2014 PLP 405 (PLC)

ABDUL GHIAS NOUSHERWANI (MEMBER).

This revision is directed against the interim order dated 5-12-2013 passed by Learned Presiding Officer Labour Court 1st Balochistan Quetta wherein the Election was scheduled to be held for 14-12-3013 was stayed.

2. The brief facts for disposal of this revision are that the respondent/applicant is a permanent member of Quetta Club and the appellant/respondent violated the laws and Memorandum of Association. On this the respondent/applicant approached the Learned Labour Court where directions were made for compliance of rules and regulations by means of order dated 18-11-2013. Thereafter the respondent/applicant again approached the Learned Labour Court. Meanwhile an application under section 151, C.P.C. was allowed by means of impugned order where the appellant/respondent was directed that till the application is pending the respondent is restrained from conducting the Election of Quetta Club Management Committee and the membership of any member/applicant should not be cancelled/distributed.

3. The learned counsel for petitioner referred relevant provision of BIRA, 2010 indicate that the respondent/applicant is not a worker and there is no industrial dispute neither there is a trade union. Further contended that in view of above provision of law the Learned Labour Court passed impugned order without lawfull jurisdiction. The learned counsel for respondent on the other side contended that the present revision is not competent. Secondly contended that the appellant violated the provisions of Memorandum of Association with regard to calling General Body Meeting and conducting Election. He also referred relevant provisions of Memorandum of Association and lastly contended that without deciding the appeal against the order dated 18-11-2013 the revision is not competent.

4. In view of available documents and submission made by learned counsel for the parties in my opinion the following points needs consideration. (i) Whether the Learned Labour Court having jurisdiction and the respondent/applicant is a worker under the provisions of BIRA, 2010?

5. In this regard it is relevant to reproduce section 2 subsection (n) which read as under:

"Industrial dispute means any dispute or difference between employers and employers or between employers and workman or between workman and workman which is connected with the employment or non-employment or the terms of employment or the conditions of work of any person, and is not in respect of the enforcement of such right guaranteed or occurred to him by or under any law other than this Act, or any award or settlement for the time being in force." In view of definition of industrial dispute it appears that no matter was before Learned Presiding Officer. Secondly section 2(DD) defines the worker and workman as under:

""Worker" and "Workman" mean person not fall 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 contractor whether the terms of employment express or implied, and, for the purpose of any proceedings under this Act in relation to an industrial dispute includes a person who has been dismissed, discharged, 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 the dispute but does not include any person who is employed mainly in managerial or administrative capacity." In view of above definition the respondent/applicant is not a workman rather a permanent Member of Quetta Club where no trade union exists. Inspite of the fact that according to respondent/applicant the permanent members are about five hundred but the documents available on record conformed that no trade union exists in Quetta Club. Therefore the respondent/applicant does not fall within the definition of "Worker" and "Workman".

6. It is settled principle of law that before taking cognizance the court first has to see its jurisdiction/power. In this regard it is relevant to see the function/power of Labour Court under section 52(4)(a) reproduced as under:

"A Labour Court shall:

(a) adjudicate and determine an industrial dispute which has been referred to, or brought before it under this act." According to this definition the matter before Learned Labour Court was not an industrial dispute which already discussed under section 2(n) of BIRA, 2010.

7. The respondent/applicant approached the Learned Labour Court under section 9 subsection (7) of BIRA, 2010 which is reproduced under:

"In case there is a dispute in relation to the election of the officers or change of officers or alteration made in the Constitution of a trade union, the member or officer of any trade union is aggrieved by the refusal of the Registrar under subsection (5), any office bearer or member of the trade union may apply or appeal to the Labour Court, who shall within seven days of receipt of the application or appeal, as the case may be, pass an order either directing the Registrar to register the change or alteration in the Constitution or in the officers of the trade union or may, for reasons to the recorded in writing, direct the registrar to hold fresh elections of the union under his supervision." In this contest it is necessary to see section 9 subsection (5) of BIRA, 2010 the same is reproduced as under:

"The Registrar may refuse to register such election of officers or change of officers or alteration or change made in the Constitution if it is in contravention of any of the provisions of this Act, or if it is in violation of the Constitution of the trade union." In view of above definition there is no trade union or Election of trade union. Therefore in view of above the application under section 9 subsection (7) of BIRA, 2010 was not competent before Learned Labour Court.

8. The learned counsel for respondent/applicant mainly contended that the revision is not maintainable. This contention of learned counsel is not sustainable in view of section 55 subsection (4) of BIRA, 2010 which is reproduced as under:

"The Tribunal may, on its own motion at any time, call for the record of any case or proceedings under this Act in which a Labour Court within its jurisdiction has passed an order for the purpose of satisfying itself as to the correctness, legality, or propriety of such order, and may pass such order in relation thereto as it thinks fit: Provided that no order under this subsection shall be passed revising or modifying any order adversely affecting any person without giving such person a reasonable opportunity of being heard."

9. In view of above definition of industrial dispute, worker and jurisdiction/power of Learned Labour Court it appears that the order impugned passed without jurisdiction. Consequently the revision is allowed, the impugned order dated 5-12-2013 is set aside with the direction that Election scheduled for 14-12-13 shall be postpone and at least a week time be allowed to respondent to avail legal remedy for the reason that today is Friday and last working day of the Courts for this week. Meanwhile according to provision of Memorandum of Association the date of Election be fixed. Thus the instant revision is disposed off accordingly. However the parties are left to bear their own cost.

10. The copy of order along with original record of trial Court be sent to trial Court. Case after completion be consigned to record. HBT/3/BLT Petition allowed.