' MRS. AYESHA A. MALIK J.--- Through this petition, the petitioner has impugned order dated 31-7- 2013 issued by the respondent No,1 and order dated 13-9-2013 issued by the respondent No,5.
2. The facts of the case are that the National Industrial Relations Commission, Islamabad initiated the process of election of Bata Mazdoor League of Bata Pakistan and authorized the respondent No,2 to conduct the election proceedings. The petitioner objected to the nomination filed by the respondent No,3 on the ground that he was no longer a workman as he had retired from Bata Pakistan and that he was not working anywhere else, hence he could not contest the election The respondent No,3 submitted his reply to the objection. However, the respondent No,2 without hearing the objections disposed of the same vide his order dated 24-6-2013. The petitioner challenged this order in Writ Petition No,16511 of 2013 whereby the order of 24-6-2013 was set aside and the case was remanded to the respondent No,1 to decide the matter afresh after hearing all the parties. The respondent No,1 heard the objections and passed his order on 31-7-2013 wherein he allowed the respondent No,3 to contest the election of Bata Mazdoor League. The petitioner assailed this order before the respondent No,5 wherein it was held that the respondent No,3 could contest the election for Bata Mazdoor League as he fell within the category of 25% outsiders quota such that he did not have to be a workman.
3. Learned counsel for the petitioner argued that the interpretation by the respondent No,5 is contrary to the bare reading of section 8(1)(d) of the Industrial Relations Act, 2012 (Act of 2012). He argued that in terms of the proviso to section 8(1)(d) of the Act of 2012, the 25% quota was only available to workman who was not employed in any Establishment or an industry for which trade union was being formed. Learned counsel further argued that the interpretation given by the respondent No,5 is contrary to the law laid down in the case titled 'Raja Muhammad Mumtaz v.
National Industrial Relations Commission through Member and 2 others' (2010 TD (Labour) 113) wherein it is held that 25% quota of outsiders would have to qualify as workman though not employed in the employment where the union is to be registered. Learned counsel further argued that this judgment was assailed before the Hon'ble Supreme Court of Pakistan in Civil Petition No,1582-L of 2008 and the Leave to appeal was refused. The CPLA was dismissed vide order dated 27-5-2009. Consequently the judgment of this Court cited as 2010 TD (Labour) 113 (supra) was upheld.
4. Report and parawise comments have been filed by the respondent No,
1. Learned D.A.-G. has appeared before this Court and stated that the respondent No,6 was Secretary Establishment Division. Upon a direction of this Court instructions have been brought that the relevant Ministry is the Ministry of Overseas and Human Resource Development and that the respondent No,2 who is party before this Court has been authorized to represent the relevant Ministry. Therefore the respondent No,2 shall argue on behalf of the Ministry of Overseas and Human Resource Development. The learned counsel for respondent No,3 stated that he would argue the matter and did not want to file a reply. Learned counsel for respondent No,3 argued that the impugned orders are in accordance with law and that the spirit of the proviso was to allow non-workman to participate in the affairs of the Bata Trade Union. He argued that the respondent No,3 was a workman employed with the respondent No,4, hence he is eligible to contest the election as he fell in the 25% quota for outsiders under the proviso of section 8(1)(d) of 2012 Act.
5. Respondent No,2 argued that the intent of the proviso to section 8(1)(d) of the Act of 2012 was that the 25% quota for outsiders means any person from anywhere and such person did not have to be a workman. He argued that the Proviso has an over-riding effect and control over the whole section. He argued that the word 'shall' in the proviso means that the person shall not be a workman. This was mandatory due to the use of the word ' shall'. He has placed reliance on the cases titled Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others' (PLD 2012 SC 1089) and 'In the matter of reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan' (PLD 1957 SC (Pak) 219).
6. I have heard the learned counsel and reviewed the record available on the file.
7. The question before this Court is whether a person desirous of being part of the executive of a trade union seeking registration under the Act of 2012 is required to be a workman. Section 8(1)(d) of the Act, of 2012 reads as follows:-- "8(i) 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 percent from amongst the workmen actually engaged or employed in the establishment or establishments or the industry for which the trade union has been formed. Provided that the condition of being employed in any establishment or an industry as aforesaid shall not apply to the remaining twenty five percent of the members of such executives."
'As per this section, the persons forming the executive of the union seeking registration shall include establish 75% from amongst the workmen who are employed in the establishment or the industry for which the union is being registered. The section provides for two conditions, one that the person be a workman and second that he be employed with the establishment or industry for which the union is being registered. In terms of the proviso, the remaining 25% of the members of the executive do not have to be employed in the establishment or the A industry for which the union is being formed. Therefore, in order to be eligible under section 8(1)(d) of the Act, of 2012 a person must be a workman and must be engaged in the establishment or establishments or industry for which the union is being formed. Under the proviso the condition of being employed in the establishment or establishments or industry shall not apply to the remaining 25% of the members of the executive but the condition of being a workman shall continue. The impugned order dated 13-9-2013 finds that in order to contest the election under the 25% queta for outsiders, a candidate does not have to be a workman and does not have to be employed by the establishment or industry for which the union is being formed. The learned Member has come to the conclusion that for a person who wants to contest election of the trade union from the 25% quota of outsiders, it is not necessary for him to be a workman. To my mind this interpretation is not in accordance with section 8(1)(d) of the Act of 2012. The proviso states that the condition of being employed in the establishment, establishments or industry for which the trade union has been formed shall not apply. The proviso has excluded the requirement of being employed in the establishment for which trade union has been formed, meaning thereby it has excluded one out of the two qualifications set out for persons forming the executive of the trade union seeking registration. Section 8(1)(d) of the Act of 2012 requires that the persons forming the executive of the trade union seeking registration shall be (i) workman; and (ii) shall be engaged in the establishment or establishments or industry for which union has been formed, hence the proviso has excluded the specific requirement of being engaged in the establishment or industry for which the union is being formed. The respondent No,2 and the learned counsel for the respondent No,3 have emphasized on the word "any" in the proviso. However, to my mind, this emphasis is misconceived as the proviso simply states that the condition of being employed in any establishment or industry as aforesaid meaning that the word "any" and the word "aforesaid" shall be read together in conjunction with the condition imposed under section 8 (1)(d) of the Act of 2012 of being employed in the establishment or establishments or industry for which the trade union has been formed. The respondent No,2 has also emphasized on the use of the word "members" of such executive used in the proviso. Again I find that this emphasis is misconceived as the proviso excludes one condition from the two conditions stipulated in section 8 (1)(d) of the Act of 2012. The use of the word members is with reference to the executive and the trade union and does not take away the requirement of being a workman.
8. As per the impugned order the respondent No,3 was no longer an employee of Sonexo Lab with effect from 19-6-2013 being the date from which he was removed from service. Learned counsel for the respondent No,3 when asked whether respondent No,3 had impugned this finding, answered in the negative. Therefore the respondent No,3 has not challenged the finding that he is no longer in the employment of the respondent No,4. Since the respondent No,3 is not in the employment of the respondent No,4, therefore, he is no longer a workman and since he is not a workman, he is not eligible to contest the election for the Bata Mazdoor League in terms of the criteria given under section 8(1)(d) of the Act of 2012. The Hon'ble Supreme Court of Pakistan in Civil. Petition No,1582-L of 2008 upheld the findings of this Court in the judgment cited as 2010 TD (Labour) 113 (supra) wherein it was held that It is important to note that the appellant is no more employee of the organization where he wants to remain as General Secretary of a C.B.A. and this very fact that a person who does not fall within the category of workman and is asking for a relief for which he does not entitle is a noval situation. This very controversy was already resolved in a reported case Habib Sugar Mills Ltd. v. Registrar of Trade Unions and others 2001 PLC 441 wherein it is held that the provisions of Industrial Relations Ordinance, say only that 75% of the office-bearers of a trade union shall be from amongst the workmen actually engaged or employed in the industry 25% can be outsider but such an interpretation that these 25% can be any person, even if they are not non- workmen would be contrary to the essence and spirit of law. Some rational interpretation will be that 25% outsiders are also necessarily be in the category of workmen though not employed in the employment where the union if applying for registration'.
9. In view of the aforesaid, this writ petition is allowed. The findings in the impugned order dated 13- 9-2013 with respect to the inteipretation of the proviso to section 8(1)(d) of the Act of 2012, such that 25% quota for outsiders is not applicable to workman is set aside being contrary to the proviso of section 8(1)(d) of the Act of 2012. The respondent. No,3 in terms of the order of 13-9-2013 is not a workman with the respondent No,4. Therefore he is not eligible to contest the election for Bata Mazdoor League under the 25% quota allocated for workmen who are not employed in the establishment or industry for which the union is being formed.