1. ' IFTIKHAR MUHAMMAD CHAUDHRY, J.---National Bank of Pakistan Employees Union, Balochistan, Quetta, through instant Constitutional Petition, has prayed that C.BA. Certificate, dated 22nd March, 1995, issued in favour of Peoples Unity National Bank of Pakistan, (Balochistan Unit C.B.U.) Quetta, be declared as having been issued without lawful authority, thus of no legal effect.
2. ' Precisely the facts of the case are that National Industrial Relations Commission vide order, dated 20th August, 1976, determined all Zones in Quetta Principal Office, as Quetta Unit to be one of the Collective Bargaining Unit. Following such determination, the Petitioner-Union being the only registered Union was declared as Collective Bargaining Agent, for the purpose of Balochistan, vide Certificate, dated 8th November, 1976. It so happened that on 16th January, 1995, the respondent- Peoples Unity National Bank of Pakistan (Balochistan Unit C.B.U.) Quetta was also registered as an Industrywise Trade Union, by the Registrar National Industrial Relations Commission. Subsequent thereto, the General Secretary of respondent-Union on 12th March, 1995, submitted an application under section 22(1) of the Industrial Relations Ordinance, 1969, before the respondent No,2 for issuing a C.BA. Certificate in favour of the Union. It is to be noted that the Registrar, N.I.R.C. Was aware that the petitioner-Union has already been declared as C.BA. As back as in 1976 and so for its Certificate has not been cancelled. The Deputy Registrar on 13th March, 1995, wrote a letter to the President, National Bank of Pakistan to submit a list of all workmen employed in the Establishment of National Bank of Pakistan, within seven days of the issuance of letter, with further indication regarding the full particulars of a trade union if is registered in the Establishment of N.B.P.
3. (Balochistan C.B.U.) and is functioning as a C.BA. Under sections 22(1), 22(9)(e), 22(9)(g)(a) and 52 of the I.R.O., 1969. The letter was responded by the respondent No,4, vide FAX Message dated 21st March, 1995, whereby the list of all the workmen employed in the Institution was supplied along with the Information that a Trade Union by the name of National Bank of Pakistan Employees Union, is functioning as C.BA. On receipt of requisite information, the Registrar Trade Union, N.I.R.C., issued Collective Bargaining Agent Certificate in favour of Respondent-Union on 22nd March, 1995, as such instant petition has been filed.
4. ' Mr. Asghar Malik, Advocate, on behalf of the petitioner raised following questions for determination:-
(A) Whether two C.BA. Certificates can be issued under subsection (1) of section 22 of the I.R.O. In the same Establishment ?
(B) Whether the N.I.R.C. Has jurisdiction to certify a Trade Union as C.BA. Under a particular C.B.U.
5. Beyond its territorial jurisdiction ?
6. ' In support of his contention, learned counsel, contended that in pursuance of section 22-EE of the I.R.O., 1969, on 20-8-1976, Quetta Unit was declared as C.B.U. For all Zones in Quetta Principal Office and this position is continuing because no fresh determination of C.B.U. For Principal office of National Bank has been determined. The order, dated 22-8-1976 also provide that C.BA. For each of these Units shall be determined according to the provisions of section 22 of the I.R.O. According to him, if there are more registered Trade Unions, the Registrar on holding a referendum through secret ballot, will determine as to which one of that Union shall be Collective Bargaining Agent for the Establishment or Group of Establishment. But the Registrar, N.I.R.C., without adhereing to the mandatory provisions of law, has determined the respondent-Union as C.BA. Which is not possible, because the petitioner's registered Union was already working as C.BA. And its Certificate so far has not been cancelled. Thus, it was obligatory upon the Registrar, N.I.R.C. To have acted and discharged its function in the manner, as provided by section 22 of the I.R.O., 1969. Reliance was placed by him on 1980 PLC 800, 1991 PLC 171 and 1992 PLC 125. (The view taken in the last mentioned case has also been approved by Hon'ble Supreme Court in Civil Appeal No,202-K of 1991).
7. ' No one appeared on behalf of respondents Nos. 1 and 3 to contest the petition.
8. ' Mr. Riaz Ahmad, learned Counsel appeard on behalf of President and Provincial Chief of National Bank of Pakistan. He supported the petitioner's Counsel and also added that management is facing serious problems as both the Unions have been declared as Collective Bargaining Agents.
9. ' Mr. Azam Jan Zarkoon, learned counsel, who was also assisted by Mr. SAM. Quadri, Advocate, at the outset contended that petitioner-Union was registered only for Quetta District, as it is indicative from its manifesto, but the then Registrar wrongly declared it, as an Industry-wise Trade Union, therefore, the respondent No,2 has rightly declared respondent No,6 as C.BA. Under section 22(1) of the I.R.O. Without holding secret ballot.
10. ' In our opinion, the contention raised by the learned counsel, has no force, as according to the order dated 20-8-1976, passed by the N.I.R.C., Quetta Unit was declared as C.B.U. For all Zones in Quetta Principal Office and in pursuance of such declaration, the petitioner being the only Trade Union, which was registered as back as on 1st July, 1970 was Certificated as C.BA. On 8th November, 1976 and since that time, no objection on the validity of its registration was made. Mr. Azam Jan Zarkoon, Advocate, perhaps has failed to examine the provisions of section 22-EE of I.R.O., according to which, the Commission can determine Collective Bargaining Units in respect of such Trade Union which have been registered Industry-wise. A careful perusal of section 9 of I.R.O., 1969, suggest to hold that issuing a Certificate of registration by Registrar, itself is a conclusive evidence, that the Trade Union has been duly registered under the Ordinance, and if at all, the respondent- Union had grievance against the registration of petitioner-Union then they would have followed the measures permissible under the law to seek the cancellation of its registration Certificate.
11. Therefore, so long the Certificate referred to hereinabove exist in favour of petitioner-Union, it is not possible to hold that its area of activity is only in the branches on National Bank of Pakistan, situated within Quetta- District. Additionally the manifesto of petitioner-Union which has been filed with the counter-affidavit of respondent No,6, categorically provides that Union shall try to establish its office at the branches of National Bank of Pakistan in Quetta-Kalat Region, therefore, we are inclined to conclude that petitioner-Union possesses a valid Certificate of Registration for the Province of Balochistan.
12. ' Mr Azam Jan Zarkoon learned Counsel also contended that under section 22-D of the I.R.O.
13. Alternate remedy was available to petitioner-Union for filing an appeal against the issuance of C.BA. Certificate, dated 22nd March, 1995. He referred to PLD 1985 SC 429 (A.F. Ferguson & Co. v.
14. Sindh Labour Court and another). In this case it was held that disputed question of facts can only be decided by Labour Court and Constitutional jurisdiction could not be invoked. With utmost respect, as far as the principle enunciated by the Hon'ble Supreme Court is concerned, that does not apply to the case in hand, as apparently no question is involved requiring to settle factual controversy. Because in this petition we have been called upon to interpret the provisions of section 22 of the I.R.O., 1969, to ascertain whether C.BA. Certificate has been issued in favour of respondent-Union by the Registrar, N.I.R.C., with lawful authority or otherwise. Thus, the Judgment referred to, is of no help to learned counsel.
15. ' The learned counsel for respondent-Union also referred to (PLD 1991 SC 102). In this report the Hon'ble Supreme Court declared that the provision of Article 199 of the Constitution cannot be invoked if adequate alternate remedy is available to an aggrieved party, under the relevant law.
16. ' We respectfully following the dictum laid down by Hon'ble Supreme Court enquired from the learned counsel as to whether against issuance of C.BA. Certificate, an appeal is competent under section 22-D of the I.R.O. His answer was in affirmative. But a perusal of subsection (1) of section 22- D reveals that an appeal is competent on behalf of any person, aggrieved by an Award or decision given or a sentence or order determining and certifying Collective Bargaining Unit, passed by Bench of the Commission other than a Full Bench to the Commission. Such like identical question came-up for consideration before the Division Bench of Sindh High Court in the case of KESE Limited Democratic Mazdoor Union v. N.I.R.C. Etc. Reportd in 1988 PLC 286, wherein it was held that the Certificate of Registrar, declaring a union as C.BA. Is neither an award nor a decision, therefore, the appeal would not be competent.
17. ' At this juncture, it is necessary to examine the contention of petitioner's counsel that the Registrar, N.I.R.C., has issued C.BA. Certificate in favour of respondent-Union, without adhering to the provisions of section 22 of the I.R.O. Which amounts to passing an order without lawful authority and jurisdiction, which according to him can be struck down even without availing of alternate remedy. We have carefully perused section 22 of the I.R.O., which leaves no doubt to conclude that whenever there are two registered Trade Unions in an Establishment, Certificate of C.BA. Will be issued to the Union which gets more vote through secret ballot. In this behalf, the respondent No,2 was legally bound to follow the mandatory provisions of the law, keeping himself apprised that the President of National Bank of Pakistan vide his letter dated 21st March, 1995, has intimated to him that besides respondent-Union another Union, i,e, National Bank of Pakistan Employees Union, is already functioning as C.BA. In the Institution. Further the Registrar, N.I.R.C., was also supposed to know that the N.I.R.C. Itself has issued C.BA. Certificate to the petitioner-Union about 19 years back which is still intact, therefore, without cancelling the same, how at the same time two C.BA. Can function in an Institution which of course would be nothing but a clear violation of the provisions of section 22 of the I.R.O. In this behalf the Hon'ble Supreme Court in the case of Rice Export Corporation Employees United Front vs. Full Bench of NIRC and others (Civil Appeal No,202-K of 1991), whereby the judgment of the High Court of Sindh, reported in 1992 PLC 125 was also approved, has held as under:- "In this regard, reference may again be made to subsection (1) of section 22, which provides that where there is only one registered trade union in an establishment or a group of establishment, that trade union shall, if it has, as its members not less one-third of the total number of workmen employed in such establishment or group of establishments, upon application be certified by the Registrar to be Collective Bargaining Agent. Admittedly the appellant had not proved the factum that its membership was one-third of the total strength. Additionally, there is no provision in the I.R.O. Other than section 22-EE, which deals with a situation where there may be an industry-wise trade union and a trade union functioning as a C.BA."
18. ' Although no alternate remedy was available in view of the above discussion, but even if for the sake of arguments, it is presumed that an appeal was competent against the issuance of C.BA.
19. Certificate, the petitioner-Union was not obliged to approach the same forum or the Full Bench of the Commission, in the view of the principle laid down by Hon'ble Supreme Court in PLD 1967 SC 294, PLD 1972 SC 279, 1972 SCM R 257 and PLD 1976 SC 37, as the Certificate has been issued without lawful authority and jurisdiction.
20. ' It is also important to observe that the petitioner-Union has also been condemned unheard, while issuing C.BA. Certificate in favour of respondent No,6. It is to be seen that during the period of 19 years the petitioner has acquired a vested right at least to participate in the proceedings before the Registrar Trade Union, if its Certificate of C.BA. Has been questioned and the respondent No,2 was inclined to determine that out of both the Unions which one has got majority of the members to claim itself as C.BA. Thus, for these reasons we are inclined to hold that there is no alternate remedy available to petitioner-Union for filing an appeal and respondent No,3, issued the C.BA.
21. Certificate in favour of respondent No,6, without lawful authority and jurisdiction.
22. ' Now the question would be, whether both the Union should be relegated to the position which was prevailing before the issuance of C.BA. Certificate in favour of respondent No,6 on 20th March, 1995, or directions be made to the Registrar to determine under section 22(2) of the I.R.O., that which one of the Union shall be declared as C.BA. For the Province of Balochistan. Since both the Unions have got valid registration Certificates and respondent-Union has also applied for declaring it as C.BA. In its application dated 12th March, 1995, on the ground that it has membership of more than 1/3rd of the total number of workmen employed in the Establishment of N.B.P. (Balochistan C.B.U.) therefore, it would be in the interest of justice to direct the Registrar Trade Union for disposal of the application referred to hereinabove, after issuing notice to petitioner-Union and all concerned, in accordance with section 22(2) of the I.R.O., 1969.
23. ' For the foregoing reasons, petition partially succeeds, in consequence thereof, C.BA. Certificate, dated 22nd March, 1995, issued in favour of Respondent No,6 is hereby declared as having been issued without lawful authority and of no legal effect. The respondent No,2 is directed to dispose of the application, dated 23rd March, 1995 filed by Peoples Unity National Bank of Pakistan (Balochistan Unit C.B.U.) Quetta, as far as possible within a period of 90 days, after receipt hereof, keeping in view the observations made hereinabove.
24. ' No order as to costs.