1999SCMR234 (PLP)

AJMAL MIAN, CJ.

This is a petition for leave to appeal against the order of Division Bench of the High Court of Sindh in H.C. Appeal No. 116 of 1997 filed by the petitioner assailing the judgment of a learned Single Judge dated 16-6-1997 dismissing the petitioner's Constitution Petition No.S-10 of 1997, dismissing the same in limine.

2. The brief facts are that the petitioner is a private limited company and is engaged in pharmaceutical business. It appears that a Trade Union under the name and style of M/s. Hakimsons Chemical Industries (Pvt.) Limited Employees Union had been in existence since 1970 and which was also declared as Collective Bargaining Agent (CBA). It seems that the petitioner used to employ/hire temporary workers on daily payments/wages and on the last occasion such workers were hired on 31-10-1996 when their services were terminated on 31-10-1997. It was the case of the petitioner that some of the temporary workers whose services were terminated on 31-10-1997 mala fidely joined hands to form a Trade Union and applied to the Registrar of the Trade Unions, i.e., respondent No. 1, for registration of the Trade Union under the name and style of M/s. Hakimsons Chemicals Industries (Pvt.) Limited Labour Union. Respondent No. I sent intimation about it to the petitioner, who filed objections. The above objections were sent to the proposed Union, which were replied to. After that respondent No. I issued certificate of registration on 25-1-1997. The petitioner filed above Constitution petition assailing the registration of above Union on the ground that factually no inquiry was held in terms of section 7(2) of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the I.R.O.), and that in fact the members of the above newly registered Union were not workers. However, the above petition was dismissed by the learned Single Judge by the aforesaid judgment dated 16-6-1997, in which all the contentions raised by the learned counsel for the petitioner were elaborately dealt with. Thereupon, the petitioner filed above High Court appeal, which was dismissed in limine. The petitioner has, therefore, filed the present petition for leave to appeal.

3. The above matter came up for hearing before this Court on 7-10-1998 when it was vehemently urged by Mr. Fazle Ghani Khan, learned senior counsel appearing for the petitioner, that factually the Registrar of Trade Unions held no inquiry in terms of section 7(2) of the I.R.O., and, therefore, the learned Judge in Chamber as well as the learned Judges of the Division Bench were not justified in dismissing the petitioner's above Constitution petition. A Bench of this Court to which two of us were also members (Ajmal Mian, C.J. and Munawar Ahmed Mirza, J.) ordered issuance of notice to the Registrar of Trade Unions, Karachi for appearance in Court at Karachi in November, 1998. Pursuant to the above order, Meer Muhammad Baloch, Assistant Director, Labour Trade Unions has put in appearance alongwith record.

4. In support of the above petition, Mr. Fazle Ghani Khan, Advocate Supreme Court has vehemently contended that since no inquiry was held in terms of section 7(2) of the I.R.O. by the Registrar, Trade Unions, the registration certificate of respondent Not Union is liable to be cancelled and the case is to be remanded to the Registrar of Trade Unions for holding inquiry in terms of the above provision of the I.R.O. Reliance was placed by him on the following cases: (i) Muhammad Yaqoob v. The Punjab Labour Court No. I and 5 others (1990 SCMR 1539) In the above case this Court while declining leave to appeal observed that in order to get the benefit of the Standing Orders Ordinance in the matter of termination of service, the petitioner had to show that he was a permanent workman, and that a permanent workman has been defined in the Standing Orders Ordinance by reference to the nature of the work on which he had been engaged or employed. It was further observed that if the work was not of a permanent nature, then howsoever, long might be his employment, he could not be taken to be a permanent workman. (ii) Ghee Corporation of Pakistan v. Registrar, Trade Unions and another (1991 PLC 207). In this case a learned Single Judge of the Lahore High Court had held that it was not possible to comply with provisions of section 7(2) of the I.R.O. without associating in proceedings the employer and the union or the unions already in existence. The petition was allowed and the registration of the union was held to be illegal. (iii) Idara-e-Kissan v. Registrar of Trade Unions, Lahore and others (1995 PLC 134). In the above case also a learned Single Judge of the Lahore High Court reiterated the above earlier view that the basic requirement of section 7(2) of the I.R.O. could not be achieved without associating the employer, and therefore, he was held entitled to be heard. Consequently, the Writ Petition was accepted and the case was remanded to the Registrar, Trade Unions. Learned counsel also referred an unreported judgment of a learned Single Judge of the High Court of Sindh in the case of M/s. Pak-Arab Refinery Limited v. Registrar, Trade Unions, Hyderabad, Sindh and others in Constitution Petition No.S-38 of 1995, wheretn it was held that since the Registrar, Trade Unions, did not hold the requisite inquiry into the status of the members of the respondent No.2 Union, the registration of the Union was not in accordance with law. The case was remanded to the Registrar of Trade Unions.

5. It may be observed that the above leave refusal order of this Court in the case of Muhammad Yaqoob v. The Punjab Labour Court No.1 and others (1990 SCMR 1539) has been noticed in a subsequent judgment of a Bench of three Judges in the case of Executive Engineer, Central Civil Division, Pak. P.W.D., Quetta v. Abdul Aziz and others (PLD 1996 SC 610) and commented upon as follows:-- "The ratio of the above judgment' in the case of Muhammad Yaqoob (supra) seems to be that the period of employment is not the sole determining factor on the question, as to whether a workman in a permanent workman or not but the nature of the work will be the main factor for deciding the above question. In other words, if the nature of work for which a person is employed is of permanent nature, then he may become permanent upon the.; expiry of the period of nine months mentioned in terms of clause (b) of paragraph 1 of the Schedule to the Standing Orders Ordinance provided, he is covered by the definition of the term 'worker' given in section 2(i) thereof. But if the work is not of permanent nature and is not likely to last for more than nine months, then he is not covered by the above provision. It may be observed that once it was proved that the respondents without any interruption remained employees between a period from two years to seven years, the burden of proof was on the appellant-department to have shown that the respondents were employed on the works which were not of permanent nature and which could not have lasted for more than nine months. From the side of the appellant nothing has been brought on record in this behalf. The appellant-department is engaged in maintaining the Government residential and non-residential buildings and constructing itself and/or causing construction thereof. The above work as far as the appellant-department is concerned is of permanent nature. In this view of the matter, the finding recorded by the Labour Courts in this respect cannot be said to be not founded on evidence on record." The question as to whether factually the members of respondent No.2 Union were permanent workmen/workers was a question of fact which could not have been adjudicated upon in the above Constitution Petition, or in the High Court Appeal arising there from, nor we would like to render any finding on the same. The above question is to be determined with reference to the ratio of the judgment of this Court in the case of Executive Engineer, Central Civil Division, Pak P.W.D., Quetta v. Abdul Aziz and others (supra) para. 14 of which has been quoted hereinabove.

6. Reference may also be made to the case of Agriculture Workers' Union, Balochistan v. The Registrar of Trade Unions, Balochistan, Quetta (1997 SCMR 66) in which this Court set aside the judgment of the High Court cancelling the registration of the Trade Union of Quetta Municipal Corporation on the, ground that the question relating to the nature of duties and functions performed by the employees of the Municipal Corporation who formed themselves into a Trade Union was a question of fact, which required evidence and that the same could not be determined satisfactorily in the proceedings under Article 199 of the Constitution specially when an alternate procedure for such determination was provided under section 10 of the I.R.O.

7. Reverting to the above judgments of learned Single Judges of the High Court, it will suffice to observe that subsection (2) of section 7 of the I.R.O., 1969, does not expressly provide for holding of an inquiry, but it lays down that a Trade Union of workmen shall not be entitled to registration under the Ordinance (a) unless all its members are workmen actually engaged or employed in the industry with which the trade union is connected; and (b) where there are two or more registered trade unions in the establishment, group of establishments or industry with which the trade union is connected, unless it has as its members not less than one-fifth of the total number of workmen employed in such establishment, group of establishments or industry, as the case may be?.

8. In the present case, the petitioner objected to the registration of respondent No.2 trade union on the ground that its members were no longer in service of the petitioner as their temporary employments were terminated on 31-10-1996. The above objection was replied to inasmuch as thirty affidavits were filed by the workers. The Registrar of Trade Unions, prima facie, found that they were, in fact, employed in the petitioner company and were, therefore, granted the registration. According to Mr. Fazle Glani Khan, the Registrar of Trade Unions should have held a full-fledged inquiry inasmuch as he should have given opportunity to the petitioner to rebut the above evidence. In our view, the law does not envisage any full-fledged inquiry. The question as to whether factually the members of respondent No.2 trade union were employees or workers of the petitioner can again be agitated by the petitioner at the time of referendum for electing a Collective Bargaining Agent in terms of section 22 of the I.R.O. If respondent No.2 union would not have the required number of the workers as its member, it would not be able to participate in the election of Collective Bargaining Agent. We are, therefore, of the view that the learned Single Judge as well as the learned Judges of the Division Bench were justified in not interfering with the registration of respondent No.2 union in exercise of the Constitutional jurisdiction as some inquiry was held by the Registrar of Trade Unions before granting the registration. Leave is refused and the petition dismissed. M.B.A./H-25/S Petition dismissed [Supreme Court of Pakistan] Present: Fazal Ilahi Khan, Abdul Hafeez Memon and Sh. Ijaz Nisar, JJ IRSHAD AHMED HASHMI and another

Appellants versus GENERAL MANAGER, PAKISTAN RAILWAYS and 2 others

Respondents Civil Appeals Nos.383 and 384 of 1994, decided on 19th June, 1997 (On appeal from the judgmenttlated 18-11-1993 of the Federal Service Tribunal, in Appeals Nos.100-R and 101-R of 1993).

Removal from service

Both Railway employees having same job description and same responsibility were similarly charge-sheeted and proceeded against in a similar manner for accident and on the conclusion of the inquiry both of them were held "indirectly responsible" and, as such, were equally treated by ordering removal from service by order of the Superintendent, Pakistan Railways

Both the civil servants having been equally held indirectly responsible for the accident, deserved to be treated in the same manner so far penalty was concerned. A.K. Dogar, Advocate Supreme Court and S. Abul Aasim Jafri, Advocate-on-Record (absent) for Appellant (in both Appeals). Masoodur Rehman Mirza, Advocate Supreme Court for Respondents. Date of hearing: 19th June, 1997. FAZAL ILAHI KHAN, J.

Facts of the case giving rise to these appeals by leave of the Court briefly stated are that the appellants serving in the relevant department were proceeded against departmentally in connection with an accident occurred on the night between 7th and 8th June, 1991 in which a number of people lost their lives. In the inquiry conducted the appellants were found to be indirectly responsible for the accident; hence, they were ordered to be removed from service. Irshad Ahmad Hashmi and Bashir Ahmad appellants challenged the order of their removal from service passed by the Superintendent, Pakistan Railways in Service Appeals Nos.101-R of 1993 and 100-R of 1993, respectively.

2. Both these appeals were heard by Ivlr. Rana Rifat Saeed and Mr. Muhammad Ilayas Lodhi the learned Members of the Service Tribunal. As the learned Members failed to arrive at a unanimous conclusion these appeals were placed before the Chairman, Federal Service Tribunal who on a perusal of the record, without hearing the parties/their learned counsel, dismissed both the appeals.

3. Leave was granted in these cases to consider the submission of the learned counsel for the appellant that both the learned Members of the Bench had concurrently, held that proceedings conducted against Irshad Ahmad Hashmi were irregular and incompetent, therefore, his reinstatement was ordered with all back benefits but with stoppage of promotion for 3 years. The difference of opinion, however, cropped up in the case of Mirza Muhammad Bashir appellant as according to Mr. Rana Rifat Saeed he was to be compulsorily retired from service instead of removal from service. However, Mr. Muhammad Ilyas Lodhi the learned Member agreed with Mr. Rana Rifat Saeed as far as the appeal of Irshad Ahmad Hashmi appellant is concerned but further held that Bashir Ahmad appellant shall be extended the same consideration as allowed to Irshad Ahmad Hashmi appellant and that he too is to be reinstated with stoppage of promotion for 3 years. According to him the appeal of Irshad Ahmad Hashim was to be accepted to that extent, while that of Bashir Ahmad shall have been referred to Third Member (Chairman)' for his opinion. The learned Chairman had, therefore, acted illegally and without jurisdiction in dismissing the appeals which is violative of section 3-A(2) of the Federal Service Tribunals Act, 1973.

4. As the learned counsel for the appellants confined his arguments to the legal position stated above we are not inclined to go into the merits of the case. The legal point has been fully reflected in the leave granting order substance reproduced above. It is sufficient to state that both the appellants were similarly charge-sheeted and proceeded against in a similar manner for the fateful accident and on the conclusion of the inquiry both of' them were held "Indirectly responsible" and, as such were equally treated by ordering removal from service by order of the Superintendent, Pakistan Railways. Rana Rifat Saeed the learned Member in his very elaborate and detailed judgment dated 25-8-1993 held as under: -- "Under the aforementioned circumstances and after hearing the parties, we find that both the appellants had been held indirectly responsible by the Enquiry Officer and the punishment of removal from service, as compared to the quantum of negligence and misconduct on their part was more harsh and did not justify vis-a-vis the punishments given to other employees and co-accused colleagues, as discussed in paras. 3 to

5. We, therefore, set aside the orders of their removal from service and modify these, indicated as under:-- (i) Appeal No.l00(R)/93(l6l.(L)/92 Mirza Bashir Ahmad, appellant). Since in his case Authorised Officer and Authority had correctly been appointed by the respondent Department, he is compulsorily retired from service w.e.f. the date of order of removal. (ii) Appeal No.101(R)/93(162(L)/92 Irshad Ahmad Hashmi, appellant). Since Authorised Officer and Authority were (B-18) and (B-20) officer and whereas under relevant rules, these were to be (B-19) and (B-21) officers respectively, proceedings and actions taken by the respondents Department in this case were not so valid and competent, he is to be reinstated into service and he is to be given punishment of stoppage of promotion for three years w.e.f. the date of such removal and with all back benefits etc. However, respondents Department shall settle his absence from date of removal to date of rejoining as per his entitlement under relevant leave rules. (iii) Their suspension periods shall be finalized within one month of this judgment and they paid accordingly under relevant rules. and (iv) Respondents Department shall accordingly issue orders within one month. Mr. M. Ilyas Lodhi, the learned Member on going through the judgment of the learned Member Rana Rifat Saeed did not agree with the above conclusion reached by the learned Member in respect of Mirza Bashir Ahmad as it was contrary to the observation made in para.7 of the judgment, reproduced above, wherein both the appellants have been indirectly held responsible. It was, therefore, held that the "job description and responsibility of both the appellants are same, charge-sheet is same and the finding of the inquiry is same. More over, the inquiry has also not been properly conducted as it -was in form of question/answer, therefore, it was expressed by the learned Member that Mirza Bashir Ahmad appellant also deserves the same consideration. The case was referred to 3rd Member in terms of section 3-A(2) and instead of referring the case of Bashir Ahmad on which both the learned Members have differed with regard to the punishment imposed upon him both the appeals in toto were placed before him. The learned Chairman without hearing the appellants or their learned counsel fell in error in taking cognizance of the appeal of Irshad Ahmad Hashmi on which there was no difference of opinion and the judgment had become final p both the learned Members constituting the Bench had concurred as far as the penalty imposed on him is concerned accordingly Appeal No.383 of 1994 of Irshad Ahmad Hashmi v. The General Manager, Pakistan Railways etc., is partially accepted, the judgment of the learned Chairman dated 16-11-1993 is modified to the extent stated above. 6.' As far as Appeal No.384 of 1994 filed by Mirza Bashir Ahmad is concerned we are in full agreement with the judgment of Mr. M. Ilyas Lodhi the learned Member that the appellant having been equally held indirectly responsible as in the case of Irshad Ahmad Hashmi, therefore, he deserves to be treated in the same manner. We, therefore, modify the judgment in case of Mirza Bashir Ahmad to the extent of reinstatement in service with stoppage of promotion of 3 years w.e.f. the date of such removal with all back benefits etc. The respondents shall settle his absence from the date of removal to date of re joining as per his entitlement under the relevant Rules. Their suspension period shall be finalised within one month of this judgment. Both the appeals are allowed in terms stated above. Parties are left to bear their own costs. M.B.A./1-25/S Appeal allowed