TANVIR AHMAD KHAN, J.- Through this judgment writ petition No. 17873 of 1998 titled Pakistan Telecommunication Company Lions Staff Union v. NIRC etc. W.P. 22226 of 1998 titled Muhammad Tariq Gondal v. NIRC, etc. And W.P. No. 11130 of 98 titled Pakistan Telecommunication Company Employees Union v. NIRC etc. Are disposed of as in former two writ petitions exception has been taken to the judgment of Full Bench of NIRC dated 31.8.1998 whereby earlier order passed by the Chairman NIRC/Registrar Industry wise Trade Unions (hereinafter to be referred to as RITU) dated 15.7.1998 has been set at naught while in the latter Constitutor al petition the very assumption of jurisdiction by the Chairman is challenged.
2. This case has got a chequered history as protracted litigation is going-on mainly between Pakistan Telecommunication Company Lions Staff Union and Pakistan Telecommunication Company Employees Union for the determination of Collective Bargaining Agent (CBA). Both these Trade Unions are registered as Industrywise Trade Unions with N.I.R.C. Earlier Writ Petitions No. 19876/97 and W.P. 11660 of 97 were disposed of vide order dated 28.8.1997 by a learned Judge directing to hold referendum in Pakistan Telecommunication Company Ltd. (PTCL) to determine Collective Bargaining Agent. Mr. Muhammad Athar Deputy Registrar was appointed by the Chairman NIRC/RITU to determine the same.
3. The meeting of all the participants was held on 23:9.1997 at Islamabad. While efforts were afoot to hold the referendum, it was stayed by an order of this Court. Ultimately, after disposal of the Constitutional petitions pending at Lahore High Court and Peshawar High Court referendum was held on 14.4.1998. In all 133 'Polling Stations were established throughout Pakistan. It is reflected from the record produced by Mr. Pervez Jalees Alvi, Deputy Registrar^ and Mumtaz Ahmad Administrative Officer of NIRC that the staff was deputed from Provincial Labour Department, Pakistan Post Office and NIRC at different Polling Stations for the conduct of the referendum.
4. After the conclusion of the polls, votes were counted in accordance with the provisions of National Industrial Relations Commission (Procedure and Function) Regulations by the respective Polling Officers.
The result sheets were transmitted by the Polling Officers to the .Deputy Registrar Mr. Muhammad Athar who compiled the same. He submitted a detailed report alongwith result sheets of 133 Polling Stations to the Chairman NIRC/RITU on 20.4.1998. According to the report the Pakistan Telecommunication Employees Union respondent secured 22230 votes while the Pakistan Telecommunication Company Lions Staff Union, the petitioner in W.P. 17873 of 98 secured 10483 votes. The Chairman NIRC/RITU on the receipt of the report on the same day passed the following order: "Issue the certificate to the winning union".
The Deputy Registrar Mr. Muhammad Athar on the receipt of direction of Chairman NIRC/RITU issued the CBA Certificate in the following terms: C.B.A. CERTIFICATE NO. 4/98 GOVERNMENT OF PAKISTAN NATIONAL INDUSTRIAL RELATIONS COMMISSIONS G.5/2 ISLAMABAD C.B.A. CERTIFICATE Certified that the "Pakistan Telecommunication Company Ltd. Employees Union" has been determined as Collective Bargaining Agent for the workmen employed in the Pakistan Telecommunication Company Ltd. Throughout Pakistan under Section 22(9)(e) of the Industrial Relation Ordinance, 1969 with effect from 15th day of April, 1998 to 14th day of April, 2000.
BY ORDER OF THE CHAIRMAN/RITU, NIRC.
(Underline is mine)
(Muhammad Athar)
Deputy Registrar
5. In the meantime Pakistan Telecommunication Company Lions Staff Union submitted objections on 19.4.1998 and 21.4.1998 respectively through its President and Vice-President pointing out irregularities allegedly committed in the conduct of the referendum. These objections were entertained by the Chairman NIRC who issued notice to the other side. The petitioners Pakistan Telecommunication Company Lions Staff dated 14.4.1998 and consequent issuance of CBA certificate dated 21.4.1998 before Balochistan High Court Quetta in Constitutional jurisdiction through CP No. 122-98. Here in this petition even allegations were levelled against the Chairman NIRC. This Constitutional petition was disposed of by Baluchistan High Court through a consent order dated 20.5.1998 and the operative part thereof was as under;- "In view of the fact that objection petition is already pending before the National Industrial Relations Commission, we accept the request as made by Mr. Shakeel Ahmad, Advocate and disposed of the petition in terms that on next date of hearing, the National Industrial Relations Commission shall try to dispose of the objections filed by petitioners, and if thereafter need be, petitioner will be free to avail such remedy provided under the law, subject to all just exceptions.
Stands disposed of in above terms, leaving the parties to bear their on costs."
6. The Chairman NIRC consequent to the decision of Baluchistan High Court took up the matter.
However, Pakistan Telecommunication Company Employees Union filed writ petition No. 11130-98 before this Court taking exception to the very assumption of jurisdiction by the Chairman NIRC. The learned Judge through interim order dated 9.6.1998 stayed the proceedings before the Chairman NIRC. This restraint order dated 9.6.1998 was challenged by the Pakistan Telecommunication Company Lions Staff Union before the Hon'ble Supreme Court through CPSLA No. 784 of 1998. The learned Judges converted the petition into an appeal and recalled the restraint order. Appeal was disposed of on 25.6.1998 and the operative part thereof is as under:- "In our view the leamed'-Judge in Chamber was not justified in staying the proceedings, through interlocutory order dated 9.6.1998 passed in above writ petition No. 11130/98 as it runs counter to above order dated 25.5.1998/20.5.1998 which was passed in the earlier Constitutional petition namely C.P. No. 122/98 and whereby respondent No. 1 was directed to dispose of the objections. We, therefore, convert the above petition into appeal and set aside the above suspension order.
However, it will be open to both the parties to agitate whatever factual and legal pleas available to them before respondent No. 1."
Thereafter, the learned Chairman NIRC/RITU took up objections and through his order dated 15.7.1998 allowed the same holding that Pakistan Telecommunication Company Lions Staff Union secured 1314 votes in recounting conducted by Mr. Mumtaz Hussain, Administrative Officer NIRC than Pakistan Telecommunication Company Employees Union and directed for the issuance of CBA certificate to the former.
7. This order of Chairman NIRC/RITU dated 15.7.1998 was challenged by Pakistan Telecommunication Company Employees Union before Full Bench of NIRC. The learned Members of Full Bench through their order dated 31.8.1998 set at naught the order passed earlier by the Chairman NIRC on 15.7.1998 which resulted in the restoration of CBA Certificate dated 21.4.1998 issued to Pakistan Telecommunication Company Employees Union. Hence these Constitutional Petitions.
8. Learned counsel for the petitioner Mian Bashir Zafar has argued that appeal before the Full Bench against the order of the Chairman NIRC was not maintainable in view of section 22-D of Industrial Relations Ordinance, 1969 (hereinafter referred to as Ordinance) whereunder appeal has only been provided against the determination of CBU (Collective Bargaining Unit) but not against the determination of CBA. The counting of the votes was not done by the Registrar himself in terms of section 22(9)(d) of the Ordinance which enjoins upon him to open the ballot boxes at the conclusion of the poll in the presence of the representatives of the contesting Unions and count the same, it is argued. It is further stated that since the certificate declaring the Pakistan Telecommunication Company Employees Union as CBA was void and fraudulent as such the Chairman NIRC in the exercise of his power of superintendence available under Section 22-B of the Ordinance which is akin to the power of the High Court under Article 203 of the Constitution of Islamic Republic of Pakistan had recalled the same. It has also been argued that the Chairman NIRC/RITU was , conferred/bestowed jurisdiction by a consent order rendered by Baluchistan High Court in CP No. 122/98 and the order of the Hon'ble Supreme Court passed in CPSLA No. 784/98. In this view of the matter PTCL Employees Union which was represented in the aforesaid cases is estopped from raising any objection whatsoever to the assumption of jurisdiction. By the Chairman NIRC. Exception has also been taken to the rregulations framed under section 22E of the Ordinance as according to the learned counsel those could not have gone beyond the provisions of law as such the same are ultra vires. In support of his contention learned counsel has placed reliance upon certain cases which are as under:- Kesc Ltd, Democratic Mazdoor Union v. National Industrial Relations Commission and others (1988 PLC 286), National Bank of Pakistan Employees Union Baluchistan, Quetta through its General Secretary v. National Industrial Relations Commission through its Chairman Islamabad and 6 others (1996 PLC 49), Muhammad Refique and I6 others v. Sultan Bakhsh and another (PLD 1991 Kar.
320), S. Zahid All v. Mst. Mubarak Bano (PLD 1976 Kar. 68) and Suleman Sadiq Khan v. NIRC, etc. (NLR 1983 Labour 213).
9. Learned counsel Mr. Naeem Bukhari appearing for the respondents has controverted the stance taken by the petitioner Pakistan Telecommunication Company Lions Staff Union. He has stated that the appeal against the order of Chairman NIRC/RITU was competent before the Full Bench of NIRC u/S. 22D of the Ordinance. Further Pakistan Telecommunication Company Lions Staff Union according to him cannot blow hot and cold in the same breath as before the Baluchistan High Court in C.P. No. 122-98 it was stated in categorical terms on its behalf that appropriate remedy against the grant of certificate of CBA is before Full Bench of NIRC but since the same was not available as such the Constitutional petition was filed. He has stated that the Chairman NIRC in an arbitrary manner has declared 2461 votes invalid without having any jurisdiction under law. It was a colourable exercise of powers and the Chairman NIRC could not have recalled the certificate of CBA either in his powers of superintendence or suo motu as claimed by him. The Regulations framed under Section 22-F of the Ordinance, namely, NIRC (Procedure and Function) Regulation 1973 control the procedure for the conduct of referendum for the determination of CBA in an Industrywise Trade Un on and reference to section 22(9)(d) of the Ordinance is not apt. He has further stated that CBA certificate was issued by and under the authority of Chairman NIRC/RITU as such, he himself could not have sit over his on decision. In support of his contentions learned counsel for the respondents has placed reliance upon the following judgments: Haji Khan Bhatti v. Dr. Munir Ahmad Mughal, etc. (1992 PLC 632), Dr. Ijaz Hussain Qureshi v. NIRC etc. (PLD 1976 Lah.611), Mst. Sofia Begum v. Abdul Hamid (PLD 1968 Lah. 1358), National Bank of Pakistan v. If IRC (PLJ 1975 Kar. 85), Serajul Islam Khan v. Ahsan Ali Mondal etc. PLD 1969 SC 5), Pakistan through Secretary Ministry of Finance v. Muhammad Hamayatullah Farukhi (PLD 1969 SC 407). The Engineer In Chief Branch, etc. v. Jalaluddin (PLD 1992 SC 207), Haji Khan Bhatti v. NIRC and others (1992 PLC 594), Ahmad v. The Crown (PLD 1951 Federal Court 107), Ghulam Rasool and others v.
Crown (PLD 1951 Federal Court 62), Manak Lai. v. Dr. Prem Chand etc. (PLD 1957 SC (Ind) 346), Bharat Tewari v. Mr. N. Hussain Special Magistrate and others (PLD 1959 Dacca 48), Muhammad Mohsan Siddiqul v. Govt, of West Pakistan (PLD 1964 SC 64), Ilias Ahmad Siddiqul v. The Municipal Committee Multan, etc. (PLD 1967 Lahore 408), Hussain Bakhsh v. Settlement Commissioner Rawalpindi etc. (PLD 1979 SC 1), Muzaffar Ali v. Muhammad Shaft (PLD 1981 SC 94), The Chief Settlement Commissioner Lahore v. Raja Muhammad Fazal Khan and others (PLD 1975 SC 331), Tufail Muhammad etc. v. Raja Muhammad Ziaullah Khan etc. (PLD 1965 SC 269), Nawab Syed Ronaq Ali etc. v. Chief Settlement Commissioner etc. (PLD 1973 SC 236), Province of the Punjab through Secretary Health v. Dr. S. Muhammad Zafar Bukhari (PLD 1997 SC 351), M/s. Airport Support Services v. The Airport Manager etc. (1998 SCMR 2268), Pakistan Steel Workers Union v. Registrar Trade Union (1992 PLC 715) and Holiday Inn Peoples Democratic Workers Trade Union etc. v.
Registrar Trade Union etc. (1988 PLC 748).
Apart from afore-mentioned judgments learned counsel Mr. Naeem Bukhari has also made reference to the two judgments reported in 1987 PLC 340 and 1988 PLC 890 both rendered by Mr. Justice Retired M.S.H. Qureshi as Chairman of NIRC to the point that the appeal is provided before the Full Bench of NIRC respecting determination of CBA (Collective Bargaining Agent).
10. I have considered the contentions. The referendum in this case as mentioned in the preceding paragraphs was held by Mr. Muhammad Athar under the authority given to him by the Chairman NIRC/RITU in the exercise of his powers under Section 22(13) of the Ordinance. As pointed out earlier, a detailed report after the conduct of election was submitted by Mr. Muhammad Athar and certificate of CBA was accordingly issued on 21.4.1998 under the direction of Chairman/RITU. The Chairman on the other side himself took cognizance of the objections filed by Pakistan Telecommunication Company Lions Staff Union. The said union also filed C.P. No. 122/98 before Baluchistan High Court at Quetta which was disposed of with the direction to the Chairman to dispose of the objections. The matter does not end over here. The Pakistan Telecommunication Employees Union which was declared CBA was not satisfied with the assumption of jurisdiction by the Chairman/NIRC to the objections as such, Writ Petition No. 11130/98 was filed whereby a learned Judge through order dated 9.6.1^98 stayed the proceedings before the Chairman NIRC/RITU. The Pakistan Telecommunication Company Lions Staff Union challenged this restraint order before the Supreme Court through CPSLA No. 784/98.
11. The order of the Hon'ble Supreme Court dated 25.6.1998 mentioned earlier demonstrates that the parties were allowed to raise all factual and legal pleas before the Chairman/NIRC. In these circumstances the argument of the learned counsel Mian Bashir Zafar that through the consent of the parties the jurisdiction was conferred upon the Chairman/NIRC is totally devoid of any force.
Even otherwise the jurisdiction cannot be conferred simply by the consent of the parties if it is not available under the law. It has been held in Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, NWFP and another (PLD 1995 SC 66) as under; "The contention is not tenable for the reasons that question of jurisdiction is very important and fundamental in nature and if a forum has no jurisdiction, the same cannot be conferred upon the consent of the parties. Question of jurisdiction is to be considered by the Court even though not raised by the parties. In support of the proportion reference can be made to the case of Releigh Investment Company Limited v. The Governor-General- in Council (PLD 1947 Privy Council 19). There is no dispute about the fact that the doctrine of estoppel cannot be applied to ' defeat the provisions of statute or enactment affecting jurisdiction of the Court. Reference can also be made to the case of Muhammad Suleman v. Javed Iqbal (PLD 1982 SC (AJ&K 64). Having held that this Court can go into the question of competence of forum and to that extent vires of section 8-B now we advert to section 8-B of the Political Parties Act, 1962.
The main thrust of the learned counsel for the Pakistan Telecommunication Company Lions Staff Union Mian Bashir Zafar is on the jurisdiction of the Full Bench of NIRC as according to him the appeal was not competent under Section 22-D of the Ordinance qua the determination of CBA. To resolve this controversy whether the appeal is provided under Section 22-D of the Ordinance .Reference to some of its provisions would he necessary. First of all reference to the term "Collective Bargaining Agent" is necessary which has been defined in section 2(v) of the Ordinance in the following words: "Collective bargaining agent" in relation to an establishment or industry, means the f trade union of workmen which under Section 22 is the agent of the workmen in the establishment or, as the case may be, industry, in the matter of collective bargaining."
It means that CBA is an agent for the worker or class of workers so as collectively bargain respecting the terms and conditions of employment. It is body authorised under the law to collectively settle/bargain the terms and condition of employment of the workers or class of workers after its determination in accordance with Ordinance. Section 22 of the Ordinance which is captioned as "Collective Bargaining Agent" has provided the methodology and procedure for determination of CBA in an establishment or a group of establishment. Some of its provisions to which reference has been made during the course of arguments are as under: "22. Collective bargaining agent (1) Where there is only one registered trade union in an establishment or a group of establishments, that trade union shall, if it has as its members not less than one-third of total number of workmen employed in such establishment or group of establishments (upon an application made in this behalf be certified by the Registrar in the prescribed manner) to be collective bargaining agent for such establishment or group.
(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 of group of establishments or by the employers (or the Government) held (within fifteen days from the taking of the application) a secret ballot to determine as to which one of such trade unions 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 sub-section 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 934 (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.
(4) Every employer shall
(a) on being so required by the Registrar, submit a list of all workmen employed in the establishment excluding those whose period of employment in the establishment is less than three months and showing, in respect of each workman, his parentage, age, the section or department and the place in which he is employed his ticket number and the date of his employment in the establishment; and
(b) provide such facilities for verification of the list submitted by him and the trade unions as the Registrar may require: Provided that in computing the period of three months referred to in clause (a) in the case of workman employed in a seasonal factory within the meaning of section 4 of the Factories Act, 1934 (XXV of 1934) the period during which he was employed in that factory during the preceding season shall also be taken into account.).
(5) The Registrar shaft after verification of the lists submitted by trade unions prepare a list of voters in which shall be included the name of every workman whose period of employment (as computed in accordance with sub-section (4) is not less than three months and who is a member of any of the contesting trade unions and shall at least four days prior to the date fixed for the poll, send to each of the contesting trade unions a certified copy of the list of voters so prepared.
(9) For the purpose of holding secret ballot to determine the collective barging agent-the Registrar shall.
(a) fix the date of the poll and intimate the same to each of the contesting trade unions and also to every employer;
(b) on the date fixed for the poll so place in the polling station set up for the purpose the ballot boxes which shall be sealed in the presence of the representatives of the contesting trade unions as to receive the ballot papers;
(c) conduct the poll at the polling station at which the representatives of the contesting trade unions shall have the right to be present;
(d) after the conclusion of the poll and in the presence of such of the representative of the contesting trade unions may be present, open the ballot boxes and count the votes; and
(e) after the conclusion of the count (certify) the trade union which has received the highest number of votes to be the collective bargaining agent: Provided that no trade union shall be (certified) to be the collective bargaining agent for an establishment or group of establishment unless the number of votes received by it is not less than one-third of the total number of workmen employed in such establishment or group: Provided further that, if no trade union secure such number of votes in the first poll and a second poll shall be held between the trade unions which secure the two highest numbers of votes in the first poll and the trade union which secures a majority of the votes cast at the second poll shall be certified in the prescribed manner to be collective bargaining agent.
Provided further that, if the number of votes secured by two or more trade unions securing the highest number of votes is equal, further poll shall be held between them until one of them secures a majority of the votes cast at such further poll)
(9a) If no trade union indicates under clause (a) of sub-section (3) that it desires to be a contestant in the secret ballot, the Registrar shall certify the trade union which has made the application under sub-section (2) to be the collective bargaining agent.
(10) Where a registered trade union has been (certified) under clause (e) of sub-section (9) to be the collective bargaining agent for an establishments or group of establishment, no application for the determination of the collective bargaining agent for such establishment or group shall be entertained within a period of two years from the date of such (certification) except where the registration of such a registered trade union is cancelled before the expiration of that period.
(13) The Registrar may authorise in writing an officer to perform all or any of his functions.
The reading of entire section 22 demonstrates that on its on strength it is restricted to the determination of CBA in an establishment or group of establishments within a province. Its provisions on its on do not apply to the Industrywise Trade Union which has got its establishments in more than one provinces. Under this section the Registrar is empowered to hold ballot for determination of CBA. Registrar has been defined in section 2(xxii) of the Ordinance which is as under:- "Registrar" means Registrar of Trade Union appointed under flection 12."
The appointment of Registrar is done by the Provincial Government as envisages under Section 12 of the Ordinance which is as under:
12. Registrar of trade- unions: For the purpose of this Ordinance the Provincial Government may, by notification in the official Gazette appoint as many persons as it considers necessary to be Registrars of trade unions and where it appoints more than one Registrar, shall specify in the notification the area within which each one of them shall exercise and perform the powers and functions under this Ordinance.
The Registiar as envisaged under this section is not only concerned with the registration of the Trade Union within a Province but also determination of CBA as well. This fortifies the view that it is the Registrar appointed by the Provincial Government who determine CBA in respect of establishment or group of establishments in a Province. However, procedure tor the registration of Industrywise Trade Union and determination of its CBA is otherwise.
The term/expression Industrywise Trade Union has been defined in the explanation to section 22-A of the Ordinance in the following words: Explanation-. In this section and in (the succeeding provisions of this Ordinance) the expressions Industrywise trade union," federation of such trade unions," and "federation at the national level" refer to a trade union the membership of which extends to establishment in more than one Province and a federation of the unions whose membership extends to registered trade unions in more than one Province."
The Commission i.e. NIRC has been constituted by the Federal Government as reflected from section 22-A of the Ordinance. The following among others are the functions of Commission under sub-section (8) of section 22-A of the Ordinance: "(d) To register Industrywise trade unions, federation of such trade unions and federations at the national level;
(e) To determine the collective bargaining agents amongst Industrywise trade unions, federations at the national level."
12. The Chairman NIRC in the exercise of his power under Section 22-B of the Ordinance constitutes Full Bench as well as other Benches for the performance of the function of the Commission.
Respecting Industrywise trade unions the Benches of the Commission are empowered to perform function as are performed by the Registrar appointed under Section 12 of the Ordinance for the trade union in a Province. Sub-section 3(b) of section 22-B of the Ordinance makes this point very Clear which is in the following words: "(3)(b): In relation to Industrywise trade unions, federations of such trade unions, federations at the national level and cases referred to the Commission, perform such functions and exercise such powers as are performed and exercised by a Registrar, a Labour Court or a Tribunal in relation to Trade Unions and federations of trade unions within a Province. and for this purpose, any reference in ?This Ordinance to a Registrar, Labour Court, or, as the case may be, Tribunal shall be deemed to be reference to the appropriate Bench of this Commission to which such functions are assigned: Provided that, in the performance of those functions and in the exercise of those powers, the Benches shall unless otherwise provided in this Ordinance, follow the procedure laid down in the Regulations to be mat^e under Section 22-F.
The reading of this sub-section makes it clear that the Benches of the NIRC have been empowered to perform such function respecting Industrywise trade union as are performed by the Registrar in a Province under Section 22 of the Ordinance. This shows that the determination of CBA in an Industrywise trade union extending over more than one Province is the function of the Commission which is performed by its Benches. As already stated the Benches of NIRC would perform all such functions and exercise all such powers respecting Industrywise trade union which in a Province are exercised by the Registrar in relation to Provincial trade union under Section' 22 of the Ordinance.
Further the determination of CBA qua provincial trade union is performed by the Registrar so appointed under Section 12 of the Ordinance while respecting Industrywise trade union functions are assigned to Bench or Benches of NIRC. An important feature is to be noted over here that section 22 of the Ordinance has given complete procedure and methodology regarding the determination of CBA in a Provincial trade union. However, the procedure and methodology to be adopted by the Bench or Benches of NIRC is totally different. In view of the Proviso of sub-section (3)(b) of section 22B of the Ordinance, the Benches have to follow the procedure laid down in the Regulation made under Section 22F.
Reference to some of the provisions of section 22F of the Ordinance would be relevant which are as under: 22F. Power to make Regulations 1) Subject to the provisions of this Ordinance the Commission may with the prior approval of the Federal Government, make such regulations relating to its procedure and the performance of its functions as it may deem fit, and the Regulations shall have effect notwithstanding anything inconsistent therewith contained in the Evidence Act, 1872 (1 of 1872) the Code of Criminal Procedure, 1898 (Act V of 1898) the Code of Civil Procedure, 1908 (Act V of 1908) or any other law for the time being in force.
(2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide tor all or any of the following matters, namely:-
(a) registration of industrywise trade unions, federations of such trade union and federation at the national level and the procedure tor such registration;
(b) determination of collective bargaining agent from amongst the industrywise trade unions, federations of such trade unions or as the case may be, federations at the national level and the procedure therefor." In exercise of these powers National Industrial Relations Commission (Procedure and Functions) Regulations 1973 were framed on 18.4.1973. Chapter' IV of the regulation which is captioned Collective Bargaining Agent to which reference would be make subsequently is a complete Code laying down the Procedure and Methodology to be followed in the determination of CBA by the Bench/Benches of NIRC.
13. Now the stage is set and it is amply clear that the Chairman NIRC is the Registrar for the purpose of Industrywise trade union whose membership extends to more than one Province. In the case in hand the Chairman/RITU in exercise of his power derived under Section 22(13) of the Ordinance authorised in writing Mr. Muhammad Athar, Deputy Registrar to conduct referendum in Pakistan Telecommunication Comapny.
In this regard after the authorization, the latter strictly followed the procedure laid down in Chapter IV of the Regulation for holding the referendum on 14.4.1998 in 133 Polling Stations throughout Pakistan. He submitted a detailed report on 20.4.1998 after completion of the entire result to the Chairman NIRC. The Deputy Registrar issued CBA certificate on 21.4.1998 under the direction of the Chairman/RITU as mentioned in the preceding paragraphs. This shows that the determination of CBA was an act of Chairman/RITU himself. Against this decision an appeal is provided before the Full Bench of NIRC under Section 22-D of the Ordinance which is as under:- 22D Appeals (1) Notwithstanding anything contained in this Ordinance or in any other law for the time being in force, any person aggrieved by an award or decision given or (a sentence or order determining and certifying a Collective Bargaining Unit) passed by any Bench of the Commission, other than a Full Bench may within 30 days of such award, decision, or (sentence of order) prefer an appeal to the Commission.
(2) An appeal preferred to the Commission under subsection (1) shall be disposed of by the Full Bench of the Commission, which shall-
(a) if the appeal is from an order determining and certifying a collective bargaining unit, have the power to confirm, set aside, vary or modify such an order; and
14. I have gone through the judgments relied upon by Mian Bashir Zafar for ouster of jurisdiction.
With utmost respect I hold the different view. Simply by saying that since appeal is specifically provided qua determination of Collective Bargaining Unit (CBU) under section 22-D of the Ordinance 'and non-mention of CBA would not oust its jurisdiction. The concept of Collective Bargaining Unit which is a geographical entity was first introduced under Act XVI of 1975. Its determination is also done by NIRC by virtue of section 22-EE of the Ordinance. Since it was specifically included as such by this newly added amendment an appeal is also provided before the Full Bench against the order of determination of CBU. However, as said above under Section 22- D of the Ordinance appeal is also provided to an aggrieved person against an "award" or a "decision" given or a "sentence" passed by any Bench of the Commission other than the Full Bench.
The determination of Collective Bargaining Agent is definitely a decision as the same is determined after following an elaborate methodology and procedure laid down under the law and the Regulation. The procedure in this respect for determination of CBA is provided in Chapter IV of the National Industrial Relations Commission (Procedure and Functions) Regulations 1973 which is a complete Code in itself. It has provided a detailed procedure for the determination of CBA in the industrywise trade union. Chapter 3 of the Regulation has provided tor the registration of Industrywise trade union and in Chapter IV as already stated a detailed procedure is provided right from the supply of list of members of the trade union till its conclusion. Reference to Regulation I6 sub- regulations (8), (9), (10), (15), (I6) and (21) would be relevant which are as under:
(8) Appointment of Polling Officer and Balloting Officers, etc, The Commission may appoint as many polling officers, Balloting Officers and other staff as it may deem necessary for conducting and supervising the ballot who shall perform all such duties and exercise ail such powers as are assigned to them by the Commission.
(9) Appointment of Polling Agents, (a) The contesting trade unions may appoint one polling agent at a time of each booth and give notice thereof to the polling officer half an hour before the commencement of the polling: Provided that failure to nominate an agent shall not delay the commencement or affect the conduct of the ballots.
(b) The polling agents will witness the voting and assist the polling officer in identification of votes.
(10) Commencement of ballot. Before commencement of ballot the polling officer shall in the presence of all the polling agents satisfy himself that the ballot box is empty and thereafter seal the ballot box in the presence of the polling agents and record a certificate to this effect in Form N.
(15) Commencement and closure of ballot (a) No person shall be given the ballot paper before or after the honrs fixed for ballot, except those persons who are within the polling booth at the closing time who shall be given the: baliot papers and allowed to vote.
(b) After all the papers present within the polling booth at the closing time have cast their votes, the Polling Officers shall forthwith seal the opening provided for dropping the ballot paper in the ballot box in the presence of the polling agents and will record a certificate to this effect in Form O.
(I6) Unsealing of the ballot box and counting of votes (a) after the ballot box has been sealed under sub-paragraph (b) of paragraph (15) the Polling Officer shall unseal it in the presence of the polling agents and record a certificate to this effect in Form ' P* provided that the absence of a polling agent shall not affect or delay that unsealing of the ballot boxes.
(b) After the ballot box has been unsealed under sub-paragraph (a) the polling officer shall in the presence of polling agents, count the votes and record the result of counting alongwith a certificate in Form 'Q' duly signed by the Polling Agents.
(21) Declaration of Collective Bargaining Agent. On receipt of the result from the polling officers the Commission or its authorised agent shall declare the trade union which has received the highest number of votes to be the ,Collective Bargaining Agent in accordance with clause (e) of sub- section (9) of section 22 and issue a certificate to this effect in Form VT'.
The employer is also associated fully in the conduct of the election. He is to provide the list of the workmen so as to verify the authenticity of the list submitted by the trade union. It is also to be seen before issuance of the certificate whether the trade union has secured required number of votes of total number of workmen employed in the establishment. All these aspects involve resolution of disputed question of facts which as already stated are conducted according to the methodology and procedure prescribed under the aforesaid regulations.
15. The word "decision" has not been defined either in the Ordinance or in the regulations. It has got no fixed legal meaning. It is not restricted to judicial acts. It is a comprehensive term and may include even the ministerial determination. In Black's Law Dictionary (6th Edition) it has been defined as under: Decision. A determination arrived at after consideration of facts and in legal context, law. A popular rather than technical or legal word; a comprehensive term having no fixed legal meaning. It may be employed as referring to ministerial acts as was as to those that are judicial or of a judicial character.
A determination of a judicial or quasi-judicial nature. A judgment, decree, or order pronounced by a Court in settlement of a controversy submitted to it and by way of authoritative answer to the question raised before it. The term is broad enough to cover both final judgments and interlocutory orders. And through sometimes limited to the sense of judgment, the term is at other times understood as meaning simply the first step leading to a judgment, or as an order for judgment.
The word may also include various rulings as well as orders, including agency and commission orders. U.S.V. Thompson, 251 U.S. 407 40 S.Ct. 289, 291, 64 L.Ed. 333.
In Islamic Republic of Pakistan v. Abdul Wali Khan, M.N.A. (PLD 1976 SC 57) at page 104 it has been defined as under; "In the technical judicial terminology the word 'decision' may cannot determination of judicial nature as a judgment or decree pronounced by a Court in settlement of a controversy submitted to it and by way of authoritative answer to the questions raised before it (vide Black's Law Dictionary), yet it is comprehensive term having no fixed legal meaning and may equally well be employed as referring even to ministerial acts but when read in conjunction with the word 'matter' which Black's Law Dictionary defines" as the subject-matteio controversy" or substantial facts forming the basis of a claim or defence then it becomes the subject of litigation that is to say the 'lis' itself. Therefore, a final decision is a decision which leaves nothing open to further dispute and which sets at rest the causes of action between the parties from which no appeal or writ of error can be taken.
Similarly in Corpus Juris Secundum the word decision has been defined in the following terms: "A popular and not a technical or legal word, and a very comprehensive term having no fixed legal meaning. It has been said that a decision necessarily involves a dispute, actual or potential and the reaching of a conclusion.......... In its common use, the word has been defined as meaning act of deciding, settling, or terminating, as a controversy by giving judgment on the matter at issue; determination or result arrived at after due consideration, as of a question or doubt settlement or conclusion. Strictly speaking it is intended to embrace the last act of the Court, in other words, the judgment, a decision of the case for or against one of the parties and as used in particular statutes, may mean of final decision and in its broad generic sense it means a final determination of the rights of the parties in the action. (Vol. 26 pp. 41 & 42).
Reference is also to be made to Haji Khan Bhatti v. Dr. Munir Ahmad Mughal, etc. (1992 PLC 632) where it was held as under: "In this case the impugned order has been passed by the Registrar under section 8(4) in relation to Industrywise trade union and therefore, while exercising his powers and performing his functions as such, he shall be deemed to have exercised the power of a Labour Court under clause (b) sub- section (3) of section 22-B of the Ordinance, therefore, the Labour Court cannot hear an appeal against the order which is passed by any Bench or the Commission as Labour Court. In such a case, the decision given by a Bench of the Commission is appealable before Full Bench of the Commission as provided under Section 22D."
Apart from this it must be stated here that the petitioner Pakistan Telecommunication Company Lions Staff Union cannot be allowed to blow hot and cold in the same breath. In its CP No. 122/98 before the High Court of Baluchistan it was specifically stated that an appeal was provided against the determination of CBA before the Full Bench under Section 22-D of the Ordinance but the Constitutional jurisdiction according to the petitioner was involved as Full Bench was not available for want of appointment of members. Here before this Court the petitioner took a complete somersault and has denied the right of appeal before the Full Bench.
16. As already stated by judging from every angle the determination of CBA of Industrywise trade union by the Chairman/RITU by following the exhaustive procedure provided under Section 22 of the Ordinance read with National Industrial Relations Commission (Procedure and Functions)
Regulations 1973 is a decision, as such, appeal is provided under Section 22D of the Ordinance. It would be an anomalous situation if appeal is only confined against the determination of CBU as provided through an amended Act XVI of 1975 and not respecting determination of CBA. The former i.e. CBU is merely a geographical entity determined by the Commission under Section 22EE of the Ordinance so as to set the area of jurisdiction for the exercise of power by CBA, the ultimate body for the settlement of the terms and conditions of the employees. At the cost of repetition the determination of CBA by the Commission is a "decision" against which appeal is provided under Section 22-D before the Full Bench.
17. The argument of the learned counsel that the votes were not counted by the Registrar himself as mandated under Section 22(9)(d) of the Ordinance which has provided that after the conclusion of the polls the ballot box would be opened by the Registrar in the presence of the representatives of the contesting trade unions is totally without force. In the preceding paragraphs it has been pointed out that whatever functions are performed by the Registrar in respect of the trade union or Federation of trade union within a Province, the same function in respect of Industrywise trade union are performed by a Bench of the Commission. Reference in this regard to section 22-B(3)(b) of the Ordinance has already been made. The procedure to be followed by the Registrar respecting the Provincial Trade Union would not be applicable to the Benches. Instead National Industrial Relations Commission (Procedure and Functions) Regulation reference to which has already been made framed in the exercise of powers under Section 22F would be applicable. In this view of the matter the argument that the counting has not been done by Registrar is without any force and reference has already been made to some of the provisions of the Regulations, which have provided that the Polling Officer in the presence of the agents would count the votes. In the case in hand the election has been held strictly within the procedure laid down under the Regulation as such no exception can be taken to the same. It is pertinent to mention over here that the election in this case was held at 133 polling stations throughout Pakistan. I fail to understand how the learned counsel for the petitioner has made a reference to section 22(9)(d) of the Ordinance when the mandate of section 22-B (3)(b) read with its proviso is otherwise. It has specifically been provided that the Benches in the performance of their functions and in the exercise of their power would follow the aforesaid regulations. Apart from this I must say over here that even if the strict compliance as stated by Mian Bashir Zafar learned counsel is adhered to, in this case too the votes were counted not by the Chairman/RITU but by Mr. Mumtaz Hussain, Administrator under his direction. In these circumstances the argument of the learned counsel that the votes were not counted in accordance with section 22(9)(d) loses all its force.
These writ petitions merit dismissal on an other score that the Chairman NIRC/RITU could not have sit on his on judgment. It was he who in the exercise of his powers under section 22(13) of the Ordinance authorised the Deputy Registrar Mr. Muhammad Athar in writing to conduct the referendum for determination of CBA of PTCL. The Chairman NIRC in his order dated 15.7.1998 has himself stated that he authorised Deputy Registrar (Registration) to hold the secret ballot under section 22(13) of the Ordinance after complying with the relevant provisions of law. The Deputy Registrar not only conducted the referendum under his specific authorization but also issued certificate of CBA under his very direction. This being the position tor all intents and purposes the certificate of CBA was issued by the Chairman NIRC/RITU. Once a Certificate of CBA was issued on 21.4.1998 by the order of the Chairman NIRC thereafter he became junctus officio and could not.
Have entertained the objections. It is not denied that the Deputy Registrar conducted the referendum in 133 Polling Stations spreading all over Pakistan strictly in conformity of the law and rules. After the election he sent the result sheets with his detailed report to the Chairman on 20.4.1998 whereupon the latter passed the following order:- "Issue the certificate to the winning union". Resultantly the Deputy Registrar or receipt of this direction of the Chairman NIRC issued the CBA certificate on 21.4.1998. Any act of the Deputy Registrar subsequent to the authorisation would be deemed to be an act of the Chairman/RITU. In this background the Chairman was not supposed to sit on his on judgment. Reliance in this respect has been placed upon Ghulam Rasul and others v. Crown (PLD 1951 FC 62), Ahmad v. Crown (PLD 1951 FC 107), Manik Lai, Advocate v. Dr. Frame Chand Singhvi (PLD 1957 SC (Ind) 346) Bharat Tewari v. Mr. N. Hussain and others (PLD 1959 Dacca 48), Muhammad Mohsin v. Government of West Pakistan (PLD 1964 SC 64) and Ijlaas Ahmad Siddique v. Municipal Committee Multan (PLD 1967 Lahore 408). Apart from this the Chairman/RITU could not have set aside the CBA certificate issued on 21.4.1998 either in the exercise of his review powers or under Section 21 of the General Clauses Act. It is not denied that the power of review is substantive in nature and until and unless it is conferred by the express provision of law, the same cannot be exercised. Learned counsel for the writ petitioner has failed to point out any provisions under the Ordinance authorising the Chairman to review his earlier order. It has been held in Haji Khan Bhatti v. NIRC and others (1992 PLC 594) as under: "It hardly required to be emphasized that the power of review was a substantive power which no Tribunal, or Court or Authority could exercise unless it had been provided by the relevant statute.
There was no provisions enabling respondent No. 2 either to review or recall the order passed by him on 19.6.1989. Even if he had reserved the right to recall the same, there was no basis for such a reservation. No authority, Court or Tribunal was competent to arrogate authority to itself, which otherwise was not available under the law. This would amount to embarking upon the field of legislation which no system of Judiciary permits. The only course open to the opposite party was to seek his remedy in accordance with law"
"As already stated above, the said Registrar has the power to refuse or register but has no powers to review or recall any order passed by him under the provision of the Industrial Relations Ordinance, 1969 stated above. It could not be pointed out on behalf of the respondents that there was any provisions of law that empowers the said respondent No. 2 to recall or review any of his orders. It is settled principle of law that the power to review is substantive in nature and that it has to be expressly conferred by statute on the authority/forum/Court, as the case may be, for it to exercise the same. In this respect, strength is sought from Mst. Maqsoodan Bibi v. Mst. Bhano (PLD 1965 (W.P.) Lah. 183), wherein it was held as follows:- "Right of review is like a right of appeal a substantive right and it is not available unless it is expressly conferred by a statute."
Reference is also made to Hussain Bakhsh v. Settlement Commissioner, Rawalpindi etc. (PLD 1970 SC 1) and Muzaffar Ali v. Muhammad Shaft (PLD 1981 SC 94).
The other ground that the earlier order passed by the Chairman/RITU could be amended or withdrawn by him in the exercise of his power vested under Section 21 of the General Clauses Act is also without any force. Reliance of the learned counsel for the petitioner on section 21 of the General Clauses Act would not be helpful as after the issuance of CBA certificate a valuable right had accrued in favour of. Pakistan Telecommunication Company Employees Union and the same could not have been withdrawn in the exercise of such powers under General Clauses Act unless and until the same was the result of either fraud or was issued by lacking the jurisdiction. It has been held in The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v.
Jalaluddin (PLD 1992 SC 207) wherein it was held as under: "Locus Poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained, on the basis of an illegal order."
Reference is also made to Shahbaz v. The Crown (PLD 1956 FC 46), Pakistan v... Muhammad Himayatullah Farukhi (PLD 1969 SC 407) and National Bank of Pakistan v. NIRC (PLJ 1975 Kar. 85).
A further argument of the learned counsel that the Chairman NIRC in exercise of his powers of general superintendence over the affairs of the Commission under Section 22-B of the Ordinance which are akin to the powers of superintendence over subordinate Courts enjoyed by the High Court under Article 203 of the Constitution of Islamic Republic of Pakistan is competent to withdraw or modify earlier order because of the irregularities committed in the conduct of the referendum is devoid of any force. It was argued that CBA certificate was issued by committing many irregularities as such in the exercise of powers of superintendence the Chairman through his judgment dated 15.7.1998 has set aside the certificate as having been issued without adhering to law. This argument too would also not help the petitioner. Section 22-B is as under:- "22-B. Benches of the Commission etc.- (1) The Chairman of the Commission shall exercise general superintendence over its affairs.
(2) For the efficient performance of the functions of the Commission the Chairman shall constitute.
(a) a Full Bench of the Commission which shall consist of not less than three members of the Commission; and
(b) as many other Benches of the Commission consisting of one or more members of the Commissions as he may deem fit.
18. The Chairman enjoys such powers so as to regulate the affairs of the Commission. In the exercise of these powers he has got administrative control over the functioning of the Benches. He has the powers to constitute Benches and Full Bench for the efficient performance of the functions of the Commission. These powers cannot by any stretch of imagination be termed as akin to the powers exercised by the High Court. Under Article 203 of the Constitution the High Court not only supervise but also control all the subordinate Courts. The Chairman on the other hand does not have get such vast powers. As regards the supervisory powers of the High Court it has been held in S. Zahid Ali v. Mst. Muharik Bano (PLD 1976 Kar. 68) which is as under: "It merely confers on the High Court the power of supervision and control over its subordinate Courts. This power has nothing to do with grievances of parties or with doing justice to them. The High Court is under this Article concerned with its lower Courts only and has to keep an eye on them so that they may not fail to do their on duties apart from the problems and interest of the parties.... Article 98 of the Constitution is one of the provisions which provides a remedy to the aggrieved party. Section 151, CPC gives over all powers to Courts for doing justice. But Article 102 merely empowers the High Court to supervise and control the Courts which are subordinate to it so that they may be guided, kept in check and even encouraged to act and conduct themselves rightly as Courts. If a party applies to the High Court under the Article it merely bring the failure, faults or dereliction of duty to the notice of the High Court and if the High Court takes action on such an application it does so for keeping the administration of justice pure and not to help the appellant, "this duty is to be performed (by the High Court) irrespective of whether anybody has been harmed or not and irrespective of whether anybody will be benefited by it or not". It is easy to imagine that an action taken under this Article may be against the liking and even the private interests of both the parties to a proceeding.
In Mst. Sofia Begum v. Abdul Hamid (PLD 1968 Lah. 1358) the learned Judge while interpreting the supervisory power under Article 102 of the Constitution of 1962 of Pakistan which was similar to Article 203 observed as under:- "No. Doubt the power is unlimited but it does not have the effect of converting the High Court into a Court of appeal or revision regardless of the limitation imposed by law on those powers. I, however, agree with the view that the power is to be exercised only in very rare and exceptional cases and may be used act debito justitiae, where there is no other remedy available under the ordinary law.
The case before me is of that description and the circumstances are such that I feel persuaded to invoke the extraordinary power of superintendence under Article 102 of the Constitution. I therefore, direct that the suit entitled "Abdul Hamid v. Mst. Sofia Begum" pending in the Court of Sh. Saeed Ahmad, Family Judge, Lyallpur, be transferred to the Court of Mr. Hasan Nawaz, Senior Civil Judge Lahore, for hearing alongwith the petitioners' suit entitled" Mst. Sofia Begum v. Abdul Hamid".
As already stated under the powers of general superintendence the Chairman has got administrative control over the affairs of the Commission. However, by invoking supervisory powers the Chairman NIRC cannot upset his on order of determination of CBA. If such a power is allowed to the Chairman it would create chaos and judicial anarchy in the Commission.
19. Lastly even if the order of the Full Bench dated 31.8.1998 is considered to be even then in this case I would not exercise my Constitutional jurisdiction as it would tantamount to perpetuating the illegality committed by the Chairman NIRC in upsetting the CBA certificate given to the Pakistan Telecommunication Company Employees Union on 21.4.1998. The petitioner union i.e. Pakistan Telecommunication Company Lions Staff Union fully participated in the referendum and did not raise a single finger. But once the result was announced against them with a margin of number of votes, objection petition was filed simply to frustrate the result. The Chairman who himself authorised Mr. Athar Mehmood Deputy Registrar (Registration) to conduct the referendum recalled the CBA certificate issued by him on 21.4.1998 in an illegal manner without having any jurisdiction.
Ev;n if the argument of the learned counsel for the petitioner is accepted that no appeal was provided before the Full Bench even then in the circumstances of this case I would not exercise my jurisdiction as already stated it would tantamount to perpetuating the illegality committed by the Chairman NIRC through his judgment dated 15.7.1998. Reliance in this respect is placed upon Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268) wherein it was held as under: "The jurisdiction under Article 199 of the Constitution being discretionary, the Court, where equities require, may, even in the best of cases, choose to decline interference. Even since the principle was recognized in Nawab Syed Raunaq Ali's case, (PLD 1973 SC 236), the same has frequently been resorted to. This is one such case where, even though the respondents are found liable, redress need not follow. For such reasons, I am constrained to hold that this appeal should fail."
Reliance is also placed upon Chief Settlement Commissioner, Lahore v. Muhammad Fatal (PLD 1975 SC 331).
For what has been stated above I do not find any force in these writ petitions which are dismissed with no order as to costs.
Before parting with these cases after going through the judgment dated 15.7.1998 of the Chairman NIRC and the judgment dated 31.8.1998 of the Full Bench both subject-matter of these Constitutional petitions one comes to an irresistible conclusion that there is a judicial anarchy in the working of the NIRC. The Full Bench has quoted the observation of my learned brother Ihsan-uI- Haq Chaudhry, J qua the working of NIRC reported in Nishat Group of Industries and another v.
Chairman N.I.R.C. (1997 PLC 622) which is in the following terms: "It is a matter of great regret that the Government makes appointments to such sensitive posts recklessly. The Government, if serious to keep these institutions for the Industrial peace in the country then these Tribunals have to be manned by person of integrity and quality otherwise it would amount to sheer wastage of public funds".
Learned counsel appearing for both the sides have also made reference to such an atmosphere prevailing in the Commission I myself fully subscribe to the view of my learned brother quoted above that the working of the Commission is on decay and if some steps at the earliest are not taken to arrest this deteriorating situation it would be then too, late in the day to mend the same.
Office is directed to send the copy of the judgment to the Secretary Ministry of Justice and Parliamentary Affairs (Justice Division) Islamabad and Ministry of Labour, Manpowers and Overseas Pakistanis, Islamabad.