' The petitioner being aggrieved of the order direction of respondent No,1 whereby the second/fresh referendum for the determination of C.BA. Was ordered to be held on 3-8-1995, has prayed that the application in this regard filed by respondent No,2 as also the orders dated 31-7-1995 and 3-8-1995 passed thereon by the respondents Nos.1 and 4 respectively be declared to be without lawful authority and ineffective and that the petitioner be declared to be the C.BA. For the next term with the direction to respondent No,3 to issue a comprehensive list of voters.
2. The relevant facts are that the petitioner Union and respondent No,2 are two unions established for the betterment of the employees of the United Bank Ltd., Vehari Zone, Vehari. The petitioner union is enjoying the status of being the C.BA. Also. It was on the application of respondent No,2 that the Registrar, Trade Unions, Multan Region, Multan, decided to hold referendum for the purpose of determining the C.BA. For the next term. It would be relevant to mention here that the list of voters/workers was issued by respondent No,3/employer and the same having been accepted by the two unions, the election/referendum was held on the basis thereof. In view of the tie between the two unions, the respondent No,1 ordered fresh referendum to be held on 3-8-1995.
3. The petitioner being aggrieved of the direction whereby the referendum was ordered to be held on 3-8-1995 filed an application before the Punjab Labour Court No,9, Multan, mainly on the ground that the same could not be ordered to be held without there being a fresh application in that behalf as also without first determining as to whether the union asking for the same had 1/3rd membership of the total workers/voters. This application was dismissed by the Punjab Labour Court No,9 with the observation that the Registrar shall, however, see that the employees' union fulfils the requirement of 1/3rd membership. It appears that even in spite of the above said observation respondent No,1 proceeded to hold referendum on 3-8-1995 without first having a meeting with the two unions as also without first determining as to whether the respondent-union has 1/3rd membership of the total workers/voters. The effort was alleged to be mala fide. Another aspect of the fact part of this petition, which has not been pleaded at the proper place in the body of the petition, may also be mentioned here. The petitioner union also filed an application dated 18- 4-1995 before the Member, N.I.R.C.,. Which was entertained and was fixed for 31-7-1995. It so happened that on the said date, respondent No,4 directed respondent No,1 to hold the referendum within seven days. This order has also been challenged in this petition on the ground that respondent No,4 has no lawful authority to pass such an order because he had been removed from the membership of the N.I.R.C. On and from 30-7-1995. It is also submitted that respondent No,4 has no jurisdiction to pass such an order as according to the petitioner union, the N.I.R.C.
Could only issue orders in respect of the establishment located in more than two provinces.
4. The petitioner being mainly aggrieved of the direction whereby the very referendum was ordered to be held as also of the other acts of omission and commission of the respondents generally filed the present Constitution petition seeking relief in the terms noted in the opening part of this judgment.
5. At the hearing, learned counsel for the petitioner while referring to rule 39 of the Punjab Industrial Relations Rules, 1973, argued that the second referendum could not be ordered to be held without first preparing a fresh list of voters in the manner provided in section 22 of the Industrial Relations Ordinance, 1969. A reference to sub-clauses (1) and (2) of section 22 of the said Ordinance was also made to submit that no trade union could seek election for the determination of C.BA. Unless it had established that it had as its member not less than 1/3rd of the total number of workmen employed in such establishment. It was submitted that the Registrar having not completed the effort as envisaged in the law referred to above, the very holding of second referendum was void and not sustainable. Reliance was placed on Fatehally Chemical Mehnatkash Union (C.BA.) v.
Registrar of Trade Unions, Sindh and 4 others 1989 PLC 191. It was next argued that another trade union for the same establishment having been registered on 17-4-1995, the names of the members forming the said union were to be deleted from the list of voters as the said union was not a contesting union and that the same having not been done, the referendum could not be ordered to be held. The debate was summed up by the learned counsel for the petitioner with the argument that the respondent-union having withdrawn their application seeking referendum, the petitioner-union ought to have been declared as C.BA. For-the next term and there was no occasion for the Registrar to order the holding of second referendum. Reliance in this behalf was placed on Mehmood Textile Mills Workers' Union v. The Registrar of Trade Unions, Multan Region, Multan (1976 PLC 387).
6. Learned counsel for the respondents on the other hand submitted that the petitioner-union having not objected to the-list of voters as provided by the employer and having contested the first referendum on the basis thereof is manifestly estopped under the law to challenge the same or to make any grouse in regard thereto. It was submitted that since the two trade unions received equal number of votes in the first round of referendum, rule 40 of the Punjab Industrial Relations Rules, 1973, was applicable and there was no need to prepare a fresh list or to predetermine as to whether the trade union seeking election had, as its member, 1/3rd of the total votes. A reference was also made to the 3rd proviso attached to subsection (9) of section 22 of the Industrial Relations Ordinance, 1969. As for the plea that third trade union had also come in the field, it was submitted that no such case was made out in the writ petition, therefore, the same cannot be allowed to be argued at the hearing. The plea that the respondent No, 2 had withdrawn his application seeking election was also denied and it was submitted that the said application was manoeuvred by the petitioner-union itself and this argument was further supported on the ground that the respondent-union had fully participated in the second referendum. It is prayed that since the petition proceeds on distorted facts and is not supported by the law, therefore, the same be dismissed. Before deciding the present controversy between the parties, it would be relevant to mention here that on my query from the learned counsel for the petitioner as to whether the petitioner-union ever objected to the first list of voters as provided by the employer, the tacit answer was to the effect that nobody ever objected to the list prepared and supplied by the employer and that as a matter of fact the first referendum was contested on the basis thereof. It is also an admitted position of fact that in the first round of referendum, the two unions secured equal votes. In view of the abovesaid admitted position of fact, the question that falls for determination is to the effect as to which of the two rules as relied and convassed by the learned counsel for the parties would be applicable in the facts and circumstances of this case. Rule 39 of the Punjab Industrial Relations Rules, 1973 reads as under:-- "Ballot to be repeated in case a union receives less than the required number of votes.--- Notwithstanding the provisions of rule 38 if the number of votes received by the winning trade union is less than one-third of the total number of workmen employed in the establishment, such union shall not have declared as Collective Bargaining Agent and the ballot shall be held afresh on such date and time as may be fixed by the Registrar: ' Provided that such fresh ballot may be held on the basis of a fresh list of voters to be prepared by the Registrar in the manner provided in section 22."
' The abovesaid rule has been relied by the learned counsel for the petitioner to contend that the fresh referendum could not be ordered to be held unless a fresh list of voters had been prepared by the Registrar and it had also been determined as a matter of fact that the union seeking election pad, as its member, one-third of the total workmen employed in the establishment. A bare reading of the rule shows that the same applies to a union who has won in the election but the number of votes received by the said winning union are found less than one-third of the total number of workmen employed in the establishment. It is ordained that such union shall not be declared as Collective Bargaining Agent and rightly so because the winning union having received less than one-third votes cannot be said to have mandate of the workmen employed in the establishment. In such an eventuality, it is provided that fresh ballot may be held on the basis of a fresh list of voters to be prepared by the Registrar in the manner provided in section 22 of the Punjab Industrial Relations Rules, 1973. It would, however, be noticed that rule 40 of the Punjab Industrial Relations Rules, 1973 cater for and speaks of a different situation i,e, in the case of tie, a fresh referendum is ordained to be held and the condition of preparing a fresh list as also the determination as to whether the union seeking the election has, as its member, one-third of the total workmen employed in the establishment has neither been attached nor prescribed. It would be seen from the discussion noted above that the rule laid down in the case of Fatehally (supra) is not at all applicable in the facts and circumstances of the present case. In the instant case, it is matter of record that the two rival unions received equal number of votes that is to say that the two contesting unions did secure more than one-third of the total workmen employed in the establishment and as mentioned in the list, therefore, the Registrar did rightly order that the secret ballot be held afresh on 3-8-1995. As for the argument that the third trade union having entered the field, a fresh list was required to be prepared because the names of the members forming the third trade union had to be struck off from the membership of other unions. Suffice it to say that the same have not been pleaded in the writ petition and then no proof of the third trade union having been constituted is forthcoming on the record. The plea that the respondent No, 2 filed an application thereby praying that their application seeking election for the C.B.A. Is also not tenable particularly in view of the denial made by respondent No, 2 and that too with the rider that the said application is manoeuvred by the petitioner-union itself. Even otherwise this being a disputed question of fact the same cannot be determined in the exercise of Constitutional jurisdiction of this Court.
' For the reasons stated above, this petition is dismissed with no order as to costs.