WAJIHUDDIN, J.--I have heard all the learned advocates as well as some of the parties at quite some length. On 5.9.1991, when this petition was placed before me, pre-admission notices were ordered for the respondents besides requiring the respondents Nos. 1 and 2 to submit comments.
Notice of the stay application was also directed but without passing any ad-interim order.
However, on the next dale of hearing, there learned Judge, seized the case, ordered that steps for holding referendum may be taken by the respondent No.1-Registrar but till 15.9.1991 he shall not fix a date for the referendum itself. On 15.9.1991, while the case was adjourned for the counter and rejoinder affidavits to be filed of today's hearing, the ad interim order of stay was not extended.
2. At the the this petition was filed and first came up, the contention from the side of the petitioner union was that it was the Collective Bargaining Agent in the Karachi Port Trust and that the prescribed period of two years under Section 22(2) of the Industrial Relations Ordinance, 1969, having expired requests were made by the respondents Nos.3 and 4-unions to hold a referendum lor determination of a fresh Collective Bargaining Agent but such moves, according to the petitioner-union, were not entertainable because the minimum, requirement of One-third membership of the worker force in the context of each of the applicant-unions, as employed in K.P.T establishment, was not satisfied. It was pointed out that, upon receipt of notice dated 23.8.1991 from the registrar, the petitioner-union had raised objections with regard to the minimum requirement of membership in the two applicant-unions in terms of Section 22(2) of the Industrial Relations Ordinance, vide Objections dated 17.8.1991 and 1.9.1991 together with a legal notice of the date last mentioned but the same had produced no plausible result. In other words, the crux of the contention was that the respondent No.1 registrar was proceeding to hold the referendum without, satisfying himself as to whether the respondents Nos.3 and 4-unions or any of them did or did not have the minimum requirement of membership to the extent of one third of the workmen in the KPT establishment.
3. In response, counter affidavits and rejoinders, apart from comments, have been submitted. Even though on such basis the questions which continue to be urged from the side of the petitioner- union would, at best, constitute disputed questions of fact, not amenable to the Constitutional Jurisdiction something, albeit in passing, may be said on the subject. In the first place, reliance has been placed on the fact that the petitioner-union was able to place before the respondent No.1 registrar two certificates from the KPT establishment, one of them showing total strength of workmen in such establishment to be 12479 and the second indicating the number of workmen subscribing to funds of the petitioner union at the level of 9241 workers, the. Last under, what is termed as the check of system. The private respondents, however, very strongly objected to the correctness or the relevancy of the list of subscribers at the level of 9241 workmen in terms of the referred certificate. The official respondents, as well as Mr. Hamid Hussain, appearing for the employer-K.P.T. Also supported the respondent- unions, saying that such list/certificate, even if faithfully reflecting the position, at best, reflects it, as prevailing at a the gone by and carries no guarantee that the bare continuing deductions truly reflect the strength of the membership at the present the. It stands to reason that a certificate of this character cannot at all times conclusively show that at a particular point of the every subscriber in such list was or was not a member of the union which was obtaining the deductions from the employer. After all, the petitioner-union is currently the Collective Bargaining Agent in the K.P.T, establishment and has carried a large number of workers on its rolls but that fact may not be synonymous with the -current state of membership in its fold. In Such matters, where the two years prescribed term for the Collective Bargaining Agent has expired, even day to day changes in strength can be expected and it should obviously take the for such changes to reflect on the record of the employer. In fact, it has been urged very strenuously that serious malpractices, on the part of the petitioner-union, were involved in this context. Specific requests and other intimations from workers to terminate the arrangement for deductions in favour of the petitioner-union, allegedly, were over-looked or dis-regarded through questionable methods. There could be some substance in this, as emerges from the record. Not only this, it is claimed that even formal resignations from the petitioner's membership were ignored or refused, allegedly, providing a lever to such union to maintain an inflated and unrealistic roll of membership. Resignations generally and more so of workers from their unions are some of the easiest acts of volition. Such do not require to be accepted and mere tender, on principle, is enough. Yet Mr.- Suleman Habibullah admitted that in so far as the petitioner-union is concerned a resignation is to be addressed to the General Secretary who is to obtain the orders of the committee and then alone such can be effective. How far this is lawful shall be dealt with shortly. Still, the fact remains that in such situation, the task of the respondent No.1 to determine the question of the required One-third membership of the applicant- unions became a complex one and all cognate factors had to be taken into consideration at this level. Now, may be examined the position of resignations from a union of workers. Some remarks from the judgment of this Court in Constitutional Petition No. S-22 of 1987 (Holiday Inn Workers Union Vs. The Registrar of Trade Unions).May be in point:- "On the second aspect of the matter namely, the alleged dual membership of some of the workmen, to ensure that terms in the proviso to Section (3)(a) did not remain unfulfilled, it would be sufficient if a workman, alleged to be enjoying dual membership, was restricted to the membership acquired subsequently in the unless he maintained that such subsequent membership was never sought lor or acquired by him wherefor the earlier membership may have remained valid and subsisting, in either event the worker's inclination and volition being preferred, as against any prospect of dis-enfranchising him, which does not seem to be readily permissible, being in negation of the spirit behind and intention of the labour law. It has, therefore, rightly been urged from the side of the respondents relying upon Ali Sher Vs. Registrar Trade Unions, Sind. 1983 PLC 171, Karachi Road Transport Workers Union Vs. Registrar Trade Unions, 1983 PLC 417 and National Beverages Employees Union Vs. Registrar Trade Unions 1986 PLC 533. That dual membership, if any, did not disqualify a workman from being considered to be validly a member of a trade union. This has to be so, While Section 3(a), in its newly added proviso, prohibits dual membership, such does not prescribe penalties for dual membership and it may plausibly be said that lacking penalties the provision loses its mandatory character. However, I do not think that the question is crucial. Law pertaining to workmen and their Trade Unions has to be liberally and beneficially construed, it is common-place that workmen infrequently change their loyalties with reference to trade unions, depending upon their satisfaction with the performance of such unions or even upon bare whims and fancies. Resignation from a Trade Union need not be in writing for if that were so workmen may potentially be pinned down to a specified trade union on a simple awoval of the trade union concerned that a particular workman never tendered his-resignation to it. It would thus seem that even verbal resignation should suffice and besides the subsequent membership of a trade union may itself implicitly involve an earlier resignation from previous membership of another Union. If, therefore, a worker maintains that, at a given point of the, he was member of a specific union, having dis-owned membership of another such union, his word, unless proved palpably to be false, is to be accepted."
The stringent and, if I may say so, even unjust terms as to resignations in the petitioner-union do not appear to have been in accordance with law and, in turn, gave rise to the aforegoing situation.
As regards membership itself the I.R. (Sind) Rules, 1973, per rule 4(1), deem the making of the prescribed application addressed to the union General Secretary sufficient, implying that any greater formality touching resignations can only be in nation of the spirit of law. The respondent No.1 registrar, therefore, was fixed with a dual responsibility. On the one hand, he had to ensure that once the claim for holding referendum was made the the schedule of fifteen days in Section 22 of the Industrial Relations Ordinance was faithfully observed and on the other he seems to have been all the the in the process of examining the respective claims of the parties as regards memberships in the contesting unions. Having, apparently, already tentatively formed an opinion at the outset, he conclusively reached such a decision on 5.9.1991 and communicated the same through a letter, of that date, received at 3 p.m. On such date itself, as admitted by the learned counsel for the petitioner himself. Such letter has been filed in Court from the side of the petitioner but on 7.9.1991. That, in fact, should bring this petition to an end because it was an order only of this kind regarding which grievance was that it had not been passed. With the passage of this order objections for holding of the referendum could have automatically dis-appeared or, alternatively, such a decision itself may have provided a fresh cause of action, if any, to initiate another petition, if warranted or even to apply for amendment in this very petition. Nothing of the kind was done. Not only this the respondent No.1-registrar has brought on record today the minutes of a joint meeting amongst the unions, held on 8.9.1991, in virtue of which a voters list has been found to be in order and acceptable to all the contestants and there is manifest consensus on such list. However, the petitioner- union has attempted to make reservations as to the holding of the referendum on the basis of the applicant No. 3-Union, which alone has been found to be qualified as an applicant, itself not enjoying the support of a minimum one-third of workmen in the respondent No.8- establishment. I think such an objection is meaningless now. For one thing, the respondent No. 1- registrar has Facie passed a valid order having followed upon an enquiry involving disputed and intricate facts, not open to scrutiny here, and secondly, the basic document for holding of a referendum is the voters list about which, there is unanimity. If referendum is held in consonance with such list and in case the petitioner-union has more than two- third majority, as it claims, it will no doubt be found and declared the Collective Bargaining Agent and the others would stand deservedly eliminated. If not, the democratic will of the worker-force would stand vindicated in another way or direction. There is, therefore, no substance left in the petition. Even otherwise, as already adverted to, Section 22 of the Industrial Relations Ordinance, which is the charter for referendums, fixes a the-frame within which referendums for the Collective Bargaining Agents shall be held and that the-frame is no more than 15 days from the date of receipt of the application, seeking referendum. At any event, law does not even contemplate routine ventilation of any such grievances as in this petition even before the normal forum of a Labour Court, constituted and functioning under the Industrial Relations Ordinance, implying that such-like questions involving complex and disputed facts determinable at the level of the registrar should plausibly conclude without any un-necessary delay in the interest of an expeditious referendum and that merely technicalities should not detain the contestants from going to an inevitable referendum for in case a union enjoys due majority such a matter ought to be settled by ballot. It is no-body's ease that a determination of membership of one union or the other disqualifies a worker to be a voter or that his affiliation, one way of the other, binds him to vote in a particular way and none other. Such disputes, as here, therefore, cannot affect the outcome of the referendum, which is a right of workers and cannot lightly be denied to them.
Petition is dismissed.