' ALI NAWAZ, A. CHANNA (CHAIRMAN).---Both the above-mentioned appeals arise out of same judgments passed by the learned RITU dated 30-7-2002 by which order he accepted the change of office-bearers hence being aggrieved they have filed these appeals. Both these appeals are being decided together as the facts and the law points are common and identical.
2. The brief facts leading to the filing of the appeals are that in the elections held on 18-5-2002 the panel of respondent Syed Tehzeebul Hassan Zaidi won the election and therefore, they submitted the change of office-bearers to learned Registrar of Industry-wise Trade Unions (hereinafter called RITU). After the submission of change of office-bearers the appellant Muhammad Arshad Javed,appellant management and Mr. Khalid Awan, Mr. Imran Ahmad Azhar filed objections against the acceptance of change of office-bearers RITU. The learned RITU overruled the objections of all the objectors and passed the impugned order against which these appeals have been preferred by only two persons namely Muhammad Arshad Javed and the Management.
3. The objections taken by Muhammad Arshad Javed against the acceptance of change of office- bearers before the learned RITU were:--
(i) That the elections of the union held at five different places namely Islamabad, Peshawar, Lahore, Karachi and in Quetta were in violation of the constitution of the union and the provisions of,I.R.O. And also against the directive of Hon 'able High Court Sindh;
(ii) That the election was held and arranged by Deputy Registrar (R) and not by the Election Commission appointed by the union;
(iii) That many irregularities and malpractices were committed in the elections of the union which were in complete derogation and violation of the constitution of the union.
4. The objections submitted by the appellant-Management before the learned R.I.T.0 were that:--
(i) Most of the office-bearers elected at the election are Civil Servants who are debarred from either contesting the election or becoming the office-bearers of any union in view of Notification of Federal Government dated 15-5-2001;
(ii) That the tenure of Councillors of NOPE expired on 12-11-1999 and as such elections held on 18-5- 2002 were against the provisions of I.R.O, 1969.
5. The learned R.I.T.U. Considered the objections filed by all the objectors and rejected them.
Incidentally other objectors who have filed objections against the acceptance of change of office- bearers did not prefer any appeal and they remained satisfied.
6. The learned Advocates for the parties except of the respondents filed written arguments. The learned Advocate for the respondent in spite of directions and time provided to him did neither argue the appeal nor submitted his written arguments. We have, therefore, taken into consideration the arguments submitted by the counsel of the appellants.
7. The learned Advocate for the appellant-Management has argued that the learned Member in his order has held that the question of workman is a mixed question of law and fact and requires evidence and in spite of that findings of the learned Member he did not record the evidence to prove their view point that most of the employees who have taken part in the election or who have been elected office-bearers are the civil servants and they were not entitled to take part in the elections or being chosen as office-bearers of the Union. He also argued that the Federal Government by Notification dated 15-5-2001 declared all the employees of the establishment as civil servants except those falling within the definition of workman as mentioned in Workman's Compensation Act and the learned Member has wrongly held that the notifications issued by the Federal Government does not have any impact as its operation was suspended by the learned Member, Single Bench, Islamabad (Mr. Qazi Ahmad Saeed). He argued that the Central Government is competent to issue orders, notification and instructions and they have the force of law. In this connection the learned Advocate for the appellant has placed reliance upon the authority of Lahore .High Court reported as 2002 PLC (C.S.) 1609. In this authority it was held that instructions issued by the Government Department attained status of law. He argued that the learned Member should have himself considered the notification of the Federal Government but shall not have refused to accept it on the grounds that the operation of this notification has been suspended by the learned Member, Single Bench or that the appeal of the Management is pending before the Full Bench. He further argued that from the Notification of the Government it is most clear that the persons not falling within the definition of workman as contained in Workmen's Compensation Act are the Civil Servants, therefore, they are not entitled to take part in the election, or cast any vote.
8. We have considered this aspect of the case from the arguments of the learned Advocate for the appellant-Management. It is true that the definition of Workman is such that it requires evidence whether a person is a workman or not and whether he is falling in the category of workman or fall in the category of civil servant. The learned Member has himself observed in the order that the point whether a person is workman or not requires evidence but in his opinion these were summary proceedings, therefore, he did not deem it proper to record the evidence on the said points and therefore, rejected the objections, that most of the office-bearers are the civil servants. We think the learned Member should have attended to this aspect of the case very carefully and should have given opportunity to the Management to prove their point of view through evidence. If there is any controversial point which requires evidence then there is no harm to record the evidence even in summary proceedings. This point was hotly contested by the appellant Management even during the process of election. We think this was an important point touching the very roots of case hence it should have been dealt with proper by the learned Member. We have seen the order passed by Mr. Riaz-ul-Hassan Alvi dated 31-7-2002 in which the vires of Notification of the Federal Government dated 15-5-2001 were challenged but he dismissed the petition holding that it is beyond his competence to declare or give findings about the vires of the said Notification. This means that there are conflicting versions one by Qazi Ahmad Saeed, Member, Islamabad and Mr. Riaz-ul-Hassan Alvi, Member, Lahore about the vires of the Notification of the Federal Government dated 15-5-2001. In such circumstances also the learned Member should have given his own opinion about the fact whether the employees as mentioned in the Notification of the Federal Government are civil servants or not and whether they are entitled for voting and whether they are entitled to contest the election. This point has been dealt by the learned Member in a superfluous manner, We feel that this is an important factor and question, involved in this appeal and, therefore, an opportunity must be provided to the Management to prove their viewpoints that the civil servants of the Management have 'contested the election and voted in the election in violation of the said Notification. The case needs to be remanded on this point so as to do complete justice with both the parties. We, therefore, set aside the order of the learned Member/RITU dated 30-7- 2002 and remand the case to him for recording the evidence on the points mentioned above.
9. As regards the appeal of Muhammad Arshad Javed he has alleged that the elections were held in violation of the constitution of the union as many Articles of their constitution were flagrantly violated. His most important objection was that the venue of election from Karachi was changed to five different places namely ' Islamabad, Peshawar, Lahore, Karachi and Quetta. We think that objection of Arshad Javed has no basis or foundation. Mr. Arshad Javed appellant had filed Constitutional petition before the High Court where the Division Bench of the High Court by consent passed an order as under:-- "That the respondent will cause to be published a public notice at least in three leading Urdu Newspapers in the country, one each published from Karachi, Lahore and Rawalpindi/Islamabad as well as one Sindhi Newspaper to the effect that the voters list from Sindh will be finalized upto 15-4-2002 and the elections thereafter will be held on 30-4-2002. The notice will be published within one week from today and will state the time and manner of disposal of objections to the voter's list as well as specify the time and venue of the poll in accordance with the decision dated 28-6-2001".
10. Another Constitutional petition was filed by which it was alleged that the above order from the High Court dated 15-3-2002 was obtained by fraud, misrepresentation and concealment of fact but the High Court overruled this objection and held that there was no fraud or concealment of facts. About the venue, the High Court passed order to the following effect:-- "We have noticed that while passing the order dated 15-3-2002 the question of convenience of voters in casting their respective vote did not receive consideration. It has not been shown thateither the constitution of the petitioner or any other law expressly require election of office- bearers, to the Central body at one particular place. The basic principle applying to such matter in our opinion seems to be to ensure that it should be to the convenience for the maximum number of voters to exercise their right of franchise subject of course to the capacity of the body conducting election to ensure that no undue pressure can be exerted on the personnel engaged in election duty."
11. From the above observation of the High Court of Sindh it could be spelt out that it was no necessary nor it was the requirement of law nor it was in the constitution of the union that election may be held at one place. We have ourselves seen the constitution of the union but no where it provides that the election of the union may be held at one place. The order of the High Court reproduced above makes it clear that the venue may be selected for the convenience of the voters where maximum number of voters can cast votes. The Deputy Registrar keeping in view these observations correctly fixed five venues for the convenience of the voters. By this way he neither violated the constitution of the union nor any provisions of I.R.O., Admittedly the above-quoted order of the Hon'ble High Court of Sindh was neither challenged in any forum nor any review application was filed to review the order about venues. Even otherwise we do not find that any prejudice was caused to Muhammad Arshad Javed. Accordingly this objection of the appellant Arshad Javed was fairly and squarely dealt with by the learned Member and it does not call for any interference from this Bench.
12. The other objections of the appellant Arshad Javed were that the meeting of the Councillors was not called by the Supreme Council.Whereas it was called by the Deputy Registrar and he had no authority todo so. In this regard it is suffice to say that the appellant Arshad Javed did not take this objection at the relevant time of calling the Councillors and thus it does not lie in his mouth at the belated stage. There is no such material placed, or available on record to show that any irregularity or malpractice was committed by any of the ground to nullify the election conducted. There is also nothing on record to show that the Deputy Registrar also committed any illegality in conducting the election.
13. We have given anxious consideration to the appeal of Arshad Javed and the written arguments of his learned Advocate but we have not been convinced with them. The appeal of Mr. Muhammad Arshad Javed has no merits and, therefore, his appeal is dismissed.
In view of the above stated facts and legal position the appeal ofmanagement is allowed and case is remanded to the learned RITU for providing opportunity to the Management to prove their view- point as stated above in the order and should decide the matter within one month from this date and should not allow any undue adjournments to any party.