1. ' This appeal is directed against the order dated 29-4-2004 whereby the learned Member/RITU approved the change of office-bearers as well as amendments in the constitution of United Bank Limited Employees Union.
2. ' Facts briefly are that an application was given by the General Secretary of United Bank Limited Employees Union of Pakistan for the approval of amendment in the constitution and the change of office-bearers whereby Malik Muhammad Hussain was elected unopposed as General Secretary of the Union. This application was registered in the registration branch of N.I.R.C. As Case No,13(37) of 2004.
3. ' The Deputy Registrar (Registration) processed this matter and found that Malik Muhammad Hussain, General Secretary was not in the service in view of his dismissal order dated 12-7-1999 and thus section 27-B of the Banking Companies Amendment (Act XIV of 1997) would be attracted which provided that only an employee in the actual service of the Bank would be eligible to join union. However Malik Muhammad Hussain submitted an affidavit stating that in the following three cases pending before the Commission:
(1) 4A(1373)/96-L.
(2) 4A(2656)/96-L.
(3) 4A(391)/99-L.
4. ' It was also stated that Writ Petition No,18154 of 1999 filed by the Bank is also pending before the Hon'ble Lahore High Court. In all the aforestated cases, stay had been granted, it was stated.
5. ' The learned RITU through order dated 29-4-2004 approved the change and directed the Deputy Registrar (Registration) to proceed in the matter. While approving the change in impugned order he had mentioned that Shuakat Ali Khan Chairman of the Union as well as Malik Muhammad Hussain General Secretary both had been dismissed from service. However their grievance petitions against their dismissal order are pending before Commission as well as before the High Court as such in view of pendency of their dismissal proceedings, the provisions of section 27-B of Banking Companies Amendment (Act XIV) of 1997 would not be attracted. The appellant filed the present appeal against the impugned order dated 29-4-2004 whereby the election as well as amendment in the constitution were approved.
6. ' It is argued by the learned counsel appearing for the appellant Mr. Faisal Mahmood Ghani, that the very application filed by Malik Muhammad Hussain claiming himself as General Secretary for the approval of change of office-bearers and amendment in the constitution was not competent firstly on the ground that he was a dismissed employee and his election as General Secretary was not approved by the Commission and secondly by virtue of section 27-B of Banking Companies Amendment (Act XIV) of 1997, he could not hold any office in the union.
7. ' Learned Labour Representative Malik Meharban has controverted the stance taken by appellant.
8. He has stated that section 3 of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the Ordinance) gives full power to a worker to joint any union. In support of his contention that a dismissed employee remains a worker he has placed reliance upon 1990 PLC 192 National Bank of Pakistan v. Punjab Labour Appellate Tribunal and others. He has also placed reliance upon an unreported judgment of the Hon'ble Supreme Court given in Civil Appeal No,K-12/84 decided on 15- 4-1984 and stated in categorical terms that the dismissed employee had every right to participate in trade union functions till the matter of dismissal is decided by a Court of competent jurisdiction.
9. ' We have considered the contentions and have gone through the documents appended with this appeal. Section 3 of the Ordinance provides as under:-- "3. Trade unions and freedom of association.-(1) Subject to the provisions of Article 17 of the Constitution of the Islamic Republic of Pakistan, this Ordinance and any other law for the time being in force-
(a) the workers shall, without distinction whatsoever, have the right to form and, subject to the constitution or rules of a trade union, join any trade union of their choice within the establishment or industry they are employed in: ' Provided that a worker shall not be entitled to be a member of more than one trade union at anyone time; provided further that on joining another union, the earlier membership will stand automatically cancelled."
10. ' The aforesaid provisions demonstrate that the worker has not got an unrestricted right to join any trade union. His rights is subject to the Constitution as well as any other law which has been passed by the legislature.
11. ' Section 27-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 of the provisions of subsection(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."
12. This amendment came into force on 2nd of June, 1997 and has been made applicable with immediate effect.
13. ' Banking Companies Ordinance is a special law. It has provided for the working of Banking Institutions ousting the non-employees from taking part in the activities of the unions of the Banks.
14. 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 waste its words and same shall not be regarded as surplusage.
15. ' Section 27-B came into consideration in a case reported in 1997 PLC 771-Muslim Commercial Bank Staff Union of Pakistan (CBA) versus Federation of Pakistan through Secretary Finance, and another.
16. 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, 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 provision to the above extent, does not suffer from any Constitutional transgression and cannot be declared as invalid."
17. ' A reference is also made to 2003 PLC 143 Bank of America Employees' Union versus Federation of Pakistan through Secretary Finance and two others ' Where it was held as under:- "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."
18. 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.
19. 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.
20. ' The reliance of the learned Labour Representative on the judgment of Hon'ble Supreme Court Civil Appeal No,K-12/1984 is not apt.
21. ' We are sorry to say the learned Labour Representative did notappreciate the true import of the judgment. In the said case the Chairman of NIRC 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."
22. ' 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.
23. 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 order 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."
24. ' 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 this judgment runs counter to the earlier judgment of the High Court given in Writ Petition No,S-130 of 1984.
25. ' It is pertinent to mention here that earlier through order dated 3rd of January, 2003 in case No,20(5)/01 filed by the appellant Bank learned RITU after hearing the parties came to the conclusion that the ground of 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 United Bank Ltd. Employees Union.
26. We are sorry to say the learned Labour Representative did notIt has come on record and is not denied by the learned Labour Representative that the services 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. We are sorry to say the learned Labour Representative did not the argument of the learned Labour Representative that the respondent did not have any knowledge of his dismissal orders 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.
27. ' Reliance of the learned Counsel on 1990 PLC 192 National Bank of Pakistan versus Punjab Labour Appellate Tribunal and others is also not apt to that the respondent remained worker after his dismissal. In the said case the learned Judge has only held that after the dismissal a workman has got every right to challenge his dismissal under section 25-A of the repealed Industrial Relations Ordinance, 1969. He remains workman for this limited purposes.
28. Resultantly for what has been stated above the approval accorded by the then learned RITU to the change of office-bearers of the union as well as amendment in the constitution was bad in law and the same is set aside. The appeal is allowed in the aforestated terms.