that be far remote, the date on which the list of voters is finalised. The fear expressed may be real. But fixing of any other date on this consideration will be a matter for the legislature. As far as the law, as at present, is concerned, I see no rule of interpretation which may guide such fixation. The words of the law have to be taken in their true sense and if the meaning be clear, we have to. Give effect I to the same. It is not for us to say what the law ought to be, but to ascertain and state what it is. In the case of a contest, the date of making the application under subsection (2) is not only remote but also has no bearing on the requirement of subsection (9)(e).
The requirement of membership of not less than one-third of the total number of workmen, under subsection (2) is relevant only to the competency of the application seeking the holding of a secret ballot. The trade union, which has J applied, may not poll the highest number of votes when the ballot is held. Under subsection (9)(e) it is the winning trade union which has to demonstrate that the votes it has received, are not less than one-third of the total number of workmen. This demonstration must of necessity be tied to date of the ballot. Where polling starts in the morning hours or the work in the establishment is closed on the polling day, the date immediately preceding would be the relevant date or the purpose. In the matter in hand as the election was held on 24-7-1986, the relevant date for the purpose would be the closing hours of 23-7-1986 and not any other date.
17. On this view of the matter, the impugned order which proceeds on the basis of the date of submission of list of workmen under subsection (4) i.e. 30-6-1986, cannot be allowed to stand and is accordingly set aside. As the number of votes received by the K.E.S.C Democratic Mazdoor Union is less than one-third of the total number of workmen employed in the establishment on 23-7-1986, the certificate of C.B.A. Issued in its favour is recalled and it is directed that a second poll be held between the trade unions which secured the two highest numbers of votes in the first poll, as provided in the second Proviso to clause (e) of subsection (9) of section 22 of the Industrial Relations Ordinance, 1969.