M.S.H. QURAISHI (CHAIRMAN).--This appeal questions the decision of a Bench about challenged votes cast in the referendum held in the establishment of House Building Finance Corporation (HBFC), Islamabad Zone. The appellant namely House Building Finance Corporation Employees Union had been a Collective Bargaining Agent for the Establishment. On the application of House Building Finance Corporation Workers Union (respondent No. 2) for determining the C. B. A. , Mr. Mahmood Akhtar, Member of this Commission, exercising powers of Registrar, directed, on 12-1- 1986 the holding of a secret ballot for the purpose and in this connection authorised Mr. Dawood Ahmed Malik, Assistant Director, Labour Welfare, Islamabad under section 22(13) of I.R.O. 1969 "to perform all the functions of Registrar Trade Unions for the aforesaid secret ballot in the House Building Finance Corporation". The latter held a meeting, on 31-3-1986 for finalising the list of voters for the secret ballot in which the following two objections were raised by the Respondent Union--- (1)12 workers posted in Northern Areas should not be included in the list of voters.
(2)12 workers, whose list had been annexed by them, should be excluded from the list of voters as their service had been less than 90 days.
The Assistant Director after hearing that parties overruled the objections by his order passed the same day. The respondent-Union challenged the order by an application moved before the Senior Member (Mr. S. Rais Ahmed Jafri). That application was disposed of on 6-4-1986 with the observation that Assistant Director could not permit such workers as are not members of any contesting Union to cast their votes and that he should held the secret ballot strictly on the basis of a list which should be prepared in accordance with the provisions of section 22(5) of the Industrial Relations Ordinance, 1969. In regard to the workers posted in the Northern Areas, the learned Senior Member did not consider himself competent to reopen the decision already made in exercise of powers of Registrar.
2. The matter rested at that until 10-4-1986 when the referendum was held. In the ballot, 18 votes were challenged by respondent No. 2 but before the Assistant Director could give a decision, respondent No. 2 made an application, on 14-4-1986 before Mr. Mahmood Akhtar, Member, praying that the challenged votes be rejected and may not be included in the count. Four issues were framed which were disposed of by the learned Member by his impugned order, dated 4-6-1986. On the relevant issue which was issue No. 4 and which concerned 12 votes cast by workers posted in Northern Areas it was held that as the I.R.0 did not extend to Northern areas, their votes were to be rejected. In the end, the Assistant Director was asked to declare the result in accordance with this order.
3. The point urged before us concerns the legality rof the decision by the Bench in regard to the votes of workers posted in Northern Areas. It was submitted in this connection that the decision was a nullity as Mr. Mahmood Akhtar having delegated, under section 22(13), his powers as Registrar to the Assistant Director, could not himself adjudicate upon the matter, that the respondent having unsuccessfully petitioned earlier before Mr. S. Rais Ahmad Jafri, Senior Member and having acquiesced in his decision and thereafter having participated in the referendum, could not reagitate the matter a second time and that, in any case, the matter was to be decided by the Polling Officer under Regulation 16(18) whose decision was binding. This was contested by learned counsel for respondent No.2 who relying on the wording of subsection (13) of section 22 urged that by authorising the Assistant Director to perform all or any of his functions, the Registrar was not denuded of his own power as Registrar to render decision on controvertial questions and that the Assistant Director ought to have referred all questions requiring a decision, to him.
4. We need not go into all these contentions because a reference to Regulation 16(18) of the N.I.R.C.
(Procedure and Functions) Regulations, 1973, readily helps to resolve the controversy. This provision reads: - (18)Invalid ballot-papers.--The Polling Officer shall give a decision about challenged votes at the spot and the decision shall be binding on the contesting trade unions.
It is obvious that a decision on the challenged votes is to be given by the Polling Officer which was binding on the contesting unions. That being so, it was not open to any functionary except the Polling Officer A to deal with the matter. The petition before the Bench was, therefore, misconceived and--- was not entertainable and the decision thereon is liable to be se aside as a nullity.
5. Before parting however, we may mention that another point taken on behalf of respondent No.2 was in regard to the maintainability of the appeal, on the ground that the impugned order was not a decision within the meaning of section 22-D, nor was there any other provision in the I.R.O. 1969 to warrant the filing of such appeal against the order of Registrar, Trade Unions, whose powers the Bench had been performing. This was contested by the appellant who maintained that the impugned order constituted a 'decision' within the meaning of section 22-D. We do not feel inclined to go into this question which may be B examined in a more appropriate case where better assistance is available on the general question of appealability of decision of a Bench exercising powers of Registrar.
6. We would, therefore, set aside the impugned order as regards the decision in respect of votes of the workers of the Northern Areas and send the case back to the Polling Officer concerned for a decision C under Regulation 16(18) on these votes which had been challenged before him.