1989 PLP 197 (PLC)

(2) Under section 8(7) of the I.R.O. 1969, an application is to be disposed of within 7 days after its receipt but the next hearing has been fixed on 16‑6‑1988 for confirmation or otherwise of ad interim order.

7. In addition to the above legal objections, the learned representative also submitted that the symbol of the petitioner No, 1 was a bi; dim but was quite clear, that there was no illegality or irregularity and the elections were conducted in accordance with the provisions of the constitution and the bye‑laws, that the serial numbers were put on the ballot papers after the result of the polling was compiled, and that there were no ballot papers of two different types.

8. The respondent No. 1 (Election Board), has taken the following stand:‑‑ (a) That the conduct of the elections through Presiding/Returning Officers under the direct supervision of the members of the Election Board was consistent and in conformity with the provisions of the Constitution and the b\e‑laws framed thereunder. (b) That the allegation of corrupt practice and bribing the Presiding/Returning Officers is vague, frivolous and too general. (c) That the allegation of violating the secrecy of election by numbering the ballot papers is incorrect as the ballot papers were numbered at the time of counting with the consent of all the Polling Agents in order to stop any pilferage. (d) That the allegation of providing two types of ballot papers with the intention of rigging the election is vague, frivolous and untenable. (e) That the symbol of petitioner No. 1 was not very dim. The petitioner No I had secured 1564 votes (as against 1670 by the winning candidate) i.e. 46% of the total votes cast. The application dated 26‑4‑1988 by the petitioner No. I was fully attended to. (f) That the allegation that the Presiding/Returning Officers sided with the respondents is vague, frivolous, malicious and mala fide. (g) That the petitioners are estopped from raising any objections particularly when they fully participated and hotly contested the elections without any complaint whatsoever.

9. Arguments of the parties were heard at length.

10. Learned counsel for the petitioners contended that the elections in the out‑stations (numbering more than forty), were conducted by the Presiding/Returning Officers against the mandate of the Constitution, which materially affected the results, that the names of the Presiding/Returning Officers were not notified as a result of which the Polling Agents could not be appointed by the petitioners to safeguard their interests that the manner and method for conducting the elections were not prescribed, that the election symbol of the petitioner No. 1 printed on the ballot paper being very dim, a complaint was lodged in writing which was completely ignored affecting the result materially. In addition to above, he contended that to case the ad‑interim order was confirmed, no prejudice would be caused to the respondents and there would be no vacuum as under the Constitution, the Election Board was empowered to perform all the functions of the Executive Committee during interregnum. Learned representative for the respondent No. 2 has argued that the petition is pre‑mature as the change is yet to be notified to the Registrar under section 8(4) and it is only after the Registrar has refused or accepted the change that the aggrieved party is empowered to invoke the provisions of section 8(7) of the I.R.O. before the Labour Court in appeal. He has further contended that by moving the petition directly under section 8(7) of I.R.O. and by granting "Stay" the right of the union to notify the change under section 8(4) and that of the Registrar vested under section 8(5) of the I.R.O. have been taken away which is against the spirit and scheme of the I.R.O. which is a special law and a complete machinery has been provided to resolve the dispote

6. He has further argued that through the petition the elections having been challenged, this Bench has no power to decide the petition, as there is, no dispute over the change of office bearers. According to him the dispute will arise only after the Registrar has either accepted or refused to register the change. 12, He has referred to a decision of the Full Bench of the Commission in Appeal No. 12(57) of 1987‑‑Syed Adam Mehdi v. Registrar Industrywise Trade Unions and others in which it was held that all the points should have been raised before the Registrar before coming to the Labour Court. He has urged that in the above cited case the party had approached the Registrar before coming to the Labour Court and only some points were not raised before the Registrar, even then the appeal was dismissed. In the present case, he has argued that the petitioners completely by‑passed the Registrar. He, has therefore, urged that the change of office‑bearers must be notified to the Registrar and only after his decision, the aggrieved party may come. in appeal before the Labour Court under section 8(7) of the I.R.O. 1969.

13. With regard to the stay application, he has contended that the Executive Committee looks after the long term interests of the members of the union whereas the Election Board which is empowered to exercise the powers of Executive Committee during interregnum, is simply to look after the current affairs and is not supposed to perform all the functions vested in the Executive Committee by the I.R.O. such as raising industrial dispute, entering into settlements or resorting to strike etc. He further submitted that the outgoing Executive Committee has already resigned under the Constitution 15 days before the election of the Central Office‑bearers i.e. 27‑4‑1988. The election results have already been announced as such the petitioners have no locus standi to raise objections and would not suffer any irreparable loss instead the loss will be of the members and the Executive Body which has been duly elected. He has further contended that this Bench has no powers to grant stay at this stage as it amounts to the grant of status quo ante .

14. Summing up, he has submitted that no prima facie case has been made out by the petitioners, that balance of convenience or inconvenience does not lie in favour of the petitioners and that the petitioners will not suffer any loss but the loss will be of the respondents in case the interim order is confirmed.

15. I have gone through the whole case. I shall first discuss and decide the legal objections raised by the learned Representative of the respondent No.

2. In a nutshell the legal objections are as under: (i) That the petition is pre‑mature as the procedure laid down under subsections (4) and (5) of section 8 has not been followed. (ii) That under section 8(7), the petition has to be decided within seven days after the receipt of the application.

16. I shall take up the second legal objection first. Learned counsel for the petitioners submitted that this provision is directory in nature. He cited a decision of IIIrd Labour Court, Punjab, reported in 1982 P L C 413, in support of his assertion. I agree with the learned counsel for the petitioners. As there are a number of authorities on the subject, I hold that this provision is directory in I nature and, therefore, I rule out this legal objection.

17. Regarding the first legal objection, it would be useful, if the relevant clauses of section 8 are reproduced as under:‑ 8(4). Notwithstanding anything contained in any other provision of this Ordinance, every alteration made in the Constitution of a registered trade union and every change of its officers shall be notified by registered post by the trade union to the Registrar within fifteen days of such change. 8(5) the Registrar may refuse to register such change or alteration if it is in contravention of any of the provisions of this Ordinance, or if it is in violation of the Constitution of the trade union. 8(6) 8(7) In case there is a dispute in relation to the change of officers of a trade union, or any trade union is aggrieved by the refusal of the Registrar under subsection (5), any officer 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 be recorded in writing, direct the Registrar to hold fresh elections of the union under his supervision.

18. The contention raised by the learned counsel for the petitioners is that under the above provisions, the appeal lies only against the refusal of the change tinder subsection (5) of section 8 of the I.R:O. 1969 and that there is no appeal against the acceptance of the change of officers by the Registrar. He has further contended that if there is dispute on the change, the matter is to be brought before the Labour Court under section 8(7) of the said Ordinance as there is no other relief to the officers of the union who have been replaced in the elections.

19. Maxwell on the Interpretation of Statutes (XII Edition) by B. St. J. 1.angai, sans at age 47 "every clause of a statute is to be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute". It further says on the same page ' statutory language is not read in isolation, but in its context".

20. In view of the above rule of interpretation and after going through the above provisions of the I.R.O., it may be observed that the intention of the Legislature is, not as interpreted by the learned counsel for the petitioners.

21. There are a number of authorities on this subject. A Full Bench of this Commission in Appeal No. 12(5) of 1978 (Abdul Rauf, General Secretary v. Registrar of Trade Unions) reported in 1980 P L C 912, held on 9‑4‑1978 as under:‑‑ "An appeal, therefore, can be filed against an order of the Registrar, not only to case of his refusal to approve the change in the office‑bearers, but even when the approval is granted by him, as m the instant case."

22. Although in another Appeal No. 12(26) of 1978 (Asmat Javed, President of FIAC Employees Union, Karachi v. Rafiq Ahmed and another 1979 P L C 96) the Full Bench of this Commission had subsequently held on 23‑9‑1979 that "no appeal lies against the Registrar's decision to register such a change", the earlier decision of the Full Bench of the Commission was upheld in Writ Petition No. 855 of 1979 (Syed Muzaffar Hussain Shah v. Registrar of Trade Unions, Rawalpindi Region, Rawalpindi and 11 others) by the Lahore High Court on 6‑5 19‑79 (1980 P L C 219). Subsequently in Constitutional Petitions Nos. 79, 88, 130 of 1981 (Shamsur Rahman and another v. Presiding Officer, Labour Court No. 1, Karachi and 19 others) (1982 P L C 742) the Karachi High Court on 21‑12‑1981 did not accept the subsequent view taken by the Full Bench of the Commission and upheld the earlier decision of Full Bench of the Commission. The Karachi High Court observed as under: ‑ "Subsection (4) of section S of I.R.O., 1969, says that the change is to be notified let the Registrar of Trade Unions for his approval, whereas subsection (5) of the same section says that the Registrar may refuse to register such change or alteration if it is found in contravention of any of the provisions of I.R.O. and in violation of the Constitution of the trade union. Subsection (7) says that in the case there is a dispute in relation, to the change of the officers of the Trade Union, or any trade union aggrieved by the refusal of the Registrar under subsection (5) any officer or member of the trade union may apply or appeal to the Labour Court The language of subsection (7) shows that an aggrieved party‑ can approach the Labour Court in application, firstly, when there is a dispute in relation to the change of office‑bearers of a trade union and secondly, in appeal in case where the Registrar refuses to approve the change of the office‑bearers. The word `dispute' has a wider meaning than `refusal' and would cover even a case in which the change has been registered b) the Registrar to give rise to a remedy in appeal to the office‑bearers of the union who have been replaced by the newly elected office‑bearers.

23. From above authorities, it is quite clear that the petitioners in this case who have lost the elections have got right to apply to the Labour Court only after the Registrar approves the change, over‑ruling the objections, if any, raised by the petitioners before him.

24. During the course of arguments, the learned counsel for the petitioners had also suggested to transfer the case to the Registrar, if this Bench was of the opinion that the petition was not maintainable at this stage.

25. In view of above discussion, I accept the legal objection raised by the learned Representative for respondent No. 2 and hold that the petition is pre mature and hence not maintainable. It is, therefore, returned to the petitioners.

26. The ad‑interim order passed on 15‑8‑1988 directing the parties to maintain `status quo is vacated. A.A./129/NIRC Order accordingly.