1. ' This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan filed by the petitioners wherein they have prayed for declaration that the respondent No, 2 Union did not secure 1/3rd votes out of total number of workmen as such the issuance of CBA certificate by the respondent No, 1 in favour of respondent No, 2 would be illegal, ab initio, invalid, without lawful authority and jurisdiction and repel be ordered and further the respondents Nos. 1, 2 and 10 be restrained from taking any advantage or benefit of impugned CBA certificate by posing/claiming to be the Collective Bargaining Agent and the facilities allowed to the petitioner-Union prior to 21- 3-1996 be not withdrawn.
2. ' The above petition has arisen out of the following brief facts. The referendum was held on 21-3- 1996 for determination of Collective Bargaining Agent in respect of establishment of respondent No,10. The petitioners have stated that the respondent No,10 submitted a list of total number of workers as 13282 as required under subsection '(5) of section 22 of IRO, 1969 which list was received by the Trade Unions contesting the referendum but the respondent No,2's Union received 4330 votes only and the said votes being less than 1/3rd of total votes of 13282 could not have been declared as Collective Bargaining Agent in view of mandatory requirement envisaged under proviso to section 22 (9) (e) of IRO, 1969 as such certificate of CBA dated 24-3-1996 would be illegal, without jurisdiction and lawful authority and that the respondent No,2 committed rigging goondaisrh and manipulation which acts amounted to illegal, unfair and unjust on part of respondents Nos.2 and 10.
3. ' The respondents Nos.1 and 2 have appeared in response to preadmission notice issued by this Court when respondent No,1 'has filed comments along with two photocopies of annexures and respondent No,2 has filed counter-affidavit of Mohsin Raza wherein he has denied the statement of the petitioners made in the petition and also in the affidavit. Counsel for petitioners did not request for time for filing rejoinder to the counter-affidavit and he straightaway wanted to argue the petition.
4. ' I have heard Chowdhary Rasheed Ahmad, learned counsel for petitioners and Mr. Ali Amjad, learned counsel for respondents and also the Registrar in person.
5. ' After hearing the learned counsel for parties and the Registrar at length it was stated by them as the "have advanced lengthy arguments which they could have made for final hearing of the petition, therefore, the same may be treated as regular hearing having been made for the disposal of main petition as well. In the light of the said statement, I intend to dispose of the main petition.
6. ' Learned counsel for petitioner Chowdhary Rasheed Ahmad has argued that total number of list contained 13282 votes as verified by respondent No,1 as required under subsection (5) of section 22 and under proviso to section 22(9)(e) of IRO, 1969 for certifying Collective Bargaining Agent 1/3rd of total votes viz. 4427/4428 were required but the respondent No,2 polled only 4330 which fell short of at least 97/98 votes, therefore, the respondent No,2 could not have been declared Collective Bargaining Agent by the respondent No,1.
7. ' Next contention of the learned counsel for petitioner is that there has been rigging as contained in paras. 7, 8 and 9 of the petition, therefore, certificate in respect of Collective Bargaining Agent issued in favour of respondent No,2 was invalid and without jurisdiction. Learned counsel for petitioner has referred to section 22(3)(4)(5)(6) and. (9)(e), proviso 3 of IRO, 1969. He has also placed reliance upon unreported judgment passed in Civil Appeals Nos.293/89 to 296 of 1989 (Karachi Electric Supply Labour Union v. Karachi Electric Supply Progressive Workers' Union) decided by Supreme Court of Pakistan and also a reported judgment passed in a review petition against the said unreported judgment Karachi Electric Supply Progressive Workers' Union v. Karachi Electric Supply Labour Union (1991 SCM R 888) in support of his contentions.
8. ' Learned counsel for respondent No,2 Mr. Ali Amjad has .Argued that under subsection (5) of section 22 of IRO, 1969 voters' list was duly received by the Unions contesting the referendum which contained 12873 votes and none of the Unions raised any objection to the number of votes being 12873 and alleged earlier meeting and the list of 13282 were totally false and untenable. He has further argued that it was list of voters as certified by Registrar respondent No,1 as envisaged under subsection (5) of section 22 of IRO of which minimum 1/3rd of votes are required for certifying the Collective Bargaining Agent and not the voters' list as contended .By the learned counsel for petitioners. So far the allegations of rigging, learned counsel for respondent No,2 has argued that there has been no rigging and no objection to the holding of referendum was taken by the petitioners at the time of polls and no such complaint was made to the Polling Officers, therefore, the contention of the counsel for the petitioners that the respondent No,1 did not take any action has no merit as any objection to the holding of polls could be made to the polling officer under rule 27 of Industrial Relations Sindh Rules, 1973. He has referred to annexures filed by respondent No,1 wherein total number of votes have been shown as 12873 and not 13282. He has further argued that the allegations as made in paras. 7, 8 and 9 would need investigation of disputed questions of facts which would necessitate the taking of evidence, therefore, the extraordinary remedy as provided under Article 199 could not be resorted to.
9. ' So far the first question that there has been a verified voters' list containing names of 13282 voters as required by subsection (5) of section 22 received by the Unions contesting the referendum is concerned, the said list has not been filed with the petition. Petitioners have filed Annexure C the minutes of joint meeting said to have held on 11-1-1996 which mentioned that a representative of management has submitted complete list of 13282 workmen but there was no list in terms of subsection (5) of section 22 issued by respondent No, 1 . The respondent No,1 in his comments in para. 6 has stated that verified voters' list issued to Unions on 11-3-1996 contained the names of 12873 voters which was received and accepted as agreed by all' Unions including the petitioners without any protest. The respondent No,2 in the counter-affidavit of Mohsin Raza in paras. 5 and 7 has stated that the final boothwise voters' list contained 12873 votes. Annexure ' 1 ' filed by the respondent No,1 mentioned that representative of management submitted booth wise list of voters and the same was final voters' list. Annexure (2) filed by the respondent No,1 dated 11-3-1996 also stated that list of voters as 12873 boothwise for referendum in Karachi Water Sewerage Board was handed over to the representatives of the contesting Trade Unions and the said annexure has been signed by six representatives including the petitioner. There is no rejoinder to the counter-affidavit rebutting the statements made in the counter-affidavit of Mohsin Raza and the statement made in the comments of the respondent No,1 so also contents of the Annexures Nos. '1' and '2' filed by respondent No,
1. As the total number of votes as per evidence on record is 12873, therefore, 1/3rd of which would come to 4291 when the respondent No, 2 is said to have secured polled 4330 which being more than 1/3rd could not be said that declaration of respondent No, 2 as Collective Bargaining Agent for respondent No,2 as Collective Bargaining Agent for respondent No,10 was inviolative of the provisions contained in section 22(9)(e) of IRO, 1969. The case cited K.E.S.C.
10. Progressive Workers' Union v. K.E.S.C. Labour Union (1991 SCM R 888) their Lordships of Supreme Court of Pakistan have held that the nit finalized under section 22(5) is not a list of total workmen but it is a list of voters and the determination of Collective Bargaining Agent has to take place by the voters alone and not by list of total workmen. In the instant case total list of voters is 12873 and the respondent No,2 has polled 4330 being more than 1/3rd of total workmen employed in the establishment of respondent No, 10, therefore, the respondent No,2 was rightly declared as Collective Bargaining Agent for the respondent No,10.
11. ' In the circumstances, in view of the above reasoning's and the said provisions of law, the said contention of learned counsel for petitioners has no merit and substance.
12. ' Next contention of learned counsel for petitioner is that there has been rigging as stated in paras.
13. 7 to 9 of the petition but the said contention would require investigation of disputed questions of facts which would necessitate the taking of evidence, therefore, in the Constitutional jurisdiction of this Court, same cannot be resorted to. Reference is made to A.F. Ferguson & Co. v. Sindh Labour Court and another (PLD 1985 SC 429) wherein their Lordships of Supreme Court of Pakistan held that disputed questions of facts would only be decided by the Labour Court and the Constitutional jurisdiction could not be invoked. Reference is also made to Mian Muhammad v. Government of West Pakistan (1968 SCM R 935) wherein their Lordships of Supreme Court of Pakistan held that extraordinary jurisdiction under Article 98 is intended primarily for providing expeditious remedy where illegality of action of executive or other authority can be established without elaborate inquiry into complicated disputed facts. Reference is also made to Benedict F.D' Souza v. Karachi Building Control Authority (1989 SCM R 918) wherein their Lordships of Supreme Court of Pakistan held that factual controversies involved in case could not be solved without full-fledged trial, therefore, approach of the High Court in its discretionary writ jurisdiction to decline relief to petitioner was held to be unexceptionable. The contention that there has been rigging in the holding of referendum cannot be gone into Constitutional jurisdiction of this Court therefore the same has no merit.
14. ' In view of aforesaid reasonings, I do not find merit in the contentions of the learned counsel for petitioner, therefore, petition is dismissed in limine so also CMA 97/96.