1. S. AHMED SARWANA, J.-- Muslim Commercial Bank Limited (MCB/Petitioner), a Public Limited Company, carries on the business of commercial banking with its Head Office at Karachi and its branches spread through out Pakistan. MCB Staff Union (Respondent No. 2) is an industry-were trade union registered with National Industrial Relations Commission (NIRC/Respondent No. 1) who issued to Respondent No. 2, Certificate No. 22/90 dated 3.12.1990 of the Collective Bargaining Agent under Section 22(1) of Industrial Relations Ordinance, 1969 (hereinafter referred to as "IRO") in respect of workmen employed by MCB in its establishments situated in Sindh, Baluchistan, NWFP and Punjab. It appears that in some matter where Respondent No. 2 and MCB Employees Federation of Pakistan (Respondent No. 4) were present, a question arose before NIRC as to who was the CBA in the establishments of MCB and by order dated 5.11.1991 NIRC clarified that MCB Staff Union (Respondent No. 2) was such a CBA. A subsequently, on or about 12.11.1991 MCB received a letter dated 4.11.1991 from NIRC informing that NIRC had ordered that the name of MCB Limited Employees Union (Respondent NO. 3) may be registered as the CBA for the workmen employed in the establishments of MCB, Rawalpindi/Islamabad Zones under Section 22(1), IRO, 1969 were. f.
2. 2.11.1991. By letter dated 18.11.1991 MCB requested NIRC to recall the Certificate dated 2.11.1991 issued to Respondent No. 3 as the said certificate appeared to have been issued through oversight because NIRC had already certified Respondent No. 2 as CBA on 2.11.1990. By letter dated 16.12.1991 NIRC informed MCB that on examination of the record of the Commission, it was revealed that Respondent No. 2 had applied for grant of CBA Certificate for the whole of Pakistan with the exception of Islamabad-Murree and Rawalpindi under Section 22 (1), IRO, 1969; and due to typographical mistake the words "except Islamabad-Murree and Rawalpindi" were omitted from the CBA Certificate No. 22/90 and consequently, exercising its inherent power, the Commission had ordered rectification of the typographical mistake in the CBA Certificate and clarified that after necessary rectification there would be two CBA's in the establishment of MCB as follows:-- '
(i) MCB Staff Union of Pakistan in the Provinces of Sindh, Punjab, NWFP and Baluchistan "when the exception of all branches falling under Islamabad-Rawalpindi Zone".
(ii) MCB Limited Employees Union Islamabad-Rawalpindi Zone for the branches .Of MCB situated within the Rawapindi & Islamabad zone.
3. It is stated that, meanwhile, after Clarification dated 5.11.1991 that Respondent No. 2 was a CBA in respect of workmen in its establishments of MCB situated in Sindh, Baluchistan, NWFP and Punjab, MCB executed a Settlement with Respondent No. 2 on or about 16.12.1991 covering all the branches/establishments of the MCB throughout Pakistan. Being aggrieved by the registration of Respondent No. 4 as CBA for MCB Limited, Rawalpindi/Islamabad Zone and NIRC Order dated 16.12.1991 amending the Certificate of Respondent No. 2 in favour of Respondent No. 3 is without lawful authority and jurisdiction, void and of no legal effect. Mr. Mehmood Abdul Ghani, learned counsel for the Petitioner in support of the Petitioner submitted as follows:--
(i) Under Section 22, IRO, 1969, there can be only one CBA in an Establishment and NIRC having certified Respondent No. 2 as a CBA for the MCB Establishment, it had no jurisdiction to certify a second Union as an Industry were CBA for Rawalpindi and Islamabad Zone and referred to 1992 PLC 125 and 1996 PLC 49 in support of his arguments.
(ii) That Section 22EE of IRO., 1969 provides for more than one CBA where the Commission determines more than one Collective Bargaining Units. As the Commission had not determined more than one Collective Bargaining Units in the MCB establishment, NIRC did not have the jurisdiction to issue a Certificate to respondent No. 3 in respect of MCB establishment working/operating in Islamabad/Rawalpindi Zone. He referred to PLD 1984 Karachi 292 which discusses the law on the subject and clarifies as to how and when there can be more than one CBUs in an Establishment.
4. (i.e) In the Explanation appended to Section 22A, IRO, an industry-were trade union has been defined to mean a trade union, the membership of which extends to the establishments in more than one Province and submitted that Respondent No. 3 could not be certified as a industry-were trade union as Islamabad is not a province. He referred to NLR 1999 Civil 27 wherein it has been held that Islamabad is not a province.
(iv) NIRC in Case No. 19(2)/92-K, MCB Union Vs. MCB & others has held that a single Collective Bargaining Agent for the workmen of MCB Employees throughout country is necessary, convenient and appropriate and consequently passed an order determining and certifying a single Collective Bargaining Unit in all the establishments of MCB throughout the country. On the basis of the aforesaid Order, he submitted that there could not be two Collective Bargaining Agents in one Collective Bargaining Unit.
(v) That the modification/rectification Orders dated 4.11.1991 or in the CBA Certificate No. 22/90 were passed without any notice to the Petitioner or to Respondent No. 2 even though the earlier order was passed in the proceedings after hearing MCB.
5. Mr. Saeed Ghani, Secretary of Respondent No. 2, did not oppose the contentions raised by Mr. Muhammad A. Ghani, learned Counsel for the Petitioner. We have heard and considered the arguments advanced by Mr, Mehmood A. Ghani, learned Counsel for the MCB., in support of the Petition in light of provisions of IRO and the relevant judgments on the issues involved in the Petition, 2.- On reading Sections 22, 22-A and 22E, IRO 1969, it appears that there cannot be more than one Collective Bargaining Agent in one establishment. This is also confirmed by a judgment of a Division Bench by this Court in case of Rice Export Corporation Labour Union Vs. Full Bench of the NIRC & Others. 1992 PLC 125 at 132), wherein it was held, "... That there cannot be two CBAs in an establishment at one and the same time (One local CBA and the other industry-were CBA)".
6. Similarly, a Division Bench of the Lahore High Court in the case National Bank of Pakistan Employees Union, Baluchistan, Quetta Vs. NIRC & others, 1996 PLC 49 at 54) has observed as follows:- "Further the Registrar, N.I.R.C., was also supposed to know that the N.I.R.C. Itself has issued C.B.A.
7. Certificate to the petitioner-Union about 19 years back which is still intact, therefore, without cancelling the same, how at the same time two C.B.R. Can function in an Institution which of course would be nothing but a clear violation of the provisions of section 22 of the I.R.O. In this behalf the Hon'ble Supreme Court in the case of Rice Export Corporation Employees United Front Vs. Full Bench of NIRC and others (Civil Appeal No. 202-K of 1991, whereby the judgment of the High Court of Sindh, reported in 1992 PLC 125 was also approved, has held as under:-- "In this regard, reference may again be made to subsection (1) of section 22, which provides that where there is only registered trade union in an establishment or a group of establishment, that trade union shall, if it has, as its members not less one-third of the total number of workmen employed in such establishment or group of establishments, upon application be certified by the Registrar . To be Collective Bargaining Agent. Admittedly the appellant had not proved the factum that its membership was one-third of the total strength. Additionally, there is no provision in the I.R.O. Other than section 22-EE, which deals with a situation where there may be an industry-were trade union and a trade union functioning as a C.B.A."
8. The law relating to determination of collective bargaining units and CBAs in respect thereof is provided in Section 22-EE, IRO which reads as follows:-- "22EE. Determination etc., of collective bargaining unit.-- (1) Where the Commission, on an appkation made in this behalf, by a trade union of workman or a federation of such trade unions, or on a reference made by the Federal Government, after holding such trade unions, or on a reference made by the Federal Government, after holding such inquiry as it deems fit, is satisfied that for safeguarding the interest of the workmen employed in an establishment or group of establishments belong to the same employer and the same industry, in relation to collective bargaining units of such workmen in such establishment or group, it may, having regard to the distribution of workers, existing boundaries of the components of such establishment or group, facilities of communication, general convenience sameness or similarity or economic and other cognate factors:--
(a) determine and certify one or more collective bargaining units in such establishment or groups;
(b) specify the modification which, in consequence of the decision under this section, will take effect in regard to the registration of the trade unions and federations of trade unions affected by such decision and certification of collective bargaining agents amongst such unions and federation, nomination or election of shop stewards, and workers' representatives for participation in the management of the factories, if any., affected by said decision;
(c) specify the date or dates from, and the period for which, all or any of such changes shall take effect: Provided that the date so specified shall not be a date falling within the period of two years specified in sub-section (10) of Section 22 in its application to a collective bargaining agent certified in respect of an establishment or establishments: Provided further that, after receipt of a reference for determination of a collective bargaining unit, the commission may stop or prohibit the proceedings to determine collective bargaining agent under section 22 for any establishment or group of establishments which is likely to be affected by a decision under this section.
(d) take such measures or issue such directions to the Registrar as may be necessary to give effect to such modifications; and
(e) determine and certify a collective bargaining agent for each such unit in accordance with section 22, insofar as applicable and with the necessary modifications, if such a unit relates to more than one Province, or direct the Registrar to take such action, if such a unit relates to only one Province.
(2) Where the commission issues any directions to the Registrar under this section, the Registrar shall comply with then within such period as the Commission may from time to time determine.
(3) After the certification of a collective bargaining unit, no trade union shall be registered in respect of that unit except for the whole of such unit and no certification or proceedings for determination of collective. Bargaining agent under Section 22 shall take place for a part of a collective bargaining unit or a group of collective bargaining units.
(4) An order of the commission under this section shall have effect notwithstanding any thing to the contrary contained in this Ordinance."
3. The above is the only Provision which envisages existence of more than one collective bargaining agents for the purpose of safeguarding the interest of the workmen employed in an establishment or group of establishments belonging to the same employer and the same industry.
9. In the case of Jang Publication Limited Vs. Registrar of Trade Union, Sindh & others (PLD 1984 Karachi 292), a learned Division Bench of this Court discussed the various situations where more than one CBAs may be certified provided the Commission had determined independent Collective Bargaining Units. The Commission by its Order dated 3.12.1990 certified Respondent No. 2 as the CBA for the workmen employed in all the establishments of MCB situated in Sindh, Baluchistan, NWFP and Punjab under Section 22(1), IRO thereby impliedly certifying all the establishments of MCB throughout the four Provinces as a single Collective Bargaining Unit, it is obvious that there cannot be two CBAs one for all the branches of MCB in the four Provinces and another CBA for that branches operating in Islamabad/Rawalpindi Zone because Rawalpindi as a part of the Punjab province and NIRC cannot certify two CBAs for Rawalpindi. Further, if NIRC wants to certify more than one CBA in the establishments of MCB, it must hold an inquiry as provided in sections 22EE and it must be objectively satisfied that it is in the interest of workmen employed in the establishments of MCB, determine collective bargaining units, where after it can after holding an election as provided by law, declare any trade union to be a CBA for the CBU. Respondent No. 1 has not undertaken any such exercise and therefore its act of declaring Respondent No. 3 as the CBA within Rawalpindi & Islamabad zone is in violation of the provisions of section 22A and 22EE of IRO. - 4. Further, to qualify as an industry-were trade union, it is necessary that the membership of the union must extend to establishments in more than one Province. The employees of Respondent No. 3 cannot be said to be working in more than one Province. The employees of Respondent No. 3 cannot be said to be working in more than one province as Islamabad is not a province but the Federal Territory or federally administered area. It cannot be denied that Rawalpindi is a part of the Punjab Province for which Respondent No. 2 has already been certified as the CBA. In our opinion, a part of one province cannot be carved out and attached to Islamabad, the federal territory to provide the basis for an argument that the membership of Respondent No. 3 extends to more than one province. (See also Waheed Corporation v. Capital Development Authority, NLR 1999 Civil 27)
10. Therefore, respondent No. 1, prima facie, acted beyond its jurisdiction in allowing the registration of Respondent No. 3 as a CA for MCB Islamabad-Rawalpindi Zone.
(D) On 3.12.1990 NIRC had certified Respondent No. 2 as the industry-were CBA for all the establishments of MCB in Sindh, Baluchistan, NWFP and Punjab Provinces whereafter the employees/officers of MCB were communicating, meeting and setting terms and conditions service and other matters of the employees of the bank. By virtue of the aforesaid .NIRC order certain vested rights came into existence in favour of Respondent No. 2 which could not be taken away without notice to them.
11. Even if there was typographical error in the certificate which needed to be corrected, it was incumbent upon NIRC to issue a notice to Respondent No. 2 before rectifying any inadvertent error because it is established law that no order which adversely affects the interest of any person. Can be passed without giving him an opportunity of explaining his position and hearing his point of view. It appears that Respondent No. 3 applied to NIRC for a CBA certificate for the branches situated within Rawalpindi and Islamabad zone and when the file relating to the certification of CBA for the establishments of MCB was checked it was detected tat Respondent No. 2 had applied for grant of CBA certificate for whole of Pakistan for MCB Ltd. With the exception of Islamabad-Murree & Rawalpindi under Section 22(1), IRO and through a typographical mistake the words, "except Islamabad Murree & Rawalpindi" were omitted from the CBA Certificate No. 20/90 and subsequent Order dated 5.11.1991. No doubt every authority which has the power to pass an order also has the power to correct/rectify any mistake that may have arisen from any accidental slip or omission but before doing so it is incumbent that a notice be given to all the persons who were parties to the proceedings pointing out the slip, omission or error and after hearing them make the correction, if appropriate. In the present case, it is apparent that NIRC did not give any notice to any party including Respondent No. 2 who was going to be affected adversely. The correction order communicated by NIRC by its letter dated 16.12.1991 violated the principles of natural justice that no one shall be condemned unheard and is liable to be set aside.
5. It may be stated here that according to NIRC letter dated 16.12.1991 the Petitioner "had applied for grant of CBA Certificate for whole of Pakistan for MCB Limited with the "exception of Islamabad-Murree and Rawalpindi" which exception was omitted allegedly through a typographical mistake. After rectifying the typographical mistake NIRC declared that there would be two CBAs in the establishments of Muslim Commercial Bank as under:-- "MCB of Staff Union of Pakistan in the provinces of Sindh, Punjab, NWFP and Baluchistan "with the exception of all branches falling under Islamabad Rawalpindi zone".
12. MCB Limited Employees Union Islamabad Rawalpindi zone for the branches of MCB situated within Rawalpindi & Islamabad zone."
13. Now, according to NIRC, the Petitioner had applied for grant of CBA Certificate for whole of Pakistan with the exception of "Islamabad-Murree & Rawalpindi". However, after rectification the Petitioner was declared a CBA for the Provinces of Sindh, Punjab, NWFP and Baluchistan with the exception of all branches falling under Islamabad-Rawalpindi zone and Respondent No. 3 was declared to be a CBA for the branches of MCB situated within the Rawalpindi and Islamabad zone. NIRC has not given any reason why the area of Murree was also not excluded in the exception from Petitioner's Certificate at the time of rectification. Either the certificate should have been granted as requested or if NIRC wanted to make any change therein, it should have given a hearing to the Petitioner before passing any order contrary to the request of the Petitioner. The Order of rectification dated 16.12.1991 is accordingly bad in law on this count also.
6. During the course of argument learned Counsel for the Petitioner produced a copy of an Order dated 7.5.1995 passed by NIRC in Case No. 19(2)192-K (Muslim Commercial Bank Staff Union Vs. Muslim Commercial Bank & others), wherein it has been held that "a Single Collective Bargaining Unit for the workmen of Muslim Commercial Bank Employees throughout the country is necessary, convenient and appropriate keeping in view all the relevant factors led under the law and consequently, NIRC determined and certified a Single Collective Bargaining Unit in all the establishments of Muslim Commercial Bank throughout the country for a period of two years from the date of the order and the Registrar of industry-were trade union was directed to take steps to determine the Collective Bargaining Agent for the country as a whole. We are afraid that this order, which was passed on 7.5.1999 cannot be referred to for the purpose of deciding the validity of the orders dated 2.11.1991, 4.11.1991 and 16.12.1991 which are impugned in this Petition.
14. The Petitioner and Respondent No. 2 shall also be entitled to costs.