1995 PLP 462 (PLC)

The brief facts of the case are that United Workers Front of Pakistan Steel, the petitioner herein, is a registered trade union of workers employed in the establishment of respondent No. 8, Pakistan Steel. The union is registered with the Registrar, Trade Unions, Sindh, the respondent No.

2. In the referendum held in 1990, the petitioner union was declared successful as collective bargaining agent. The respondents Nos. 3 to 7 unions of the workers in the establishment are also registered trade unions. After the expiry of two years term of the petitioner union as a C.BA., they are said to have preferred application in March, 1992 to respondent No. 2 for holding fresh referendum to determine C.B.A. On account of various objections allegedly raised by the management (respondent No. 8), the referendum proceedings could not be finalised. According to the petitioner, the management was interested in delaying the referendum for one reason or the other. The respondent No. 8 even filed C.P. No. S‑99/92 for cancellation of petitioner's registration which is said to be pending. In the referendum held in March, 1990 the total strength of voters in the final list was 21,142 including the workers engaged in manual or clerical works and those designated as highly skilled workers in categories HSW‑I, HSW‑II and HSW‑III. Those workers included in these categories were excluded by the management to ‑vote in the referendum although in the referendum held in March, 1990, the categories above‑referred were included in the list of voters and by excluding them, the strength of workers was reduced from 22,500 to 10,

255. It was, therefore, that the petitioner Union filed a case before the respondent No. 1 (N.I.R.C.) for a direction to the management to furnish complete list of workers to respondent No. 2 for the purpose. of holding referendum in the establishment. A direction was accordingly issued by respondent No. l under order dated 18‑12‑1994 (Annexure `P/3'). Respondent No. 2 then scheduled a joint meeting for the purpose of referendum proceedings on 21‑12‑1994 in which the petitioner union as also the other unions insisted that the workers employed in categories HSWs‑I, II and III be included in the voters' list as per previous practice and because their main duties were manual and clerical jobs. The direction of the respondent No.1 dated 18‑12‑194, above‑referred, was produced before respondent No. 2and the meeting was then‑ adjourned to 28‑12‑1994. It is the case of the petitioner that in the meanwhile, the respondent No. 8 approached the respondent No. 1 and made application for modification of the order dated 18‑12‑1_

994. On such application, the Chairman of respondent No. 1 passed an order dated 22‑12‑1994. The respondent No. 1 amended the earlier order dated 18‑12‑1994 to the extent that the names of those persons who were classified as HSWs 1, 11 and III and were promoted from workmen to managerial cadre, should not be supplied to the Registrar, Trade Unions, Karachi as they are not eligible to vote. Having passed such order of amendment, the respondent No. 1 (Chairman) posted the case for further proceedings on 17‑1‑1995. In the meanwhile, the petitioner union feeling aggrieved with such order of Chairman of respondent No. 1, filed this petition and prayed for a declaration that the proceedings of meeting held on 28‑12‑1994 (by respondent No. 2) were without lawful authority and of no legal effect; to direct respondent No. 2 to finalise the voters' list in accordance with law including names of all workers entitled to vote in the referendum who had completed not less than three months of service and were members of a trade union employed on jobs of manual or clerical nature; to direct respondent No. 2 Registrar to afford personal hearing. to the petitioner to examine each and every case of individual worker to be included in the list submitted by the unions and the employer including the cases of HSWs I, II and III; to declare and set aside the orders passed by respondent No. 1 on 22‑12‑1994 and 27‑12‑1994 as being without lawful authority, passed in an unlawful manner, in violation of principles of natural justice; to restrain the respondent No. 2 from excluding the workers entitled to vote in the referendum; and to restrain respondent No. 2 from holding the referendum in the establishment of respondent No. 8 till finalisation of final voters' list strictly in accordance with law. The respondent No. 2, Registrar, Trade Unions, has filed detailed para-wise comments to the petition and it has been stated that the management has excluded the employees falling within the categories of HSW‑1, HSW‑II and HSW‑III who according to the management were promoted in the year 1992 in the officers cadre. It is also stated that respondent No. 8 had produced before him modified order dated 22‑12‑1994 of the Chairman, N.I.R.C. wherein it was observed that the names of those persons who were classified as HSWs I, II and III, should not be supplied to the Registrar as they were not eligible to vote. It is also stated that he had convened a meeting of the worker unions on 4‑12‑1994 for determination of C.BA. in Pakistan Steel (respondent No. 8) and besides the petitioner union, representatives of the other unions had also participated and approved and signed the minutes of the meeting. The date of referendum was fixed as 12‑1‑1995 and all contesting trade unions were to be allotted the election symbols on 5‑1‑1995. However, because of the filing of this petition and an order of status quo passed by this Court, the referendum could not be held. The respondent No. 2 specifically mentioned. that he has acted in accordance with law and has not sided the management but in the matter of preparation of the final list of voters, he has followed in letter and spirit the amended order of the Chairman, N.I.R.C. passed on 22‑12‑1994. The respondent No. 3 has also filed counter‑affidavit to which a rejoinder has been filed by the petitioner supported by a judgment of this Court in C.P. No. S‑33/90. We have heard the learned counsel for the' parties. It is contended by Mr. Obaid-ur Rahman, learned counsel for the petitioner, that the duties of the Registrar are contemplated in section 22(4) of I.R.O., 1969, which inter alia provide that every employer shall, on being required by the Registrar, submit a list of all workmen whose period of employment in the establishment is less than three months. On receipt from the employer of the list, the Registrar has to scrutinise such list under subsection (5) of section 22 and to include the name of every workman whose period of employment is not less than three months and who is a member of any of the contesting trade unions and shall at least four days prior to the date fixed for the polls send to each of the contesting trade unions a certified copy of the list of voters so prepared. Having referred to these provisions, Mr. Obaidur Rahman contended that all those workmen who have been classified as HSWs‑I, II and III were still performing the manual jobs and could not have been excluded from the right of enfranchise. His main contention is that the determining factor in the case would be as to the nature of job being performed by any worker and not the post or cadre which he holds in an organisation. He referred to the case of General Manager, Hotel Intercontinental, Lahore and another v. Bashir A. Malik and others (PLD 1986 SC 103) wherein paragraph No. 11, it was observed as under:‑‑ "The test for determining the question whether an employee is a workman within the meaning of various statutes in the field of labour legislation is well‑settled. The consensus of judicial opinion seems to be that it is the nature of the work done by the employee that would be the essential and fundamental consideration for determining the question and not his designation which is not conclusive. The question to be examined is whether manual or clerical work is incidental to the main work or a substantial part of it, so‑ that, the fact a person employed in a supervisory capacity does some manual or clerical work as ancillary or incidental to such employment has been held not to bring him within the ambit of the definition. The main features, the pitch and substance of his employment must be manual or clerical before the definition is attracted. " Learned counsel also referred the case of Holiday Inn People Democratic Union v. Registrar, Trade Unions and others (1988 PLC 739), where the case was remanded by a D.B. of this Court to the Registrar with direction to hear the employer and the three trade unions on the basis of the list already submitted by them and to finalise the preparation of the voters' list within a period of two weeks and thereafter to hold the referendum within a week. Mr. Obaidur Rahman then referred to the case of Airport Development Agency, F/M Labour Union v. Registrar, Trade Unions, Karachi and others (1982 PLC 26) where it was observed that in determining the status of workers, it is the duties and not designation which is determinative under I.R.O. to hold if an employee is a worker. It was also observed that in the election of collective bargaining agent the Registrar, Trade Unions was obliged to accept the list and the contention that the Registrar was obliged to accept the list and could not go into question as to if a particular employee was workman or not, was not upheld. It was held that the Court can interfere if an employee is excluded from the list of voters despite being a workman. Reference is also made to the case of Karachi Electric Supply Corporation v. N.I.R.C. and others (1983 PLC 367) where it was observed that the law imposes the duties upon Registrar to verify the lists and prepare list of voters which shall include the names of workers entitled to vote. Contention of petitioner's learned counsel lastly is that the final list of voters must be prepared at least 4 days before the date of referendum (cut off date). Reference is made to the case of K.E.S.C. Limited Mazdoor Union v. N.I.R.C. and others (1990 SCMR 32). This judgment has no direct bearing on the facts of the present petition. Mr. Makhdoom Ali Khan, learned Advocate for respondent No. 8 (Pakistan Steel), at the very outset pointed out that in respect of persons whose cases were not covered under the categories of HSWs‑I, II and III and of those of officers pending in the Courts against their dismissal or termination, would be entitled to cast vote in the referendum provided .they produce such proof of pendency of their cases. This has been categorically stated by respondent No. 2 in paragraph 10 of comments. It is next argued that it was the petitioner union who had approached the N.I.R.C. with various grievances when the petition was admitted and notice to the respondents for 17‑1‑1995 was issued. The order dated 22‑12‑1994 was passed by the Chairman, N.I.R.C. on as application moved by respondent No. 8 and in passing such order of modification, directing exclusion of names of workers classified as HSW‑I, II, III, the respondent No. 1 committed no illegality and could not be taken exception of on the ground either that it was passed without hearing the petitioner union or the others likely to be affected, because such order has not caused any prejudice to the petitioner. It is vehemently contended that not a single worker out of 12000 who are said to be kept out of list, has come forward to say that he is being excluded from the right of vote. On the contrary even such persons through their representatives in the joint meeting held under respondent No. 2 and in presence of all the parties, agreed in principle that all those who are reinstated even on or before the date of referendum, their names would be provided in the additional list of voters which the management is obliged to complete and furnish within four days from today i.g. 8‑1‑1995 at 2‑00 p.m. It is argued that this concession in the meeting held under the respondent No. 2 was accepted by all concerned and the petitioner cannot wriggle out of his obligation. Learned counsel referred to the case of Khairpur Textile Mills Employees' Union, Khairpur v. Registrar of Trade Unions, Karachi and others (PLD 1975 Kar. 225) where it was observed that the provisions of section 22(5) of I.R.O. were directory and not mandatory in nature. It was also observed that the list of voters prepared by Registrar was not open to challenge in writ jurisdiction. While referring to the case of General Manager, Hotel Intercontinental, Lahore PLD 1986 SC 103, cited by petitioner's learned counsel, Mr. Makhdoom Ali Khan contended before us that the ratio of the said case would not cover the case in hand for the reason that the said judgment was in respect of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 in which in the definition of `workman' no wages payable to a workman were given whereas is section 2(xxviii) of I.R.O., 1969, in the definition of `worker' or `workman' a specific mention to that effect is made. Thus, according to the learned counsel, all those employees classified as HSW‑I, HSW‑II and HSW‑111 who are excluded from the right of enfranchise are not workmen within the definition of term and are rightly being excluded from the final list of voters. It is argued further that under section 25‑A of I.R.O., 1969 a forum is provided to a worker and if for any reason he is being kept out of final list of voters, he can agitate his right before such forum. It would be only those likely to be affected by exclusion, who could approach the concerned forum and not the petitioner union, to maintain a Constitution petition. Reference is also made to sections 34 and 34‑A of I.R.O. Mr. Makhdoom Ali Khan alternatively argued that even if the petitioner had any right being the C.BA., it too had to apply to the Labour Court concerned for the enforcement of any right guaranteed or secured to it or by him by or under any law or any award or settlement. Learned counsel referred to the case of Karachi Pipe Mills Limited v. Sindh Labour Appellate Tribunal and others (1984 PLC 1359) with particular reference of paragraph 15‑A of the judgment. Reference is also made to the case of Pakistan Burmah Shell Petrol Pumps Employees' Union, Karachi v. Pakistan Burmah Shell Limited (PLD 1978 Kar. 279) where it was observed at page 281 as follows:‑‑ " The contention further was that inasmuch 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 questions before the Registrar of Trade Unions was whether or not the petitioner union was entitled 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.BA. Be that as it may, we are of the view that at its worst the order made by the Registrar of Trade Unions de-franchises 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 de-franchised and not the petitioner union." Mr. Ch. Rasheed Ahmad, learned counsel for respondent No. 3 has contended that there is nothing on record to indicate if any worker apprehending de-franchising has approached the Labour Court but on the contrary, all unions in the organisation of respondent No. 8 had not only been present in the meeting held by respondent No. 2 but each representative signed the minutes of the meeting. Now that respondent No. 2 on the basis of a lawful order passed by the Chairman, N.I.R.C. on 22‑12‑1994 directed exclusion‑ of workers falling under classification HSWs‑I, II and III, the petitioner union which, in fact, is not an aggrieved union has rushed before this Court and filed the petition. According to him, the petitioner union was not in any manner aggrieved by the order of respondent No. 1 dated 22‑12‑1994 but if such order, according to the petitioner, was ex parte and unsustainable in law, the petitioner ought to have approached the respondent No. 1 for seeking either a withdrawal of the said order or for ultimate decision on the application which was initially moved by the petitioner itself. Mr. Sulleman Habibullah, learned counsel for respondent No. 7, has opposed the petition mainly on the ground that the petitioner Union had participated in the joint meeting held by respondent No. 2 before whom all the unions submitted the list of workers and had signed the minutes of meeting. Having so acted, the petitioner could not be allowed to take a different stand and agitate on behalf of those highly skilled workers in categories HSWs‑I, II and III. He referred to the case of Ghulam Mohiuddin v. Chief Settlement Commissioner (Pakistan), Lahore and others PLD 1964 SC 829 where it was observed at page 839 as under:‑‑ . "Against one of the grounds upon which the Courts in England have consistently held a party seeking such a writ to have disentitled himself to this extraordinary remedy in his failure to object to such usurpation of jurisdiction before the Tribunal concerned or to raise these objections at the earliest opportunity before the Tribunal, whose illegal order he seeks to have quashed by the writ, if he was aware that the Tribunal lacked the jurisdiction it purported to exercise." We have considered various aspects of the case and have taken into consideration the contentions raised by the learned counsel. A joint meeting was convened by respondent No. 2 on 4‑12‑1994 for determination of C.BA. in Pakistan Steel and for the purpose of fixing a date for holding referendum. In this meeting all the unions including the petitioner Union in the organisation of respondent No. 8 had participated and whatever grievance either of them had, ‑as duly taken into consideration and recorded. The date of referendum was fixed as 12‑1‑1995. The number of polling booths were decided and so also a date fixed for allotment of election symbols to each contesting union. While this was all undertaken, the respondent No. 2 received a copy of the order of respondent No. 1 dated 22‑12‑1994 signed by the Chairman, the operative part whereof is as under:‑‑ " .In the meantime I amend my order dated 18‑12‑1994 to the extent that the names of those persons who were in the classification of HSWs‑I, II and III and were promoted from workmen to managerial cadre should not be supplied to the Registrar, Trade Unions, Karachi as they are not eligible to vote. To come up on the date already fixed in the case i.e.17‑1‑1995." This order of the Chairman of N.I.R.C. was brought by the respondent No. 2 to the notice of all concerned, including the petitioner on 28‑12‑1994 which was eight days prior to the scheduled date for referendum. If this order of the Chairman was either ex parte or illegal, having been passed without hearing) the petitioner Union, the only course open to it was to have again approach the respondent No. 1 for recalling the said order and also seeking a direction that irrespective of the workers classified as HSWs‑I, II and III having been promoted to officer cadre, they were yet `workmen' and could not have been excluded from exercising their right of vote in the referendum. It may be observed that the petitioner union had approached the respondent No. 1 with various grievances including the one that the referendum long due was nor being held by the employer/management. The petitioner instead, filed this petition and raised various pleas challenging the order of the Chairman, N.I.R.C. dated 22‑12‑1994 on the grounds urged in the petition. The remedy of the petitioner, in our view, lies with the N.I.R.C. and not before this Court a. various factual and controversial issues could better be adjudicated upon and decided by respondent No. 1 and not by this Court. The case of the petitioner union is that as many as 12,245 workers are being de-franchised either because of their having been classified as HSWs‑I, II and III or in respect of some penal actions were taken and their cases were pending before various Courts. None of such persons are made party in this petition nor the labour unions to which they belong have expressed their grievance in any manner. The petitioner Union was elected as C.BA. in 1990 and although it could agitate on behalf of all the workers in the management of respondent No. 8, yet the fact would remain that all those likely to be aggrieved have not come forward to ventilate their grievance. On their behalf we feel that the petitioner Union cannot agitate through a Constitutional petition. The conduct of respondent No. 2, Registrar was much criticised by petitioner's counsel but from the para-wise comments and the reply submitted by him we feel that the respondent No. 2 has acted in accordance with law and has not exceeded his jurisdiction in either hearing all the representatives concerned for the purpose of finalising the list of voters or for delay in scheduling the actual date for holding referendum. The respondent No. 2 could not under law defy the orders of NIRC, the Chairman of which ordered exclusion of certain class of voters. As a result of above discussion, we hold that the petition in its present form is not maintainable before this Court and being without merit, we dismiss the same in limine. Miscellaneous Application No. 70/95 is also dismissed and the order of status quo passed on 5‑1‑1995 and extended till today, is hereby recalled. H.B.T./N‑160/K Petition dismissed.