1. MUNAWAR AHMED MIRZA, CJ.---Gatron (Industries) Limited is a limited Company having factory manufacturing synthetic yarn at Hub with Head Office at Karachi. This factory has got two local trade unions styled as (i) Gatron (Industries) (Limited) Workers' Union (respondent No. 4) and Gatron (Industries) Labour Union (respondent No. 5) duly registered with Registrar, Trade Unions.
2. The Gatron Industries Limited has also two Industrywise Unions namely (i) Gatron (Labour Itihad Union) (respondent No. 7) and (ii) Gatron Industries Mazdoor Union (respondent No. 8) registered with Registrar, Trade Union INDUSTRYWISE NATIONAL INDUSTRIAL RELATIONS COMMISSION: It is alleged that petitioners were employed by respondent No. 3 in their Factory at Hub. They claim to be members of Gatron Industries Limited Workers' Union (respondent No. 4). A dispute regarding declaration of Collective Bargaining Agent arose, whereupon referendum amongst the workers of respondent No. 3 was held under the directions of respondent No. 1-on 9-2-1994. Respondent No. 5 was declared to be Collective Bargaining Agent, and requisite certificate was issued by respondent No. 1. Petitioners dissatisfied from holding of referendum has also filed an appeal, before Presiding Officer, Labour Court III, Baluchistan which is pending adjudication. However, simultaneously feeling aggrieved from various activities of respondent No. 3, including holding of referendum on 9-2- -1994 and incidental events, present petition was filed on 29-3-1994 claiming following reliefs:--- "It is, therefore, prayed that this Honourable Court may be pleased to--
(a) declare that the referendum held on 9-2-1994 between respondents Nos. 3 and 4 is mala fide, illegal and without lawful authority and of no legal effect;
(b) quash the Collective Bargaining Agent Certificate issued by respondent No. 1 in favour of respondent No. 5 on the basis of referendum held on 9-2-1994;
(c) declare that the approval of office-bearers as per Annex. `A/2' is illegal, mala fide, without lawful authority and of no legal effect;
(d) declare that the Registration Certificate issued by respondent No. 6 in favour of respondents Nos. 7 and 8 are illegal, without lawful authority and of no legal effect and are liable to be cancelled; .
(e) declare that the respondents Nos.4 and 5 are illegal constituted bodies;
(f) grant such other relief/reliefs as deemed fit and proper under the circumstances of the case.
3. Costs of the petition be also allowed in the interest of justice.
4. Respondents Nos. 1 and 2 filed comments on 3rd May, 1994. They alleged that respondents Nos.4 and 5 were local trade unions of Factory at Hub (respondent No. 3) which had been duly registered in accordance with requirement of Industrial Relations Ordinance. Initially certificate regarding Collective Bargaining Agent existed in favour of respondent No. 4 which was registered as trade union during year 1984. However, after the creation of respondent dispute arose. Eventually in persuance of application dated 16-1-1994 referendum was held amongst the registered workers of the two unions, through secret bellot on 9th February, 1994. Respondent No. 5 secured requisite votes for being declared Collective Bargaining Agent, therefore, necessary certificate was issued.
5. However, averments to the contrary were repudiated.
2. Respondent No. 3 filed counter-affidavit on 4-5-1994. Maintainability of petition was specifically challenged on the ground that (i) petitioner is not aggrieved person, (ii) declaration of Collective Bargaining Agent being a contest amongst Labour Unions, thus individual workers cannot lawfully challenge the same, (iii) alternate remedy by way of appeal before Labour Court had already been availed, and (iv) disputed questions could not be agitated by invoking Constitutional jurisdiction.
6. Objection was also raised that petitioner No. 1 was dismissed on 25-1-1994 and petitioner No. 8 retrenched through proper order dated 19-9-1993, therefore, they ceased to be employees, of respondent No. 3 thus had no right to raise grievance concerning trade union activities in the establishment.
7. Respondent No. 3 in the counter-affidavit asserted that previously respondent No. 4 was declared C.B.A. By the Registrar, Trade Unions in October, 1993. However, on the formation of respondent No. 5, dispute amongst workers was resolved through referendum. Accordingly ballot was held on 9th February, 1994 after due notice and opportunity of campaigning. According to said respondent litigation has been commenced mala fide and was motivated by outside agencies, details whereof are mentioned .In paras. 5 to 8 of counter-affidavit.
8. Respondent No. 4 filed counter-affidavit on 4-5-1994. The claim in the petition has been vehemently opposed. It was maintained that petitioners ceased to be members of respondent No. 4 on their failure to subscribe as per by-laws. Maintainability of petition was challenged because petitioners had already availed alternate remedy provided under the law. It is candidly admitted that respondent No. 4 had lost their status of Collective Bargaining Agent, in the ballot. Besides petitioners as individuals could not legitimately launch any grievance. Similarly holding of referendum after due notice and performance of necessary formalities is not disputed. The stand of petitioner has been denied item-wise.
9. Respondent No. 5 filed counter-affidavit on 4-5-1994 asserting that it was duly registered local trade union of Gatron Industries Limited, Hub. Maintainability of petition on behalf of individual worker was expressly challenged. It has been asserted that, referendum was held by Registered trade union on 9-2-1994 for determining Collective Bargaining Agent. Respondent No. 5 obtained requisite majority; where after necessary certificate was issued. Stand of. Petitioner on merits has been specifically repudiated.
10. Respondents Nos. 7 and 8 also separately filed their respective counter-affidavits on 10th May, 1994.
11. They claim to be INDUSTRYWISE UNIONS registered with National Industrial Commission. They have challenged the propriety of referendum whereby respondent No. 5 was declared Collective Bargaining Agent.
12. Petitioners however, have filed rejoinder/replication, to the counter-- affidavits filed by respondents Nos.4 and 5.
13. Mr. Muhammad Shafiq Qureshi, Advocate for petitioner Mr. Tariq Mehmood, Mr. S.M. Yaqoob, Mr. Muhammad Ashraf and Mr. Shahani, Advocates for respondents were heard at length.
14. Mr. Shafiq Qureshi, learned counsel for petitioners emphatically urged that referendum was improperly conducted because no notice has been given to INDUSTRYWISE unions i.e. Respondents Nos. 7 and 8 by the Registrar, Trade Unions. Even names of respondents Nos.4 and 5 were incorrectly mentioned in the notice issued by Registrar 'for holding referendum, which had misleading effect on the workers. Learned counsel canvassed that C.BA. Certificate was issued to respondent No. 4 on 3-10-1992. Under the law referendum could not be held unless period of two years had elapsed. Reliance was placed on 1976 PLC 387 (Lahore). He contended that respondent No. 5 did not secure 1/3rd majority amongst total workers of Gatron (INDUSTRYWISE) Limited Hub (respondent No. 3). The employer had given a false list without providing fair opportunity to petitioners for carrying necessary corrections. According to him whole process of referendum and declaration of respondent No. 5 as Collective Bargaining Agent was unlawful. Whereas all the Advocates appearing for respondents Nos. 1 to 5 vehemently opposed the petition. They maintained that declaration of C.BA. Is always amongst trade unions, therefore, individuals cannot raise grievance in that behalf. The requirement of two years referred in aforequoted judgment does not hold the field, because subsequent decision of the superior Courts, specially when no ballot were held in the past. The Division Bench of Karachi High Court has in its judgment People Labour Union v. International Industry Workers' Union 1992 PLC 1044 (Karachi) elaborately discussed relevant provisions of Industrial Relations Ordinance and up to date case-law. Operative portion of para. 7 is reproduced: "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 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 m 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 provision 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 22 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."
15. It is an admitted position that respondent No. 4 was declared C.BA. On 3-10-1992 without ballot.
16. Question relating to embargo of two years placed by section 22(10) and intention of section 9(a) of I.R.O. Has been exhaustively dealt with in above report. This view also finds support from the observations in cases (i) 1981 PLC 279, (ii) 1990 SCMR 32, (iii) PLJ 1990 SC 528 and (iv) 1982 PLC 256 (Lah.). Thus on thorough analysis of legal and factual aspects, we are respectfully inclined to follow these reported judgments and conclusions of para. 7 reproduced above and unhesitatingly declare that referendum of 9-2-1994 'between two local Trade Unions of respondent No. 3 conducted by Registrar through his nominee did not suffer from any defect. It may be elucidated that under section 22(13), I.R.O. Nominee is competent to conduct election as held in PLC 1993 page
706. The above view is also supported by observation made in 1990 PLC (C.S.) 424. It would be pertinent to mention here that notice for holding referendum was given on 24th January, 1994, which obviously provided reasonable time for campaigning and activities of Trade Unions to muster support. However, mere omission or error in the. Nomenclature of respondent No. 4 or 5 is not fatal. Besides, none of the Trade Unions have expressed such grievance. Workers appears to have participated in their respective groups to achieve success. This is further reflected from heavy percentage of voting during referendum amongst approved list of 773 (seven hundred seventy- three). The list undenyingly was prepared by Registrar under section 22(5), I.R.O. Which therefore could not be legitimately challenged. Reference may be made to (i) 1987 PLC 723 at 728, (ii) 1983 PLC (Kar.) 417 and (iii) 1992 PLC (Kar.) 715. Therefore, objections raised by learned counsel for petitioner concerning these aspects in our opinion have no substance.
17. It may further be seen that petitioner in first para. Of this petition has categorically admitted to be members of respondent No. 4. They by exercising free will and choice boycotted the election/referendum held on 9th February, 1994. It is matter of record that respondent No. 5 (Gatron Industrywise Labour Union) returned successful by securing more than 1/3 votes from approved list, therefore rightly declared as Collective Bargaining Agent.
18. Section 8(7) of I.R.O. Specifically provides remedy by way of appeal before Labour Court, in such eventuality. Petitioners have admittedly filed appeals which are pending consideration. Therefore, extraordinary Constitutional jurisdiction for seeking same relief cannot be appropriately availed.
19. Reference can be made to observation in following reports:--
(i) PLD 1981 SC 571 (Muhammad Sharif and another v. District Judge, Sahiwal and others).
20. (ii)PLD 1979 Quetta 66 (Miss Safia Hameed v. The Chairman, Selection Committee, Medical Colleges Seat, Baluchistan, Quetta and 6 others).
21. (iii)PLD 1980 Supreme Court (AJ&K) 5 (Ghiasul Haq and others v. Azad Government of the State of Jammu and Kashmir etc.).
22. It may be seen that section 22(6), I.R.O. Provides right of vote to worker. Admittedly names of petitioners existed in the approved list of workers. Assertions made in memo. Of petition disclosed, that they were fully aware about date of referendum, but had declined to participate. Thus, absolutely no right guaranteed or secured to petitioners, has been violated. Therefore, grievance based on probabilities, imaginative future right is not maintainable. We are of the considered opinion that question regarding determination of C.B.A. Arises only amongst the trade unions. The individual workers can certainly participate as members of trade union, but cannot challenge propriety or otherwise of an union which had been declared Collective Bargaining Agent after compliance of formalities and due process of law. The contention raised on behalf of petitioners that some internal elections were held when petitioners Nos. 1 and 8 were appointed office-bearer was communicated to the Registrar etc, appears highly improper and imaginative. Learned counsel stressed hard to show that they are aggrieved persons but we feel that their claim has not been substantiated by admissible documentary evidence. Most of the assertions made by petitioners have been expressly repudiated. Rival contentions suggest disputed questions of fact for which obviously no material has been placed on record. There does not exist adequate basis for showing that Registrar had either failed to perform his duties or remained negligent in observing relevant provisions of law, providing cause of grievance. Thus Courts should not normally embark upon an enquiry concerning disputed question of facts while exercising Constitutional jurisdiction.
23. Reference in this behalf can be made to observations in following reported judgments:-- (i)1970 SCMR 853 (Landale and Morgan v. Chairman, Jute Board).
24. (ii)1981 SCMR 758 (Irshad Ahmad v. The Settlement Authority, Punjab).
25. (iii)PLD 1986 Quetta 93 (Haji Dad Khan v. Abdul Rahim and another).
26. (iv)1991 PLC 38 (Punjab Agricultural Development and Supplies Corporation Employees Welfare Union (C.BA.) v. Registrar, Trade Unions, Bahawalpur Region and others).
27. (v)1991 PLC 158 (Fateh Muhammad v. Registrar, Trade Unions and another).
28. It was next contended that Registrar, Trade Unions acted illegally by approving change of office- bearers vide Letter No.96/RTU/DLW/QTA/8420, dated 3rd October, 1992 without their complete bio- data. It may be seen that requirement concerning bio-data is not mandatory, therefore, same by itself would not vitiate the authority of Registrar to record such change. Learned counsel was not able to point out contravention of any provision of statute for introducing change in the names of office-bearers without their bio-data. An attempt was made to suggest that said hasty action leans towards favouritism or mala fides of Registrar. We are not impressed by these vague assertions and misconceived stand taken on behalf of petitioners.
29. Mr. Shafiq Qureshi, learned counsel for petitioners was highly critical about declaration of respondents Nos.4 and 5 as well as respondents Nos. 7 and 8 as Trade Union by respective Registrars. According to him, requirement of law had not been followed. He attempted to suggest that failure to issue Notice for referendum to respondents Nos. 7 and 8 was also detrimental and prejudicial to petitioners. It is undisputed that more than one `Trade Unions' can be. Registered in any factory, institution or establishment. Similarly it is possible to have local. `Trade Union registered with National Industrial Relations Commission. Nothing specific has been pointed out showing any glaring impropriety or illegality committed by Registrar, Trade Unions by not issuing notices to respondents Nos. 7 and 8. Since dispute pertained to declaration of Collective Bargaining Agent, within the workers performing functions at Hub therefore, no notice was needed for respondents Nos. 7 and 8. Besides except formal objection in counter-affidavit, said respondents have not sought any remedy, prescribed under law to challenge the referendum. Merely, expressing grievance, without cogent reason or strong legal grounds is not sufficient to establish mala fides. It may be seen that question regarding dismissal of petitioner No. 1 and retrenchment of petitioner No. 8, proprietary concerning registration of respondents Nos.4 and 5 and all other incidental grievances agitated in present petition, are admittedly pending adjudication before Labour Court III. Despite pointation that observation by this Court while deciding present petition might have adverse effect upon matter pending before Labour Court, but disposal of present petition on merits was pressed. We feel that prima facie, objections, concerning registration of respondents Nos.4 and 5, validity of referendum held on 9-2-1994 declaration of respondent No. 5 as C.BA. And connected matters, could not be challenged individually by petitioners. Even otherwise, apparently no illegality has been pointed out, in respect of above aspects. Thus for the above reasons, we find no substance in the petition which is consequently dismissed.
30. Parties are however, left to bear their own costs.