' JUSTICE (RETD.) TANVIR AHMED KHAN (CHAIRMAN).--- The General Secretary of Mehnatkash Union Pakistan Synthetics Limited moved an Application bearing No,7A(15) of 2006/L dated 20-5-2006 seeking inclusion of 39 dismissed employees/ workmen in the voters list being prepared for referendum for the determination of Collective Bargaining Agent in the establishment of Pakistan Synthetics Limited by the Deputy Registrar Mr. Ghulam Nabi Deeshak.
2. I have heard the parties at length. The short question that falls for determination in this petition is whether dismissed employee/ workman can be considered workman for all purposes so as to be included in the voters list in the forthcoming referendum in the respondent-Establishment.
3. Before dilating upon the above question I would like to record some facts which may have little bearing on the determination of above question but would certainly need to understand the present controversy at least in its factual position. There are two unions registered on industry-wise basis with the Commission i,e, Employees Union Pakistan Synthetics Limited and Mehnatkash Union Pakistan Synthetics Limited respectively registered in the years 1991 and 1993. The record of the Commission shows the former union was certified as CBA under section 22(1) of IRO, 1969 (since repealed). Thereafter more than 13 years period has expired but the referendum in the Establishment of Pakistan Synthetics Limited has not seen the light of the day. Employees Union is clinging to the office of CBA without any justification simply to frustrate the provisions of law.
Second union probably was registered as a covering union to block the way or make it a difficult for the opposition towards the formation of third union as formation thereof would require 1/4th members of the total number of workmen employed in the Establishment as envisaged under section 6(2)(b) of Industrial Relations Ordinance, 2002 hereinafter referred to as Ordinance.
Mehnatkash Union Pakistan Synthetics Limited remained dormant since its inception. However, serious dispute cropped up among the members of Mehnatkash Union Pakistan Synthetics Limited whereupon I ordered for holding of internal election under the supervision of the Commission and authorized Mr. Ghulam Nabi Deeshak to hold the election. Two rival groups namely Gul Ahmed Group and Abdul Salam Group contested the election. Surprisingly Haji Mehrban Shah took the side of Gul Ahmed Group although he was associated with Employees Union Pakistan Synthetics Limited throughout. However, with the consent of the parties the Deputy Registrar prepared the list of members. The election was held on 12-1-2005 and 55 members cast their votes, 40 votes were bagged by Abdul Salam Group while 15 votes were secured by Gul Ahmed. Accordingly Group led by Abdul Salam in Mehnatkash Union was declared successful. Change of office-bearer was approved by me as a Chairman/RITU vide order, dated 31-1-2005. Thereafter Muhammad Fareed who was claiming himself as General Secretary Mehnatkash Union Pakistan Synthetics Limited submitted an application on 9th of June, 2005 for the approval of election of office-bearers of Mehnatkash Union. As already stated the change of office-bearers of this very union was approved by me on 31st of January, 2005. Employees Union made a Complaint bearing No,20(2) of 2005 for the cancellation of the registration of Mehnatkash Union on the ground that all its members posted at Karachi Head Office had resigned from their union and joined Employees Union. This complaint was dismissed by me with a direction to the Deputy Registrar Mr. Ghulam Nabi Deeshak to hold a referendum through secret ballot in the Establishment as the complainant Employees Union clinging to this office for the last more than 13 years since 1992.
4. Having failed to get the cancellation of Mehnatkash Union Muhammad Fareed claiming himself as General Secretary of Mehnatkash Union Pakistan Synthetics Limited submitted another application for approval of office-bearers of election allegedly held on 11th of May, 2005. It was his case that the services of all the office-bearers earlief certified by this Commission have been terminated except Umar Farooq who was member, of Managing Committee by the Establishment through order, dated 10th of May, 2005. According to Muhammad Famed the so-called General Secretary Umar Farooq convened a general meeting in view of the termination of all the office- bearers. In a haphazard manner the Election Commission was constituted and the office-bearers were declared unopposed.
5. Noticing all these matters I asked Mr. Ghulam Nauman Shaikh, learned Member at Karachi Bench to hold an inquiry by associating the management. He submitted his report on 9-7-2005 and the management before him has taken stance that all those employees who were drawing highest salaries in their cadre, their services were terminated by the management to minimize the loss.
Since the matter of termination of the workers was pending adjudication before the Labour Court as such I thought it proper not to dilate further on this issue. However, I dismissed the application of Muhammad Fareed for the approval of internal election of Mehnatkash Union of Pakistan Synthetics Limited which was conducted through a sham proceedings. It is pertinent to mention here that earlier as already mentioned in the preceding paragraph during the internal election of Mehnatkash Union, Gul Ahmed was represented by Haji Mehrban Shah and having lost the election which was won by the group led by Abdul Salam, in an internal election conducted under the supervision of Mr. Ghulam Nabi Deeshak, Deputy Registrar I approved the election through my order dated 31st of January, 2005. However, the defeat could not be swallowed by the other side whereafter the opposite union namely Employees Union made a complaint for the cancellation of the status of industry-wise character of Mehnatkash Union. Said complaint was dismissed by me through my order dated 16-5-2005. Thereafter, as already stated the services of all the office- bearers were terminated and Muhammad Fareed submitted Petition No,13(44) of 2005 for the approval of office-bearers as according to him the office-bearers who were approved on 31-1- 2005 their services have been terminated. Said prayer of approval made by Muhammad Fareed as already stated was rejected by me through order dated 22-9-2005.
6. Now the stage is set for holding of secret ballot so as to determine the CBA. In order to determine the status of dismissed workers whose cases are pending before the Labour Court No,3, I would like to refer to subsection (4)(a) of section 20 of the Ordinance which in the following terms:- "on being so required by the Registrar, within fifteen days, submit a list of all workmen employed in the Establishment excluding those whose period of employment in the establishment is less than three months and showing, in respect of each workman, his parentage, age, the section or department and the place in which he is employed, his ticket number and the date of his employment in the Establishment."
' The catching words in the above provision of, law are as follows:--
(i) All Workmen, ,(ii) Employed in the Establishment.
' Section 20 of the Ordinance, lays down the step to be taken by the Registrar for preparation of voters list for holding of referendum for determination of CBA. The duty is cast upon the Registrar to prepare voters list of those employees who are workmen and employed in the Establishment. The definition of worker as enacted in section 2(xxx) of the Ordinance is reproduced below:-- "Worker" and "Workman" means any and all persons not falling within the definition of employer who is employed in the Establishment or industry for remuneration or reward either directly or through a contractor, whether the terms of employment expressed and implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose removal has led to that dispute but does not include any person who is employed mainly in a managerial or administrative capacity."
7. The reading of the aforementioned provision of law makes it clear that the essential characteristics of a worker or workman for participation in referendum is that he should be employed in an Establishment or industry. No doubt, the definition includes, in relation to industrial dispute a person who has been dismissed, discharged retrenched, laid off or otherwise removed from employment in connection with or, as a consequence of the dispute or alternatively the dispute is in consequence of such discharge etc.
8. The intention of law is clear that a person who has been dismissed, discharged, removed, laid off is included in the definition of workman only and specially in regard to the institution of proceeding under section 46 of IRO, 2002 for the redressal of grievance against his arbitrary dismissal, removal, discharge and laying off. If the case of worker was not related to industrial dispute, relief was not given. Reliance is placed on 1994 SCM R 2213, relevant portion is reproduced below:-- "Here, it was not the case of respondent before the Labour Court, before the Labour Appellate Tribunal, before the High Court or before this court that his dismissal, discharge etc. Was in any way related to an industrial dispute. This was, therefore, a case of an individual dispute unrelated to an industrial dispute. We hold, therefore, that the respondent was not a worker for the purpose of section 25-A read with clause (xxviii) of section 2 of the. Ordinance. It must follow inevitable that he was not entitled to the remedy provided by section 25-A of the Ordinance and that the Labour Court and the Appellate Labour Tribunal were, therefore, right in their view that remedy was not available to him."
9. In opposite to this discussion I would also like to discuss the status of retired workmen for the purpose of section 46 of the Ordinance. In this connection I cannot do better than to reproduce the operative part of the famous judgment reported in Pakistan. Railways v. Junior Labour Court No,V and others 1979 PLC 320:--- "but in the instant case, admittedly there was no industrial dispute, nor was respondent No,3 discharged, retrenched, laid off or otherwise removed from employment. He was retired on attaining the age of superannuation, which is a normal feature in all Government, Semi- Government and numerous other organizations and establishment. Such retirement cannot be equated with dismissal, discharge, removal, retrenchment or laying off as contemplated in the definition of the expressing "workman". Admittedly, respondent No,3 was not employed in the Establishment of the petitioner at the time that either he gave notice of his complaint under section 25-A, Industrial Relations Ordinance to the petitioner or instituted the proceedings in the Junior Labour Court. It may be noted that the definition of `worker' uses the expression 'is employed' which means that he must be employed in the Establishment at the relevant time, if the intention of the Legislature had been to include past workers also within the definition of 'workman', it would have made such intention clear by the use of appropriate words, which are totally missing in the instant case. It may be pointed out that in the Service Tribunals Act, 1973 the expression 'civil servant' has been defined to mean not only a person who is a civil servant but also a person who had been a civil servant. No such extension of the definition of workman is contained in the Industrial Relations Ordinance. Since respondent No,3 had retired from the service of the petitioner long before he initiated the grievance proceedings against the petitioner, such proceedings have no legal basis and the orders passed by the two Labour Courts are without jurisdiction."
10. Further subsection (d) of section 6 of the Ordinance necessitates an actually engaged or employed workers for the formation of union, although it allows 25% quota for only office-bearers.
The said provision of law if reproduced below:-- "the number of persons forming the executive which shall not exceed the prescribed limit and shall include not less than seventy-vice(?) per cent from amongst the workmen actually engaged or employed in the Establishment or establishments or the industry for which the trade union has been formed."
11. Unreported judgment of the Honourable Supreme Court in Civil Appeal No,K-12 of 1984 relied upon by the petitioner is not applicable as the facts therein are totally different and was only respecting in an internal election of a union wherein an order was also passed by the Commission in the following terms:-- "until adjudication of the status of the complainant whether he has been properly dismissed from service or not, he cannot be deprived of the right to remain member of his Trade Union and to contest the election and to cast his vote."
12. Long and short of the above being that the dismissed employees are not workmen for all purposes as they have been included in the definition of workmen specifically to enable them to approach the appropriate forum for the redressal of grievance against their arbitrary dismissal, discharge, retrenchment, lay off or removal under section 46 of the Ordinance which will be treated as an Industrial dispute. These dismissed workers have no entitlement to inclusion in the voters list.
The Registrar under subsection (4) of section 20 of the Ordinance is bound to include workers whose period of employment is more than three months and employed in the Establishment, therefore, I see no merit in the application and dismissed the same accordingly.