1. This petition is directed against the proceedings of referendum held on 5-5-1995 seeking declaration that the proceedings were not warranted under the law and that the jurisdictional requirements were not satisfied, as such were nullity and liable to be quashed and be further directed not to give effect to the said referendum and issue certificate of Collective Bargaining Agent to respondent No.3 (UBL Workers Front, Sukkur Zone).
2. The relevant facts of the petition are that there are to rival trade unions of workers employed in United Bank Limited, Sukkur Zone, Sukkur. The Trade Union of the petitioners, namely, UBL Employees'
3. Union with Branch Office at United Bank Building Zonal Office, Sukkur is the Collective Bargaining Agent, whereas the rival trade union is named as UBL Workers Front of Sukkur Zone with its office at UBL Zonal Building, Sukkur. Since petitioner's Union was CBA till 4-5-1995 therefore for holding of a fresh referendum respondent No.3, a union registered under Industrial Relations Ordinance, 1969 (hereafter to be referred as the Ordinance) for Sukkur Zone through its General Secretary moved an application on 19-4-1995 to Registrar of Trade Unions, Hyderabad Region for holding referendum in-between them, attaching with it the list of its members. The Registrar authorised Deputy Director Labour, Sukkur to take all necessary steps on his behalf to conduct proceedings for determining the Collective Bargaining Agent under section 22(2) of the Ordinance in UBL Sukkur Zone by holding elections in-between the abovementioned trade unions. In consequence of this Mr. Shamsul Hassan Jafri, Deputy Director Labour, Sukkur Division, respondent No.2, sent letter to the petitioner on 23-4-1995 intimating him that he has been authorised by respondent No. 1 the Registrar of Trade Unions, Hyderabad Region to at on his behalf for conducting secret ballot for the determination of CBA in the establishment of UBL Sukkur Zone, petitioner was called upon under subsection (3) of the Ordinance to intimate whether it desires to contest the referendum and if so then submit a list of members alongwith their names, parentage, age, section, department, place of posting, card number and the date of his becoming member of Union within three days of the receipt of the letter. A letter was also sent to respondent No.3 asking for the same particulars. Copy of same letter was forwarded to Zonal Chief of Sukkur Zone asking him to supply the list of workmen including workers who have completed their three months' service employed in the establishment.
4. A joint meeting was held on 26-4-1995 to process the holding of elections which was attended by Mr. Javed Iqbal Ansari, AVP, UBL representative of the employer, Seraj Ahmad Khan and Mian Muhammad Yousif, General Secretary and President of UBL Workers Front, Muzaffar Hussain Shaikh and Mir Muhammad Mastoi, General Secretary and President of UBL Employees' Union. The respondent No.3 showed its number as 83 while the petitioner did not furnish the list of its members. The list supplied by the establishment contained 264 number of workers eligible to vote.
5. A consolidated list prepared by the Registrar of the Trade Unions for the purpose of holding the ballot was finally prepared and the copies thereof were supplied to the petitioner as well as to respondent No.3. The minutes of the meeting were signed by all the representatives of the parties and their further sitting was held on 2-5-1995 and on that date contesting unions were allotted symbols. Referendum finally took place on 5-5-1995 when secret ballot was held wherein respondent No.3 was declared successful securing 130 votes as against 128 votes secured by petitioner and was declared as Collective Bargaining Agent.
6. In rebuttal of the contentions agitated by petitioner in the petition respondent No.3 through its General Secretary Mr. Seraj Ahmad denied the averments in the petition and pleaded that since law does not place a bar on dual membership so many workers possessed membership of both unions and that the minutes of the meeting clearly indicate that the list of workmen provided by respondent No.3 was made available to petitioner and they did not raise any objection both as to correctness and validity of such list as well as adequacy of its members. Since petitioner did not raise any objection at the proper stage and having acquiesced at that stage are now estopped from raising such objection. It was petitioner himself who had included the name of Mr. Seraj Ahmed, General Secretary, UBL Workers' Front-respondent No.3 in its list. So petitioner cannot challenge his validity as voter after the elections were held and it may be an afterthought.
7. Respondent No.2 to denied the assertions of petitioner and stated that the referendum was properly held after taking all the parties into confidence and it was with their consent that the list of voters was prepared and provided to them by getting their signatures. Therefore petitioner's raising objection at a belated stage after holding elections appears to be an afterthought. Respondent No.2 further pleaded in the comments that list of voters was provided to petitioner and respondent No.3 in meeting held on 26-4-1995, 8 days prior to holding of referendum. Therefore the allegation that the same was given to the petitioner within less than four days of election is without any foundation. According to him the voters' list was prepared and finalized on 26-4-1995 with the full consent of parties and with their no objection regarding the inclusion of name of Seraj Ahmad.
8. Petitioner by way of filing an affidavit-in-rejoinder controverted and denied the above points raised by respondents Nos. 2 and 3 in their affidavits.
9. Mr. M.L. Shahani counsel for petitioner contended that respondent No. l or his nominee respondent No.2 did not satisfy himself of the jurisdictional requirements that respondent No.3 did not possess number of one-third of workers in the establishment. Respondent No.3 declared the list of its members as 83 alongwith application moved for referendum which according to the list provided by employer is not one-third members of voters. Therefore according to Mr. Shahani his requirement under section 22(2) of the Ordinance was not complied with. As such the initiation of proceedings under section 22(2) of the Ordinance was illegal. The petitioner, according to the establishment at the relevant the had its members to the extent of 250 out of 263 as petitioner union submitted check of system which has legal sanctity in law and does not require any proof. It is submitted that by not raising any objection it will not absolve the respondent No.2 to follow the law as there is no estoppel against law nor there can be waiver against the statute. It was the duty of the Registrar to ascertain the jurisdictional facts. According to proviso to section 3 of the Ordinance a worker shall not be entitled to be member of more' than one trade union at any the.
10. The learned counsel argued that Mr. Seraj Ahmed a dismissed worker was included in the list of voters by respondent No. 2 with his own handwriting and was allowed to cast vote and one invalid vote having clear mark of identification was also allowed to be counted in favour of respondent No.
3. If these to votes are excluded then there will be tie and would require second round of referendum. According to him dismissed worker Mr. Seraj Ahmed is not a worker under the Ordinance as no industrial dispute was raised on his behalf as mentioned under section 2(xxviii) of the Ordinance. Learned counsel lastly urged that four' clear days were not given after finalizing the voters' list and before holding of referendum as required. Under section 22(5) of the Ordinance.
11. Therefore the elections held were unlawful.
12. In support of his contentions Mr. Shahani placed reliance on the case---law reported as:
(i) Treasurer of Charitable Endowments for Pakistan v. Central Board of Revenue, Islamabad and others (PLD 1981 Kar.. 357).
(ii) Trustees of the Port of Karachi v. Muhammad Saleem (1994 SCMR 2213).
13. (i.e) M/s. Premier Mercantile Services (Pvt.) Limited, Karachi and 6 others v. The Registrar of Trade Unions, Sind, Karachi and 2 others (1993 PLC 312).
(iv) The United Bank Limited Labour Union v. Registrar of Trade Unions, - Government of Sind and 3 others (1992 PLC 78).
(v) Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others (PLD 1987 SC 447).
14. Mr. M.A. Rashid for respondent No. 3 on the other hand vehemently stressed and advanced arguments that there was absolutely no jurisdictional defect committed by respondent No. 2 in holding the referendum as agitated by the petitioner. There is not a condition precedent for moving an application under section 22(2) of the Ordinance that the challenger union should have not less than one-third number of workers in the establishment or group of establishments and that Registrar, Trade Unions is by law not required to carry out any scrutiny under above provision of the Ordinance. According to him however the requirement of one-third number of workers of a union is not a jurisdictional fact and that the jurisdiction of Registrar to conduct the referendum is not dependent upon this fact. He next argued that requirement of showing at least one-third number of all workers in establishment if not met would not render proceedings as nullity and it would at the most be error within jurisdiction. According to him since petitioner did not raise any objection at that stage and consented therefore he is estopped from agitating any such objection at later stage and is deemed to have waived such right. Mr. M.A. Rashid argued that from the initial stage petitioner was attending the meetings held by respondent No. 2 about holding of referendum and it was till 5-5-1995 the date of elections the petitioner not only agreed with the proceedings of the meeting, preparation of voters' list and holding of referendum but also signed on the minutes of every meeting. The petitioner therefore has waived all the rights accruing against respondent No.3.
15. He lastly contended, that the principles of estoppel will apply to this case as no violation of any law or statute is made by respondent No.2 while exercising powers under section 22 of the Ordinance.
16. Mr. M.A. Rashid in support of his submissions referred to the case-law reported in:
(i) Ghulam Mohi-ud-Din v. Chief Settlement Commissioner PLD 1964 SC 829.
(ii) Yasin Khan and another v. Settlement and Rehabilitation Commissioner PLD 1967 Karachi 295.
17. (i.e) Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another PLD 1986 Supreme Court 542.
(iv) Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213.
18. Admittedly there are to registered trade unions in the establishment, namely, UBL Employees' Union the petitioner--a CBA and UBL Workers' Front--respondent No.3. Since the tenure of petitioner union was expiring on 5-5-1995 an application was moved by Mr. Seraj Ahmed, General Secretary of respondent No.3 challenger union to Registrar, Trade Unions i.e. Respondent No. 1 on 19-4-1996 requesting for holding of referendum in-between them mentioning the list of its members being annexed. Neither petitioner. Nor respondent No.2 filed that list, therefore original record of proceedings was called and from its perusal it transpired that list of 57 members was attached with the application. This list contained the name of Seraj Ahmed at Serial No.4, but the final list of 83 members furnished by respondent No.3 to respondent No.2 on 26-4-1995 did not contain the name of Seraj Ahmed as its member. The minutes of meeting dated 26-4-1995 show that respondent No.3 produced the list of its members bearing No.83 in triplicate and petitioner could not furnish the list of its members and the employer furnished list of 263 employees (workmen) engaged it that the in the establishment. From the initial list Annexed with application and the final list furnished by respondent No.3 as mentioned above it seems that challenger union viz respondent No.3 was devoid of one-third number of workers in the establishment. Therefore a mandatory requirement of showing at least one-third of total number of workmen employed in establishment or group of establishments alongwith application for holding a referendum has not been fulfilled. Moreover subsection (2) of section 22 of the Ordinance makes it incumbent upon the Registrar to determine that the trade union making application for referendum to show at least one-third of total number of workmen employed in the establishment or group of establishments.
19. For proper appraisal section 22(2) is reproduced as under:-- "(2) Where there are more registered trade unions than one in an establishment. Or a group of establishments, the Registrar shall, upon an application made in this behalf by any such trade union which has as its members not less than one-third of the total number of workmen employed in such establishment or group of establishments or by the employer, or the Government hold within fifteen days from the making of the application a secret ballot to determine as to which one of such trade union shall be the collective bargaining agent for the establishment or group: , Provided that the Registrar may, in the case of a large establishment having its branches in more than one town, hold the secret ballot within thirty days from the making of the application: Provided further that the Registrar shall not entertain any application under this subsection in respect of an establishment or group of establishments, consisting of, or including, a seasonal factory within the meaning of section 4 of the Factories Act, 1934 (XXV of 1934), unless such application is made during the month in which the number of workmen employed in such factory in a year is usually the maximum."
20. Admittedly respondent No. 2 has ignored the provisions of subsection (2) of section 22 of the Ordinance and has not looked into the fact that respondent No.3 has not attached the required number of at least one-third of total number of workers and principle of estoppel will not be applicable in this case as violation of statutory provision of law which is mandatory in nature has been made. In these circumstances respondent No.2 had no jurisdiction to entertain the application and to proceed on the same and hold referendum Mr. Seraj Ahmed representative of respondent No. 3 in his counter-- affidavit in para. 8 has stated: "it is however denied if requirements of one-third of membership of workers, if not met, would render the proceedings before respondent No.2 as nullity. At worst it was an error within jurisdiction."
21. Respondent No.2 in his parawise comments has stated that he A not inquire into the fact of one- third members of respondent No.3 as petitioner did not raise any objection. In the above versions respondents Nos.2 and 3 have admitted that respondent No.2 has not acted within jurisdiction. The question of objection to be raised by petitioner before respondent No.2 is not maintainable as firstly it is wholly and solely responsibility of respondent No.2 to look into the application and find out us to whether the requirement of subsection (2) of section 22 of the Ordinance is complied with by the party making such application and secondly it is nowhere mentioned in the Ordinance that a copy of the list attached with it is to be supplied to the other side.
22. The case of Treasurer of Charitable Endowments for Pakistan v. Central Board of Revenue (PLD 1981 Karachi 357) supports his contention that admission or consent by a party not in consonance/conformity with relevant provision of law does not constitute estoppel against such party. It is also held that the statutory functionaries required under law to at in a particular manner cannot deviate from same by entering into some arrangement not warranted by law with affected party and that consent/acquiescence on part of party cannot make a thing valid if otherwise invalid and that no estoppel can be pleaded against statute/law. In case of M/s. Premier Mercantile Services (Pvt.) Limited, Karachi and 6 others v. The Registrar of Trade Unions, Sind, Karachi and 2 others 1993 PLC 312 this Court has held that where there are more registered trade unions than one in an establishment or group of establishments and an application for grant of certificate of being Collective Bargaining Agent was made by one of such trade unions and if Registrar, Trade Unions is satisfied that such trade union has members not less than one-third of total employees of such establishment or group of establishments he shall hold a secret ballot to determine appointment of Collective Bargaining Agent. In case of United Bank Limited Labour Union v. Registrar of Trade Unions, Government of Sind and 3 others 1992 PLC 78 a Division Bench of this Court declared impugned certificate of registration in favour of second respondent being issued without any jurisdiction and authority and was nullity and non-resistant in the eye of law.
23. In case of Utility- Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 the Honourable Supreme Court observed as under:-- "It is not right to say that the Tribunal which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it rightly or wrongly' because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly when the Tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction. "
24. A perusal of list of 83 members furnished by respondent No.3 before respondent No.2 on 26-4-1996 does not include the name of Mr. Seraj Ahmed, General Secretary of respondent No 3. Moreover his name has been included in the list provided by employer at bottom in the handwriting. This also confirms the objection raised by petitioner in the petition that he being a dismissed worker, his name had been wrongly added by respondent No.2 in the list himself. In this view of the matter he had no locus standi to at as applicant as -well as voter. The contention of learned petitioner's counsel is that Mr. Seraj Ahmed is not a workman as no industrial dispute has been raised regarding his termination or dismissal as provided by section 2(xxviii) of the Ordinance and his dismissal was a case of an individual dispute unrelated to an industrial dispute. In the case of Trustees of the Port of Karachi v. Muhammad Saleem (1994 SCMR 2213) Hon'ble Supreme Court has defined the worker to include a person who had been dismissed, retrenched, discharged, laid-of or otherwise removed from employment in connection with or as a consequence of industrial dispute or whose dismissal, discharge etc. Had let to such a dispute.
25. In view of above observations the argument of Mr. M.A. Rashid that there is, no condition precedent for an application under section 22(2) of the Ordinance that challenger union should show at least one-third number of workers in the establishment or group of establishments and that the Registrar, Trade Unions is by law not required to carry out scrutiny under above provision of law has got no force in view of a clear mandatory provision laid down under section 22(2) of the Ordinance.
26. In view of the law discussed in preceding paragraphs of the judgment the plea of estoppel agitated by Mr. M.A. Rashid has also no force.
27. The law relied upon by, Mr. M.A. Rashid learned counsel for respondent No.3 is not applicable to the facts of the present case and has got no relevancy with the facts of the case.
28. In the result this petition succeeds and the proceedings of referendum held on 5-5-1995 are declared to be without lawful authority and of no legal effect and the same are quashed and further that certificate of Collective Bargaining Agent if any issued by respondent No. 1 or 2 in favour of respondent No.3 is declared to be null and void. In the circumstances of the case parties are directed to bear their own costs.