' MUHAMMAD SHABBIR JAMAL (MEMBER).---The Deputy Registrar Registration) N.I.R.C. Filed the instant complaint on 21-12-2004 foe cancellation of the registration of Muslim Commercial Bank Employees Trade Union of Pakistan, registered with N.I.R.C. On 10-4-1997 as industry-wide trade union in pursuance of the order dated 19-3-2003 of the learned Member/RITU whereby it was held that the respondent-Union has never filed its Annual Returns since the year 1997 and filed no change of its office-bearers after the expiry of the last term of its office-bearers. It is further contended that the Respondent-Union even otherwise is illegally constituted body in terms of the provision of section 27-B of the Banking Companies Ordinance 1962 because Malik Ehtesham-ul- Hassan who claims to the President of the Respondent-Union is outsider and a dismissed employee of Respondent No,2 and his dismissal was upheld by the Punjab Labour Appellate Tribunal Lahore vide order dated 4-4-2002, wherein it was stated that Malik Ehtesham-ulHassan had ceased to be an employee of the Respondent-Bank as his services stood already terminated.
It is further stated that this decision was also upheld by the Honourable High Court vide order dated 23-4-2002, by dismissing the Writ petition No,6673/2000 filed by Malik Ehtesham-ul-Hassan.
It is also urged that in view of Section 27-B of the Banking Companies Ordinance, 1962 no outsider can be the office-bearer of the union arid as such Malik Ehtesham-ul-Hassan cannot hold office of the President in the Respondent-Union.
2. In the reply statement filed by Respondent No,1 through its learned counsel, Malik Ghulam Rasool, one of the preliminary objections is with regard to the locus standi of Respondent No,2. It is contended that the same is bad for his misjoinder and therefore complaint is liable to be dismissed on this ground. The other legal objection raised by the Respondent No,1 is that the basis on which the complaint has been filed for deregistration was not raised at the time of registration of the Respondent-Union and so the same is -not tenable in law. Further objection is that the Respondent-Union was never allowed to adduce evidence verbally as well as documentary proof in support of its contention, which renders the decision for deregistration as against law. Further objection by the Respondent is that the complainant (RITU) himself has been delegated power by the Chairman/RITU. It is contended that a delegatee cannot further delegate powers and therefore the direction of RITU to the Deputy Registrar (Registration) for filing the complaint is void ab initio.
Another objection raised by the Respondent-Union is that the complaint is badly barred by laches as the matter decided in 1997 is being reopened in the year 2005.
3. The Respondent No,2 i,e, MCB filed the reply statement to the complaint in which it has supported the complaint. It also filed the rejoinder to the reply of the Respondent-Union in which it reiterated its contentions as mentioned in the reply statement. It was further stated that the Full Bench of N.I.R.C. Dismissed the appeal of Respondent No,1 vide order dated 28-3-2005, whereby it was held that the Respondent No,1 had failed to point out any illegality in the order dated 29-3-2003 of the Single Bench, warranting interference. It is also contended that out of 10 office-bearers of the Respondent No,1 only 3 are in actual employment and the remaining are outsiders who either have opted for premature retirement under the Voluntary Golden Hand Shake Scheme or dismissed from service and their dismissal has also acquired finality. It is further contended that section 27-B of the Banking Companies Ordinance, 1962 has been held by superior Courts including Lahore High Court and Sindh High Court and various Full Benches of N.I.R.C. As valid piece of legislation wherein outsiders otherwise permitted under I.R.O., 2002 cannot hold office of the executive of a trade union formed in a banking company and so this by now is well-settled provision of law. It is also contended that there is no provision under I.R.O. 2002 whereby non-filing of Annual Return and even holding of union election can be condoned. It is further pointed out that Respondent No,1 has failed to comply with the mandatory requirements of section 3(i)(d) of I.R.O.
2002. It is contended that this provision is to be complied within the stipulated period which has not been done and so it renders the Respondent-Union as committing violation of law.
4. We heard the arguments at length of both, Malik Ehtashamul Hassan claiming to be the President of Respondent-Union and Mr. Faisal Mahmood Ghani learned Advocate for the Respondent-Bank. The former also sent by post the arguments in writing on behalf of the Respondent-Union. He argued that RITU/N.I.R.C. Has no jurisdiction to hear the case because section 27-B of Banking Companies Ordinance, 1962 does not empower N.I.R.C. To hear cases thereunder. It is further contended by him that there is no relationship between the Industrial Relations Ordinance, 2002 and the Banking Companies Ordinance, 1962 and therefore there is no justification to pass an order of deregistration of the union in view of section 27-B of the later piece of legislation. It is contended that the ground for de-registration of the union as contained in section 12 of I.R.O., 2002 do not contain any provision similar to that of section 27-B and as such no union be deregistered on the basis of section 27-B of the Banking Companies Ordinance, 1962. It is also contended by him that this provision is clearly derogatory and abridges the fundamental rights. It was argued by him that a dismissed employee who before his dismissal was holding an office in the union cannot be treated as an outsider nor can he be stopped an taking part in trade union activities. It was stated by him that he had filed a petition before the Honourable Supreme Court against the order of the Honourable High Court in which he has also challenged the constitutionality of the said section 27-B. He told that the same has been admitted for regular hearing by granting Leave to Appeal. He clarified that no stay order had been issued by the Honourable Supreme Court while granting Leave to Appeal. It was contended by him that he also filed Annual Returns for the years 1997-2003 but the Deputy Registrar Mr. Zaka Ullah Khalil present in the Court stated there is no such return available on record. Malik Ehtasham ul Hassan also stated that union election was held in January, 2003 and change was submitted for approval which has not been granted till today.
5. Mr. Faisal Ghani the learned counsel for the Respondent No,2 reiterated his contentions given in the reply statement. He has argued that no sooner an employee ceases to be in the employment of a bank, the provisions of section 27-B of the Banking Companies Ordinance, 1962 are attracted and so such person cannot hold an office in the executive of a trade union. In this regard he relied on 2003 PLC 143 (Bank of America Employees Union through General Secretary v. Federation of Pakistan through Secretary Finance Division and 2 others); 2005 PLC 123 (Habib Bank Employees Union (CBA) through General Secretary v. Federation of Pakistan through Secretary Finance Division, Islamabad and 2 others); and unreported judgment of full Bench N.I.R.C. In Appeal No,12(11)/2004 and Appeal No,12(12)/2005 (United Bank Limited v. Malik Muhammad Hussain and another); Appeal No,12(176)/99 (Muslim Commercial Bank Ltd. v. Malik Muhammad Ehteshamul Hassan and MCB Employees Trade Union of Pakistan). It is 'also argued that the union which does not meet the requirements of section 7(2)(b) of I.R.O., 1969 which has now been replaced by I.R.O., 2002 was not even entitled for registration. It was added that the employer is a necessary party of the registration where there are more than two trade unions and the reliance in that regard has been placed on 1995 PLC 134 (idara-e-Kissan v. Registrar of Trade Union Lahore and others), It was further contended by the learned counsel that the registration certificate is the only proof that the union has been registered but it is not proof that the union has been properly registered as is the case of Respondent-Union in this complaint. It was contended that such registration certificate can be challenged in view of the judgment ih case 2001 PLC 441 (refer page 447) (Habib Sugar Mills Ltd.
Through Manager v. Registrar of Trade Unions, Government of Sindh and another). The learned counsel also alleged that the account of the union were never audited which is violation under I.R.O., 2002. In this regard the learned counsel relied on 2004 TD (Labour) 87 (General Secretary Port Muhammad Bin Qasim Harbour and Dock Workers Union and others v. C.B.R. And others).
6. It was further argued by the learned counsel that employer has no locus standi so far as a registration of trade union is concerned, but he can be an informant. He argued that in this case the employer acted as a source of information. In this connection he relied on 1998 PLC 477 (Pakistan Engineering Council v. Registrar of Trade Unions and another) and also judgment of the Full Bench of N.I.R.C. In Appeal No, 12(174)/99 (General Tyre and Rubber Company of Pakistan Limited Karachi v. General Tyre and Rubber Employees Union and 2 others) and 1985 PLC 891 (E.O.B.I. Employees Federation v. Messrs Employees Old-Age Benefits Institution). The learned counsel further argued that the issue of Malik Ehtehsham-ul-Hassan being an officer and not a workman is the matter that has been decided up to High Court and so it is past and closed transaction. In this regard he cited Civil Petition No,840K and 941K of 2001 (Pakistan Steel) as decided by Supreme Court of Pakistan.
7. After hearing Respondent No,1 and Respondent No,2 and having gone through the contents of the complaint and the case filed we hold the view that it has already been established that Ehtashamul Hassan has ceased to be the employee of Muslim Commercial Bank and being so he is an outsider and has no justification to claim to be the President of the Respondent-Union, because he cannot hold office in the executive of the Respondent-Union in view of section 27-B of the Banking Companies Ordinance 1962 as interpreted by the superior Courts. The contention of the Respondent No,1 that the said section 27-B is derogatory and abridges the fundamental right under the Constitution of Islamic Republic of Pakistan 1973 is not maintainable. It has been held by Lahore High Court in the reported case; 1997 PLC 771 that the aforesaid section does not suffer from any constitutional transgression and also the Amending Ordinance of 1997 inserting this section has been held by superior Courts as valid piece of legislation, whereby outsiders have been prohibited from taking part in trade union activities of banks. In this view of the matter, the holding of an office by an outsider in any trade union in a bank renders it against the law and so does not legitimize a trade union of a bank to carry its activities as a registered body. If it happens its registration is liable to cancellation in view of section 12(1)(2) of Industrial Relations Ordinance 2002 and section 10(1)(2) of 1969 Ordinance that has since been repealed.##TE#
8. The respondent-Union has also failed to summit its Annual Returns to the Registrar Trade Union and has also failed to communicate change by holding internal elections of the union as required by the law. The contention of the Respondent No,1 that he provided the copies of the Annual Returns, to RITU has not been confirmed by the Deputy Registrar. So there is no valid proof of submission of Annual Returns and holding of internal election of the union. Both these are legal requirements that have not been fulfilled by the Respondent-Uunion and the same is continuously violating the law in this regard.##TE#
9. The complaint has been filed by the Deputy Registrar for the cancellation of the Respondent- Union in pursuance of the order of the Learned Single Member/RITU and that order has also been upheld by the Full Bench N.I.R.C. Vide their order dated 28-3-2005 in Appeal No,12(12)/03. The Deputy Registrar in this regard has acted in accordance with the mechanism and the system brought in place to .Deal with such matters and so no illegality in this way has been committed.
Furthermore, the contention of the Respondent No,1 that the complaint suffers from laches is not attracted. It is not the case where a person is sleeping over its rights. It is an act of a public functionary whose interest is to uphold the law and not to pursue its own rights. Also, Respondent- Union registered with RITU has continued to violate the law. Therefore the contention of the Respondent-Union in this regard is not tenable.
10 It is true that an employer has no locus standi to intervene in the affairs of a registered trade union. Registration is a matter between the Registrar and the trade union. The former can, however, act on the information provided by any quarter to ensure the fulfillment of legal requirements. Any quarter in this regard may be an employer. Whosoever provides information can be impleaded as a party to the extent of justifying his contentions. It is in this regard that Respondent No,2 was made a party. It is however in the interest of the employer that a lawfully constituted and registered trade union performs lawful functions in his establishment.
11. In view of the above the order of learned Member/RITU directing the Deputy Registrar to file the instant complaint was validly made and the cancellation of the registration of the Respondent- Union is allowed as prayed in this complaint.