JUDGMENT.
By this Constitutional Petition the petitioner seeks to challenge the declar--ation of respondent No. 1 a9 the Collective Bargaining Agent for the group of establishments of handling agents and other agencies appointed by the Federal Government for the purpose of handling the food grains and cargo etc. At Keamari T. P. X., Landhi and Pipri, food grain godowns and for transit of food grains in respect thereof.
2. Briefly the facts leading to the present controversy are that the petitioner Karachi Warehouse and Carriers Workers' Union the respondent No. 1 Pakistan Warehouse and Carriers Workers' Union and respondent No. 2 Commercial Transport and Warehouse Workers' Union are the three 1$rade Unions of workers employed in various establishments operating in the field of handling food grains and cargo and for transit thereof at the afore--said stations, duly registered under section 8 of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the Ordinance). It is the case of the petitioner-Union that it was functioning as the Collective Bargaining Agent for the workmen in the aforesaid establishments. In about May/lung 1975, the respondent No. a Union moved the Registrar of Trade Unions, Sind (respondent No. 3 herein) for holding a secret ballot under section 22 of the Ordinance to determine as to which one of the Trade Unions shall be the Collective Bargaining Agent out of the three Unions mentioned above. It seems the Registrar commenced preliminary proceedings pursuant to the respondent No. 1's request and called meetings of the representatives of the three Unions for the purpose of submission of the list of their members and verification thereof as required by law. It is alleged by the petitioner that the Registrar on various pretexts dragged on with the preliminaries and did not hold the poll within the prescribed period of 15 days from the making of the application, in spite of the fact that lists of members were supplied by the three Unions to him. It is further alleged that draft list of the voters was, however prepared but the same was neither signed, verified nor stamped by the Registrar in terms of subsection (5) of section 22 of the Ordinance. Copies of the draft list were supplied to the three Unions on 17-7- 1976. Finally a meeting of the representatives of the three Unions was called by Mr. Khalil Ahmed, Deputy Registrar on 19-7-1976 for hearing objections and for verification of draft list of voters. It is alleged that no meeting was held on the aforesaid date when the representatives of the three Unions attended the office of the Deputy Registrar but they were informed that the meeting bad been postponed to 21-7-1976. On the last-- mentioned date when the representatives of the three Unions went to see Mr. Khalil Ahmad, they were informed that the poll wag being held on that day and as such no objections could be received by him.
3. The petition has been mainly contested by respondent No. I Union on whose behalf a counter- affidavit denying the allegations contained in the petition has been filed. Respondent No I maintains in its counter --affidavit that the poll was held in accordance with law and, therefore, it is lawfully entitled to act as the Collective , Bargaining Agent. Before admitting the petition to regular hearing, this Court had called for the comments of the respondent No. 3 Registrar of Trade Unions, Sind in regard to the contents of the petition in pursuance whereof the said respondent has filed his comments on 6-1-1977.
4. Before dealing with the contentions urged by the counsel for the parties, it is necessary to mention that the arguments of Mr. G A. Brohi, learned counsel for the petitioner were heard on 23- 10-1977 and the case was adjourned at the request of the President of respondent No. 1 Union for hearing the arguments of the respondent to 30-10-19;7. However, on 27-10-1977 Mr. Mumtazuddin and Mr. Asghar Hussain appearing for petitioner and respondent No. 1 respectively presented an application for withdrawal of, the petition. As the case was already fixed for further hearing on 30- 10-1977 the consideration of the application for withdrawal was deferred until that date and notice of the application was ordered to the other parties. On the said date of hearing Mr. G. A. Brohi appeared sad submitted that the application for withdrawal of the petition had beer: submitted unauthorisedly by Mr. Ghulam Sarwar. Vice-President of petitioner --Union. Subsequently, after hearing all the concerned parties. By order dated 30-11-1977 I dismissed the withdrawal application for the reasons stated therein. As a result Mirza Ghulam Sarwar, Vice-President of the petitioner- Union was ordered to be tranapos3d as a respondent and was allowed to take any position vis-a- vis the controversy in the petition in his personal capacity.
5. In support of the petition it was contended by Mr. Brohi that the evidence on record clearly shows that no date for the ballot was fixed or communicated to the petitioner and other Unions. Counsel emphatically contended that the record of the Registrar, on the other hand, indicates that no referendum in fact was held on 21-7-1976 as alleged. La this behalf counsel has taken me through the photo copies of tile official record relating to the holding of the poll by the Registrar. Among these documents there are certificates under rule 20, rule 25 and rule 26 relating to the examination of empty ballot boxes, sealing of the ballot boxes and subsequent unsealing of the ballot boxes by the polling officers. These are signed by the agent of the respondent No. 1 Union only. Similarly the result of the count of votes in Forms R & P also bear the signatures of the agent of respondent No. I only. On some of the forms there is a note that no representative of the other two Unions turned up on the date in question until 9-45 a m. There were three polling stations located at Keamari, Landhi and Pipri. The result of the count from all the booths had beers consolidated and it appears that a total number of 756 votes were cast out of which 635 were secured by respondent No. 1 Union, 77 by the petitioner-- Union and 26 by the respondent No. 2 Union. 18 votes were declares as invalid. Toe petitioner bag placed on record the draft list of workers prepared by the Registrar as Annexure 'F' which contains the names of 3341; voters. As observed earlier the case of the petitioner is that these lists were never finalized and instead it was given out that the ballot had already been conducted on 21-7-.976. The Registrar in his report admits that the draft list of members of three contesting Unions was compiled by him and was handed over to the representatives of the three Unions for submitting any objections on the said draft. It is contended in the report by the Registrar that the draft li. t of voters bad to be finalized after hearing the objections by the Unions. According to him it was decided with the consent of the concerned pasties in a meeting bold on 14-7-:976 that the ballot will be held on 21-7-1976 and final list of voters will be obtained on 17-7-1976 by the three Unions from the office of the Registrar. It vas further stated in the report that on 17-7-1976 final lists of voters duly stamped and signed by the Registrar were banded over by him to all the three Trade Unions. However. The so-called final list of votes has not been placed on the record by any of the respondents. It would, therefore. Be reasonable to conclude that the total number of workers employed in the establishments entitled to vote was 3340.
6. A photocopy of minutes of the aforesaid meeting held on 11 '-1976 bas been annexed to the report (Annexure `C') which purports to have been signed by someone on behalf of the petitioner- Union but it has not been established whether any authorised person signed on behalf of the petitioner- --Union or any office-bearer did so for the Union. Annexure 'A-I' with the report on the other band is a letter dated 14-7-1976 intimating the Registrar that the petitioner-Union has elected new office-bearer on 17-7-1976 in which the office-bearers presently representing the Union have been shown.
This is clear proof that at the relevant time Miss Stoma Qureshi was the President, Mr. Gbulam Sarwar, the Vice-President, Mian Mushtaq Ahmad the General Secretary and Mr: 0sshix Ahmad, the Joint Secretary of the petitioner-Union to the knowledge of the Registrar. Yet none of these Office- bearers'- signature appears on the aforesaid minutes of the alleged meeting held on 14-?1976. In their counter-affidavit the respondent No. I has also not asserted specifically that the date of the poll was communicated to the petitioner-Union.
7. In subsection (9) of section 72 of the Ordinance. The Legislature has prescribe 1 in detail the procedure for holding the secret ballot to determine the Collective Bargaining Agent. In clause (a) of the aforesaid subsection it is provided that the date of the poll shall be fixed and intimated to each of the contesting trades Unions and also to every employer. As discussed above, there is no evidence that the petitioner. Union was in, intimated the date of the poll except .The minutes of the meeting which are signed by someone whose identity has not been established. Accordingly to subsection (5) of section 22 of the Ordinance the verified list of voters 1s to be supplied to each of the contesting Traders Unions at least four days prior to the date fixed for the poll. There is nothing on record to establish that the verified lot of voters was supplied to the petitioner-Union in terms of the above said provisions of law.
8. In view of the aforesaid illegalities viz. Not communicating the t date fixed for tae poll and not supplying the 1st of voters, the conclusion is irresistible that either the poll wa3 not held at all or in any case it was a no-sided affair in which date opportunity for participation was not afforded to the petitioner-Union. This conclusion is further strengthened by other documents on record. On 13- 8-1976 the Director Labour, Sind in connection with the referendum held on 21-7-1976 wrote to the Director Food, Government of Pakistan and Chairman, Rice Export Corporation of Pakistan Limited, calling- upon him to intimate him the number of workers employed by them for handling the food cargo from 14-7-1976 to 21-7-1976. On 16-8-1976 the Manager. Rice Export Corporation of Pakistan Limited in turn wrote of Messrs United Corporation Limited. Karachi for similar information. This indicates that some sort of enquiry was being conducted for ascertaining the correct number of workers employed in the Industry. But there Is no indication that the petitioner-Union was associated with this enquiry. Finally by letter dated 9-8-1976 the President of respondent No. 1 Union requested the Registrar of Trade Unions to bold an enquiry into the correctness of the list on the basis of which the allege' referendum was held on 21-7-1976. It appears that all these enquiries were necessitated for tine obvious hurdle in the way of respondent No.1 from being certified as the Collective Bargaining Agent in view of the first proviso to section 22(9)(e) of the Ordinance which provides that no Trade Union shall be declared to be the Collective Bargaining Agent for as establishment unless the number of voter received by it is not less than 1/3 of the total number of workman employed in such establishment. It is quite apparent that in the present case she respondent No. I Union had not secured more than 1/3 of the votes of the total number of workmen employed in the establishment As observed earlier, the; total number of workmen employed was 3340 whereas the respondent No. I had secured only 635 votes. Indeed the total number of votes cast was 756 which itself Is below 1/3 of the number of workers. It was therefore, not permissible under the law to certify respondent No. 1 as do Collective Bargaining Agent en the basis of the alleged poll hold on 21-7-1976. On this short ground this petition is liable to be allowed. .9. On behalf of respondeat No. 1 Union Mr. Muhammad Shafi, chose not to address any argument on the merits of the controversy but raised only legal objections regarding non-maintainability of the petition. He raised the following contentions t--
(1) That the petition is not maintainable as the Vice-President through whom the petition has been brought has no 16--us stand!, as he was not the registered office-bearer of the Union at the material time.
(2) That the petition is incompetent as it raises pure questions of fact which cannot be investigated fn the constitutional jorisdiction.
(3) That the petitioner is guilty oflaches and has not come with clean hands.
As to the first contention it was submitted that Mirza Ghulam Sarwar who signed the petition as the Voice-President of the petitioner-Union was not the registered office-bearer of the Union as asserted in the counter affidavit of respondent No. 1. Which fact was not controverter by any rejoinder affidavit. Support for this submission was sought from the report of respondent No. 3.
Document Annexure "A-1" at page 15 of the file accompanying the report is a letter which purports to say that in a meeting held on both June, 1976, the petitioner-Union in a general body meeting selected new-office-bearers whose names are mentioned in the litter. In this document Mola Allah Bux bag been shown as the Preside it and Durbosh Jamadar as the Vice-President of the Union.
Immediately following this document is a letter addressed 0 the Registrar of the Tra'e Unions stating that the now office-bearers were elected fn the general body meeting of the petitioner- Union on 6th June, 1976 whose names are listed in the letter and it was requested that the names of the new officc--bearers may be registered. This document purports to be signed by Mola Allah Bua and it dated 21-6-1976. However, accompanying the report at page 21 of the file there is another letter dated 14.7-1976, under the signature of Mian Mushtaq Ahmed, General Secretary of the Union stating that the annual elections of the petitioner-Union were held on 10-7-1976, and the office-bearers mentioned to the attached list were elected unopposed. In the accompanying list Miss Stoma Kurcshi. Has been shown as the President and Mr. Ghulam Sarwar as Vice-President among the office-bearers. It would, therefore. Appear that the Registrar was intimated finally on 1l- 7-1976. About the change of office-bearers and there appears an endorsement on this letter of the same date probably by the Registrar directing his office to do the needful. The relevant provisions of law on the subject are contained in subsections (4), (5) and (7) of section 8 of the Ordinance which may be reproduced below :-- "(4) Notwithstanding anything contained in any other provision of this Ordinance, every alteration made In the constitution of a registered Trade Union and every change of its officers shall be notified by registered post by the Trade Union to the Registrar within fifteen days of such change.
(5) The Registrar may refuse to register such change or alteration if it is in contravention of any of the provisions of this Ordinance. Or if it Is in violation of the constitution of the Trade Union.
(6) ..............................
(7) In case there is a dispute in relation to the Change of officers of a Trade Union, or any Trade U nion is t tgrievod by the refusal of the Registrar under subsection (5) any officer or member of the tirade Union may appeal to the Labour Court, who shall within seven days of receipt of the application or appeal, as the case may be, pass an order either directing the Reglatrar to register the change or alteration in the constitution or in the officers of the Trade Union or may, for reasons to be recorded in writing, direct the Registrar to hold fresh elections of the Union unite: his supervision."
10. The perusal of the aforesaid provisions would show that it is incumbent upon the Registrar to refuse to register any change of office-- bearers if in his opinion it is in contravention of any of the provisions of the Ordinance or is in violation of the constitution of the Trade Union. In such case the Trade Union or any officer or member of such Trade Union has a right of appeal to the Labors Court. In absence of the refusal by the Registrar to register the change of office-bearers, it would obviously be presumed that no fault was found with the change of office-bearers. In the present case it is nowhere alleged that the Register refused to register the change. On the contrary in his report the Registrar clearly says that changes of officer-bearers wore intimated to hint through letters dated 21-6-1975 and 14.7-1976. The letter dated 14.7-1976 being latter in time would obviously prevail. Thus the record submitted by to Registrar does not support the submission of the counsel that Mirza Ghulam Sarwar was not the Vice-President of the petitioner-Union at the relevant time or for that matter Mies Seema Kureshi was not the President of the Union. This contention is, therefore, repelled.
11. Counsel then contended that the petition is not in proper form inasmuch as the President and Vice-President are not competent to institute proceedings on behalf of Trade Union in terms of Order XXIX, rule 1 of the Code of Civil Procedure. There is no force in this submission. A Trade Union no doubt by virtue of section 14 of the Ordinance is a body corporate and can sue or be sued in its registered name. The present petition ha been brought in the registered name of the Trade Union.
According to rule I of Order XXIX C. P. C. In proceedings by a corporation the pleading may be signed and verified on behalf of corporation by the Secretary or by D any director or "other principal officer" of the corporation. The President and Vice-President of a Trade Union would obviously be the principal officers of the Trade Union. According to the constitution of the petitioner --Union which Is on the record the Presidents and Vice-President along with General Secretary and Joint Secretary are the office-bearers of the Union and the affairs of the Union are to be conducted by the Managing Committee consisting of the aforesaid office-bearers of the Union and 15 other ordinary members elected in the annual meeting (vide Arts. 8 and 9). Section 2 (xxviii) defines, an "officer" in relation to a Trade Union as any member of the executive thereof excluding an auditor and a legal advisor. Thus there can be no doubt whatever that the Pie3ident and Vice-President of the Trade Union are the principal officers thereof within the meaning of E Order XXIX, rule 1, C. P. C.
And therefore, are competent to sign and verify the pleading on behalf of Trade Union. In any case, before institution of the present petition by resolution dated 15-10-1976, the petitioner-Union had specifically authorised the President Miss Seems Kureshi or the Vice. President Mlrza Ghulam Sarwar to institute this petition and to sign the pleading and other documents in that connection.
12. As to accord contention counsel invited my attention to paras. 12 and 13 of the petition an;7 submitted that the questions raised therein are disputed questions of fact. I invited the counsel to examine each sub-clause of para 13 and he connected that except .2 sub-paras the rest related to questions which could be proved or disproved with the help of documentary evidence. Even otherwise the rule that Adjudication of disputed questions of fact is normally outside the scope of theconstitutional jurisdiction is P not of universal application or at any rate does not limit or circumscribe the constitutional jurisdiction of this Court in the manner canvassed. In A.H minhass v.
Ghulam Ahmed the question was whether two properties standing on two different khasra Nos.
Were one house or were separate and distinct houses under the settlement law. In this connection their Lordships upheld the findings of the High Coast on this question to the effect that the two properties were distinct houses by observing that this finding merely involved a simple exercise of considering certain documents and obvious facts and arriving at an appropriate deduction, which was well within the constitutional jurisdiction of the High Court to do so. In the present case also as would be clear from the earlier portion of this judgment the questions raised were capable of being decided with reference, to documentary evidence on record or the are sense of documents which were to be prepared by the mandate of law. There is therefore, no Question of investigating a complicated and disputed question of lact.1 The contention, therefore fails and is accordingly rejected. As to the last contention counsel submitted that the poll was held on 21-7-1976 and the present petition was filed on 23-10-1976, more than 3 months thereafter and, therefore, suffers from laches. In reply it was pointed out that the record of the Registrar clearly shows that after the conclusion of the count of the votes no declaration was immediately made as to which of the Trade Unions was elected as the Collective Bargaining Agent. In support of this submission learned counsel for the petitioner referred me to the impugned Collective Bargaining Agent Certificate (Annexure G) which is dated 4-9-1976. He further referred to the letter dated 9-8-1976 by the President of respondent No. 1 Union to the Registrar, Trade Unions in which the President of the respondent No. 1 Union had raised certain objections with regard to the list of voters and requested for an enquiry into the matter for the purposes of declaring the said Union as the Collective Bargaining Agent. These documents conclusively show that until long after the alleged date of the poll no declaration of Collective Bargaining Agent was made. In the circumstances. I agree with the learned counsel for the petitioner that the matter of election of respondent No. 1 as the Collective Bargaining Agent was still in doubt for sometime after the holding of the alleged pill and as such there was no laches involved in the case. It was not shown how the petitioner had come to Court with unclean hands.
13. Mr. Mumtesuddin, learned counsel appearing for Mirza Ghulam Sarwar did not wish to submit any argument and Mir Vial Bhatti, General Secretary of respondent No. 2 also did not address any argument.
14. In the result. This petition succeeds and in consequence the Collective Bargaining Agent Certificate issued by the respondent No. 3, in favour of respondent No. 1, is hereby quashed. It will however, be open to respondent No. 3 to hold a fresh and proper secret poll in accordance with law. In the circumstances of the case. There will be no order as to costs.
(1) 1974 SCMR 394