' SHAHID ANWAR BAJWA, J.--- Factual background of this Constitutional petition is that the petitioner-company in the month of December, 2006 closed down its Fleet Department and entrusted work of distribution to an outside contractor. The action of the petitioner-company rendered 198 workers surplus to requirements of the organization. Instead of resorting to retrenchment under Standing Order 13 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the employer floated a Voluntary Separation Scheme where in addition to benefits under the terms and conditions of employment and the law extra incentive being ex- gratia amount equal to 51 gross salaries was offered. Majority of the 198 workers submitted their requests for separation under the Voluntary Separation Scheme they were separated and paid accordingly.
2. After about 20 months, according to the petitioner 53 of the employees who had thus separated from employment, (according to Respondent No,3 number is (67) filed grievance petitions before Sindh Labour Court No,3 alleging that their requests for the Voluntary Separation Scheme were obtained under pressure and coercion and praying to the Labour Court that they may be reinstated in service with full back-benefits. Such grievance petitions are still pending in the Labour Court.
3. On 7-5-2009 a copy of letter written by Deputy District Officer, Labour, West Division Karachi (Respondent No,2) addressed to General Secretary of respondent No,4 Union was received by the management. It is contended by the petitioner that 3 of the 7 office-bearers of the Union are persons who had received their final settlement dues in pursuance of Voluntary Separation Scheme but who are now in litigation before the Sindh Labour No,III. They and the Union are alleged to be in violation of provisions contained in section 6(1)(d) of the Industrial Relations Act, 2008. It is also submitted by the petitioner that 12 of the separated workers were re-employed in April, 2008.
4. On 13-4-2009 a letter was issued by respondent No,2 for determination of Collective Bargaining Agent under section 24(2) of the Industrial Relations Act, 2008. In accordance with the provisions contained in section 24(3) of the I.R.A. 2008, the Unions were asked by the Registrar of Trade Unions to indicate whether they desired to contest the secret ballot to be held and if they so desired, to submit list of their members specifying required particulars as specified in that subsection. The employer was asked to submit list of workmen employed by it. Consequently list containing name of 150 workers were submitted by the petitioner. It may be pointed out here that the list did not include name of any, of the 53 persons who had filed their grievance petitions before the Labour Court under section 41 of the Industrial Relations Act, 2008. The Union also submitted list of its members. Vide letter dated 30-4-2009 the employer submitted its objections to the list submitted by the respondent No,4 Union stating that 53 persons are not in the employment of the company and company has only 150 workers as its employees. Objections submitted by the employer were duly recorded in minutes of meeting. On 13-5-2009, respondent No,2 fixed date of referendum as 23-5-2009 without deciding objection submitted by the employer. This present petition was filed with the following prayer:--- "(i) to declare that the impugned Order/directions dated 11-5-2009 and 13-5-2009 of the respondent No,2 are void, ab initio, without lawful authority and without jurisdiction;
(ii) to cancel/set aside the directions dated 11-5-2009 and 13-5-2009 issued by the respondent No,2 and to declare that 53 members of the respondent No,4 are not the workers of the petitioner till their grievance petition are decided in their favour;"
5. On 28-5-2009 this Court granted status quo order and consequently referendum has not so far been, held. Learned counsel for the petitioner submitted that it is obligation of the Registrar to decide objections submitted by the employer and without deciding such objections voters list could not be prepared and without preparing voter list referendum can not be held. Learned counsel further submitted that even respondent No,3 Union objected to names of these 53 persons in the list submitted by the respondent No,4 Union. In this regard the learned counsel relied upon Fatehally Chemical Mehnatkash Union (C.B.A.) v. Registrar of Trade Union, Sindh and 4 others 1989 PLC 191. Learned counsel referred to definition of 'worker' given section 2(xxix) of the Industrial Relations Act, 2008 to contend that a person who has ceased to be an employee also ceases to be a worker and consequently his name cannot be included in the voters list. In this regard he relied upon Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213, Board of Governors, Aitcheson College Lahore v. Punjab Labour Appellate Tribunal and Others, 2001 PLC 589, Mir Alam and others v. Registrar Trade Unions and others 2008 PLC 29 and Abdul Salam v. Pakistan Synthetic Ltd. 2007 PLC 528. Learned counsel for petitioner further submitted that in section 24(4) of the Industrial Relations Act, it is provided that it is only the workers who are employed in the establishment whose names are to be given in the list to be submitted by the employer or the Unions. Merely because his case is pending in the Labour Court under section 41 of the Industrial Relations Act, 2008 does not entitle a person to inclusion of his name in the list of voters.
6. Learned counsel for the respondent No,4 firstly contended that the petition is not maintainable because no illegality has taken place and vested right of the petitioner has not been affected. He submitted that the workers who have challenged their termination before the Sindh Labour Court No,III under section 41 of the I.R.A. 2008 and their grievance petitions pending adjudication are workmen for all purposes within the meaning and scope of I.R.A. 2008 and are bona fide members of the respondent No,4, Trade Union. They are therefore entitled to inclusion of their names in voters list. He further submitted that petitioner has raised disputed questions of fact which facts cannot be adjudicated upon in constitutional jurisdiction. The learned counsel relied upon Muhammad Ali and others v. Presiding Officer, Sindh Labour Court No,1 and others 2000 PSC 633, National Bank of Pakistan v. Sindh Labour Appellate Tribunal and another 1993 PLC 57 Fauji Sugar Mills Mazdoor Union, Trade Muhammad Khan, through General Secretary and Others v. Muhammad Ramzan, General Secretary, Fauji Sugar Mills Employees Union, Tando Muhammad Khan and others 1993 PLC 199, Pearl Continental Hotel, Karachi v. Muhammad Yasin 2006 PLC 269, Muhammad Ali and others v. Sindh Labour Court No,1, Karachi and others 1984 PLC 1645, Pakistan Steel Peoples Workers' Union v, Registrar of Trade Unions, Karachi and 6 others 1992 PLC 715, Progressive Employees' Union through General Secretary v. Registrar Trade Unions, Hyderabad Region, Hyderabad and another 2000 PLC 6, Mustehkum Cement Limited, through Managing Director v. Abdul Rashid and others 1998 PLC 172, Habib Bank Workers' Union v. Punjab Labour Appellate Tribunal and others 1984 PLC 1667 and Syed Mushtaque Hussain Shah v. Riaz Muh4mmad Hazarvi and another PLD 1978 Kar.
612.
10(sic). Learned counsel for respondent No,3 supported contentions of the learned counsel for the petitioner on the point that 53 persons whose litigation is pending in the Sindh Labour Court No,III are not workmen for the purpose of inclusion in the voter list. He relied upon 1992 SCMR 505, 1998 PLC 183; 1984 SCMR 925, 2008 SCMR 1377, 1985 PLC 1053, 1994 PLC 301 and 1991 PLC 186. Learned counsel further submitted that 12 workers whose names are included in the list submitted by respondent No,4 Union have filed their affidavits in this Court stating that they are not members of the respondent No,4 Union but are the members of respondent No,3 Union.
11. I have heard the submissions made by the learned counsel and have also gone through the extensive case law cited by the learned counsel.
12. The real bone of controversy between the parties is whether a person who has been removed from employment, whether resigned, dismissed, discharged, retired, retrenched or otherwise terminated, irrespective of the fact whether termination from employment was lawful or not and in whose case grievance petition under section 41 of the I.R.A. 2008 is pending in the Labour Court falls within the definition of `workman' as given in section 2 (xxix) of the Industrial Relations Act, 2008.
Therefore the starting point would be a reference to that definition. Definition is in the following words:-- "2(xxix) "worker" and "workman" means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of any proceedings under this Act 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 dismissal, discharge, retrenchment, lay-off or removal has led to that dispute but does not include any person who is employed mainly in a managerial or administrative capacity.
13. The relevant phrase used in definition is "who is employed". The phrase 'who is employed' indicates that it is present indefinite tense which the Legislature has chosen to employ to express its desire, its command and its intent. Maxwell on Interpretation of Statutes, Twelfth Edition, at page 31 says the following in respect of tense used by the statutes:- "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."
14. Therefore, the tense used in a statute may in circumstances have a decisive effect on interpretation of a particular provision of law. It is duty of the Court interpreting a law to ensure that every word and, I would say every nuance, employed by the Legislature is given due weight, due consideration and due importance. This is equally applicable to the tense used by the Legislature.
15. In Trustees of the Port of Karachi v. Muhammad Saleem and another, 1987 PLC 846, Mr. Justice Mamoon Kazi of this Court traced the entire history of amendment for this purpose and came to the following conclusions:- "The legislative intent, in my opinion, is clearly indicated by the various changes which are introduced in the (I.R.O.) and the Standing Orders Ordinance from time to time. When section 25-A was introduced in the Ordinance in place of Standing Order 18, the intention clearly was that only such persons could seek redress under that section who fall within definition of "worker" or "workman" in the Ordinance. However, a plain reading of the definition indicates that the same includes within its ambit only such persons who are employed in an industry for hire or reward, barring of course those who for the purpose of any proceedings under the Ordinance in relation to an industrial dispute have been dismissed, discharged, retrenched laid off or otherwise removed from employment in connection with or in consequence of such dispute or whose dismissal, discharge retrenchment of lay off or removal has led to the dispute. No doubt subsection (4) of section 25-A provides that when an application under the section is brought before a Labour Court the same shall be disposed of as if it were an industrial dispute, but reference to industrial dispute therein only relates to powers and procedure of the Labour Court and the same neither enlarges definition of `worker in the Ordinance nor does it convert such an application into an industrial dispute Only such persons can seek remedy under Standing Order 12(3) who are workmen according to the definition of the term given in the Standing Order Ordinance...Definition of 'worker' in the Ordinance is indicative of the....Fact as the same also shows awareness on the part of the Legislature that the definition was not attracted to person whose services had been terminated by the employer and appears to be for the same reason that such person were expressly included in the definition of the worker for the purpose of industrial dispute."
16. It may not be out of place to mention that in Mustehkum Cement Ltd., through Managing Director v. Abdul Rashid and others 1998 PLC 172. Mr. Justice Mamoon Kazi while being a member of a three Member Bench of the Supreme Court observed as under:--- "(9) the definition of the terms "worker" or "workman" as contained in the Ordinance, indicates that person falling within the definition of "employer", persons mainly employed in managerial or administrative capacity or persons employed in supervisory capacity and drawing wages exceeding rupees eight hundred per mensem or persons performing functions mainly of managerial nature have been excluded from the said definition. It is also pertinent to note that persons who have been dismissed discharge, retrenched, laid-off or otherwise removed from employment have been included in the said definition, but only in case such dismissal, discharge, removal etc. In connection with or in consequence of an industrial dispute. However, persons who have been dismissed, discharged or removed from service otherwise than in connection with or in consequence of an industrial dispute are not included in the said definition. Therefore, although a person, who has been dismissed, discharge, etc. In connection with or in consequence of an industrial dispute can seek redress of his individual grievance in respect of a right guaranteed to him, as provided in section 25-A of the Ordinance, but such right would not be available to a person who has been dismissed, discharged, or removed from service otherwise than in connection with or as a consequence of an industrial dispute. Reference in this regard may, however, be made to Standing Order 12(3) in the Standing Orders Ordinance".
17. In Muhammad Saleem's case (supra), the Supreme Court observed that person who has been removed from employment is no longer a workman for the purpose of Industrial Relations Ordinance, 1969. This view was re-affirmed by the Supreme Court in Aitcheson College's case. In Mir Alam and others v. Registrar Trade Unions, 2008 PLC 239, the petitioners were employees and claimed to be office-bearers of Trade Union and assailed an order passed by the Registrar Trade Unions. Some of the respondents had ceased to be members of the Union as they defaulted in payment of their monthly subscriptions. Subsequently they were dismissed by the management vide order dated 25-6-2005 and they challenged dismissal in the Labour Court. Grievance petition was dismissed. Order passed by the Labour Court was challenged in appeal in the High Court, as at that time under section 47(3) of the I.R.O, 2002 (corresponding to section 54(3) of the Industrial Relations Act, 2008) an appeal against order of the Labour Court was provided to the High Court.
During pendency of appeals an application was filed by the employees and it was ordered by the High Court that in the interest of parties as well as employers that a popular and democratic Union should be given a fair chance as a bargaining agent and therefore, opportunity should be given to the appellants to participate in the election. High Court restored membership of the appellants before it. The matter ended up in the Supreme Court. The Supreme Court held that allowing of such interlocutory application by the High Court amounted to allowing the whole appeal while it was pending. It was further held that the appellants "cannot be deemed to be workers" until their appeals are decided in their favour.
18. Learned counsel for the respondent No,4, placed a lot of emphasis on Muhammad Ali and others v. Presiding Officer, Sindh Labour Court No,1, 2000 PSC 633. The facts in that case were that elections of the Union were due in January 1983 and by consent the Labour Court directed that the elections be held by the Registrar of Trade Unions. Muhammad Ali filed nomination papers for the post of General Secretary. However, there was delay in the elections as some parties had obtained stay of elections from the High Court. Ultimately stay order was recalled on 1-6-1983. However by that time the appellant and his colleagues had been removed by the employer on account of alleged misconduct. It was contended by the appellant that he was illegally dismissed from service in order to prevent him from participating in elections. Consequently he filed complaint before NI I.R.C. Under sections 15 and 53 of the I.R.O, 1969 (corresponding of sections 17 and 72 of the I.R.O, 2008 respectively) alleging unfair labour practice on part of the employer. The Chairman, N.I.R.C. By interim order dated 1-7-1983 ordered that "until adjudication of the status of the appellant whether he had been properly dismissed from service or not he cannot be debarred from the right to remain member of the Union and to contest elections and to cast his vote." This order was challenged by the employer in the High Court and election was postponed. Thereafter, the consent order was passed and Muhammad Ali and his colleagues were allowed to contest elections.
Accordingly Registrar fixed date for elections but once again this time the rival Union filed constitutional petition challenging Muhammad Ali's right to contest election on the ground that having been dismissed from service he was no longer a worker etc. This constitutional petition was dismissed by the High Court. However in the meantime Registrar held elections in which Muhammad Ali and his colleagues were elected office-bearers. The rival Union being dissatisfied with the elections applied to the Labour Court under section 8(7) of the IRO, 1969 (corresponding of section 9(7) of the I.R.A, 2008). Labour Court set aside the elections and constitutional petition was dismissed by the High Court and the matter again ended up in the Supreme Court. It was argued by. The appellant in the Supreme Court that, "notwithstanding their allegedly illegal dismissal from service, it was subjudice before competent from under the I.R.O. And more particularly in view of the interim order passed by the N.I.R.C. They continued to enjoy status of workers within the meaning of the terms used in the I.R.O. The Supreme Court referred to the interim order passed by N.I.R.C. And held that High Court had ignored this aspect and allowed the appeal. There is no reference to section 2(xxix) and no discussion whatsoever in respect of meaning and impact of definition of workman given in the section. Therefore, this judgment has to be seen and should be seen in the peculiar circumstances of the case.
19. Before I come to my conclusion on this point it may instructive to briefly refer to other cases cited by the learned counsel.
20. In Abdul Salam v. Pakistan Synthetic Ltd., 2007 PLC 528 Chairman, N.I.R.C. Observed that intention is clear: a person who has been dismissed, discharged, removed laid-off is included in the definition of workman only and specially in regard to proceeding under section 46 of I.R.O., 2002.
With respects this does not appear to me to be correct statement of law. A former worker who comes to Labour Court under section 41 of the I.R.A., 2008 does not so come by virtue of section 41 but comes to the Labour Court by virtue of Standing Order 12(3) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. This has been clearly held by the Supreme Court in Mustehkum Cement's case. Even otherwise it would become anomalous to consider him as workman for the purposes of one section of I.R.O. And not workman for the purpose of another section of I.R.O. Secondly if this interpretation is accepted then provision of Standing Order 12(3) to the effect that workman may take his grievance to Labour Court under section 41 etc, becomes redundant and surplus and it does not need any authority to say that no surplus age can be attributed. To any piece of legislation.
21. A look at the definition would reveal that it does include two categories of persons whose employment has come to an end in the definition of worker: firstly those whose termination of employment has taken place in consequence of an industrial dispute; and secondly those whose termination of employment has led to an industrial dispute. One may contrast this definition with the definition of Civil Servant contained in section 24(b) of the Civil Servants Act, where a civil servant is defined as one who is or has been. Similarly Article 212 of the Constitution says that Service Tribunal may be constituted in respect of persons who are or have been. In the Industrial Relations Act, 2008 in definition of workman only two has been included in the definition and that too only for the purpose of proceedings relating to an Industrial Dispute and not for any other purpose. Therefore, once a person has ceased to be an employee of establishment he ceased to be a workman unless he can place himself squarely in one of the two categories of has been and that too only for the purposes of proceedings relating to an industrial dispute. Proceedings under section 41 of the I.R.A. Are not proceedings relating to an industrial dispute.
22. National Bank of Pakistan's case does not help case of respondent No,4 for two reasons. Firstly, it has not considered the second part of the definition of industrial dispute and secondly it runs counter to the findings of the Supreme Court in Mustehkum Cement's case. Mr. Rafiullah, has referred to certain case law from the Labour Appellate Tribunals. I do not think in presence of clear pronouncement by the Supreme Court and High Court it would be necessary to refer to these cases.
23. Case of Muhammad Ali is therefore quite distinguishable; (i) it related to internal elections of the Union (to this aspect I will return later); (ii) an interim order had been passed by the Chairman, N.I.R.C.; The order of the Supreme Court is clear on this point of that what heavily weighted with the Supreme Court is order passed by the Chairman N.I.R.C. That was why in para.8 of the judgment it was argued before the Supreme Court that "particularly so" in view of interim order passed by N.I.R.C. In Pakistan Steel Peoples Workers Union's case after having participated in the referendum the Union had raised objections. And it was held that the doctrine of acquiescence, will apply. In Progressive Employees Union's case it was held that Deputy Commissioner or District Magistrate should keep in mind that they cannot pass an order depriving workers of their fundamental right of forming or being a member of a Trade Union.
24. To summarize the above discussion:
(i) a worker who has been dismissed, discharged, retrenched, terminated or otherwise removed from employment no longer falls in the definition of workman except as stated herein below;
(ii) If such dismissal etc, has taken place, in consequence of industrial dispute or has led to an industrial dispute then such person is included in the definition of workman;
(iii) but only for the purpose of any proceedings relating to an industrial dispute under the Industrial Relation Act, 2008;
(iv) Such dismissed etc, workman comes to Labour Court by virtue of specific provisions contained in Standing Order 12(3) and not by virtue any provision contained in the I.R.A.;
(v) Such person is therefore, not a workman and is not entitled to participate or vote in any referendum or balloting under section 24;
(vi) He cannot participate in any election of the Union except when he falls within the 25% of outsiders who are permitted to be office-bearers of the union. Such outsides are not permitted to be member of the Union. Therefore they can become office-bearers without being members. Since they are not members they cannot vote in any such election.
(vii) Pendency of grievance petition in a Labour Court or proceedings before N.I.R.C. Does not affect status of such a person.
(viii) However, if interim order has been passed by a Court of law and the employer has acquiesced in the order the employer can not challenge participation by such a workman in such proceedings.
25. In this petition two orders have been challenged; one is dated 13-5-2009 and other is dated 7- 5-2009. By this second or three outsiders were allowed to be office-bearers of the Union. Learned counsel put emphasis on section 6(1) (d) of the Industrial Relations Act, 2008. This section is in the following words:--- "(1) A Trade Union shall not be entitled to registration under this Act unless the constitution thereof provides for the following matters, namely:--
(d) the number of persons forming the executive which shall not exceed the prescribed limit and shall include not less than seventy five per cent from amongst the workman actually engaged or employed in the establishment or establishments or the industry from which the trade union has been formed;"
26. It may be interesting to note that this section carries the heading Requirements for registration and it states that Trade Union would not be entitled to registration unless constitution provide for the stated matters including the one stated in clause (d).
' It may be interesting to observe that clause (b) of subsection (2) of the same section makes similar provisions in respect of registration of third in that establishment. This is a requirement at the time of registration. Once the registration has taken place if Trade Union has violated this particular provision contained in its constitution though Registrar may be competent (and I am saying may be because this aspect has not been fully addressed in the arguments) to lodge a complaint under section 12 of the I.R.A. That the Trade Union has violated provision of its constitution, election of office-bearers would not ipso-facto become illegal and of no legal effect.
27. Therefore, I hold that the persons who have been removed from employment and whose grievance petitions are pending in the Labour Court or those who have been removed from employment and have not filed grievance petition both are, equally not workmen as defined in the I.R.A. And are not entitled to be included in the list of voters to be prepared by the Registrar Trade Unions under section 24(5) of the I .R. A .
2008.
28. The proposition of law that if a objection is raised before the State functionary or a information is brought to the notice of a State functionary it is his duty to attend to the objections and consider the information and thereafter pass such, order as he may deem appropriate but always in accordance with the law does not need any authority any more. State functionary can not be allowed to close his eyes and to bulldoze his way through. Every functionary of a State is a slave of law and law here means, as stated by Mr. Justice Sabihuddin Ahmed in Dawood's case 2007 PLC (C.S.) 1046, not only includes enacted law but all the judicial principles laid down by the superior judiciary from time to time. In this case, objections were raised before the Registrar vide letter 13-4- 2009, the objections Were duly noticed by the Registrar and are recorded in the minutes of meeting but while issuing letter dated 13-5-2009 no decision on such objections has been made. Such Act of the Registrar cannot be upheld by this Court. Therefore letter dated 13-5-2009 is set aside.
29. Since I have held that Act of the Registrar Trade Unions is without lawful authority and it would not be conceivable to imagine that an illegally held referendum of determination of Collective Bargaining Agent (in contradiction to internal election of a Trade Union) would certainly grieve the employer because eventually the employer is to, be required to sit down and negotiate with such C.B.A. Therefore, writ petition would be maintainable by the employer in such situations.
30. Article 17 of the Constitution of Islamic Republic of Pakistan enshrines fundamental right to form Unions and Association. I.R.A, is one of the regulating statutes in this regard. If workers are denied right to cast their votes in referendum by denying them referendum for a long time it defeats and jeopardizes their fundamental right. Therefore, the Registrar is directed to, after hearing the parties, decide the objections submitted by the employer and any Trade Union in the light of what has been stated above, within 15 days of date of this judgment and thereafter finalize the voter list and conduct referendum as expeditiously as possible but not later than 30 days of the date of this judgment. This constitution petition is allowed in the above terms. Parties are left to bear their own costs.