This single order shall dispose of Writ Petition No. 2564 of 2009 and Writ Petition No. 2920 of 2009 as common questions of law and facts are involved in both these petitions.
2. Respondent No. 1-Registrar Trade Union, Rawalpindi (hereinafter referred as "Registrar") on receipt of an application vide Letter No. RTU/RWP/09/2623 dated 26.8.2009 issued notice under Section 24(3)(b) of Industrial Relations Act, 2008 (IRA, 2008) addressing to the contesting workers unions i.e. Pasban Workers Union-Respondent No. 3 and Jeway Pakistan Workers Union- Respondent No. 4 in W.P.No. 2920 of 2009 informing them that as an application was submitted by 194 workers of Lakson Tobacco Company Limited with a request for holding a Referendum in order to determine Collective Bargaining Agent and they were directed to submit lists of their members along with other particulars required under Section 24(3)(b) of IRA, 2008.
Vide the same letter through an endorsement No. RTU/RWP/09 dated 26.8.2009 the information was also provided to Respondent No. 2 the Management of Lakson Tobacco Company (herein referred as "employee). In response to the above mentioned notice the employer submitted the lists of workers and contract workers before the Registrar. The Registrar subsequently called all the concerned i.e. two contesting rival unions Respondents No. 3 and 4 as well as the employer to attend a general meeting to assist him for preparation of a list of voters as required under Section 24(5) of IRA, 2008. The employer submitted a list of 374 contract workers about which the representative of Respondent No. 4-Jeway Pakistan Workers Union raised objection that out of 374 workers 373 were not in active service of the employer as their contracts have already been expired. The Registrar on the basis of objection raised by Respondent No. 4 directed Respondent No. 3 as well as the employer to produce the relevant proof if those 373 contract workers/employees were in active service of the employer or otherwise. Respondents No. 2 and 3 did not produce any proof and ultimately vide impugned order dated 19.9.2009 the Registrar declaring 373 contract workers as not eligible to be declared as voters deleted their names and lists of voters were issued as the Referendum was to be held on 26.9.2009. It is worth mentioned here that referendum had already been held and Respondent No. 4-Jeway Pakistan Workers Union has been declared as Collective Bargaining Agent.
3. Feeling aggrieved the petitioners whose names were included in the list of contract workers submitted by the employer has preferred these, writ petitions.
4. Learned counsel for the petitioners argued that the impugned order dated 19.9.2009 passed by the Registrar is against law and facts of the case as all the contract employees whose names were included in the lists provided by the employer were in actual service and their contracts were still subsisting at that time; that the Registrar did not advert to the factual aspects as well as the evidence produced before him in this respect; that the petitioners had been working with the employer for more than six months and they all were eligible voters and the Registrar without any lawful justification deleted their names from the lists of the voters thus their right guaranteed under Article 17 of the Constitution of Islamic Republic of Pakistan, 1973 was violated. Learned counsel for the petitioner referred the documents such as copies of the membership forms, copies of the social security cards as well as the temporary work cards issued in the name of each of the petitioner showing that at the time of preparation of the lists of the voters as well as the at the time of referendum they all were in active service of the employer and thus were entitled to participate in the referendum as voters; that the petitioners have been deprived of their lawful right. Prayed that the impugned order passed by the Registrar be declared illegal, without lawful authority and in-effective upon the rights of the petitioners. It was also prayed that as the referendum has already been held without participation of the petitioners who were eligible voters, therefore, it has no legal effect hence, it be further set aside and direction be issued for conducting the referendum afresh.
5. On the other hand, learned counsel representing Respondent No. 2-employer although did not controvert the arguments advanced by the learned counsel for the petitioners, however, it was agitated that employer/establishment under Section 24(4)(a) IRA, 2008 is obliged to submit the lists of the workers and it is for the Registrar to decide and prepare area list showing the names of eligible voters. It was submitted that the lists of 374 contract workers were submitted and as the Registrar after inquiry found one worker out of 374 as eligible to vote, therefore, it was for the Registrar to decide the same. Learned counsel for Respondent No. 2 in order to assist the Court referred the law on the subject and cited Mir Alam and others vs. Registrar of Trader Unions and others (2008 PLC 239), unreported case of High Court of Sindh, Karachi titled M/s. Coca Cola Beverage Pakistan Limited vs. The Registrar, Trade Union Sindh, etc. in Constitutional Petition No. S- 297 of 2009, Quetta Municipal Corporation through Administrator and another vs. Registrar, Trade Unions, Balochistan, Directorate of Labour and Manpower Quetta and 3 others (1995 PLC 151) and Punjab Small Industries Corporation vs. Ahmad Akhtar Cheema (2002 SCM R 549).
6. Learned counsel for Respondent No. 4 holly contested this petition on the ground that admittedly there, are two categories of the employees in the establishment/employer. The first category is a contract worker, which includes the present petitioners, and second category is the permanent workers. As far as the permanent workers are concerned there was no dispute between the rival contesting labour workers unions, therefore, the lists prepared by Respondent No. 2, the employer, was accepted as it is. As far as the lists of contract workers whereby names of 374 workers were given according to the petitioners own version in their writ petitions clearly shows that on the target date contracts of all the workers had already been expired. Learned counsel clarified that the contracts were for a period of six months and inspite of the direction by the Registrar, any of the petitioners as well as the employer did not produce proof of the employment or renewal of the contract. The Registrar rightly excluded the names of those workers and list of eligible voters vide impugned order was issued; that the documentary evidence which pertain now required this Court to take into consideration is nothing but the documents which are irrelevant. The basic document was the contract on the basis of which petitioners were employed with the employer. None of the petitioners either before this Court during the present proceedings nor before the Registrar ever produced those contracts, therefore, their names were rightly excluded from the list of eligible voters by the Registrar. Prayed that these writ petitions be dismissed.
7. I have heard the learned counsel for the parties at length and perused the record with their able assistance.
8. Facts have already been disclosed above necessitating the filing of these writ petitions on the basis of controversy arising out of the impugned order passed by the Registrar. The Registrar after receipt of applications under Section 24(3)(b) IRA, 2008 informed both the rival unions vide letter dated 26.8.2009 to intimate him in writing if they desired to contest the referendum. A general meeting was convened on 1.9.2009 and it was directed that both of the contesting unions to submit lists of their members as required under Section 24(3)(a) of IRA, 2008 on the said date. A copy of the above said letter was also endorsed to the employer as mentioned above.
9. Respondent No. 2-employer submitted the lists of 374 contract workers and a list of 389 of permanent workers. Respondent No. 3-Pasban Workers Union submitted list of 396 members of its union.
It is clear from the minutes of the meeting held by the Registrar that Respondent No. 4-Jeway Pakistan Workers Union raised objection on the lists of the contract workers provided by the employer on the ground that out of 374 workers the services of 373 workers have already been terminated as their contracts have already been expired. It was agitated that these 373 workers were no more employed with the employer, therefore, their names could not be included in the list of eligible voters for the purpose of referendum.
10.If the impugned order dated 19.9.2009 passed by the Registrar under Section 24(3)(b) IRA, 2008 is seen he has clearly mentioned that the employer and Respondent No. 3-Pasban Workers Union were directed that they should produce the specific proof about the continuity of the services of above mentioned 373 contract workers so that their names be considered for including in the list of eligible voters.
11.It is worth mentioning here that under Section 24(3) the Registrar is required to direct the rival contesting unions on one hand to submit lists of the members of their respective unions and on the other under Section 24(4)(a) IRA, 2008 the employer is also obliged to submit the lists of workers employed with it. In order to appreciate the language used by the legislation while enacting Section 24(4)(a) it is reproduced here for facility of reference:--
24. Collective bargaining agent:--
(1) ......
(2) ......
(3) ......
(4)Every employer shall-- (a)on being so required by the Registrar, 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; and (b)provide such facilities for verification of the lists submitted by him and the trade unions as the Registrar may require: Provided that, in computing the period of three months referred to in clause (a) in the case of a workman employed in a seasonal factory within the meaning of Section 4 of the Factories Act, 1934 (XXV of 1934) the period during which he was employed in that factory during the preceding season shall also be taken into account."
12.There is no controversy between the parties that the period of contract in case of contract employees was fixed as six months. Now if the language used in Section 24(4)(a) of IRA, 2008 is seen the words `submit a list of workman employed' and showing in respect of each workman his parentage, age, section or department and the place he is employed clearly indicates that the list provided by the employer should indicate the names of those workers who are presently in active service of the employer and their services have not been terminated.
13.In order to appreciate the above mentioned provision of law the definition of worker and workman as provided under Section 2(xxix) or IRA, 2008 is hereby reproduced: "(xxix) "worker" and "workman" mean person not falling within the definition of employer who is employed (including employment. as 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 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 managerial or administrative capacity."
14.If the above definition is seen the words "is employed" are of much significance whereby the present indefinite tense is used. This proposition has been thoroughly been discussed in Mir Alam and others vs. Registrar of Trader Unions and others (2008 PLC 239), unreported case of High Court of Sindh, Karachi whereby it has been held that an eligible voter under Section 24(5) of the IRA, 2008 included in the list prepared by the Registrar must have been a person who at the time of preparation of list of eligible voters must be in active service of the employer/establishment. In para-24 of the said judgment it is observed as under:-- "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 in 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 dismissal 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 IRA; (v)Such person is therefore, not a in 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 outsiders are not permitted to be member the member of the Union. Therefore, they can become office bearers without being members. Since they are not member they cannot vote in any such election.
(vii) Pendency of grievance petition in a Labour Court or proceedings before NIRC 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 acquiesce in the order the employer cannot challenge participation by such a workman in such proceedings."
15. To support this view judgment cited in Quetta Municipal Corporation through Administrator and another vs. Registrar, Trade Unions, Balochistan, Directorate of Labour and Manpower Quetta and 3 others (1995 PLC 151) where question of a registration of a Trade Union was before the Court and under Section 7 of the Industrial Relations Ordinance, 1969 it was observed by a learned Division Bench of Quetta High Court as under "....On the receipt of complete applicatic the Registrar shall proceed to examine the request. He, however, may refuse the registration of the union if it is not satisfactorily proved before him that under sub-section (2) of Section 7 all the persons who are the members of the union are workmen actually engaged or employed in the industry with which the Trade Union is connected. Thus on perusal of these provisions one can visualize that it is mandatory for the applicants to disclose the name of the establishment or the industry and also to prove that the members of the union being workmen are actually engaged or employed in the industry "
16.Same view was also adopted by a Single Bench of this Court in judgment cited in Shaheen Labour Union, Al-Ghazi Tractors Ltd., D.G.Khan, through its General Secretary and another vs. Punjab Labour Appellate Tribunal and 4 others (PLJ 2003 Lahore 614).
17.Learned counsel for the petitioners during arguments laid much emphasis on the point that as the lists of its members were provided which lists tallies with the lists of the contract workers provided by the employer and sufficient material was produced before the Registrar to establish that those 374 workers were in employment of the employer but this fact was not taken into consideration by the Registrar while deciding the list of eligible voters. Learned counsel further argued that the only criteria fixed under Section 24(4)(a) of IRA, 2008 was that the employer/establishment should submit the lists of workers who are employed for the last more than three months with it therefore, the list of workers provided by the employer and the list provided by Respondent No. 3 must have to be considered keeping in view this aspect. Learned counsel further argued as also agitated that even now sufficient material has been brought on record it should be taken into consideration.
18.By mere reading of Section 24(4)(a) of IRA, 2008 it is clear that an employer is not required to submit the list of eligible voters rather it is mandatory for it that a list of all workers employed in the establishment excluding those whose period of employment is less than three months be submitted before the Registrar who is obliged under Section 24(5) of IRA, 2008 to issue the list of eligible voters after verification and at.least four days prior to the referendum a list thereof be provided to the contesting trade unions.
19.This question has already been thrashed by their Lordships in the Hon'ble Supreme Court of the country in a judgment cited as KE.S.C. Progressive Workers Union through its Chairman and others vs. KE.S.C. Labour Union through its General Secretary and others (1991 SCM R 888) while dealing with Section 22 of Industrial Relations Ordinance, 1969, an identical provision to Section 24 of IRA, 2008. In the present case the Registrar while passing the impugned order dated 19.9.2009 clearly mentioned that Pasban Workers Union-Respondent No. 3 the membership which is claimed by the petitioners did not produce any proof that 373 contract workers whose names were included in the list provided by the employer were in actual service/employment.
If the contract copy of which is annexed with the para-wise comments submitted by the Registrar is seen it runs as under:-- "FOR SIX MONTHS ONLY CONTRACT For Piece Rate Contract Worker" Understanding Order 1(a)(6) R/w (g)
NOW THIS CONTRACT WITNESS AS FOLLOWS:--
1. -----
2. That this Contract will be in force for the Contract Period and shall automatically expire and stand terminated on expiration of the Contract Period. No prior notice is required to be given on the expiry of this Contract, nor is any separate letter of relievement necessary.
3. -----
4. ----
5. -----
6. (g) The Contract Worker shall not be entitled to any benefits whatsoever arising out of any Memorandum of Settlement executed with the CBA of the Factory."
20. Para-1 of both these writ petitions are hereby reproduced wherein the petitioners themselves have given the dates of their contract with the employer. W.P.
No. 2564-2009
1. That the petitioners are working in Laskon Tobacco Company Ltd., G.T.Road, Mandra, Tehsil Gujar Khan, District Rawalpindi. The date of joining of the petitioners are 7.3.2009, 7.3.2009, 7.3.2009, 5.3.2009, 5.3.2009, 5.3.2009, 5.3.2009, 5.3.2009, 5.3.2009, 5.3.2009, 5.3.2009, 18.7.2008, 14.1.2008, 11.1.2008, 10.3.2008, 4.12.2008, 10.3.2008, 16.1.2008, 10.3.2008, 21.1.2008, 22.1.2008, 22.1.2008, 7.5.2008, 22.1.2008, 16.1.2008, 14.1.2008, 22.1.2008, 10.3.2008, 15.7.2008, 16.1.2008, 22.1.2008, 22.1.2008, 11.2.2008, 30.4.2008, 30.3.2008, 14.1.2008, 6.2.2008, 17.1.2008, 17.1.2008, 17.1.2008, 22.1.2008, 7.2.2008, 1.12.2008 respectively." W.P.
No. 2620-2009
1. That the petitioners are working in Laskon Tobacco Company Ltd, G.T.Road, Mandra, Tehsil Gujar Khan, District Rawalpindi. The date of joining of the petitioners are 5.3.2009, 5.3.2009. 5.3.2009, 5.3.2009, 7.3.2009, 6.3.2009, 6.3.2009, 5.3.2009, 5.3.2009, 5.3.2009, 5.3.2009, 2.2.2009, 2.2.2009 respectively. The petitioners are also join the membership Pasban Workers Union from the dates as above 8.3.2009, 8.3.2009, 8.3.2009, 8.3.2009, 8.3.2009, 10.3.2009, 8.3.2009, 8.3.2009, 8.3.2009, 8.3.2009, 8.3.2009, 8.3.2009, 5.2.2009, 5.2.2009 respectively."
21.If the above mentioned facts itself as mentioned by the petitioners are seen they are admitting that they being contract employees were not in the employment of the employer/establishment as contract period of six months has already been expired before the dater when the list of eligible voters was prepared by the Registrar. The employer and Respondent No. 3 Pasban Workers Union did not produce any proof to show about the continuity of the service of the workers at that time or if those contracts were renewed or extended.
22.In the light of the above discussion under Section 24(6) of IRA, 2008 an eligible voter is a worker who is defined under Section 2(xxix) of IRA, 2008 and in active service of the employer at the time of preparation of the list. The petitioners through these writ petitions have agitated on the basis of certain documents like copies of membership of the union, copies of social security cards and temporary contract worker cards but as it is already mentioned above that none of these documents according to the impugned order dated 19.9.2009 were ever produced before the Registrar during inquiry proceedings conducted under Section 24(5) of IRA, 2008 and the genuineness of these documents has also been challenged by the contesting worker Union- Respondent No. 4. Even otherwise the basic document for the contract employees/ workmen is the contract itself showing the existence of the tenure of the services in respect of any contract employee, which even now have not been annexed nor submitted by the petitioners with these petitions. Even otherwise to decide these factual controversial aspects it require a thorough inquiry/recording of evidence which practice while exercising limited writ jurisdiction is not possible rather is not permissible. Reference can be seen to a judgment cited as Punjab Small Industries Corporation vs. Ahmad Akhtar Cheema (2002 SCM R 549) wherein their Lordships of the Hon'ble Apex Court held as under: "6. . . . . .There were certain disputed questions of facts which could have been decided on the basis of evidence by the forums available in the departmental hierarchy and High Court should have not entered into the arena of factual disputes and controversies. It is well-settled by now that "the superior Courts should not involve themselves into investigation of disputed question of fact which necessitate taking of evidence. This can more appropriately be done in the ordinary civil procedure for litigation by a suit. The Constitutional jurisdiction is intended primarily for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate inquiry into complicated or disputed fact..."
23. Resultantly in view of the above discussion there is no merit in both these writ petitions, which are hereby dismissed.