NISAR MUHAMMAD SHAIKH, J.--- Through this Intra-Court Appeal, the Appellant-Union has assailed Judgment dated 12-11-2009 passed by learned single Judge, whereby he set aside impugned order/direction/letter dated 13-5-2009 of respondents Nos.1 and 2 and allowed Constitutional Petition No,S-297 of 2009 of respondent No,4Company, holding that the persons who have been removed from employment of respondent No,4-Company and whose grievance Petitions are pending in the Labour Court, are not workmen as defined in Industrial Relations Act, 2008 and are not entitled to be included in voters' list to be prepared by respondent No,1 Registrar, Trade Unions under section 24(5) of I.R.A., 2008, and directing respondent No,1 to decide the objections submitted by the Employer and Trade Union, within 15 days and then to finalize voters' list and conduct referendum within 30 days of the date of this Judgment.
2. The case of appellant i,e, Coca Cola Mazdoor Union is that it is a registered Trade Union of workmen of the establishment of Messrs Coca Cola Beverage Pak. Ltd. (respondent No,4), and remained as Collective Bargaining Agent till 2006, when its 53 members were illegally terminated from employment. They challenged such action of respondent No,4-Company by adopting grievance procedure and filed their cases which are still pending adjudication before Labour Court No,III, Karachi. The term for CBA of respondent No,3 i,e, Coca Cola Beverage Staff and Workers'
Union, had since been expired in 2009 and for next term, they applied for determination of CBA, therefore the respondent No,1, Registrar issued a notice to both registered Trade Unions, to which appellant-Union supplied required list of its members including those 53 members whose cases are still pending. Respondent No,2 i,e, Deputy District Officer, Labour (TU), under the authority of respondent No,1 Registrar, started the proceedings and finalized the list for the purpose of secret ballot. Feeling aggrieved of such proceedings, Respondent No,4-Company filed Constitutional Petition and obtained status quo order in the matter. Ccording to appellant, the impugned judgment has deprived a large number of appellant's members from participating in the proposed referendum therefore, the same is liable to be set aside declaring the said 53 members of appellant's union as workers and directing the respondents Nos.1 and 2 to include their names in the final list for holding secret ballot.
3. On the other hand, the contesting respondent No,4-Coca Cola Beverage Ltd, in its objections to the above appeal, submitted that in 2006 the respondent No,4-Company closed down Fleet Section of its CSD Plant and entrusted distribution, delivery and collection of its products to an independent professional distribution company and as a result of re-structuring/re-organization, the services of about 193 workers were redundant/surplus to the requirements of respondent No,4 which, instead of paying legal dues upon termination of services of surplus workers in normal manner, introduced Voluntary Separation Scheme (VSS) and the same being very attractive, was welcomed by all these workers who happily tendered their resignations in 2006 and obtained benefits of VSS and never objected to acceptance of their resignations. But suddenly in 2009, 53 ex-employees illegally became office bearers and members of appellant Union, which was dormant and inactive after losing referendum in 2006. Thus, respondents Nos.1 and 2 also illegally accepted the change of office bearers as 4 out of 7 office bearers were outsiders and similarly only 16 out of 69 members of appellant-Union are employees of respondent No,4. This was not permissible merely on account of pendency of cases filed by 53 out of 193 persons. Such objection was raised by respondent No,4 in writing but respondent No,2 failed to attend the same. The respondent No,4 further stated that the contention raised by appellant is misconceived and contrary to law and that the present appeal is also not maintainable in law.
4. We have heard the arguments and perused the material on record and also gone through relevant case-law.
5. According to learned counsel for appellant, the action of respondent No,4-Company, illegally terminating 53 workers/members of appellant-Union, has since been challenged by adopting due procedure as provided in section 41 of I.R.A., 2008 and their grievance Petitions are pending before the Labour Court therefore, these persons are deemed to be the workers as defined in clause (xxix) of section 2 as the pendency of their dispute before competent Court is deemed to be an industrial dispute and accordingly, these workers can not be deprived of from exercising their right to cast their votes by participating in the referendum to be held in terms of section 24 of such Act. He further argued that since the termination in question has been challenged under section 41(4) of I.R.A., 2008 as such dispute is between Employer and workmen in connection with employment or non-employment therefore, the proceedings relating to such dispute falling under clause (xiii) of section 2, are also deemed to be an industrial dispute. In addition to the above referred provisions of I.R.A., 2008, he also placed reliance on the case of Muhammad Ali and others v Presiding Officer, Sindh Labour Court No,1 and others (2000 PSC 633).
6. On the other hand, the contention of learned counsel for respondent No,4 Company, is that out of 193 workers who all had voluntarily submitted resignations while accepting Voluntary Separation Scheme, only 53 persons who had never questioned their voluntary resignations and also received all benefits under VSS, filed cases before Labour Court after the delay of about 2 years, though they were never terminated therefore, they are no more workers as their voluntary separation by way of their resignation, was not in connection with or as a consequence of any sort of dispute, what to say of industrial dispute, which has no relevancy at all. While supporting the impugned judgment including the application of relevant provisions of W.P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, he submitted that these 53 persons who are no more workmen, have no right to participate in the referendum so long their pending cases are not finally decided in their favour. In support of his contentions, learned counsel also placed reliance on the cases reported as 1994 SCM R 2213, 1998 PLC 172, 2001 PLC 589, 1985 PLC 1053, 2010 PLC 265, 2007 PLC 528 and 2008 PLC 239.
7.The question which requires consideration is, whether the allegedly terminatedemployees/workers whose cases/grievance Petitions are pending adjudication before Labour Court, shall be deemed as workmen and are entitled to participate in the secret ballot/referendum for determination of CBA in the establishment of respondent No,4Company?
8.It is an admitted position that the said 53 members of appellant- Union, who were employees/workmen in the establishment of respondent No,4-Company, are not in such employment since after December, 2006 when they allegedly, resigned voluntarily or were retrenched forcibly or terminated illegally. However, they admittedly filed their individual grievance petitions in 2008 and 2009 respectively. In this regard, a certificate annexed with this appeal shows that such 53 cases bearing Nos.47 of 2008 to 87 of 2008, 92 of 2008 to 97 of 2008 and 8 of 2009 to 13 of 2009, are pending before Sindh Labour Court No,III Karachi, in terms of section 46 of I.R.O., 2002 and section 41 of I.R.A., 2008. admittedly, all these cases for redressal individual grievances were taken to the Labour Court, by the said 53 persons themselves and not through the CBA. In this connection the relevant clause (3) of Standing Order 12 of W.P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, provides as under:--- "(3) The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. In a case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance."
9. Thus, it is on the basis of the above enabling provision, a workman aggrieved of the action taken against him under clause (3) of Standing Order 12, can himself take action in accordance with section 25-A of the I.R.O., 1969, the corresponding provision of which is section 46 of I.R.O., 2002 and section 41 of I.R.A., 2008. The relevant subsections (1). And (4) of section 41 of I.R.A., 2008 are reproduced below :--- "Redress of individual grievances.--- (1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing either himself or through his shop steward or collective bargaining agent within three months of the day on which the cause of such grievance arises.
(2) ..
(3)
(4) If the employer fails to communicate a decision within the period specified in subsection (2) or, as the case may be subsection (3), or if the worker is dissatisfied with such decision, the worker or the shop steward may take the matter to his collective bargaining agent or the Labour Court or, as the case may be, the collective bargaining agent may take the matter to the Labour Court, and where the matter is taken to the Labour Court, it shall give a decision within seven days from the date of the matter being brought before it as if such matter were an industrial dispute:"
10. No doubt the worker/workman, as defined in clause (xxix) of section 2 of I.R.A., 2008, not only means a person who is employed in an establishment, but, for the purpose of any proceedings under this Act in relation to an industrial dispute, also 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. Clause (xiii) of section 2 further provides the definition of industrial dispute, which includes the dispute or difference between the employer and workman which is connected with employment or non-employment. Accordingly, the definition of worker or workman, so far as the terminated worker is concerned, depends upon those terminations etc. Which are taken place in connection with or as a consequence of an industrial dispute. But, in the instant case, the alleged dispute of the parties does not appear to have any connection or relation to any industrial dispute, nor the same was taken up by or through CBA in terms of section 41 or 50 of I.R.A., 2008, and such dispute was never raised as an industrial dispute by the CBA in accordance with section 60, which provides that "No industrial dispute shall be deemed to exist unless it has been raised in the prescribed manner by a collective bargaining agent or an employer." While section 50 of the said Act provides that "Any collective bargaining agent or any employer may apply to the Labour Court for the enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement." No such proceedings in relation to an industrial dispute are said to have been initiated in the prescribed manner. On the contrary, a copy of one of the grievance Petitions, available in the R&Ps of the Constitutional Petition, shows that such grievance Petitions were filed under section 46 of the I.R.O., 2002 read with Standing Order 14 of the Ordinance, 1968, with a prayer of re-employment according to Standing Order 14. Thus, such grievance Petitions having relation to the provisions of S.Os.12(3) and 14 as well as section 2(i) of the said Ordinance of 1968, could not be connected to section 2(xxix) and (xiii) of I.R.A., 2008.
11. Learned counsel for appellant stressed upon his contention that the dispute between the employer and workmen was since connected with employment or non-employment which is defined as one of the industrial disputes in section 2(xiii) of I.R.A., 2008 therefore, 53 members of appellant-union are deemed to be the workers in terms of section 2(xxix) of the said Act. This question was earlier dealt with in the case of V.P., NBP, Gujranwala Zone and another v. P.L.A.T. And 7 others (1985 PLC 1053) in which a Division Bench of Lahore High Court observed at para12 in the following manner:- "... An interesting argument was advanced on behalf of the workers to show that all dismissed employees fall in the category of workers. It was argued that section 25(A)(4).Treats all applications as industrial disputes and since industrial dispute is defined as a dispute concerning employment or non-employment of a person, therefore, the dismissal of all employees is necessarily connected with a dispute. This argument is, however, no more than a clever calculation. In the presence of the clear language of section 2(xxviii) there is no room for finding a contradictory interpretation. If the Legislature intended to include all the dismissed employees in the category of workers there was nothing preventing it from saying so specifically, rather than leave it to the guess work and calculation of the lawyers. The Indian Legislature made their intention known by adding section 2-A, a deeming clause, to treat dismissal etc. Of an individual workman to be an industrial dispute. This does not however, mean that a dismissed employee has no remedy. He can still seek his remedy, but he can do it only through the Collective Bargaining Agent or through a civil suit."
12. Learned counsel for appellant in support of his contention that the dispute in question shall be deemed as an industrial dispute, emphasized on the last lines of subsection (4) of section 41 of I.R.A., 2008, which reads as under :--- ' Where the matter is taken to the Labour Court, it shall give a decision within seven days from the date of the matter being brought before it as if such matter were an industrial dispute."
' In this connection, in a case of Trustees of the Port of Karachi v. Muhammad Karim and another (1987 PLC 846) decided by a single Bench of this Court, Mr. Justice Mamoon Kazi (as he then was) while tracing legislative history of section 25-A of I.R.O., 1969, also obseved at para 6 as that :--- ' No doubt, subsection (4) of section 25-A provides that when an application under that section is brought before the 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 the definition of "worker" in the Ordinance nor does it convert such application into an industrial dispute...."
In addition to above, a Division Bench of this Court very elaborately dealt with the definition and interpretation of the 'term "industrial dispute" in the case of Messrs Ramzan Ali & Co. Cotton Ginning and Pressing Factory, Mirpurkhas v. General Secretary, Employees Union and another (1996 PLC 311) in which Mr. Justice Mukhtar Ahmed Junejo (as he then was) held at page No,319 as under:--- "... A grievance application moved under section 25-A of I.R.O. Shall be treated as an industrial dispute only for the purpose of deciding it within seven days, as appears from last line of subsection (4) of section 25-A of I.R.O"
13. To appreciate the point relating to the definition of workman, it would be advantageous to reproduce the relevant clause (i) of section 2 of W.P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which reads as under:--- "'workman' means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward."
' Whereas the definition of workman appearing in clause (xxix) of section 2 of I.R.O. 2008, is given below:--- "'worker' and 'workman' means 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 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."
' There appears a marked distinction between the definition of workman given in the above two Statutes. In the case of Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others (1992 SCM R 505), his lordship Mr. Justice Ajmal Mian, as a member of 3 members' Bench of Honourable Supreme Court, gave observation at para 22 of the Judgment under : . ....If the services of an employee are terminated in breach of above clause 3 of the Standing Order 12, he should fall within the ambit of the definition given in section 2(i) of the Standing Orders Ordinance and need not fall within the purview of the definition of 'worker' and 'workman' provided for in clause (xxviii) of section 2 of the I.R.O."
' In another judgment of Honourable Supreme Court which is given in the case of Mushtehkum Cement Limited v. Abdul Rashid and others (1998 PLC 172) it was also observed at its para 11 that "....
There appears to be no room for doubt, that, the case of respondent in the present case is purely governed by the provisions of Standing Order 12(3) and, therefore, the definition of 'workman' given in Standing Orders Ordinance and not that in section 2(xxviii) would apply." Similarly, in the case of M.C.B. Ltd. And others v. Muhammad Shahid Mumtaz and another, decided on 16-4-2009, and then reported as 2011 SCM R 1475, it was observed at para 6 of the judgment that "... Since the respondent's dismissal was not the result of an industrial dispute his status as to whether or not he was a workman, is to be determined in the light of definition of the term in Standing Order ...."
' Whereas the following observation of honourable Supreme Court is appearing at para 9 of the judgment given in the case of Muhammad Nawaz Bhatti v. President, M.C.B. Ltd., Karachi and others (2008 SCM R 1377):--- "Having considered the matter from all angles in the light of the material on file, we find that since the case of appellant was that of an individual dispute unrelated to industrial dispute, he was not a workman for the purpose of section 25-A read with clause (xxviii) of section 2 of the Ordinance and was therefore, not entitled to the remedy provided by section 25-A of the Ordinance. ...."
14. In view of the case-law as referred to above, and so also from the facts and circumstances of this case, it becomes very clear that the alleged terminations of 53 employees from their services, were not in connection with or in consequence of any industrial dispute, nor could it be deemed so by creation of such legal fiction and therefore, they cannot be deemed to be the workers or workmen in terms of section 2(xxix) of I.R.A., 2008, unless their grievance petitions are decided in their favour. In this regard, the learned single Judge was right in arriving at such conclusion in the impugned judgment holding further that the pendency of the grievance petitions before the Labour Court, does not affect the status of such persons.
15. On the finding of learned single Judge that such persons being not workmen, are not entitled to participate in the referendum under section 24 of I.R.A. 2008, the learned counsel for appellant relying upon a Full Bench decision of Honourable Supreme Court in the case of Muhammad Ali and others v. Presiding Officer, Sindh Labour Court No,I and others (2000 PSC 633) argued that the terminated workers whose grievance petitions, against their terminations are pending before the competent Forum, can not be deprived of their right to participate the secret ballot to be held under section 24 of the I.R.A., 2008. ' perusal of the cited judgment shows that surprisingly 4 times the Constitutional Petitions were filed by the parties respectively and 3 times they had also entered into compromise, with the result such consent orders were also passed by the Courts respectively. However, subsequent to earlier rounds of litigation and consequent upon the said consent orders, the election in question was ultimately held on 16-8-1983 when appellant Muhammad Ali and 4 others were elected as office bearers of the union, but, second respondent challenged the validity of such election before the Labour Court, which by its order dated 25-10-1983 set aside said election. Appellants filed C.P.
No,155 of 1983 which was dismissed by this Court vides judgment dated 5-1-1984. However, when the matter came up before Honourable Supreme Court, both these order and judgment was set aside and the election of the appellants as office bearers of the union was upheld.
' It also appears from the above reported cases that earlier, the appellant Muhammad Ali and 4 others were dismissed from service on the ground of misconduct, only one day prior to the election.
According to appellants, they were illegally dismissed in order to prevent them from participating the election. During the pendency of their such matters before the NIRC, they were allowed by NIRC to contest election vide interim order passed on 21-7-1983 as under:--- "Until adjudication of the status of the complainant whether he has been properly dismissed from service or not, he can not be deprived of the right to remain member of his trade union and to contest the election and to cast his vote."
' This order was challenged by an earlier Petition bearing C.P. No,130 of 1983 but the High Court held that no prima facie grounds appear to have been made out for admission of such petition against the impugned order of NIRC. When the matter came up before Honourable Supreme Court, it was held that learned Judge of the High Court in its impugned judgment (in subsequent C.P. No,155 of 1983) totally ignored these aspects and accordingly, the appeal was allowed.
16. Learned counsel for respondent No,4, on the other hand, placed reliance on the cases reported as 2007 PLC 528, 2010 PLC 265 and 2008 PLC 239, contending that these are very relevant on the subject matter of this case as against the distinguishable case cited by other side. It appears that in the case of Abdul Salam v. Messrs Pakistan Synthetics Limited (2007 PLC 528) Mr. Justice (Retd.)
Tanvir Ahmed Khan as Chairman of NIRC, observed at para 7 that reading of sections 20(4)(a) and 2(xxx) of I.R.O., 2002 makes it clear that the essential characteristics of worker or workman for, participation in referendum is that he should be employed in an establishment or industry. Similar view was taken by a single Bench of Lahore High Court in Sohaib Shaukat and others v. Labour Department and others (2010 PLC 265) that if the language used in section 24(4)(a) of I.R.A., 2008 is seen, the same 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.
17. Whereas the case of Mir Alam and others v. Registrar of Trade Unions and others (2008 PLC 239) decided by a Division Bench of Honourable Supreme Court, was that total 10 respondents who were workers/employees of the company as well as office bearers of the union, ceased to be the members of the union as they defaulted in payment of monthly subscription and subsequently, they were dismissed by the management. They individually challenged their removal from service but Labour Court dismissed their grievance petitions. Such order was challenged by them before this Court through appeal under section 48(1) of I.R.O., 2002. During pendency of these 10 appeals they filed application under section 48(3), to which a single Bench of this Court observed that an opportunity should be given to both parties to contest a fair election and thereby restored the membership of respondents as members of the union and allowed them to participate in the election. Such order of this Court was assailed by the petitioners who were also the employees of the same company and claimed to be office bearers of the union. Honourable Supreme Court observed at para 6 (page 242) of its order, in the following words:- " .... It is not conceivable that all these facts were not brought to the notice of the High Court and it is surprising that how the High Court had come to the conclusion directing the Registrar, Trade Unions to hold fresh elections wherein respondents Nos.2, 3 and 5 to 12 were allowed to participate for electing the C.B.A. When they are not even in the service of Messrs Karam Ceramics, The contention of the learned counsel for the petitioners that the impugned order has virtually decided the appeals of respondents Nos.2, 3 and 5 to 12 in their favour carries weight and we are satisfied that the impugned order cannot be sustained from any angle."
' Accordingly, the Honourable Supreme Court set aside the impugned order concluding that the respondents cannot be deemed to be the workers until their appeals are decided in their favour.
18. It appears that the facts and circumstances of both cases i,e, Muhammad Ali's case (2000 PSC 633) as relied upon by learned counsel for appellant, as well as Mir Alam's case (2008 PLC 239) as cited by learned counsel for respondent No,4 are distinguishable to the instant case. It is pertinent to note that in both reported cases, the dismissed employees were initially allowed by way of interim orders, respectively passed in these two cases, to participate in the elections. But, in Muhammad Ali's case such interim order was maintained by Honourable, Supreme Court while in Mir Alam's case the interim order was set aside by Honourable Supreme Court. However, in both reported cases, there appear no discussion or interpretation on the definition of workman and industrial dispute or on the relevant provisions of Labour laws as are involved in the instant case and the same 'appear to have had not been in question before Honourable Supreme Court. The case of Muhammad Ali and others seems to be more distinguishable as it was in respect of internal election of the union. Honourable Supreme Court did not express its conclusive opinion in the matter while referring the order of the NIRC as well as of the High Court passed in earlier petition, holding' that these aspects were totally ignored in the impugned judgment. Whereas in Mir Alam's case, the Honourable Supreme Court while observing that it is surprising as to how the respondents were allowed by the High Court to participate for electing C.B.A. When they were not even in the service, came to the conclusion that the impugned order can not be sustained from any angle, holding in clear terms that the respondents can not be deemed to be the workers until their pending appeals are decided in their favour. To this extent and from such angle, the instant case seems to be at par as the said 53 persons who are since found by this Court to be no more workers/workmen till their grievance petitions are decided in their favour, are not entitled to participate in the secret ballot/referendum to be held in terms of the relevant section 24 of I.R.A., 2008 which being the only provision in this regard, does not permit any person, who is not a workman or is a retired, terminated or ex-workman, to cast vote during pendency of his grievance petition so long the same is not decided in his favour. Moreover, under the said provisions of section 24, an undisputed worker whose period of employment is less than three months, is also not allowed to cast vote even if he may have certainty of extension in the period of his employment. Likewise, the terminated employee/workman whose grievance petition is pending against such termination cannot be allowed to cast .Vote merely on the expectation of his re- employment or reinstatement in service.
19. Consequently, we find that the impugned judgment calls for no interference by this Intra-Court Appeal, which is therefore dismissed, with any order as to the cost. -