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Petitioner: PAKISTAN STEEL PEOPLES WORKERS' UNION VS Respondent: REGISTRAR OF TRADE UNIONS, JUDGMENT
Court Name: Sindh High Court Judge(s): Syed Haider Ali Pirzada Title:PAKISTAN STEEL PEOPLES WORKERS' UNION vs REGISTRAR OF TRADE UNIONS,
JUDGMENT
Reported As: 1992 PLC 715 Result: Petition dismissed Judgment JUDGMENT ' The petitioner-Union, through this petition has prayed for the following reliefs:-- "(i) Declare and hold that all impugned acts and omissions committed and impugned proceedings held relating to the referendum for election of C.BA. And the impugned referendum held on 13th March 1990, in the establishment of respondent No,4 and the impugned certificate of C.B.A., issued by respondent No, 1 in favour of respondent No, 5 was without jurisdictions, without any lawful authority and illegal and of no legal effect and this Hon'ble Court pleased to quash and set aside the same. (ii) Direct the respondent No, 3 who is the competent authority in law to hold referendum in the establishment of respondent No,4 to elect C.BA. In accordance with law. (iii) Declare that respondent No,5 is not C.BA of Pakistan Steel Mills Corporation Limited i,e, the respondent No,4. (iv) Grant ad interim relief pending disposal of main petition as per attached application. (v) Award costs. (vi) Any other relief as circumstances may warrant and this Hon'ble Court may deem fit." ' The facts leading to the filing of the above petition are that the petitioner-Union is an industrywise trade Union duly registered with respondent No, 3 and was collective bargaining agent uptil 28th February 1990 in the establishment of respondent No, 4. There are other unions such as respondent No,6 and other unions namely Pakistan Democratic Workers Union, Pakistan Steel Liberal Workers' Union. Pakistan Steel Mehnatkash Workers Union and others who are also registered as industrywise trade unions with respondent No,3. Respondents Nos,5 and 7 and also Pakistan Steel
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Staff and Workers Union, Pakistan Steel Mazdoor Dost Union, Pakistan Steel Mazdoor Ittihad Union and others are registered as local unions with respondent No,1. The case of the petitioner is that the establishment of respondent No,4 is country-wide/national establishment as much as it has its offices not only in Karachi and that in various districts of Karachi but also in Lahore and Islamabad where also the workers are employed and petitioner- union has membership in these establishments also. It is the further case of the petitioner that on 28-2-1990 respondent No, 5 applied to respondent No,1 through respondent No,2 for holding referendum for determination of C.B.A. ' A list of workers was attached with the application. It is the further case of the petitioner-Union that the respondent No,1 has no jurisdiction in relation to industry-wise trade unions and the employees employed at Lahore and Islamabad and so to conduct referendum in respect of C.B.A. In those establishments which are admittedly of national level. On 1-3-1990 the respondent No,1 issued a letter to all the unions asking them to intimate whether the union desires to be contestants in the secret ballot to be held under section 22 of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the Ordinance). If they wanted to participate in the referendum, they were required to attend a joint meeting in the office of the respondent No,1 on 5-3-1990 at 11- 00 a.m. Alongwith list of total paid members of their unions (14 copies) showing in respect of each member, his parentage, age, section or department, place of employment, ticket number and the date of his becoming member of the union. ' It appears that the petitioner-union sent a letter dated 4-3-1990 to the respondent No,3 stating therein that the petitioner-Union is an industrywise trade union registered with respondent No,3 and according to it, there are other unions who are registered with respondent No,3. A copy of letter addressed to the Registrar, Industrywise Trade Union, was sent to the respondent No,2 under postal certificate. A joint meeting of the representatives of fourteen unions was held on 5-3-1990. All the unions excepting one union, namely, Pakistan Steel Shama Workers Union desired to contest the secret hallo! To be held for the purpose of determination of collective bargaining agent in the establishment of respondent No, 4. According to the minutes of the meeting, the representative of employer submitted a list of workmen containing names of 21,142 permanent workmen and sixteen workmen having less than three months' service. A copy thereof was supplied to the contesting trade unions. After necessary scrutiny a list of 21,142 voters was finalised and prepared under the provisions of the Ordinance. The unions checked the list thoroughly and fully agreed with it. The symbols were allotted to thirteen contesting unions. The name of United Workers Union was deleted from the list of contesting unions and the symbol was also cancelled. The minutes of the meeting were signed by the representative of the employer as well as all the contesting unions. ' It is the further case of the petitioner-union that the list of voters included names of such persons who were promoted as officers in respondent No, 4 and the number of such persons is more than six hundred. This was confirmed by a letter dated 13-3-1990 by respondent No, 4. ' It appears that the referendum was, as agreed to, held on 13-3-1990 in which all the twelve unions participated. The petitioner-union secured the second highest having 8,033 votes, whereas respondent No, 5 secured 8,593 votes. Consequently respondent No, 5 was declared to be successful collective bargaining agent for a period of two years with effect from 13-3-1990 under clause (e) of subsection (9) of section 22 of the Ordinance. ' The petitioner-Union has filed the above petition challenging the validity of the referendum held by respondent No, 1 as without jurisdiction, without any authority and illegal and of no legal effect. The petitioner-Union sought a declaration that respondent. No, 3 to hold referendum in the establishment of respondent No, 4 to elect C.BA. In accordance with law and sought a declaration that respondent No, 5 is not C.B.A of respondent No, 4. ' Mr. Iqbal Haider learned counsel for the petitioner raised the following contentions:--
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(1) The referendum was held in violation of law. (2) The application made on 28-2-1990 by the respondent No, 5 union was premature and could not have been entertained inasmuch as the period of two years commenced from 28-2-1988 had by that time not expired. (3) The respondent No, 1 did not hold any inquiry that the unions which had applied, had one-third members or not. ' Mr. Ghulam Nabi Deeshak submitted in parawise comments that respondent No, 1 had no jurisdiction to hold referendum for determination of C.B.A. ' Mr. Obaidur Rehman, learned counsel for respondent No, 5 raised the following submissions:-- (1) The respondent No, 4 is one establishment within the meaning of section 2(a) of the Ordinance. (2) NIRC can hold referendum amongst industry wise trade unions, federations of such unions and federations at national level under section 22-A(8)(e) read with Regulations 16, 21 and 22 of NIRC Regulations. (3) The petitioner-Union cannot object to the holding of referendum after having acquiesced and having participated in the referendum. (4) List of voters cannot be questioned after the referendum was held. ' Mr. Abdul Ghafoor Mangi, learned Assistant Advocate-General, Sindh, submitted that the respondent No, 1 has jurisdiction to hold the referendum in the establishment of respondent No,4. The petitioner-union participated in the referendum proceedings and agreed to contest the referendum without any objection. ' I have heard the learned counsel for the parties at length, have gone through the case-law cited at the Bar and the relevant provisions of law. It is advantageous to reproduce the relevant provisions of the Ordinance. ' Collective Bargaining Agent has been defined in clause (v) of section 2 as under:-- "Collective Bargaining Agent", in relation to an establishment or industry, means that trade union of workmen which, under section 22, is the agent of the workmen in the establishment or, as the case may, industry, in the matter of collective bargaining. ' Collective Bargaining Unit has been defined in clause (va) of section 2, as under:-- "Collective Bargaining Unit means those workers or class of workers of an employer in one or more establishments falling within the same class of industry whose terms and conditions of employment are or could appropriately be, the subject of collective bargaining together." ' The expression "employer" has been defined in clause (viii) of section 2, as under:-- "Employer" in relation to an establishment means any person or body of persons, whether incorporated or not, who or which employs workmen in the establishment under a contract of employment and includes-- (a) an heir, successor or assign, as the case may be, of such person or body as aforesaid; (b) any person responsible for the management, supervision and control of the establishment; (c) in relation to an establishment run by or under the authority of any department of the Federal Government or Provincial Government, the authority appointed in this behalf or, where no authority is appointed, the Head of the Department; (d) in relation to an establishment run by or on behalf of a local authority, the officer appointed in this behalf or where no officer is so appointed, the Chief Executive Officer of that authority. Special provision.-- For the purpose of distinction from the category of 'workers or workmen' officers and employees of a department of the Federal Government or a Provincial Government or a local authority, who belong to the superior, managerial, secretarial, directional, supervisory or agency staff and who have been notified for this purpose in the official Gazette shall be deemed to fall within the category of employers; in relation to any other establishment, the proprietor of such
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establishment and every Director, Manager, Secretary, Agent or Officer or person concerned with the management of the affairs thereof." ' The expression "Establishment" has been defined in clause (ix) of section 2. It reads: "Establishment" means any office, firm, industrial unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying of any industry; and except in section 22-EE, includes a collective bargaining unit, if any constituted under that section in any establishment or group of establishments;" Section 22 of the Ordinance provides for certification of the trade union as collective bargaining agent. Subsections (2) and (3) only are relevant which read as under:- "(2) Where there are more registered trade unions than one in an establishment or "a group of establishments, the Registrar shall, upon an application made in behalf by any such trade union which has as its members not less than one-third of the total number of workmen employed in such establishment or group of establishments or by the employer, or the Government hold within fifteen days from the making of the application, a secret ballot to determine as to which one of such trade 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 subsection in respect of an establishment or group of establishments, consisting of, or including, a seasonal factory within the meaning of section 4 of the Factories Act, 1934 (XXV of 1934) unless such application is made during the month in which the number of workmen employed in such factory in a year is usually the maximum. (3) Upon receipt of an application under subsection (2) the Registrar shall, by notice in writing, call upon every registered trade union in the establishment or group of establishments to which the application relates-- (a) to indicate whether it desires to be contestant in the secret ballot to be held for determining the collective bargaining agent in relation to such establishment or group; and (b) if it so desires, to submit to him within the time specified in the notice a list of its members showing, in respect of each member, his parentage, age, the section or department and the place in which he is employed, his ticket number and the date of his becoming a member and if the trade union is a federation of trade unions, a list of its affiliated trade unions together with a list of members of each such trade union showing in respect of each such member the said particulars." ' There is no definition in the Ordinance as to what constitutes 'one establishment'. Whether the various units of a company constitute separate establishments or one establishment has to be determined having regard to the principles laid down by the Division Bench of the then High Court of Sindh and Balochistan, Karachi Bench in Muhammad Aqil v. Chairman, Sindh Labour Appellate Tribunal and another (1974 PLC (Karachi) 194 as under:- "From the aforesaid definition it would appear that an employer may have more than one establishment, for example, offices in a commercial area, shops in business area, or one or more industrial units in an industrial area and the expression "establishment" would include not whole of the establishment of an employer but each of them individually." ' In the case of the Associated Cement Companies Ltd., Chaibasa Cement Works, Jhinkpani v. Their Workmen (AIR 1960 SC 56), the Supreme Court of India enunciated the following principles:-- "The Act not having prescribed any specific tests for determining what is 'one establishment', we must fall back on such considerations as in the ordinary industrial or business sense determine the unity of an industrial establishment, having regard no doubt to the scheme and object of the Act and other relevant provisions of the Mines Act, 1952, or the Factories Act, 1948. What then is 'one establishment' in the ordinary industrial or business sense? The question of unity or oneness
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presents difficulties when the industrial establishment consists of parts, units, departments, branches etc. If it is strictly unitary in the sense of having one location and one unit only, there is little difficulty in saying that it is one establishment. Where, however, the industrial undertaking has parts, branches, departments, units etc. With different locations, near or distant, the question arises what tests should be applied for determining what constitutes 'one establishment'." ' In re: Application of Pakistan Spensers Employees' Union (1977 PLC 20) a Full Bench of NIRC was constituted to resolve the following points:- "(i) Whether a bench of the Commission acting as Registrar could under section 22(1), I.R.O. Certify a registered industrywise Trade Union in an organisation to be a C.BA. If it was the only registered industrywise Trade Union despite the fact that there were other local registered Trade Unions in the branches of the organisation. If it could, whether, the said industrywise Trade Union had to be certified as C.BA. For the whole of the organisation or only for those branches where there were no other Unions." ' Mr. Qaiser Khan, Chairman of the Commission observed as under:-- "Reading together, all the provisions, of the I.R.O., mentioned above clearly shows that the term `establishment' means the whole organisation which carries on any business or industry and not its branches at various places. This definition or interpretation of the term 'establishment' also fits in with the ordinary meaning of the `group of establishments'." ' Mr. Mamoon Kazi, Senior Member (now Judge of this Court) at page 34 observed as under:-- ".... It has become further clear that the expression "establishment" includes even a branch of the whole organisation. Coming next to the meaning of the expression "a group of establishments" it has not been n the As understood in its ordinary sense, in my opinion, the expression would include any number of branches together, forming a group." ' M/s. Bashir Ahmed Malik and Farhat Ali Khan (Members) agreed with the views expressed by their senior members. S. Rais Ahmed Jafri, Member held that each branch of the employer is an establishment in which there are three unions. ' In re: Application of Sui Northern Gas Workers' Union, Lahore (1977 PLC 167) the facts were that industry wise union by the name of Sui Northern Gas Workers' Union was registered by the name of Sui Northern Gas Pipelines Employees' Union with NIRC in 1973. Another local trade union for Lahore Branch had also been registered with the Provincial Registrar. Another industrywise trade union by the name of "Sui Northern Gas Workers' Union" was formed and it applied to the NIRC for registration on 16-1-1976. During the pendency of this application the Lahore Union got itself dissolved and its registration was cancelled by the Registrar on 6-2-1976. In the meantime, however, another local union for Rawalpindi was formed and it applied for registration on 6-5-1976 to the Regional Registrar of the province and was registered on 11-5-1976. In connection with the registration of Sui Northern Gas Workers' Union, an objection was raised that it could not be registered as the number of workers forming it was less than one-fifth of the total number of workers of the organisation. To resolve this, a Full Bench of NIRC was constituted. The judgment is not unanimous. The majority view is that the second union of workers in an establishment with branches in more than one province applying for registration with NIRC on the basis of industrywise trade union notwithstanding that there are locally registered trade union, can be registered as such without being required to show that it has one-fifth of the workmen of whole of the organisation as its members. The locally registered union can be considered by NIRC as non- existent. The minority view is contrary. Mr. Qaiser Ahmad Khan, Chairman of the N.I.R.C. Observed as under at page 170:-- "Reading together, all the provisions of the I.R.O. Mentioned above clearly shows that the term 'establishment' means the whole organisation which carries on any business or industry and not its
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branches at various places. The definition or interpretation of the term `establishment' also fits in with the ordinary meaning of the term `group of establishments'." ' Mr. Mamoon Kazi, Senior Member, held as under at page 174:-- "The words such as "business", "trade", or "manufacture" referred to in the above definition are wide enough to include even more than one organisation, either under the same employer or under different employers. The definition of "industry" therefore carries a much wider import than the other two expressions viz. "establishment" or "group of establishments"." ' Mr. Bashir Ahmed Malik, Member, has adopted the reasoning of Mr. Mamoon Kazi, Senior Member of the Commission. Mr. Qazi Masud Afzal Khan, Member held as follows on page 179:-- " ..If there were already in existence two or more registered Trade Unions in the Rawalpindi establsihment of the Company, and the Workers Union had applied for registration within the local limits of Rawalpindi only, the provisions of clause (b) ibid would be attracted. In this context, the local Trade Union connected with the establishment of the Company in Rawalpindi has no locus standi vis-a-vis the Trade Union connected with the "collectivity of the establishments of the Company"." ' In the case of Grindlays Bank (Lloyds Branch) Employees' Union v. Registrar, Trade Unions, Lahore Region, Lahore 1980 PLC 800 (Lahore High Court)) a learned Single Judge of Lahore High Court held at page 800 that: "The word 'establishment' as defined in the Ordinance when interpreted keeping the above principle in view is open to only one conclusion that in the same industry there can be more than one establishment. The phrase "any office, firm, industrial unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying on any industry" etc., does not suffer from any ambiguity. One cannot add to the phrase so as to get the meaning that an establishment means establishment of one particular employer." ' In Messrs Jang Publications Ltd. V. Registrar of Trade Unions, Sindh and another (PLD 1984 Karachi 292), the appellant had challenged the decision of the Registrar of Trade Unions. The contention of the appellant was that the appellant has establishments at different places in different provinces. The Division Bench of this Court at page 297 held as follows:-- "By now it is clear that the Commission has power to certify bargaining agents in two different situations--one under section 22-A, subsection (8), clause (e) and second under this section 22-EE. Under the former provision an industrywise Trade Union claiming a membership on all Pakistan basis can be appointed as bargaining agent. If there are more than one industrial trade unions, then under section 22(B), subsection 3(a) the Commission would hold a referendum and adopt the same procedure as is provided under section 22 of the Industrial Relations Ordinance. ' Now, a situation may arise where there is an Industry owner by same employer but spread over different places beyond the territorial limits of one or more provinces. At each place the units are working independently. All the same they are united together by the link of a single employer. By virtue of a single employer their operational pattern must require a coherence and uniformity as far as possible. For instance the terms and conditions of service of the managerial, executive and other staff must be such as to avoid a feeling of discrimination and inspire a sense of parity and uniformity. Same should be the consideration for the labour force/workmen employed in different branches of this industry belonging to the same employer. For obvious reasons such a mass of workmen and the trade unions formed by them at each establishment can neither invoke the jurisdiction of the Registrar who is a Provincial Authority nor of the Commission because there is no "Industry-wise Trade Union, group of trade unions and federations at national level" within the meaning of subsection 8(e) of section 22-A read with explanation appended to section 22-A. ' This situation would be covered by section 22-EE. The additional power has been given to the Commission which enjoys an all Pakistan status to deal with this situation. The Commission has
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been empowered to determine collective bargaining units (as distinguished from bargaining agent)" for safeguarding the interest of the workmen employed in an establishment or group of establishments belonging to the same employer and the same industry." ' Again at page 298 it was held:-- "With this background if we examine the case of the appellant, it falls within the provision of section 22-EE. It is an industry with establishment or group of establishments existing in Karachi, Quetta and Rawalpindi. The industrial unit or undertaking with printing and publishing business operating in the above three cities of three different provinces belong to only one employer namely the "Jang Publications Limited. The management and control is common and interchangeable from one station to another at the discretion of the same employer. All the units are functioning under one Board of Directors who formulate the policy and switch the policy decisions from one centre. The work force employed by this employer is spread over all the three provinces of Pakistan where these units are operating. This work force is divided into three segments each independently working under the banner of its own trade union yet has a unity of interest because its working under one umbrella." ' In that view of the matter the appeal was dismissed and the finding of the learned Single Judge in his judgment dated 10-4-1979 that "I do not find anything in law providing a bar against such a situation and therefore the registration or certificate of the respondent-union was not without lawful authority are correct" was upheld. ' It is in the light of these decisions that I have to decide whether the various offices of Pakistan Steel Mills Corporation located at Islamabad and Lahore and in various districts of Karachi constitute one establishment. It is not disputed that the respondent No, 4 is a company and has small liaison office at Islamabad where twenty-nine workers are posted and in the small regional office at Lahore fifty-eight workers are posted. ' It is impossible to lay down any one test as laid down in the above decisions as an absolute and…
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