FAKHRUDDJN G. EBRAHIM, J.-The Karachi Petroleum Workers Union, a registered Trade Union, the respondent No. 4 herein was elected as Collective Bargaining Agent for the four Karachi establishment of Pakistan Burmah Shell Ltd., the respondent No. 1, in the year 1971. In January, 1976 the Burmah Shell Employees' Union, another registered Trade Union of the employees of P. B. S. At these four installations, applied to the Registrar of Trade Unions for election of Collective bargaining Agent. The petitioner --Union, Pakistan Burmah Shell Petrol Pumps Employees' Union was registered in December, 1974 and is "composed of persons engaged by P. B. S. Ltd., for its owned and self- operated petrol pumps", in ail six, at Karachi. On 16th of March, 1976, the petitioner-Union wrote to the Registrar of Trade Unions who had started proceedings under subsection (2y or section 22 of the 1. R. O. To determine the Collective Bargaining Agent in the establish--ments of P. B. S. At Karachi that they would like to take part in the determination of Collective Bargaining Agent as one of the contesting Unions for the groups of establishments at Karachi of P. B. S. After further corres-- pondence and joint meetings the Registrar informed the petitioner. Union by its letter dated 231d June, 1976 that its members were not employed or engaged by H. L. S. Ltd.. And in fact the members of the petitioner --Union serving at six petrol pumps were the employees of the operating contractors and, therefore, the petitioner-Union cannot participate in the refrendum being arranged between the Burmah Shell Employees Union and the Karachi Petroleum workers Union.
This is the first order impugned in this petition.
2. The petitioner-Union also moved before the National Industrial Commission at Islamabad an application under section 22-EE of the I. R. O. In which the complaint was that the Registrar of Trade Unions had erred in disallowing the petitioner-Union to participate in the determination of the refrendum for electing the C. B. A. The prayer was to declare that "all branches of the establishment of P. B. S. Ltd., including the petrol pumps owned and run by P. B. S. At Karachi district" be declared as Collective Bargaining Unite, and during the pendency of the application the proceedings before the Registrar Trade Unions for determination of C. D. A. Be stayed.
3. The learned Member, N. I. R. C. Dismissed this application on the ground that P. B. S. Was err establishment to which the Essential Services (Maintenance) Act, 1952 had been extended and under its section 7-A the Commission had no jurisdiction to entertain any such application. This is the second impugned order in this petition.
4. Mr. Khalid M. Ishaque she learned counsel for the petitioner-Union conceded this much that it was not open to the petitioner-Union to become a C. B. A. For admittedly its membership was far less than one-third of the total number of workmen employed in the establishments in respect of which the C. B. A. Was to be elected. His grievance however, was that in the proposed refrendum the members of the petitioner-Union were entitled to vote in as much as they were employees of P.
B. S. At Karachi. The learned counsel challenged the finding given by the Registrar that the members of the petitioner-Union were not employees of P. B. S. As being contrary to facts as well as the law. The contention further was that in as much as these members were the employees of the operating contractors of P. B. S. They in law became the employees of the employer of the operating contractors, that is, P. B. S. First of all the question before the Registrar of Trade Union seas whether or not the petitioner-Union was employed to contest as a Collective Bargaining Agent. For this limited purpose, it was really unnecessary to examine the question whether they were the employees of P B. S. For even on that assumption the petitioner-Union was under section 22 of the I, R. O. Not entitled to contest as C. B. A. Be that as it array, we are of the view that at its worst the order made by the Registrar of Trade Unions defranchises the members of the petitioner union in their individual capacity as alleged employees of P. B. S. The persons adversely affected are, therefore, the individuals who have been defranchised and not the petitioner-Union. It is also significant that in the petition the order made by the Registrar has not been challenged on the ground that the members of the petitioner-Union have been defranchised or for that matter the finding of the Registrar that members of the petitioner-Union are riot the employees of the P. B. S. It was only so urged at the Bar which at best mates the individuals affected aggrieved persons and the petitioner-Union, thereafter cannot maintain the petition in so far as this order is concerned.
5. Coming to the other contention of Mr. Khalid Ishaque, that the N. I. R. C. Failed to exercise jurisdiction vested under it under section 22-EE, we are in agreement with him to this extent only that the ground on which the learned Member, N. I. R. C. Chose not to exercise jurisdiction under section 22-EE, eras on the incorrect assumption that the I. R. O. Provisions in so far as they relate to Trade Unions are excluded by section 7-A of the Pakistan Essential Services (Maintenance) Act, 1952. The view taken by the learned Member, N.
1. R. C. Has been supported before us only by Mr. Noor Mohammad, the learned counsel for the P. B. S. We are, however, unable to agree that section 7-A ousts the jurisdiction of N.1. R. C. To hear the application made by the petitioner-Union under section 22-EE of the 1. R. O. We rely on the Division Bench judgment of this Court In Constitutional Petition No. D-74 of 1977 to which one of us is a party in rejecting this contention. For the reasons given in this judgment we are of the view that the jurisdiction of the N. I. R. C wag. Not ousted by the said E section 7-A in entertaining the petitioner's application under section 22-EE of the 1. R. O. We make it clear that nothing staged herein will pre-empt the N.1. R. C. To consider the petitioner's application on its own much including its maintainability otherwise in law. The result, therefore, is that the order of the learned Member, N. I. R. C., dated 31st January, 1977 is set aside with the result that N. I: R. C. Will proceed to hear the petitioner's application under section 22-EE as an application pending before it.
6. Before we part we further observe that since the petitioner-Union cannot content to become a C.
B, A, such authority as is empowered to hold the refrendum for electing a Collective Bargaining Agent as between the two existing unions, referred to above, will be at liberty to do so.
7. This petition is, therefore, disposed of in terms aforesaid with no order as to cost.