1. ' This appeal filed under section 52 of the Industrial Relations Ordinance, 2002 (hereinafter referred as the Ordinance) is directed against an interim order dated 29th of April, 2004 whereby the learned Single Member vacated/recalled the earlier interim order passed on 19th of January, 2004.
2. ' Facts briefly are that the appellant Bank is a Banking Company under the Companies Ordinance, 1984 and is being regulated in terms of Banking Companies Ordinance, 1962. The respondent union namely United Bank Limited Employees Union got itself registered as an industrywise trade union with this Commission.
3. ' The appellant filed a Petition No,4A(5)/2004/24(5)/2004 making grievance that the respondent No,1 Malik Muhammad Hussain wasposing himself as a General Secretary of the Union in spite of the fact that his services were terminated through an order dated 12-7-1999. Further the election proceedings on which reliance has been placed has not yet been approved as required under the law by the Commission.
4. ' Argument was advanced before the learned Single Member that consequent to the promulgation of section 27-B of the Banking Companies Amendment (Act XIV) of 1997 only an employee in the actual employment of the Bank can hold office of the union. The respondent Malik Muhammad Hussain had got no nexus whatsoever with the union and in an illegal manner pressuring the appellant by posing himself as General Secretary of the union. The appellant along with the petition also appended an application under Regulation 32(2) of the N.I.R.C. (Procedure and Functions) Regulations, 1973 praying for interim relief in the nature that the respondent Malik Muhammad Hussain in the circumstances be restrained from resorting to any illegal activities by claiming himself as an office-bearer of the union.
5. ' The learned Single Member through an interim order dated 19-1-2004 directed the respondents to refrain from resorting to any illegal activity or posing himself to be the office-bearer of any union.
6. The respondents objected to the same and the learned Single Member after hearing both the parties recalled his earlier order as according to him the order of his dismissal was under challenge before the Commission as well as before the learned Lahore High Court in Writ Petition No,18154 of 1999. The learned single Member further held that the applicability of section 27-B of Banking companies Amendment Act 1997 could not be invoked by the appellant unless and until the writ petition pending before the High Court and Case No,4A(1373)/96 pending before Commission were decided. Being aggrieved by this interim order whereby earlier order passed on.
7. 19th of January, 2004 was recalled the present appeal has been filed.
8. ' We have considered the contentions of both the sides and have gone through the documents appended therewith. The perusal of the documents demonstrates that the earlier Petition No,4A(1373)/96 was filed by the union respecting the charge-sheets issued to certain workers wherein a learned Single Member passed an interim order dated 24-6-1996 directing that the inquiry into charge-sheets issued by the employer against the employees may proceed but no final order be. Passed. The said petition was dismissed for non-prosecution on 15th of December, 1998 and was consigned to record.
9. ' During the interregnum period when there was no restraint order, the functionaries of the Bank terminated the services of respondent No,1 Malik Muhammad Hussain through order dated 12-7- 1999. Case No,4A(1373)/96 was however restored on 11-9-1999.
10. ' Thereafter the matter was listed/fixed by the learned Single Member to determine whether the appellant Bank was bound to take back the respondents into service after restoration of the petition when his services were already terminated on 12-7-1999.
11. ' The appellant Bank took exception to the restoration of this petition by filing Writ Petition No,18154/1999. An exception was also taken to the assumption of jurisdiction by the learned Single Bench qua the terms and conditions of an employee in view of S.2A of the Services Tribunal Act, 1973. The learned Single Judge of the Lahore High Court through order dated 30-9-2004 admitted the Constitutional petition with a notice to the parties. An interim order was also passed whereby the proceedings in the aforesaid case before the learned Single Member were stayed.
12. ' The only point for determination in this case is whether after promulgation of section 27-B of the Banking Companies Act, 1997, an outsider or a dismissed employee of a Bank could participate in the activities of a union.
13. ' Section 37-B of the Banking Companies Amendment Act is asunder:-- "27B. Disruptive union activities:---(1) No officer or member of a trade union in a banking Company shall use any bank facilities including a car or telephone to promote trade union activities, or carry weapons into bank premises unless so authorized by the management, or to physical harassment or abuse and nor shall be a person who is not an employee of the banking Company in question.
(2) Any person violating any of the provisions of sub-section(1) shall be guilty of an offence punishable with imprisonment of either description which may extend to three years, or with fine, or with both."
14. ' This amendment came into force on 2nd of June, 1997 and has been made applicable with immediate effect.
15. ' Banking Companies Ordinance is a special law. It has provided this amendment for the working of Banking Institutions ousting the outsiders from taking part in the activities of the union of the Bank.
16. It is the duty of the Court to so construe a statute that no part of the same is to be rendered void and nugatory. Effect must be given, if possible, to all the words used in the statutory provisions. For legislature is deemed not to waist its words and same should not be recorded as surplusages.
17. ' Section 27-B came into consideration in a case reported in 1997 PLC 771 Muslim Commercial Bank Staff Union of Pakistan (CBA) through Authorized Representative versus Federation of Pakistan through Secretary Finance, Islamabad and another. The learned Single Judge of Hon'ble Lahore High Court held that the amendment did not suffer from any Constitutional transgression and could not be declared as invalid. It would be appropriate to reproduce the determination of the learned Single Judge in this regard which are in the following terms:-- "The Supreme Court in C.A. No,635/94 and Constitutional Petition 24 of 1993 held that right of strike, right to call off work, right to go down slow in work, were not fundamental rights under Article 17 of the Constitution but were rights guaranteed under I.R.O. And so they can be taken away by the appropriate Legislation by the Parliament. Applying this principle to the facts and circumstances of the case in hand I am left with no doubt that the challenged provisions to the above extent, does not suffer from any Constitutional transgression and cannot be declared as invalid."
18. ' A reference is also made to 2003 PLC 143 Bank of America Employees' Union versus Federation of Pakistan through Secretary Finance and two others, wherein it was held as follows:- "It is indeed correct that the right to elect outsiders as office-bearers to the maximum of 25 % which was available to the trade unions under the I.R.O. Seems to have been taken away by the impugned legislation. It must, only be questioned on the ground of being repugnant to provision of a Constitution or a fundamental right recognized thereby. The argument that the impugned legislation ought to be struck down merely because it purports to take away a right conferred by an earlier legislation is patently misconceived. Moreover, we find nothing in Article 17 to indicate that the right to have outsider as office-bearers is necessarily implied in the right to form a trade union".
19. This being the position the condition precedent to become member of a union of a Bank is that the incumbent must be an employee of the Bank. An employee whose services have been terminated from the Bank has got no right whatsoever to join any union of the Bank.
20. ' Any interference in this matter would amount to frustrating the intention of legislature which already through a special law has restrained the outsiders from participating in the activities of the union in a Bank.
21. ' It must be stated at this juncture that while arguing the case learned Labour Representative Malik Maharban made reference to an unreported judgment of Hon'ble Supreme Court given in Civil Appeal No:K-12/84 decided on 15-4-1984 saying that the dismissed employee had every right to participate in the trade union functions till the matter of his dismissal was decided by a Court of competent jurisdiction.
22. ' We are sorry to say that the learned Labour Representative did not appreciate the true import of the judgment. In the said case the Chairman of N.I.R.C. Directed through his order dated 21-7-1983 that: "Until adjudication of the status of 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."
23. ' The Hon'ble Supreme Court in the aforementioned unreported case has mentioned the observation of the High Court in Constitution Petition No,S-130 of 1983 where a learned Judge of the High Court reiterated in the following words: "Against dismissal order they moved N.I.R.C. And got the orders on 20-7-1983 and 21-7-1983 by which they were allowed to contest and participate in the elections of office to members.
24. Subsequently they were also allowed to contest election by consent order. In Constitution Petition No,564 of 1983, the matter regarding M/s. Atlas Group and Private respondents is still pending before N.I.R.C. Where order of dismissal of respondents has been challenged and it is yet to be decided whether orders of dismissal is in accordance with law or void. Therefore, at this stage it is too early to say that respondents were not entitled to contest elections or cast votes. It is open to petitioners to challenge the election at proper time when status of respondents 2 to 6 is determined. In my view no irregularity or illegality has been committed and no prima facie grounds for admission of this petition are made out."
25. ' The learned Labour Court as well as learned Judges of the High Court, therefore it was observed by the Hon'ble. Supreme Court totally ignored these aspects. In fact according to the learned Supreme Court the basis of his judgment runs counter to the earlier judgment of the High Court given in Writ Petition No,S-13 of 1984.
26. ' We specifically asked the learned representative whether the dismissal order passed against the respondent has been suspended by any forum. He candidly stated that till date, the dismissal order is holding the field and no order in the nature of suspending the same has been passed by any forum.
27. ' It has also come on record and is not denied by the learned Labour Representative that the service of both Malik Muhammad Hussain and Shaukat Ali Khan were terminated respectively on 12-7-1999 and 10-4-1997. They are no more in service. Being dismissed employees they have got no right to participate in the union activities as already stated the condition precedent to become member of a union of a Bank is that the incumbent must be an employee in actual service of the Bank. Section 27-B of the Banking Companies Amendment (Act XIV) of 1997 as already stated has ousted the non-employee of a bank from participating in the activities of the union. The argument of the learned Labour Representative that the respondent did not have any knowledge of his dismissal order is without any force. He mentioned the factum of his dismissal in para-4 of his Petition bearing No,4A(391)/99 which was filed by Malik Muhammad Hussain himself on 17th of July, 1999 a few days after his dismissal.
28. ' It is pertinent to mention here that earlier learned RITU through order dated 3-1-2003 in case No,20(5)/01 filed by the appellant Bank came to the conclusion after hearing the parties that the ground for cancellation of this very union being good prima facie therefore in exercise of his jurisdiction he authorized the Deputy Registrar (Registration) to lodge a complaint for the cancellation of the registration of the union.
29. The aforesaid resume demonstrates that the respondent No,
1. Malik Muhammad Hussain was dismissed from service on 12-7-1999 and till date his dismissal order is holding the field. By virtue of promulgation of 27-B he is not eligible to participate in the activities of the union.
30. ' Any interference in this matter would amount to frustrating the intention of Legislature who already through a special law has restrained/barred the outsiders from participating in the activities of the union in a bank.
31. ' This being the position without dilating must on the merits of this case we allow this appeal and set aside the impugned order and the case is remanded to the learned Single Member to be decided on merits.