FAKHRUDDIN G. EBRAHIM, J.-The petitioner is a registered Trade Union (hereinafter called the Employees Union), of the workmen employed in the Sind Industrial Trading Estates Ltd., the respondent No. 3 herein, since 15th January 1968. The respondent No. 2 is also a registered Trade Union (hereinafter called the Workers' Union) of the workmen employed in the said respondent No. 3 company and came into existence in May 1972.
2. Can 24th June 1972 the Workers. Union applied to the Registrar of Trade Unions, the respondent No. 1 herein, to hold a secret ballot under section 22 of the Industrial Relations Ordinance 1969, to determine as to which one of the said Trade Unions shall be the collective bargaining agent for the-establish--ment of respondent No. 3. It is alleged that the Registrar of the Trade Unions did not, as he was so bound under clause (a) of subsection (3) of section 22 of the said Ordinance, issue any notice to the Employees Union to indicate whether it desired to be a contestant in the secret ballot to be held for determining the collective bargaining agent. It. is further alleged that one Ghulam Akbar Shaikh submitted a written application to the Registrar of Trade Unions stating that the Employees' Union did not desire to contest the elections but it is said that he had no authority to make any such application to the Registrar of Trade Unions. Following the statement made by the said Ghulam Akbar Shaikh, the Registrar issued a certificate dated 17th August 1972 declaring the Workers' Union to be the collective bargaining agent of the respondent No. 3 establishment under section 22 of the said Ordinance. The Employees' Union then go on to allege that they carne to know of this certificate on 19th August 1972 and on the same day a representation was made on their behalf to the Registrar informing him that the said Ghulam Akbar Shaikh did not represent them and was not authorised by the Employees' Union in any way, to withdraw from the polls. 7his representation was accepted by the Registrar, who by his letter dated 21st August 1972 addressed to the Workers' Union, with a copy to the Employees' Union, withdrew the said certificate of collective bargaining agent. A copy of this letter was also endorsed in favour of respondent No. 3 for information with reference to their letter, dated buy August 1972. This letter dated 21st August 1972 was again withdrawn by the Registrar by his letter dated 5th September 1972 and the Workers'
Union informed that it continued to enjoy the status of the collective bargaining agent. A copy of this letter was forwarded to the Employees' Union.
3. In the present petition the Employees' Union has challenged this letter dated 21st August 1972 and their main contention is that the Registrar has acted illegally and in con--travention of the provisions of section 22 of the said Ordinance in declaring the Workers' Union as the collective bargaining agent.
4. Before I come to the detailed contentions of the parties I may refer to certain other facts on which reliance has been placed by Mr. Nizam Ahmed, the learned counsel for the Workers' Union.
The case of the Workers' Union is that follow--ing the letter dated 24th June 1972 addressed by them to the Registrar of Trade Unions, the latter addressed identical letters dated 5th of July 1972 to both the Unions requiring them to indicate whether the Unions desired to be a contestant to the secret ballot being held for determining the collective bargaining registrar agent for the workmen employed in the establishment of respondents No. 3 and if so, to submit a lost of their members in accordance with clause (6) of subsection (3) of section 22 of the said Ordinance, within seven days, failing which it will be presumed that the Union did not desire to be a contestant and the matter will be decided accordingly. As no reply was received from either Union a reminder letter dated 19th of July 1972 was, addressed to both the Unions giving them further seven days time to comply with the requirements of law as aforesaid. In response to this reminder, the Workers' Union submitted the information sought while no reply was made by the Employees Union. A further reminder dated 7th of August 1972 was addressed to the Employees' Union by the Registrar in response to which the said Ghulam Akbar Shaikh, who was then admittedly General Secretary of the Employees' Union, appeared before the Registrar and informed the Registrar In writing dated 8th of August 1972 that the Employees' Union did not desire to participate in the secret ballot for determining collective bargaining agent. Consequently, the Registrar issued the certificate dated 17th August 1972 in favour of the Workers Union declaring it the collective bargaining agent of or the respondent No. 3 establishment.
5. As the Employees' Union had in its petition denied receipt of any communication whatsoever from the Registrar and, therefore, necessarily the aforesaid three letters referred to by Mr. Nizam Ahmed on behalf of the Workers' Union, we by an order dated 21st of December 19'12 directed summons to be issued to the Registrar of Trade Unions, who has not filed appearance in this matter and is not contesting the proceedings, to produce the relevant files on the next day. We requested the learned Additional Advocate-General who was present in Court to kindly see that the files are produced. He was good enough to do the needful and the files were accordingly received by the Court on the next day. On examination of the files it was found that the letter, dated 5th July 1972 addressed by theRegistrar to both the Unions, wag, on behalf of the Employees Union, received through open delivery by the General Secretary of the Employees' Union the said Ghulam Akbar Shaikh. The record do not show any letter dated 19th July 1972 addressed to the Unions as contended by Mr. Nizam Ahmed. The record, however, do show that another letter dated 24th of July 1972 being a reminder to the earlier letter dated 5th July 1972 was sent under registered A/D covers to both the unions but there is on the record neither any postal receipt nor acknowledgment due from the Employees' Union. The record also includes a third notice dated 7th August 1972 addressed to the Employees' Union which is again a reminder but there is no endorsement on the duplicate copy on the file as to how it was despatched and to whom it was delivered. In response to this letter, however, the said Ghulam Akbar Shaikh appeared and made a ---written reply that "being General Secretary of the Union beg to inform the Registrar that our Union will not participate in the secret ballot for determining the collective bargaining agent."
6. The questions that arises for consideration in the present case are, the power and authority the said Ghulam Akbar Shaikh to take the decision not to contest the poll as Intimated by him to the Registrar of Trade Unions by his letter dated 8th of August 1972, and the legality of the certificate granted by the Registrar certifying the Workers' Union as the collective bargaining agent for the establishment of respondent No. 3.
7. Mr. Saifuddin Channa, the learned counsel for the Employees' Union invited our attention to the Constitution of the Employees Union and in particular its Articles I l(a), 12(3) and 13(d) to show that the General Secretary had no power or authority to take any policy decision and as in the present case his decision not to contest the poll as communicated by him, was in fact a poi cy decision for it would result in efacement of the Employees' Union. I have examined the Constitution and the said Articles and find no warrant to support the conclusion that the General Secretary had the power to decide the question of participation in the poll to determine the collective bargaining agent. Such a decision, if in the negative would result in making the Employees' Union totally redundent for all practical purposes and in my opinion such a decision could have been taken only by the Executive Board of the Union under Article 12(3) of its Constitution. Faced with this situation Mr. Nizam Ahmed, the learned counsel for the Workers' Union contended that the Employees' Union having failed to indicate to the Registrar of Trade Unions its desire to be a contestant to a secret ballot to be held for determining the collective bargaining agent and to submit its list of members as required by clauses (a) and (b) of subsection (3) of section 22 of the said Ordinance, the Registrar had no alternative but to declare the Workers' Union, being the only other registered Trade Union in the establishment, as the collective bargaining agent. For this purpose the learned counsel relied on three letters dated 5th of July 1972, 19th of July 1972 and 7th of August 1972. I have already dealt with these letters earlier. The best that can be said in favour of the Workers' Union is that the letters dated 5th of July 1972 and 7th of August 1972 were received by the said. Ghulam Akbar Shaikh, the General Secretary of the Employees Union from the Registrar of Trade Unions. There is, however, nothing on record to show that the3e letters, addressed to the Employees' Union by the Registrar, were ever placed before the Executive Board of the Employees' Union for its consideration or that the Employees' Union was a party to the decision taken and communicated by its General Secretary, the said Ghulam Akbar Shaikh: that the Union did not Intend to participate in the poll. To- my mind these letters cannot prejudice the Employees' Union.
8. Mr. Channa next contended that even if it be assume that the Employees' Union failed to respond to the aforesaid two letters of the Registrar of Trade Unions dated 5th July 1972 and 7th of August 1972 it would not. In law, automatically follow that the Workers' Union can be declared as a collective bargaining agent without a poll. He relied on section 22 of the said ordinance, which provides for determination of collective bargaining agent. I may, therefore, proceed to analyse this section. Sub3ectlon (1) of section 22 provides for determination of collective bargaining agent in an establishment where there is only one registered Trade Union. Such an Union if it has as its members not less than one-third of the total number of workmen employed in the establishment, is deemed to be the collective bargaining agent for such an establishment. Subsection (2) deals with a situation where there are, in an establishment, plurality of registered Trade Unions. Under this subsection the Registrar of Trade Unions is bound to hold a secret ballot to determine as to which one of the several Trade Unions shall be the collective bargaining agent, on receipt of an application made in this behalf by any one or mot.- of the registered Trade Unions to the, establishment, provided however, that the Union making the request has as its members not less than one-third of the total number ~f workmen employed in such an establishment. Sub--section ( ) provides that on receipt of the request referred to in subsection (2) the Registrar shall in writing call upon every registered Trade Union in the establishment to indicate its desire to be a contestant in the secret ballot to be held for determining the collective bargaining agent for such a establishment and if it so desires, to submit to him within the time specified in the notice a list of its members with particulars specified in clause (b) of subsection (3). Subsection (4) empowers the Registrar to call upon the employer to submit a list of workmen in its establishment with the particulars specified therein but excluding those t-- hose period of employment in the establish meat is less than three months. The lists submitted by the Trade Unions are to be verified by the Registrar under sub--section (5) and after verification he must proceed to prepare a list of voters in which are to be included the names of every workmen whose period of employment is not less than three months and who is a member of any of the contesting Trade Unions. Under subsection
(6) every Workman who is a member of any of the contesting Trade Unions and whose name appears in the list of voters prepared by the Registrar under subsection (5) is entitled to vote at the poll to determine the collective bargaining agent. Subsections (7), (8) and (9) go on to provide the pro--cedure for holding the secret ballot. Relevant for our purpose6 are clauses (d) and (e) of subsection (9) which provide that the Registrar shall after the conclusion of the poll open the ballot boxes and count the votes in presence of such representative of the contesting Trade Unions as may be present and declare the Trade Union which has received the highest number of vote to be the collective bargaining agent, provided however, that no Trade Union is to be declared as the collective bargaining agent for an establishment unions the number of votes received by it is not 1943 than one-third of the; total n ember of workmen employed fn such an establishment.
9. It maybe noticed that the section does not provide for grant of any formal certificate of collective bargaining agent to a registered Union in an establishment has as its members not less than one- third of the total number of workmen employed In the establishment, such an union is deemed to be the collective bargaining agent i if there is more than one registered Trade Union, the Union which receives at the conclusion of the poll the highest number of votes is declared to be the collective bargaining agent. Again, in the case of a single 'Trade Union the only requirement is possessing membership of not less than rune-third of the workmen employed in the establishment irrespective of their period of employment, while in the case of plurality of the Unions the workmen who have not completed three months employment, notwithstanding that they are members of one or the other Union, are excluded from voting. Again In the case of a poll where there are plurality of Unions, the Union receiving the highest number of votes is not to be declared the collective bargaining agent unless it has received votes in Its B favour from at least one-third of the total number of workmen employed in the establishment. It would, therefore, follow that even if a Trade Union tails to respond to a notice received from the Registrar under subsection (3) of section 22 and in particular fails to indicate to the Registrar its desire to be a contestant in the secret ballot, the poll must necessarily be held In accordance with the procedure laid down in section 22 of the Ordinance as no Trade Union can be declared as the collective bargaining agent, even if it Is the only contestant at the poll, unless the number of votes received by it are not less than one-third of the total number of workmen employed in the establishment. In the present case the Registrar declared the Workers' Union as the collective bargaining agent without holding a secret ballot, though there was more than one registered Trade Union in the establishment. I am, therefore, of the opinion that the grant of certificate p dated 17th of August 1972 by the Registrar of Trade Unions certifying the Workers' Union as the collective bargaining agent is without legal authority and of no legal effect. I will further direct the Registrar to hold a secret ballot for determining the collective bargaining agent for the establishment of respondent No. 3 in accordance with section 22 of the said Ordinance.
10. In the circumstances of the case there will be no order as to cost.
TUFAIL ALI A. RAHMAN. C. J.-I agree.