' MUHAMMAD SHABBIR JAMAL (MEMBER).--- The brief facts pertaining to this petition, filed under section 49(4)(e) of I.R.O. 2002 are that the petitioner-Union is aggrieved of the promotion of 208 employees as Junior Officers who are contended to be its members. It is contended that they have not been promoted but re-designated with the intention to disallow them to cast their votes in the forthcoming secret ballot, the date of which was later on announced as 22-3-2008. It is contended that this act of the management is a measure that may be calculated as an act of unfair labour practice within the meaning of section 63(1)(a) and (b) of I.R.O., 2002.
2. After preliminary hearing of the arguments of the learned counsel for the petitioner pre- admission notice was issued on 9-2-2008. The learned Deputy Registrar (who was called) informed the Court that a joint meeting was scheduled to be held on 11-2-2008 for announcement of the date for the secret ballot. The learned Deputy Registrar undertook that he would hold the said meeting later in the day on 11-2-2008 if case is fixed for hearing on that day because the learned counsel for petitioner-Union had requested to give a short notice to the other party. In view of the position so stated by the learned Deputy Registrar preadmission notice was issued. Since it was Sunday on 10-2-2008 the notice virtually was not served on the respondent-Management. The learned Deputy Registrar N.I.R.C. With whom the respondent-Management was holding the meeting had therefore, caused the respondent-Management (Mr. Muhammad Zafar Deputy Manager) to appear before the Court on 11-2-2008 who stated that a written test was held on 19-8- 2007 for promotion of clerical staff to officers grade. He further stated that 640 candidates appeared in the test, out of which 205 who were successful were promoted. He also stated that the list of workers were thus, prepared and submitted to N.I.R.C. By excluding the names of 205 persons so promoted. The learned counsel for the petitioner reiterated his contention by arguing that the exclusion of the names of promotees was a direct interference in the secret ballot. It was contended that the employees re-designated as junior officers continued to be the members of the said Union. The petition was admitted and the respondent was directed to file written statement on the next date of hearing fixed for 15-2-2008. The stay application was adjourned for arguments to be heard also on the date so fixed.
2-A. Mr. Shahid Anwar Bajwa the learned Advocate appeared for respondent-Bank and filed written statement with copy to the learned counsel for the petitioner on the next date of hearing i,e, 15-2- 2008. Both the learned counsel argued the matter at length.
3. The respondent-Bank in the reply statements so filed raised the following legal objections:--
(I) That referendum is being held under an order passed by the Chairman N.I.R.C. While acting as a Bench of N.I.R.C. And as RITU. This Bench has no jurisdiction to order the Honourable Chairman to include or not to include any person in the voters lists.
(II) That none of the persons whose name is stated in the Annexure "A" (appended to the reply statement) has come forward with an affidavit that he is or has ever been member of the petitioner-Union.
(III) That all the persons named in Annexure "A" willingly and voluntarily appeared in the test which the petitioner-Union opposed and after clearing the test have willingly and voluntarily accepted promotion.
(IV) That referendum is being conducted under the orders passed by the RITU. RITU has not been made a party (and it cannot be made a party before this Bench).
(V) That in the referendum as many as 5 other Unions are participating. None of the other participating Unions has been made a party in this matter and any order passed may adversely affect rights of the other participating Union.
(VI) That the petition is barred by laches.
' It is contended that the petition is liable to be dismissed on these grounds.
4. The learned counsel for the petitioner-Union reiterated his contentions contained in the pleadings. It was argued by him that it was not a case of promotion but of re-designation of 208 employees which decision has been taken by the management merely to affect the poll and so was an interference in the secret ballot being held under section 20 of the Industrial Relations Ordinance, 2002 and so is an unfair labour practice within the meaning of section 63(1)(g) of the said Ordinance. While responding to the objection No,1 raised by the respondent-Bank it was argued by the learned counsel that this Bench had the jurisdiction because proceedings of secret ballot was being conducted by RITU/Chairman N.I.R.C. It was further argued that Chairman in his capacity as RITU was Registrar of Industry-wise Trade Union and as Chairman had general superintendence over the affairs of the Commission. It was argued that each function of the Chairman had its own entity for which law had provided separate functions, therefore, any order or action in his capacity as RITU could not be considered to be an act of the Chairman. It was argued that this Bench of the Commission under section 49(4)(e) of the said Ordinance on the other hand had the jurisdiction to determine the present petition. In reply to objection No,2 it was argued that this pertained to question of fact and not question of law and so it could not be termed as legal objection. Insofar as objection No,3 is concerned it was argued that even if the persons named in the attached list (Annexure "A") were promoted as junior officers and for that matter they as Officers Grade-I were still workmen as held by the Honourable Supreme Court. As regards objection No,4 it was argued that, the petitioner had alleged unfair labour practice in the shape of interference in the secret ballot on the part of respondent-Management for which RITU was neither necessary nor a proper party and so the objection was without force of law. Based on these arguments it was prayed by the learned counsel that process of referendum be stayed and finalization of voters list be stopped.
5. While re-emphasizing on the legal objections as reproduced above it was argued by learned counsel for the respondent-Bank that referendum was being conducted by RITU and the list was being prepared by RITU. It was reiterated that RITU was not a party to the petition and so no order against him could be passed. It was argued that even if stay was granted in the matter it would not be binding on RITU because of the obvious reason as aforesaid. It was further argued that the process of verification of the list was being carried on by the RITU. It was contended that once the list was finalized then the Union could have a grievance and in that event they could agitate according to law. It was further argued that RITU was a Bench under section 50(3)(b) of I.R.O., 2002; therefore, this Bench could not pass an order against the Bench of RITU. It was contended that only the Full Bench could pass an order against the Bench of RITU. It was further argued that the promotion of workers had already taken effect therefore, there could not be an anticipation of unfair labour practice and so the petition was misconceived. The learned counsel referred to page 12 (Annexure "B" appended to the reply statement) which was a circular, dated 14-3-2007 captioned as Promotion -- 2007". The learned counsel had also drawn attention to section 3 at page 16 of the written statement which is eligibility criteria for the promotion. It was argued that against this circular the Federation went to Single Bench at Quetta in Case No,4A(49) of 2007. It was argued that by then the Management had issued the said circular and therefore, the allegation that it was an attempt to crush the Union had no basis. It was argued that on this petition status quo order was passed, which is available at page 31 of the reply statement. It was argued that the petition was dismissed on 25-4-2007 as withdrawn (vide order at page 35). The learned counsel also referred to page 36 of the written statement which is a circular dated 20-3- 2007 and accordingly a test was scheduled on 23-3-2007. It was stated that the same was cancelled because of status quo order. The learned counsel also referred to page 37 which is a circular dated 13-8-2007 and under that circular the promotion test of clerical staff was schedule to be held on 19-8-2007. The learned counsel referred to page 3 of the reply statement. It was argued that the following position was reflected therein:-- Clerical employees qualified for the test 649 Those who appeared in the test 440 Persons who qualified the test 206 Person expired before letter could be issued 1 Promotion orders issued 205 ' It was argued that it was specifically denied that 205 promoted persons were members of any trade Unions in the Bank. It was further argued that it was also specifically denied that any of them had ever been a member of the petitioner-Union. It was argued that the petitioner-Union woke up after ten months. It was also clarified that the figures of 208 as pleaded by the learned counsel for the petitioner did not appear anywhere. The learned counsel referred to promotion letters appended at pages 38-48 of the reply statement. It was argued that the present referendum was scheduled for 11-1-2007 and the voters list was prepared for that and not a single officer was included in the voters list. It was argued that the referendum however, could not be held on account of stay order issued on 10-1-2007 by the Peshawar High Court. It was argued that the said stay was vacated with the direction that C.B.U. Application be decided first. It was argued that the C.B.U. Application was rejected vide order, dated 26-1-2008. The learned counsel argued that the question was whether it was the case of unfair labour practice or not. It was argued that the only act that had been attributed to the Management was that it had supplied the list of workmen who were employed and it was alleged that the list was not correct. It was argued that it must be kept in view that the correctness of the list was still to be decided by the RITU and not by this Bench. The learned counsel drew attention to section 63(1)(g) of I.R.O. 2002 which reads as follows:-- "interference with or in any way influence the balloting provided for in section 20 or"
6. Insofar as the allegation of interference in referendum was made by the petitioner's Union, it was argued by the learned counsel that this interference was alleged by referring to clause (g) of subsection (1) of section 63 as reproduced above. It was argued that the process of determination of C.B.A. Commenced under section 20 and process in the context of present matter was as follows:--
(a) Request by a Union for certification as C.B.A. Under section 20(2);
(b) Calling upon the Unions for their desire to contest and submit required detail under subsection 20(3).
(c) Submission of the list of workmen by the employer under subsection 20(4); (d)Verification of the lists and preparation of voters list under subsection 20(5);
(e) Balloting under subsection 20(9).
' It was argued that at this stage the process for verification was underway and there could not be any question of "balloting" which question could only arise after voters' list was finalized and therefore, at this stage there could not be any question of interfering or influencing the balloting. It was further argued that the word used in section 63(1)(g) is "balloting. It was contended that the word "balloting" had been used in the continuous tense. The learned counsel referred to Maxwel on Interpretation of Statute (12th Edition at page 31) in this regard that says as under:-- "The tense used in a statutory provision may have a decisive effect. A section which empowered a Minister to make a certain order if he was satisfied that a school "is being administered" in contravention of the Act only allows him to consider the present conduct of the school, and not the past conduct, when making the order. And section 1(3) of the Children Act 1948, providing that "nothing in this section shall authorize a local authority to keep a child in their care. If any parent or guardian desires to take over the care of the child" was held by Pennycuick, J. To apply only where the parent or guardian expressed a wish to have the immediate care of the child."
' It was also argued that section 63 is a criminal provision and it is a settled principle of law that a criminal and a taxing statute must be most strictly construed. It was argued that Maxwell had said that at pages 238 to 240. It was therefore, submitted that sections under which a criminal liability was created were most strictly construed. It was argued that at this stage only the process of preparation of voters list was being carried on, therefore, if all the allegations were admitted to be true and even then they did not constitute the offence of unfair labour practice.
7. It was further argued that the case-law has been cited by the learned counsel for the petitioner wherein an officer in Bank, was held to be a workman by the Supreme Court of Pakistan. It was argued that the case-law related to the definition of "workman" as given in the Standing Orders Ordinance. It was argued that the definition of "workman" given in I.R.O. Was materially different from the definition given in the Standing Orders Ordinance. It was contended that in the definition in the Standing Orders Ordinance, it was the nature of duty which determined whether a person was workman or not, but no nature of duty was in the context of the definition of workman in I.R.O. It was further argued that under section 2(x) of I.R.O., "employer" is defined in the following words:-- "Employer" in relation to an establishment means any person or body of persons, whether incorporated or not, who or which employees workmen in an establishment under a contract of employment and includes:--
(e) the proprietor, in relation to any other establishment, of such establishment and very director, manager, secretary, agent or office-bearer .Or person concerned with the Management of the affairs thereof."
' It was argued that perusal of the two definitions consequently indicated that these are materially different. It was argued that officer had been specifically included in the definition in I.R.O., 2002 but this had not been done in Standing Order Ordinance. It was argued that the definition of "workman" in I.R.O. States that person other than the employer was workmen. It was argued that since an officer was in the definition of employer he could not be for the purpose of I.R.O. To be a workman.
Based on the above contentions the learned counsel for respondent prayed to dismiss the stay application as well as the main petition.
8. The arguments of the learned counsel for the respondent have been resisted by the learned counsel for the petitioner in the synopsis of his written arguments subsequently filed. The same are therefore, treated as his arguments in rebuttal. The following issues underscored by the learned counsel for the respondent-Bank have been replied by the learned counsel of the opposite party:-
(I) Whether the single Bench of the Commission has the jurisdiction to order the Honourable Chairman to include or not to include any person in the voters' list if so to what effect?
(II) Whether the petition is liable to be dismissed in view of preliminary objections Nos.2 and 3?
(III) Whether Registrar of Industry-wise Trade Union is necessary or proper party?
(IV) Whether the petition is liable to be dismissed in view of preliminary objection No,5?
' It is argued by the learned counsel for the petitioner that it is not the case of petitioners for direction to the Chairman to include or not include the names of 205 employees by the respondent-Management, but rather it is the case of unfair labour practice. It is contended that the Court has to decide whether the respondent is under obligation to include these names in the voters list to be finalized by. RITU. It is argued that this controversy falls within the entire jurisdiction of this Bench of NIRC. In reply to issue No,II it is contended that both these objections are irrelevant and immaterial rather beyond the scope of the petition. Further states that despite so-called promotion/resignations of employees as at Annexure "A" they still are workmen and being members of the petitioner-Union are entitled to be included in the voters list. Insofar as Issue No,III is concerned, it has been replied by the learned counsel that RITU has no role to play in any manner in the alleged act of unfair labour practice against the respondent-Bank, he is neither necessary nor proper party. It has further been argued that the word "balloting" cannot be given a different meaning nor even otherwise can be mixed up with subsection (7) of section 20 which has its own impact and meaning because this particular subsection prohibits employer from interfering or ordering in any way to influence the voting whereas section 63(1)(g) provides that no employer shall interfere with or in any way influence the balloting therefore, the difference of stages and in the meaning of the term "balloting" as contended by the other party cannot be mixed together. It is contended that on both the occasions the employer has been restricted from interfering and influencing the balloting. Further, with reference to Issue No,IV, it is argued that it is not the case of laches, because when the Management furnished the list of workmen employed in the Establishment excluding the names of the persons given in the Annexure "A", cause of action arose.
9. I have gone through the case file, heard carefully the oral arguments of both the learned counsel and examined thoroughly the Synopsis of their written arguments. I am not inclined to concede to the contention that it is a case of unfair labour practice on the part of the respondent- Bank/employer. I hold that it is a misconceived case of unfair labour practice on the basis of the following conclusions:-
(a) Balloting is a democratic occasion or event that is organized after spending lot of energies, resources and time after following procedural obligations under the law with earnest intention to meet the democratic objective of the relevant legislation. All the contestants have stake in the ultimate outcome of the process to hold the ballot. If before the process is completed/finalized, one of the contestants comes to the Court with a particular grievance of narrow scope that could have recourse to its redress otherwise its very prayer to stay the holding of balloting will be seen with suspicion as undemocratic move and so to me does not deserve an interim relief on the face of it.
Therefore, I hesitated to stay the process of organizing the secret ballot in this case on the first day.
After hearing the parties I come to the conclusion that if stay is granted, it will operate contrary to the interest of other stakeholders I, therefore, do not find any force in the stay application, which is declined.
(b) In this case other recourse that was open to the petitioner or the affected workers was that either those 205 workers in the interest trade Unionism must have given up promotions and saved their status from controversy or must have challenged their status in the proper legal forum. They enjoyed their new positions for some time and when the ballot was ordered they made it a base to approach this forum with the prayer to stay the said process of holding secret ballot. This approach does not on its face appear to be bona fide.
(c) I am not convinced by interpretation of section 63(1)(g) and section 20(7) of I.R.O., 2002 made by the learned counsel for the petitioner insofar as interference by the employer in the secret ballot is concerned. Promotions or re-designations of certain workers which matter otherwise is challengeable under the law cannot by any stretch of imagination be termed as interference in the ballot and so is not an unfair labour practice within the meaning of the law, under the circumstances.
(d) Petitioner-Union should better resolve its grievance in this regard from RITU which to me is the proper forum under the law. Since this is not the case of unfair labour practice, the petition is not maintainable before this Bench.
(e) I feel it unnecessary to deliberate on all other points raised by both sides.
10. In view of the above, I do not find force in the petition, therefore, the same is dismissed.