1984 PLP 1645 (PLC)

The petitioners have filed this constitutional petition to challenge the validity of the order of Presiding Officer of Sind Labour Court, Karachi, dated 25th October, 1983. By the above order the Presiding Officer had annulled the order of Registrar of Trade Unions Sind, Karachi dated 10th September, 1983 and directed him to hold fresh election of the `Atlas Group of Companies' Employees Union, Karachi', of which the petitioners Nos. 1 to 5 claimed to be the office‑bearers by virtue of election held on 16th August, 1983.

2. The facts of the case are that petitioners Nos. 1 to 5 were employees of Messrs. Atlas Autos Ltd. (respondent No. 3) (hereinafter referred to as the Employers). There was also a Union of the workers known as Atlas Group of Companies Employees Union, Karachi (here inafter referred to as the Union). Respondent No. 2 Muhammad Yaqoob was, according to petitioners Nos. 1 to 4 holding the post of General Secretary of the Union illegally despite expiry of his tenure and that he was not in favour of fresh election, as he was in league with the manage ment i.e. the Employers and was acting contrary to the interest of the workers of the Union. He was selected General Secretary of the Union for one year in the year 1978. It is alleged that in the year 1982 election was announced for the office‑bearers at the instance of petitioner No.

1. But respondents Nos. 2 and 3 cheated a situation under which no one could oppose respondent No. 2, who thus became General Secretary again, According to petitioners Nos. l to 4 the election of Muhammad Yaqoob respondent No. 2 as General Secretary had generated dissatis faction among the workers.

3. It is further alleged that elections for the year 1983 were due in January, 1983 but respondent Nos. 2 and 3 i.e. Muhammad Yaqoob and the employers were interested in avoiding the same. The petitioners, therefore, applied to the Sind Labour Court No. 1 seeking a direction under section 8(7) of Industrial Relations Ordinance, 1969 (hereinafter referred to as the Ordinance) regarding holding of the elections. On this application a compromise order was passed by the 1st Labour Court on 10th May, 1983 to the effect that the Registrar of Trade Unions shall hold elections of office‑bearers of the Union for the year 1983‑84 under his supervision in accordance with law and constitution of the Union within one month and report compliance. In pursuance of the said order preparations were made for holding elections. Petitioner No. 1 Muhammad Ali had submitted his nomination for the post of General Secretary, while petitioners Nos. 2, 3 and 4 for membership of the Managing Committee. Respondent No. 1, however, filed a constitutional petition being C. P. No. S‑75/1983 in this Court challenging the move to hold election. A stay order was also obtained from this Court in the said petition which was filed by respondent No. 2 as General Secretary of the Union. Meanwhile the Employers removed petitioners Nos. 1 to 5 from service as a result of inquiry against them. The peti tioners, however, claimed that they were dismissed illegally in order to prevent them from participating in the election. They, therefore, com plained before the National Industrial Relations Commission (hereinafter referred to as the Commission) under section 15/53 alleging unfair labour. These petitioners also obtained an interim order from the n of the Commission on 21st July, 1983 which was as follows :‑ "In my opinion until adjudication of the status of the complainant whether he has been properly dismissed from service or not, he cannot be deprived of right to remain member of his Trade Union and to contest the election and cast his vote."

4. Aggrieved by the above interim order of the Chairman of the Commission, the Employers filed a constitutional petition being C. P. No. D‑564/1983 in this Court as a result of which the election which was scheduled to be held on 23rd July, 1983 could not be held. The above constitutional petition was disposed of by a Division Bench of this Court by a consent order, dated 1st August, 1983 to the effect that the election of the office‑bearers of the Union would be held at a place other than the premises of the Employer company and that petitioners Nos. 1 to 5 shall be entitled to contest for the posts of office‑bearers, It was, further ordered that time and place of the election shall be fixed by the Registrar of Trade Unions. Muhammad Yaqoob respondent No. 2 was not party in the said petition nor to the said consent order, dated lat August, 1983.

5. In pursuance of the above order of the High Court, the Registrar fixed 16th August, 1983 as the date of election. This time Muhammad Yaqoob respondent No. 2 filed a constitutional petition being C. P. No. S‑130/1983 challenging the title of petitioners Nos. 1 to 5 to contest election for the post of office‑bearers of the Union on the ground that petitioners Nos.1 to 5 were dismissed from service and that their participation in the election would be in violation of the constitution of the Union according to which 75 per cent of the members of the Executive Committee were to be from amongst the employees of respondent No. 3 (the Employers), while 25 per cent could be outsiders. This petition was dismissed by a learned Single Judge of this Court on 7th September, 1983. Meanwhile election was held by the Registrar on 16th August, 1983 in which following persons were elected as office‑bearers and Members of Managing Committee :‑‑ (1) Mst. Kaniz Fatima President (2) Minhajuddin Vice‑President (3) Muhammad Ali General Secretary (4) Noor Muhammad Joint Secretary (5) Abdur Rashid Qureshi Finance Secretary (6) Ghulam Rasul Member Managing Committee. (7) Muhammad Sharif ‑- do ‑- (8) Ghulam Muhammad ‑- do ‑- (9) Ali Sher ‑- do ‑- (10) Ejaz Hussain ‑- do ‑- Out of the above persons the office‑bearers at serial Nos. 3, 6, 8 and 10 are petitioners Nos. 1, 2, 3 and 4, respectively of this petition. After the election, Muhammad Ali petitioner No. 1 applied to the Registrar on 7th September, 1983 for recording change of office‑bearers as contemp lated by section 8 of the Ordinance. On 19th September, 1983 the Registrar effected the change and intimated petitioner No. 1 of his decision by letter, dated 10th September, 1983.

6. Aggrieved by the recording of this change in the office‑bearers of the Union, Muhammad Yaqoob respondent No. 2 filed an appeal before 1st Labour Court, Karachi under, section 8(7) of the Ordinance, alleging that the election was not in accordance with law and the con stitution of the Union. The learned Presiding Officer of the 1st Labour Court allowed the appeal of Muhammad Yaqoob by his order, dated 25th October, 1983 set aside the election and directed the Registrar of Trade Unions to hold fresh election of the office‑bearers of the Union. The petitioners Nos. I to 5 are aggrieved by the above order of the 1st Sind Labour Court, Karachi. Hence this petition.

7. According to the learned Presiding Officer of the 1st Sind Labour Court, the election held by the Registrar was illegal for two reasons :‑ first, that the election was in contravention of clause (7) of the constitution of the Union ; and second, that it violates sec tion 7(1)(d) of the Ordinance, according to which only 25% of the outsiders could be elected as office‑bearers. In the present case the number of outsiders was more than 25% because according to the learned Presiding Officer of the Labour Court, petitioners Nos. 1 to 4 being dismissed employees, could not be termed, as workers of the Employers in spite of the interim order passed by Chairman of the Commission on 21st July, 1983 referred to above.

8. Clause (7) of the Constitution of the Union provided that the Unions shall have one President, one Senior Vice‑President, one Junior Vice‑President, one General Secretary, two Joint Secretaries, one Publicity Secretary, one Finance Secretary and one Social Secretary and members of the Managing Committee who will be not more than t

2. The learned Labour Court held in the impugned order that no election was held for the posts of office‑bearers of one Junior Vice‑President, one Joint Secretary, one Public Secretary and one Social Secretary, as con templated by clause (7) of the Constitution of the Union. He was of the further view that petitioners Nos. 1 to 4 were dismissed employees of respondent No. 3 and that they could participate in the election only as outsiders and that their election to the various posts as recorded by the Registrar would render the proportion of outsiders more than 25 per cent which will be against the requirement of section 7(1)(d) of the Ordinance. The above provision is reproduced hereunder :‑ '

67. Requirements for registration : ‑ (1) A Trade Union shall not be entitled to registration under this Ordinance unless the constitution thereof provides for the follow ing matters, namely :‑ (a) ... ... ... ... ... ... ... ... (b) ... ... ... ... ... ... ... ... (c) ... ... ... ... ... ... ... ‑‑ (d) th number of persons forming the executive which shall not exceed the prescribed limit and shall include not less than seventy‑five percent from amongst the workmen actually engaged or employed in the establishments or the industry from which the Trade Union has been formed." It was, therefore, held that the election was null and void. Hence the direction of the learned Presiding Officer for fresh election.

9. The above order of the learned Labour Court has been challeng ing in this petition by petitioners on, inter alia, the following grounds :‑ (1) That according to the amended constitution of the Union the number of the office‑bearers was reduced to only, one President, one Vice‑President (instead of one Senior and one Junior Vice- President one Joint Secretary (instead of 2 Joint Secretaries) and one Finance Secretary. The posts of Publicity Secretary and Social Secretary were eliminated. This amendment in the con stitution was made in 1976 and a letter to the Registrar, Trade Unions, was also addressed on 28th June, 1976 intimating him of such amendment. A photostat copy of the letter, dated 28th June, 1976 has been filed as Annexure 1 . This letter purports to have been signed by Muhammad Yaqoob as General Secretary. However, Muhammad Yaqoob respondent No. 2, has denied the authenticity of this letter and also the alleged amendment in clause (7) of the constitution purporting to reduce the number of office‑bearers from 9 to 5 only; (2) That the learned Labour Court had wrongly treated petitioners Nos. 1 to 4 as outsiders because, in spite of their alleged dis missal from service they continued to be workers in terms of the order of the Chairman of the Commission and also in terms of the definition of `worker' as laid down in section 2(xxviii) of the Ordinance; (3) That the order of the learned Presiding Officer, Labour Court (respondent No.1) is in contravention of the interim order passed by the Commission on 21st July, 1983 according to which they were deemed to be workers and were allowed to participate in the election as such; (4) That the dismissal of petitioners Nos. I to 5 was mala fide and illegal (5) That the provision regarding the proportion of outsiders and workers of the office‑bearers, as laid down in section 7(1)(d) was not mandatory; and (6) That the proceedings before respondent No.1 under section 8(7) of the Ordinance were not maintainable and were without jurisdiction.

10. The main emphasis of Mr. Shahenshah Hussain, learned counsel for the petitioners is on the ground that by virtue of the interlocutory order, dated 21st July, 1983 of the Commission the petitioners Nos. 1 to 4 shall be deemed to be workers and to have been elected to various offices of Union as workers and not as outsiders. In this event the number of office‑bearers from among the workers shall not be less than 75% and the requirement of section 7(1)(d) of the Ordinance shall be deemed to have been fulfilled.

11. But the question that now arises is whether the Chairman of the Commission, who was seized of complaints under section 15/53 of the Ordinance, was competent to pass an interim order of the nature referred to above, and the operative part of which has been quoted in para. 3 above.

12. The powers of the Commission in this behalf are governed by the National Industrial Relations Regulations, 1973, which were framed by the Commission in exercise of powers under section 22‑F of the Ordinance. The relevant regulation is No. 32 which needs to be reproduced in order to determine the scope of powers of the Commission in respect of passing interim orders. It runs as follows :‑ "

32. Manner of dealing with unfair labour practices.‑(1) Where an unfair labour practice has been committed, and the case falls under section 25‑A; section 34 or section 53, as the case may be, the Commission tray deal with the case under that section: Provided that the Commission while awarding punishment under section 53, may also direct the re‑instatement of a worker and allow consequential benefits to him. (2) Where a case of unfair labour practice is likely to occur, the Commission may take the following measures, namely :, (a) ............... (b) ............... (c) advise, direct or prohibit all or any of the connected persons to do or refrain from doing any act or to conduct themselves or their affairs in a manner calculated to avoid occurrence of unfair labour practice. (d) ............... (e) ...............

13. It would be clear from the above provisions that if the allege] unfair labour practice has already occurred, then the case would fall under Regulation 32 (1) and the Commission shall have no power to issue any interim or interlocutory order. But where the case relates to alleged unfair labour practice which is likely to occur, then the Commission may pass an interim order as envisaged by clause (c) Regulation 32 (2).

14. In the present case the petitioners Nos. 1 to 4 were dismissed from service on 11th July, 1983 and 17th July, 1983 vide publications i n the newspapers (Annexures R‑1, R‑2, R‑3 and R‑4 respectively filed along, with counter‑affidavit of Muhammad Yaqoob). The interim order wad passed by the Chairman of the Commission on 21st July, 1983. The fact of dismissal of the petitioners on the above dates was also brought to the notice of the Chairman of the Commission as stated by him in the order; dated 21st July, 1983 itself. If the dismissal of the petitioners from service was the unfair labour practice complained of, then it had already hap pened before the date of the interim order. Hence on this date the Chairman shall be deemed to be acting under Regulation 32 (1) and not under Regulation 32 (2). The fact that the complaint under section 1515‑ of the Ordinance was made by the petitioners before their dismissal, is immaterial. The position of unfair labour practice obtaining on the date of passing the interlocutory order, will be relevant for the purpose or determining the validity of the said order under Regulation

32. The order of the Commission, dated 21st July, 1983 was, therefore, without jurisdic tion. Reliance in this behalf has been placed by Mr. M. L. Shahani counsel for respondent No. 2, on an unreported judgment of Division Bench of this Court in Constitutional Petition No. 74 of 1983, dated 4th October. 1983 in which reference was made to another unreported Division Bench judgment of this Court in C. P. No. D. 1358/1980, dated 1st October, 198 and following observations from the latter case were quoted :‑ "In the instant case the respondent No. 2 filed a complaint under section 15 read with section 53 of the I. R. O. It may be observed that a complaint under section 53 could have been filed in respect of an unfair labour practice already committed as provided under aforesaid para. 1 of the Regulation 32 referred to hereinabove and not in respect of an unfair labour practice, which is likely to occur. It may be noticed that proceedings under section 53 are of criminal nature and they entail imprisonment upto 3 years R. I. or with fine upto Rs. 2000 or both. The respondent No.2's above com plaint is mainly based on the aforesaid transfer order, which according to him, was promoted mala fide with the view to victi mize him as he is an active Unionist. In our view the very fact that the respondent No. 2 has chosen to file the above complaint under section 53 prima facie indicates that he himself has treated the above order of transfer, an act of unfair labour practice, which has already been committed and, therefore, prima facie' the respondent No. 2's case falls within the ambit of para. 1 of Regulation 33 and not under para. 2 of the above regulation and, hence, prima facie the ad interim order of the nature in issue, could not have been passed by the learned Member of the N. I. R. C." Relying upon the above observations, interim order passed by the Commission was quashed in C. P. No. 74 of 1983. In the present case the petitioners Nos. 1 to 5 had already filed five separate complaints in respect of an unfair labour practice. The very fact that complaint under sections 15/53 of the Ordinance bad been filed would imply that the unfair labour practice complained of, has already occurred. Copy of one of the complaints has been produced as Annexure 'C', in which complainant Muhammad Ali (present petitioner No.1) has stated in para. 9 thereof as under: "On 23rd June, 1983 the factory gates have been closed for complainant illegally with a view to stage a show of power to other employees thereby threatening them with similar consequences if they continued the support to the complainant and reject accused No. 3 (Muhammad Yaqoob) the puppet and to interfere in the legitimate Trade Union activities of the complainant and other employees/members of the Union. The above act of accused Nos. 1, 2 and 3 (Factory Manager, Assistant Manager of Atlas Autos and Muhammad Yaqoob, respectively) amounts to an act of unfair labour practice under section 15 punishable under section 53."

15. Thus the learned Commission was seized of a case relating to unfair ]about practice alleged to have been committed already. Hence the rule laid down in the above two unreported decisions is fully attracted C and the order of the learned Chairman, dated 21st July, 1983 shall be deemed to be without lawful authority. Even if the order of the Com mission is deemed to be valid, it only allows the petitioners Nos. 1 to 5 "to remain members of the Union and to contest the elections and cast vote". By this order the status of the petitioners Nos. 1 to 5 as 'workers' has not been restored, nor according to that order, these petitioners shall be deemed to be "workmen actually engaged or employed in the establishment", for the purpose of requirement of section 7 (1) (d) of the Ordinance.

16. Section 2 (xxviii) of the Ordinance defines 'workmen' as follows: --‑ "(xxviii) 'Worker' and 'workmen' means any person not failing within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward, either directly or through a contrac tor whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, dischar ged, retrenched, laid off or otherwise removed from employment In connection with or as a consequence of that dispute or whose dismissal, discharge retrenchment, lay‑off or removal has led to that dispute (but does not include any person‑ (a) who is employed mainly in a managerial administrative capacity, or (b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature." (Italics are mine) The petitioners were dismissed from service before the elections as a result) of disciplinary inquiry against them and not in connection with an industrial dispute, hence they are not entitled to the benefit of the provisions underlined (italicised) in the above definition.

17. The plea of the petitioners that the question of their dismissal from service was sub judice before the Commission and that they could not have been deprived of their status as 'Worker', is also not correct. From the record it does not appear that the dismissal of the petitioners was sub judice. They have filed copy of only one complaint lodged by Muhammad Ali before the Commission under section 15/53 of the Ordinance which is Annexure 'C' to the petition. Similar complaints were filed by petitioners Nos. 2 to 5, but copies of their complaints have not been filed. In the complaint Annexure 'C' there is no reference to dismissal of petitioners. The alleged unfair labour practice complained of against the officers of the employer is contained in para. 9 of the complaint which has been quoted in para. 14 above. It was the above unfair labour practice for which officers of the employers were sought to be punished and of which the Commission had taken cognizance. No document has been filed by the petitioners to prove that after their dismissal from service in July, 1983 and before filing this constitutional petition on 30th October, 1983, they had made any other complaint to the Commission or the Labour Court challenging their dismissal. From the record it does not appear that the question of alleged wrongful dismissal of the petitioners was sub judice before any authority on the date when the Commission had passed the interim order. This order shall, therefore, be ignored in determining the status of the petitioners as "workers actually engaged in the establishment", for filing the requirement of section 7 (1) (d) of the Ordinance. The term "Workers" as defined by section 2 (xxviii) is to be read subject to the rider in the opening sentence of section 2 of the Ordinance viz. "unless there is anything repugnant in the subject or context." Thus a 'worker' who has been dismissed in consequence of an industrial dispute, shall still be deemed to be a 'worker' under section 2 (xxviii), but for the requirement of section 7 (1) (d) he shall not be deemed to be a "worker actually engaged by the establish ment". The term 'worker' appearing in section 7 (1) (d) is to be read in the context or subject in which it appears viz. that he should be a person actually engaged in the establishment. If the intention of the Legislators had been to use the term 'worker' in section 7 (1) (d) in the same sense in which it was defined in section 2 (xxviii), then the words "actually engaged in the establishment" appearing after the word `worker' in section 7 (I) (d), would be redundant.

18. For the above reasons the petitioners Nos. 1 to 4 were rightly treated as outsiders and shall be deemed to have contested the election as such. Even the orders of this Court in other petitions did not confer the status of `worker' on these petitioners. They were simply allowed to contest the elections and cast vote. But while determining the validity of the elections the Registrar or the Labour Court shall have to refer to the requirements of section 7 (1)(d) and if it is found that this requirement was not fulfilled, then the Labour Court shall be fully competent to order fresh elections.

19. The labour Court had, therefore, rightly held that the require ment of section 7 (2) (d) was not complied with, although for different reasons. No exception can, under these circumstances, be taken to the order passed by him for fresh elections which he was competent to pass in exercise of appellate powers under section 8 (7) of the Ordi nance. Consequently the petition is dismissed. A. B. Writ refused.