1. ' ABDUL KADIR SHAIKH, J.--This case pertains to the election of Collective Bargaining Agent (C.B.A.) of Karachi Electric Supply Corporation Limited, respondent 5 (hereinafter to be referred for the sake of brevity as "Establishment") which has four Unions namely:
(1) K.E.S.C. Democratic Mazdoor Union (hereinafter to be referred as petitioner).
(2) K.E.S.C. Labour Union (hereinafter to be referred as respondent 3).
(3) K.E.S.C. Progressive Workers Union (hereinafter to be referred as respondent 4).
(4) National Association of Power K.E.S.C. Employees Union (hereinafter to be referred as respondent 6).
2. ' Out of these four unions, respondent 4 union made an application, dated 15-12-1985 to National Industrial Relations Commission, respondent-1, (hereinafter to be referred as "Commission") under section 52(2) of Industiial Relations Ordinance, 1969 (I.R.O.) for determination of C.BA. For the Establishment. It is the admitted position before us that K.E.S.C. Ltd. (Establishment) is an interprovincial industry and the trade unions are industrywise trade unions, and the determination of the C.BA. For the Establishment was within the scope of the powers of the Commission by virtue of the provisions of section 22(A) of I.R.O. And thus the application of the respondent-4 was properly made.
3. ' After the application was received the Deputy Registrar, respondent 2 (hereinafter to be referred as Deputy Registrar), on being authorised in this behalf by the Senior Member of the Commission, he made necessary scrutiny under the procedure laid down under section 22 of the I.O.R. And then called upon the Establishment to submit a list of workers in terms of subsection (4) of section 22 of I.R.O. The Deputy Registrar after verifying the list submitted by the four trade unions in terms of subsection (5) of section 22 of I.R.O., prepared a list of voters employed with the Establishment as on 30th June, 1986 and supplied copies thereof to all the contesting trade unions on 19th July, 1986.
4. It is also admitted position before us that the above list of voters was prepared on the basis of list of workers supplied by the Establishment which showed that the total number of workers employed in the Establishment as on 30th June, 1986 was 10,690.
5. ' At the result of the polls, which was held on 24th July, 1986, the position of the contesting trade unions was as under: ' K.E.S.C. Democratic Mazdoor Union 3601 Votes ' K.E.S.C. Labour Union 3228 Votes ' K.E.S.C. Progressive Workers Union 1781 Votes ' National Association of Power K.E.S.C. Employees Union 4 Votes ' The Deputy Registrar then conducted scrutiny of the total number of voters in terms of the First Proviso of Clause (e) of subsection (9) of Section 22 of the Ordinance, and on being satisfied that petitioner Union had the requisite number of one-third of the total number of workmen employed in the Establishment as on 30th June, 1986 issued a certificate to this effect under the provision of clause (e) of subsection (9) of section 22 of the Ordinance.
6. ' It may be mentioned at this stage that a question arose before the Deputy Registrar as to the date in relation to which the requirement of First Proviso of clause (e) of subsection (9) of section 22 of I.R.O., that is, of petitioner having received votes not less than one-third of the total number of workmen employed in the Establishment was to be fulfilled. Learned Deputy Registrar held that the relevant date was 30th June, 1986 on which the voters' list has been finalised, and not 23rd July, 1986, the day before the date of the Poll.
7. ' Being aggrieved by the issue of the above certificate, respondent-3 Union filed an appeal under section 22-D of I.R.O., to a Full Bench of the National Industrial Relations Commission. The main controversy that rose before the Commission was whether the number of votes secured by the petitioner were less than one-third of the total workmen employed by the Establishment. As admittedly petitioner secured the requisite number of one-third of the total number of workmen employed by the Establishment as on 30th June, 1986, the real question was with regard to the date in relation to which the Trade Union is to demonstrate its membership of not less than one- third of the total number of workmen. It may be mentioned that subsection (1), subsection (2) or subsection (9)(e) does not specify the date in relation to which the Trade Union is to demonstrate the requisite number of its membership. In this regard the Commission took the following view: ' 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 demonstrate its strength and if this be not possible, then the most approximate date. So, when a trade union makes an application for declaring it to be the C.B.A. Under subsection
(1) or applies for holding the 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 (9)(e) 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 contest of subsection (9)(e) cannot be other than the date of the ballot.
8. ' 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 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 contest, the date of making the application under subsection (2) in not only remote but also has no bearing on the requirement of subsection (9)(e).
9. 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 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 for 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."
10. ' On this view of the case, the Commission held that the impugned order which proceeds on the basis of submission of the list of workmen under subsection (5) i,e. 30th June, 1986, cannot be allowed to stand and it was accordingly set aside. As a result the Commission recalled the certificate, and directed that a second poll be held between the trade unions which secured the two highest number of votes in the first poll as provided in the Second Proviso to clause (e) of subsection (9) of section 22 of the I.R.O.
11. ' It may be mentioned that a plea was taken before the Commission that the appeal filed before it was not maintainable, but it was rejected.
12. ' The order of the Commission was challenged by the petitioner in a Constitution Petition in Sind High Court on the grounds that the appeal before the Commission was not competent and also that the view that had prevailed with the Commission with regard to the crucial date for determining the requisite one-third number of votes secured by the Trade Union having polled the highest votes is not to be the date of immediately before the poll, but the date on which voters list is finalised on the basis of list of workmen supplied by the Establishment under the provisions of section 22 (4) of the Act, (Ordinance) and which forms the basis for the preparation of the voters list in terms of subsection (5).
13. ' On the first point raised by the appellant, learned Judges of the Division Bench of the High Court who heard the Constitution petition took the view that the appeal against the Certificate of Collective Bargaining Agent issued under section 22(9)(e) of I.R.O. Is not competent as Certificate is a mere declaration, and it does not amount to an Award or Decision in the meaning of section 22- D-(i) of the Ordinance. Having taken this view, learned Judges however fully agreed with order of the Commission recalling the Certificate issued in appellant's favour and dismissed the petition, subject to the modification that a fresh poll among all the contesting trade unions shall be held for the purpose of determining the Collective Bargaining Agent. It is in these circumstances that petitioner filed this petition for leave to appeal from the judgment of the High Court.
14. ' Mr. Khalid M. Ishaque, learned counsel appearing in support of the petition raised several pleas before us, foremost being that once the High Court held that no appeal was competent before the Full Bench of the Commission, it should have allowed the petition, without going further into the matter with regard to the validity of the Certificate of Collective Bargaining Agent issued to the petitioner, on merits of the case. Learned counsel submitted that the High Court erred in reaching the conclusion that the relevant date for the purpose of proving of entitlement of the petitioner to be the Bargaining Agent was 23rd July 1986, when the provisions of section 22 of I.R.O. Point to the contrary direction. In this regard, learned counsel urged that the interpretation placed by the High Court is not only contrary to the statute, but is also contrary to the objectives of the labour laws, for the employer would then be able to prevent every successful trade union not to his liking, from becoming Collective Bargaining Agent by hiring temporary workers or apprentices just before the date of the poll. In such circumstances the will of the voters would be defeated by the will of the employer, by increasing or decreasing the number of apprentices in the Establishment.
15. In the light of the argument addressed at the Bar, the crucial question that arose was regarding the date in relation to which the trade union which has received the highest number of votes has to demonstrate that the number of votes secured by it in the ballot held for determination of Collective Bargaining Agent was not less then one-third of the total number of workmen employed in the Establishment as required by the First Proviso of Section 22(9) (e) of the I.R.O. In order to determine this question it is necessary to refer to the Scheme underlined by the legislature in section 22 of the I.R.O. Which reads as under: "22. Collective Bargaining Agent.
(1) Where there is only one registered trade union in an establishment or a group of establishments, that trade union shall, if it has as its members not less than one-third of the total number of workmen employed in such establishment or group of establishments (upon an application made in this behalf be certified by the Registrar in the prescribed manner) to be collective bargaining agent for such establishment or group.
(2) Where there are more 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, (or the Government) hold within fifteen .Days from the making of the application) a secret ballot to determine as to which one of such trade unions shall be the collective bargaining agent for the establishment or group: ' (Provided that the Registrar may, in the case of a large establishment having its branches in more than one town, hold the secret ballot within thirty days from the making of the application): ' (Provided further that the Registrar shall not entertain any application under this subsection in respect of an establishment or group of establishments, consisting of, or including, a seasonal factory within the meaning of section 4 of the Factories Act, 1934 (XXV, of 1934), unless such application is made during the month in which the number of workmen employed in such factory in a year is usually the maximum).
(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 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 time specified in the notice a list of its members showing, in respect of each member, his parentage, age, the section of 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 member they said particulars.
(4) Every employee shall--
(a) on being so required by the Registrar, submit a list of all workmen employed in the stablishment 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 he is employed, his ticket number and the date of his employment in the establishment; and
(b) provide such facilities for verification of the list submitted by him and the trade unions as the Registrar may require: ' (Provided that in computing the period of three months referred to in clause (a) in the case of a workman employed in a seasonal factory within the meaning of section 4 of the Factories Act, 1934, (XXV of 1934), the period during which he was employed in that factory cluing the preceding season shall also be taken into account).
(5) The Registrar shall, after verification of the lists submitted by the trade unions, prepare a list of voters in which shall be included the name of every workman whose period of employment (as computed in accordance with subsection (4) 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 conduct of the poll but shall not interfere with, or in any way, influence, the voting.
(8) No person shall canvass 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 of 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 may be present, open the ballot-boxes and count the votes; and
(e) after the conclusion of the count (certify) the trade union which has received the highest numbers of votes to be the collective bargaining agent: ' Provided that no trade union shall be (certified) to be collective bargaining agent for an establishment or group of establishments unless the number of votes received by it is not less than one-third of the total number of workmen employed in such establishment or group: ' Provided further that, if no trade union secures such number of votes in the first poll, a second poll shall be held between the trade unions which secured the two highest numbers of votes in the first poll and the trade union which secures a majority of the votes cast at that second poll shall be certified in the prescribed manner to be the collective bargaining agent: ' Provided further that, if the number of votes secured by two or more trade unions securing the highest number of votes is equal, further poll shall be held between them until one of them secures a majority of the votes cast at such further poll.
16. As observed earlier, there is no provision under the Scheme of section 22 of the Ordinance for the preparation or submission of any list of voters except the one under subsection (5). If, therefore, the Trade Union having received the highest number of votes has to demonstrate that the number of votes secured by it in the secret ballot is not less than one-third of the total number of workmen employed in the Establishment, there is no escape from the conclusion that there can be no other list of voters other. Than the one aforesaid. This interpretation flows from the language of section 22 of the Ordinacne itself, if read as a whole. Any other interpretation or the one that found favour with the Commission and the High Court that the date in relation to which the Trade Union is to demonstrate itself membership of not less than one-third of the total number of workmen is to be one day earlier than the poll would be open to great mischief, for, the employer would then be able to frustrate or defeat every successful Trade Union from being declared as the Collective Bargaining Agent by hiring temporary workers or apprentices just before the date of poll. In that situation, the will of the employer will surely defeat the will of the voters.
17. ' It is the admitted position that petitioner Union successfully secured the requisite number of votes of not being less than one-third of the total number of workmen employed in the Establishment on 30th June, 1986. The Deputy Registrar, therefore, very rightly declared the petitioner Union as duly elected and certified it to be the Collective Bargaining Agent.
18. ' On this view of the case, we would not like to embark upon the question whether the appeal before the Commission was competent or not since the conclusion reached by us should, in our opinion, cover the fate of the controversy between the parties before us.
19. ' For these reasons, this petition is converted into an appeal and the appeal is allowed and the impugned judgment of the High Court, dated 28-3-1987 and also order of the National Industrial Relations Commission, dated 23-11-1986 are set aside with the result that the Certificate of Collective Bargaining Agent, dated 31-7-1986, issued by the Deputy Registrar of the Commission certifying the appellant as the Collective Bargaining Agent under section 22(9)(e) of the I.R.O.
20. Stands restored. The parties are left to bear their own costs.