1. The facts leading to the present petition are as under: The petitioner is a trade union of Seamen and has acted as Collective Bargaining Agent since 1979.
2. The respondents Nos. 2 to 5 are also trade unions. The respondents Nos. 6 to 12 are the Shipping Companies or the agents of Shipping Companies who engage the valid C.D.C holder Seamen. This employment is regulated by respondent No. 13 the Shipping Master which is an authority under the Merchant Shipping Act, 1923. It is stated in the petition that the petitioner received Letter No. JDC/RTU/CD/Ref/95/1609, dated 30-5-1995 by ordinary mail advising the petitioner to attend the office of Joint Director Labour, Central Division for necessary discussions on Constitutional Petition No. D-688/1989 on 7-6-1995 at 10-00 a.m. This letter was received on 11-6--1995 at 13-10 Hrs. The office-bearers of the petitioner attended the office of respondent No. 1 on 12-6-1995 where petitioner union was informed through their office-bearers that there was pressure on them to certify respondent No.2 as C.B.A. Another notice for meeting on 18-6-1995 was issued and the office --bearers of petitioner union attended the office of respondent No. 1 but no progress was made.
3. From 18-6-1995 to 7-8-1995 there was no further progress and there were no further - proceedings.
4. However, petitioner received a Letter No.JDC/RTU/CD/Ref-6/95/2109, dated 6-8-1995 by registered post on 7-8-1995 at 15-35 hours wherein it was mentioned that respondent No. 2 had applied for referendum under section 22(2) of I.R.O., 1969 and the petitioner was finally called upon to indicate whether it had desired to contest and if so then the list of members submitted in joint meeting to be held on 7-8-1995 at 10-00 a.m. According to the petitioner letter dated 6-8-1995 was received by post on 7-8-1995 at 15-35 hours when the meeting the had already passed: On the next day petitioner union protested against the above letter vide its Letter No. PSU/GS/396/95 stating its desire to be contestant in the referendum to be held in accordance with the provision of I.R.O., 1969.
5. While the petitioner was avoiding action on its letter dated 8-8-1995 the petitioner received the photo copies of the certificate dated 9-8-1995 and 17-8-1995 which was issued by respondent No. 1 certifying the respondent No. 2 as Collective Bargaining Agent under section 22(9-A) of I.R.O., 1969.
6. Previously also an attempt like this had been made and the petitioner union challenge the same in this Court in C.P. No.S-3/90 and the registration of that union was also attacked. Another Petition No. D-688/1989 was also filed which was dismissed on 9-7-1989 when the union had withdrawn the application made to respondent No. 1 for referendum. Constitutional Petition No: S-3/1990 gave a decision that only those persons are Seamen who are employed or engaged in any capacity on board any ship except pilots and apprentices duly indentured and registered. In view of this finding the respondent No. 1 was to finalize list of voters of all registered valid D.D.C holders Seamen.
7. The petitioner has further stated that the action of respondent No. 1 certifying respondent No. 2 as Collective Bargaining Agent was in violation of mandatory provision of I.R.O., 1969 as contained in section 22 and the Merchant Shipping Act, 1923 and Merchant Shipping (Seamens Employment)
8. Rules, 1961. The petitioner has therefore challenged the impugned certificate on the ground No. (A) that provisions of section 22 of I.R.O., 1969 have been violated the 1/3 members of total Seamen have, not been determined before entertaining the application under section 22(2) of I.R.O., 1969.
(B) that the employers' lists of the Seamen were not called by respondent No. 1 to determine 1/3 membership of the respondent No. 2 union. The petitioner has therefore, prayed that the impugned Certificate No. SR. No. CD/001, dated 9-8-1995 and Letter No. JDC/RTU/CD/Ref-6/95/2266, dated 13- 8-1995 to be decided without lawful authority and of no legal effect. It is also prayed that respondent No. 1 be directed to provide opportunity to trade. Unions at Serial Nos. 2 to 5 to submit lists of their members and to prepare the list of voters in accordance with section 22(5) of I.R.O., 1969 after calling the lists of Seamen on board from the employers.
9. The respondents Nos. 1 and 2 had filed their counter-affidavits. The respondent No. 1 has submitted parawise comments stating that as per record of his office, Constitutional Petition No.D-688/1989 was pending before Hon'ble High Court and therefore, a joint meeting of all the registered Trade Unions representing Seamen was called to ascertain the factual position. Contents of para. No. 4 of petition have been denied and it is stated that none from petitioners' union attended his office. It is also stated that 'on 19-7-1975 letter was issued to registered Trade Unions including petitioners' union for their consent for contesting -the referendum and facing the date of joint meeting on 24- 7-1995. The letter was issued under registered post. In response of the said letter Mian Taseer Jan, Chairman petitioners' Union and representative of respondent No. 2 attended the joint meeting on 24-7-1995 and noted the next date of joint meeting fixed for 31-7-1995 whereas the representative of respondents Nos. 3, 4 and 5 Union remained absent. A letter for joint meeting dated 31-7-1995 was issued to the General Secretaries of respondents Nos. 3, 4 and 5. The petitioner union had suppressed the fact to misguide the Court. On 31-7-1995 only representative of respondent No. 1 Union attended the meeting, whereas the representatives of respondents Nos.3, 4 and 5 included representative of petitioner's Union remained, absent. In the meeting dated 31-7-1995 it was decided to finally call upon the respondents Nos. 3, 4 and 5 Unions including petitioner's Union to indicate their consent. Whether they desired to be contestant in the referendum or not. This fact was also brought in the notice of Chairman of the petitioner's union when he visited the office of respondent No.1and in confirmation a letter was also sent to the petitioners' union as well as respondents Nos. 3, 4 and 5 union but neither they submitted their consent alongwith list of members nor attended the joint meeting on 7-8-1995. The letter of petitioner dated 8-8-1995 had neither been received by respondent No. 1 nor any clerk/despatcher of his office had received it, on 8-8-1995 or thereafter. The signature of despatcher of respondent No. 1 on the said letter are forged and manipulated. Inward and outward registers are being maintained in the Office of Registrar of Trade Unions, Central Division and all the incoming and outgoing mail/letters are entertained in the said registers. There is no entry of receipt of the said letter in the inward register.' The representative of petitioner's Union used to come in the office and it is probable that they fraudulently put the rubber stamp of despatcher on the letter dated 8-8-1995. It is further stated that respondent No.2 union was certified as Collective Bargaining Agent as the petitioner's union and respondents Nos. 3, 4 and 5 unions knowingly and deliberately failed to attend the joint meeting and to give their consent to be contestants in the proposed referendum. It is further stated that the petitioners' union had concealed the facts of having received letter dated 8-8-1995 issued by respondent No. 1 .
10. The respondent No.2 has filed counter-affidavit stating that the Collective Bargaining Agent certificate once issued under section 22(9-E) of Industrial Relations Ordinance cannot be cancelled, or set aside as the same has been issued in accordance with the provisions of section 22 of I.R.O., 1969. The, factual controversy, cannot be resolved under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 in writ jurisdiction: There is no violation, contravention or non- compliance of section 22 of I.R.O., 1969 in issuance of Collective Bargaining Agent Certificate No. SR-No. CD/001, dated 9-8-1995 in favour of respondent No .2 by respondent No. 1. The provisions of section 22 of the I.R.O. Have been complied with by respondent No.1 before issuing C.B.A. Certificate.
11. The Letter No.PSU/CS/396/95, dated 8-8-1995 was neither received by respondent N6. 1 nor was delivered in' the office of said respondent on 8-8-1995 as alleged by the petitioner union. It is also stated that amongst 31 establishments petitioners' union did not reply w letters dated 12-6-1995 and 6-8-1995 and they also did not participate in referendum proceedings before respondent No.1and avoided to attend the joint meetings. The respondent No.1after waiting for more than to months issued C.B.A. Certificate in favour of respondent No.2. The Constitutional petition is not maintainable as there is factual controversy. The respondent No.2 in paragraph 13 of the counter-- affidavit has stated that the petitioners' union was certified to be C.B.A. For to years in the year 1980 and this period has expired in 1982 but in collusion with respondents Nos.3 to 17 is working as C.B.A.
12. Union for the period of last more than 15 years illegally and without any lawful authority.
13. The petitioners union has submitted affidavit in rejoinder through their Joint Secretary Mr. William Bhatti who has stated that he was continuing as Joint Secretary since June, 1993 and he has denied the averments contained in counter-affidavits of respondents Nos. 1 and 2 and comments of respondent No. 1. He has also stated that he was conversant with signature of Mian Taseer Jan, the then Chairman of the petitioners' union and he stated that the Annexures ' A' and ' B' to the counter-affidavit do not contain the signature of the Chairman. The minutes dated 31-7-1995 and 7-8-1995 were manipulated and these did not contain the signatures of General Secretary of the respondent No.2 who was removed from his office of the union which was disputed before Labour Court No. 5. The letter dated 8-8-1995 or petitioner was submitted to respondent No. 1.
14. The learned Advocate for the petitioner has submitted that petitioner is C.B.A and this fact is not disputed. The document Annexure 'A' is dated 30-5-1995 and it was delivered on 11-6-1995. Meeting was fixed on 7-6-1995. This was received after the meeting. Therefore, petitioner could not participate. On 12-6-1995 petitioner approached respondent No.1 and meeting was fixed on 18-6- 1995 but there was no meeting on-this date. Thereafter petitioner received letter dated 6-8-1995 and the envelope shows stamp dated 7-8-1995. The impugned certificate was issued on 9-8-1995.
15. Being aggrieved with this certificate petitioner has applied for cancellation of this certificate. The issuance of certificate had been challenged on four grounds, firstly there was no application under section 22(2) of I.R.O. For initiating proceedings. Secondly it was duty of Registrar to ascertain 1/3 members of total number of Seamen employees. Thirdly there were no proceedings before Registrar and fourthly even of he was executing authority even then he could not issue such certificate under section 22(9-A) of I.R.O. It was further argued that there are more than one unions.
16. Registrar could not initiate the proceeding because there was no application. It is the requirement under section 22(3) the C.B.A. Union is to be informed. The document on page 21 shows this fact as the minutes were not filed by Registrar, it also shows that there was no application. Even assuming that there was an application even then the Registrar has to ascertain 1/3 number of members workmen employed. Registrar never asked for view of petitioner as required under section 22(3).
17. The application was wrongly entertained because 1/3 number was not established. There were no proceedings for determining C.B.A. The C.B.A. Certificate could not be issued because there was A direction contained in decision reported. In 1991 PLC page 186 directing the Registrar to hold referendum after holding as to who are Seamen. Reliance has also been placed on decisions reported in 1991 SCMR page 888, 1988 PLC 739 and 1987 PLC 723. It was the duty of Registrar to call the lists, which was mandatory provision. Reliance has been placed on decision reported in 1980 PLC page 785 wherein fresh referendum was ordered. PLD 1979 Lah. 820, 1995 SCMR page 362, PLD 1995 SC page 429 and 1995 CLC page 952.
18. The learned Advocate for respondent No.1submits that the petition is not maintainable. There are factual controversies which require evidence and cannot be decided under the extraordinary Constitutional jurisdiction. Petition is to be dismissed when such controversies are involved. It is alleged that letter was issued which was received late, therefore, a latter dated 8-8-1993 was written. This letter was received but Registrar has denied that any such letter had been received.
19. There is no such entry in inward register and this fact can be determined through evidence. The remedy is other than the petition which is open for petitioner to choose. The learned Advocate for respondent No.1 further submitted that Annexure ' B' shows that Mian Taseer Jan, Chairman, Pakistan Seamen Union was present. This signature is denied by petitioner. The authenticity of this document has come under challenge. This requires evidence. There are other factual controversies and therefore, the petition is not mentioned reliance is placed on decision reported in PLD 1991 SC pages 476-477, 1993 SCMR page 811, 1994 MLD page 1241, PLD 1994 Kar.. Page 89, 1993 SCMR pages 511 and 618 and 1994 PLC page 1198 (b).
20. Mr. Suleman Hababullah, Advocate for respondent No.2 has submitted that the Registrar respondent No.1has already filed counter-affidavit and para. 4 of his affidavit settles the controversy. He further submitted that Mian Tasser Jan has never denied that he did not sign the document. The Registrar had discharged his duty under section 22 by sending letter to every employer. The petitioner is based on controversial facts. The petitioner has not approached Court with clean hands and has misguided the Court. The letter dated 6-8-1995 on page 27 shows that application was received. Para. 2 makes it clear that petitioner was invited. Letter dated 13-8-1995 on page 37 may be seen. Annexure ' A' is not controverted. It has been issued to all Unions. Letter dated 24-7-1995 has also not been denied. C.P. No.1061/1988 had decided the question of 1/3 number members. Registrar can call the meeting if he is satisfied that there exists required number of members. The petitioners' union became CBA in 1979 in similar circumstances but no objection was raised anywhere that they had the required 1/3. Reliance has been placed on decision reported in 1993 PLC page 312. If other unions are not ready to contest, the Registrar has to issue the certificate. Reliance 4s placed on decision reported in 1987 PLC 420, PLD 1975 SC 244. On point of controversial facts reliance is placed on decision reported in 1995 MLD August Part page 1402. The Registrar had issued the notice but no employer had denied that he did not receive such letters. If no one comes and no objection is raised then the Registrar has no option but to issue the certificate. The letter of petitioner dated 8-8-1995 available on page 31 shop that petitioner was aware that referendum was to be held. These facts cannot be decided without taking evidence.
21. There has been no violation of provision of I.R.O.
22. The learned Advocates for the respondents have submitted that the factual controversies are involved and therefore without recording of evidence this Court will not be able to arrive at correct decision. The factual controversies are quite a few. I will only mention to important controversies. In para. 6 of petition it is alleged that petitioner vide Letter No.PSU/GS/396/95 communicated its stand to Registrar. This letter is at page 31 and it is dated 8-8-1995. The Registrar in his para-waise comments has denied this allegation. The question whether letter of petitioner dated 8-8-1995 was received by respondent No.1 cannot be settled without recording of evidence. The second arises because in para. 5 of parawise comments the respondent No. 1 has stated that in pursuance of said letter Mian Taseer Jan, Chairman of the petitioners'. Union and respondent No.2 attended the joint meeting on 24-7-1995. This fact has been denied in affidavit in re-joinder filed by William Bhatti, Joint Secretary petitioners' union wherein in para. 4 he has stated that Mian Taseer Jan was not present in the meeting and his name has been added subsequently as is apparent according to him from the contents of the minutes. Mr. William Bhatti has further stated that he was conversant with the signature of Mian Taseer Jan the then Chairman of the petitioner and Annexures ' A' and ' B' to the counter-affidavit and the comments do not contain the signatures of Chairman. The then Chairman himself has not come-forward to, say whether he was present or not. This aspect also requires evidence to' establish as to whether Mr. Taseer Jan was present. In case it is established that Mr. Taseer Jan was present then it can be said that the averments in petition are not correct. Because there are factual controversies therefore Constitutional petition is not maintainable. In decision reported in 1993 SCMR page 618, their lordships have been pleased to rule as under:-- "It is a consistent view of this Court that in case where factual l controversies are involved, Constitutional petitioner in the High Court is not the proper remedy. Reference can be made to PLD 1980 SC page 139; 1980 SCMR page 933; 1981 SCMR page 291; 1989 SCMR page 918 and PLD 1991 SC page 476."
23. The abovementioned facts reveal that there are factual controversies ands therefore in this case the Constitutional petition is not maintainable. The present petition is therefore dismissed but it will remain open for petitioner to seek any other remedy before competent forum. The petition therefore, dismissed with no Petition dismissed with no orders as to costs.