' MAMOON KAZI, J.---The appellants in this case, namely International Industries Awami Labour Union and International Industries People Labour Union had applied to the Registrar of Trade Unions, Government of Sindh, the respondent No,6 in these appeals, for their registration in connection with the establishment known as International Industries Limited, the respondent No, 4 in these appeals. When the applications of the appellants were pending for registration before respondent No, 6, respondent No,1 applied to him for determination of collective bargaining agent for the said establishment (respondent No,4) and as none of the trade unions already registered in connection with the said establishment indicated its desire to contest the ballot, a Certificate of Collective Bargaining Agent was issued by the said respondent to respondent No, 1 on 6-2-1989 under subsection (9-a) of section 22 of the Industrial Relations Ordinance, 1969 (hereinafter referred to as "the I.R.O."). After a certificate of registration was granted to the appellants by respondent No, 6, they applied to the Registrar under section 22(2) of the I.R.O. For determination of the Collective Bargaining Agent for the worker s employed by respondent No, 4 by holding the requisite referendum/ballot in this regard. The respondent No, 6 thereafter commenced proceedings in pursuance of the request made by the appellants but respondent No, 1 filed a petition in this Court, being Constitutional Petition No, S-34/90, challenging the referendum proceedings initiated by respondent No,
6. The contention raised on behalf of the said respondent was that subsection (10) of section 22 of the I.R.O. Placed an embargo for two years on determination of collective bargaining agent once the same has been certified by the Registrar.
The said petition was granted by a learned Single Judge of this Court vide his judgment dated 23- 6-1990 declaring that the initiation of referendum proceedings by respondent No, 6 was without lawful authority and of no legal effect. The reasons which weighed with the learned Single Judge of this Court, who decided the petition, were stated by him as follows:-- "The point for consideration is that certificate issued to the petitioner is valid for a period of two years or not. This point has been considered by me in unreported judgment dated 21-12-1989 in Constitutional Petition No, S-84 of 1989, Duty Free Shops Staff Union v. Registrar of Trade Unions and 3 others in which I have come to the conclusion after giving cogent reasons, which are fully supported by the decision reported in PLD 1976 Lah. 721 that subsection (9-a) of section 22 is, in pith and substance, in the nature of a fourth proviso to clause (e) of subsection (9) of section 22 of the Ordinance, the certificate can, therefore, be treated to be a certificate within the meaning of clause
(e) of subsection (9) of section 22.
"In the instant case, there were two unions. The petitioner had applied for holding referendum proceedings upon receipt of the application, the Registrar of Trade Unions had by notice in writing, called on the other unions to indicate whether they desired to be contestants in the secret ballot to be held for determining the CBA in respect of establishment of respondent No,
4. As there was no indication that the said Union desired to contest, the Registrar issued the certificate under subsection (9-a) of section 22 of the Ordinance. This certificate is valid for a period of two years with effect from 6-2-1990. In that view of the matter the Registrar has no jurisdiction to initiate referendum proceedings. The decision cited by Mr. Ali Amjad is not relevant in the instant case. I am in respectful agreement with my decision."
2. The said decision has now been impugned before us in these High Court Appeals.
3. We have heard Mr. Ali Amjad and Mr. Mirza Muhammad Kazim learned counsel for the appellants and Mr. M.L. Shahani and Mr. A.R. Mirza, learned counsel for the respondents.
4. The main contention of the learned counsel for the appellants before us has been that the embargo of two years, placed by subsection (10) of section 22 of the I.R.O. Is applicable only to such trade union which has been certified as a collective bargaining agent after holding of a secret ballot as contemplated by such section 9(e) of section 22, but the same cannot apply to a trade union certified as such under subsection (9a) of the I.R.O. Consequently, according to the learned counsel, the learned Single Judge has committed an obvious error by applying the said embargo in the present case. Reliance was placed by the learned counsel on Pioneer Steel Mills Employees Union v. Presiding Officer, Labour Court, Lahore and 4 others (1982 PLC 256) and an unreported judgment of this Court in C.P. No, S-95/85, decided on 20-3-1986. Mr. M.L. Shahani, learned counsel for respondent No, 1, who alone has addressed us on behalf of the respondents in this case has, on the other hand, fully supported the impugned order. Reliance has been placed by him upon the case of Mahmood Textile Mills Workers' Union v. The Registrar of Trade Unions, Multan Region (PLD 1976 Lah. 721) and an unreported judgment earlier given by the same learned Judge of this Court in C.P. No,S-84/89,' decided on 21-12-1989.
5. Since the entire controversy revolves around the provisions of section 22 of the I.R.O., it is pertinent to first reproduce the relevant provisions of the said section, which are as follows:-- "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 employers or the Government, hold within 15 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 30 days from the making of the application: ' Provided further that the Registrar shall not entertain any application under the 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) .............................
(4)
(5) ..
(6) ...............................................................
(7) ...............................................
(8) ...............................................................
(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 poll so placed in the Polling Station set up for the purpose the ballot boxes which shall be sealed in the presence of 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 number of votes to be collective bargaining agent: ' Provided that no trade union shall be certified to be the 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 secure the two highest numbers of votes in the first poll and the trade union which secure a majority of the votes cast at the 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.
(9a) If no trade union indicates under clause (a) of subsection (3) that it desired to be a contestant in the secret ballot, the Registrar shall certify the trade union which has made the application under subsection (2) to be the collective bargaining agent;
(10) Where a registered trade union has been certified under clause (e) of subsection (9) to be the collective bargaining agent for an establishment or group of establishments, no application for the determination of the collective bargaining agent for such establishment or group shall be entertained within a period of two years from the date of such certification except where the registration of such a registered trade union is cancelled before the expiration of that period.
6. A perusal of the relevant provisions of section 22, just reproduced by us, shows that where there is only one registered trade union in an establishment or group of establishments, as the case may be, and 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, the same is to be certified as a collective bargaining agent for such establishment or group. However, subsection (2) of section 22 further shows that where there are more registered trade unions than one in an establishment or group of establishments, then subject to the other conditions laid down in the said subsection, the Registrar has to 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. Clause (e) of subsection (9) further shows that when a secret ballot has been held, the Registrar, after conclusion of the count, shall certify the trade union which has received the highest number of votes to be the Collective Bargaining Agent.
Subsection (9)(e) has been further made subject to the provisos occurring therein, but with that we are not concerned in the present case. However, subsection (9)(a) further indicates that if no trade union indicates that it desires to be a contestant in the secret ballot, the Registrar has to certify the trade union which has made the application under subsection (2) of section 22, to be the Collective Bargaining Agent. It is once again pertinent to point out that respondent No, 1 was certified as Collective Bargaining Agent under the provisions of the said subsection. Subsection (10) of section 22, upon which the learned counsel for the respondent has mainly relied, further provides that where a registered trade union has been certified under clause (e) of subsection (9) to be the Collective Bargaining Agent, no application for determination of the Collective Bargaining Agent shall be entertained within a period of two years from the date of such certification, except where the registration of such registered trade union is cancelled before the expiration of that period. In Mahmood Textile Mills Workers' Union v. The Registrar of Trade Unions, Multan Region referred to earlier in this judgment, a question arose before a learned Single Judge of the Lahore High Court, whether the 'embargo placed on trade unions certified under subsection (9)(e) of section 22 would also apply to trade unions certified under subsection (9-a) of the said section and it was held that:- "I.4. After hearing the learned counsel for the parties and carefully examining the provisions of section 22 of the Industrial Relations Ordinance, I have reached the conclusion that subsection (9- a) of section 22 of the Industrial Relations Ordinance is, in pith and substance, in the nature of a fourth proviso to clause (e) of subsection (9) and can be read as such, even though numbered as subsection (9a) of section 22 of the I.R.O. The certification of respondent No, 2 can, therefore, be treated to be a certification within the meaning of clause (e) of subsection (9) of section 22 of the I.R.O."
' This case was relied upon by the same learned Judge who has now passed the impugned judgment in C.P. No, S-84/89 (Duty Free Shops Staff Union v. Registrar of Trade Unions and others), decided on 21-12-1989. However, the same question was also dealt with by another learned Single Juge of this Court in C.P. No, S-95/85 (General Refractories Progressive Workers Union v. The Registrar of Trade Unions and another), decided on 20-3-1986 but a completely contrary view was taken in this case as would appear from the following observations made therein by the learned single Judge:- "Provisions of subsection (10) of section 22 of the I.R.O., 1969 expressly relate to the certification made under clause (e) of subsection (9) of section 22 of the I.R.O., 1969 and there is no mention therein of certification made under subsection (9-a) of section 22 of the I.R.O., 1969. Of course, subsection (9-a) was added in section 22 of the I.R.O., 1969 by the Act XVI of 1965 (sectiorr 10(c)) and there could be an argument that inadvertently no corresponding amendment was made in subsection 10 as to have added or included therein section 9-a as well. -But it appears that certification of a Collective Bargaining Agent is envisaged not only under clause (e) of subsection 9 and subsection (9-a) of section 22 of the I.R.O., 1969 but also under subsection (1) of section 22 of the I.R.O., 1969, reproduced above, which contemplates certification of a Collective Bargaining Agent without Referendum when there is only one registered trade union in an establishment or a group establishments. The certification of a registered trade union under subsection (1) of section 22 of the LR.O., 1969, which is the original provision (as substituted by Ordinance XIX of 1970) also stands excluded from the protection of two years contained in subsection (10). It follows that the certification of a registered trade union as a Collective Bargaining Agent under subsection (9-a) has been kept at par with that made under subsection (1) of section 22 of the I.R.O., 1969 and it has been consciously excluded from the purview of subsection (10). Of course, there is distinction between the certification of a registered trade union under subsection (1) as a Collective Bargaining Agent and that made under subsection (9-a) of section 22 of I.R.O., 1969 as the certification in the former case is made when there is only one registered trade union in an establishment or a-group of establishments, whereas in. The latter case certification is made if no other registered trade union indicates its participation in the Referendum; but the certification made under both the subsections (1) and (9-a) leaves the field open for a trade union which gets registration later or which had not participated in the Referendum to make an application at any time for holding Referendum and there is no protection for two years provided under subsection
(10) to the registered trade unions declared as Collective Bargaining Agent under subsection (1) and subsection (9-a) of section 22 of LR.O., 1969. This distinction seems to have been based on the consideration that the certification of registered trade union as the Collective Bargaining Agent under subsection (1) and subsection (9-a) is without contest, being only one-sided affair, whereas the certification under clause (c) of subsection (9) is made on the result of Referendum which demonstrates the actual representative strength of a registered trade union and has been given protection of holding that capacity for the period of two years unless its registration is cancelled earlier. ....... "
' Reference has also been made in the above judgment to the case of Pioneer Steel Mills Employees' Union wherein a somewhat similar view has been taken by a learned Single Judge of the Lahore High Court while dissenting from the view expressed in the case of Mahmood Textile Mills Workers' Union. It was observed in this case as follows:- "6. With utmost respect I am unable to persuade myself to share the view expressed in Mahmood Textile Mills Workers Union v. Registrar of Trade Union, Multan Region, Multan (1976 PLC 387) that the certification of a trade union to be a collective bargaining agent under subsection (9a) of section 22 of the Industrial Relations Ordinance, 1%9, is to be treated certification under clause (e) of subsection (9) of section 22 of the Ordinance and that no application for determination of collective bargaining agent in the establishment is to be entertained for a period of two years from the date of such certification as envisaged by subsection (10). By dealing with the certification of a trade union without any contest by secret ballot in a separate subsection (9-a) and placing an embargo on moving an application only in the case of determination of collective bargaining agent for an establishment wherein the trade union has been certified to be a collective bargaining agent in consequence of winning election by secret ballot under clause (e) of subsection (9) the Legislature intended treating the collective bargaining agent certified without any contest by poll and the one who emerged successful out of contest by secret ballot differently, the tenure of the latter office was secured for a period of two years whereas the authority of the former could be challenged and tested by contest by casting votes by secret ballot in the lawful manner even before the expiry of two years."
7. We would like to point out that the embargo of two years for the trade union to make an application for determination of Collective Bargaining Agent has been made applicable only where a registered trade union has been certified as a Collective Bargaining Agent under clause
(e) of subsection (9), i,e, where a trade union after a contest has received the highest number of votes and has consequently been certified as a Collective Bargaining Agent by the Registrar. No doubt, subsection (9-a) was added to section 22 by Ordinance XIX of 1974 subsequently, but if the intention was to apply the A same embargo as referred to in subsection (10) to a trade union certified as Collective Bargaining Agent under subsection (9-a), we are certain, a corresponding amendment would have been made by the Legislature in subsection (10) as well. Since no such amendment was made in subsection (10) of section 22, in our view, the Legislature did not intend to make the provisions of subsection (10) applicable to a trade union certified as Collective Bargaining Agent under subsection (9-a). In the case of Mahmood Textile Mills Workers Union, which has been relied upon by the learned Single Judge in the impugned judgment as Well as in the case of Duty Free Shops Staff Union decided earlier by him, it has been observed that in pith and substance, subsection (9-a) of section 22 of the I.R.O. Is in the nature of a fourth proviso to clause (e) of subsection (9) and therefore, it can be read as such even though numbered as subsection (9-a) of section 22 but, with utmost respect, it may be pointed out that words can be supplied by the Court in a statute only when the omission is palpable and the word omitted is clearly indicated by the context, otherwise, the omission can be supplied only by a statute. The Court has power to apply the law as it is but not what it ought to be. Although, we are not oblivious of the fact that the object behind subsection (10) of section 22IC appears to be to prevent multiplicity of referendums and to ensure that a collective bargaining agent once determined should continue to represent the workers at least for two years, but the rule clearly appears to have been intended to apply only to a trade union certified as a collective bargaining agent after a contest. If the intention was to apply the same rule to a trade union certified as collective bargaining agent without a contest, in terms of subsection (9-a), nothing prevented the legislature from making a corresponding amendment in subsection (10) extending the provisions of the said section to such trade union also.
8. We are, therefore, of the opinion that in view of the explicit provisions contained in section 22 of the I.R.O. It is not permissible to extend the provisions of subsection (10) of section 22 of the I.R.O. To a trade union certified as a collective bargaining agent under subsection (9a) of the said section.
9. For the aforesaid reasons, we allowed these appeals and set aside the order dated 23-6-1990 passed by the learned Single Judge by our short order dated 17-12-1991.