ABDUL GHIAS NOUSHERWANI (MEMBER).--- The appellants challenged the order dated 19-6-2013 passed by learned District and Sessions Judge Presiding Officer Labour Court 1st Balochistan Quetta in Case No.5 of 2013 wherein the application/petition of respondent No.1 was disposed of in terms of direction that Registrar Trade Union should held election between the parties within the period of one month.
2. During the pendency of instant appeal on 16-7-2013 the learned counsel for appellant made a request for deleting the name of respondent No. 3 (Haji Azizullah) on the ground that he was not a party and inadvertently his name has been mentioned in memo. of appeal whereof the learned Counsel for respondent raised no objection. Therefore his name was deleted from memo. of appeal.
5. For disposal of this appeal the brief facts as mentioned in petition under section 52 of BIRA, 2010 read with section 151, C.P.C. that the respondent No.1 was member of livestock people union Balochistan whereas appellant No. 1 was the ex-president of that union and appellant No. 2 was the Chairman of Election Committee with averment that after long struggle the respondent No.1 agreed to hold election and appellant No.2 was appointed as Chairman of Election Committee who issued election schedule and specifically with the condition that election would be held on the basis of panel. Further stated that both the panels submitted their nomination papers on the basis of panel. That according to election schedule 9-1-2013 was fixed for scrutiny in Animal Hospital Mecongi Road at 10 a.m. On the said date respondent No.1 along with other candidates reached at Animal Hospital at 10 a.m. but till 3-30 p.m. neither Chairman Election Committee nor other Members reached there. He stated that on 10-1-2013 he came to know that the nomination papers of his panel has been rejected by appellant No.2 and declared the panel of appellant as successful unopposed. Thereafter the respondent No.2/petitioner approached Chairman Election Committee but his application was not disposed of till the moment.
4. The case of appellant/respondent is that the respondent/petitioner is not a member of livestock people workers union Balochistan while appellant/respondent was vice president of first Federation. Further stated that the Chairman Election Committee was appointed with the consent of other party. During the course of election process some member of opposite party approached the Chairman Election Committee by means of applications wherein stated that neither they are members of the opposite party nor they filed nomination papers for contesting the election. Further it is the case of appellant/respondent that in such situation the nomination papers of panel of respondent/petitioner No.1 were rejected whereof the panel of appellant No. 1/respondent was declared unopposed successful.
5. After filing of written statements and hearing the learned counsel for the parties the learned Labour Judge concluded as under:-- "So, in my opinion from these documents and averments of the both parties, no proper conclusion can be drawn. So, I cannot conclude the matter on the basis of aforesaid averments."
' Further disposed of petition with direction as follow :--- " In view of the all discussed situation, documents. The contents of petition and rejoinder filed by respondents. It is decided that involvement of respondent No.2, which is necessary in the matter in hand being Registrar Trade Union, Balochistan. So, I refer the matter to respondent No.2, to conduct fair election of the unions for the terms of two years from 2013 to 2015, in a democratic way under his supervision being impartial towards both panels within the period of two months from the date of this judgment, after providing ample opportunities to the panel according to law and procedure mentioned in Balochistan Industrial Relations Act, 2010."
6. The learned counsel for appellant contended that in view of decision of General Body Chairman of Election Committee was appointed with the consent of opposite panel. Further contended that the petition before learned Labour Court was not maintainable for the reason that in the light of BIRA, 2010 he was under obligation to approach first the Registrar Trade Union but approached direct the Labour Court. Next contended that documents relied upon by the parties have not been considered by the Learned Labour Judge and self-made conclusion drawn and direction made for holding election.
7. The learned counsel for respondent No.1 on the other hand stated that the Chairman Election Committee namely Khan Zaman appellant No.2 was a retired civil servant and in view of the judgment dated 5-9-2013 of this Tribunal he was not competent to be appointed as Chairman Election Committee. Further contended that some candidates of opposite group were already holding the post of different office barriers. Lastly he supported the impugned judgment. The representative of Registrar Trade Union submitted his written reply with the averment that they have not issued certificate of office barriers of petitioner No.1 because the matter of election was sub judice before the court.
8. From perusal of available record it appears that election schedule was issued by the petitioner No.2 being the Chairman of Election Committee. Apart from election schedule some conditions/principles also mentioned. From those conditions Nos.19 and 20 are very important which is reproduced as under:-- {{URDU TEXT}} ' Record further reveals that from panel of respondent/petitioner Muhammad Gull and Naseer Ahmed on 5-1-2013, Ejaz Ahmed no date is mentioned, Muhammad Aslam, Abdul Razaq on 7-1-2013 appeared before Election Committee by means of application on the plea that neither they are members of the opposite panel nor they are participant in election. On above-mentioned application on 9-1-2013 the Chairman Election Committee rejected the nomination papers of respondent No.1/petitioner and declared the panel of appellant/respondent as successful candidates unopposed for tenure of two years. In view of above facts the moot question in the instant appeal is as follow:---
(1) Whether from withdrawal of some persons in panel the entire candidature of panel can be rejected?
(2) According to election schedule 9-1-2013 was fixed for scrutiny of nomination papers whether it was necessary to be carried out in presence of contesting parties or otherwise?
(3) Whether a retired civil servant could be appointed as Chairman Election Committee?
9. Taking the third question the learned counsel for respondent referred a judgment of this Tribunal dated 5-9-2013. This authority is not favorable to the respondent because in referred judgment it was held that a retired civil servant cannot been elected as office barriers of union but in this case a retired civil servant was appointed as Chairman Election Committee holding no post of office barrier of any union. Therefore the contention of learned counsel is not sustainable under the law.
10. Taking into consideration the question at serial No.1 both the learned counsel including the representative of Registrar Trade Union referred no law/judgments of Superior Courts in their favour or against the other party. It is settled principle of law that in general election as well as that of unions if a person withdraw his nomination papers, absent on the day of scrutiny along with his proposer and Seconder or through representative his papers are liable to be rejected/withdrawn.
Here in case in hand it was decided in election schedule that nomination papers should be filed on the basis of panel group. According to available record six candidates of the panel of respondent No. 1/petitioner submitted application before Chairman Election Committee for withdrawal of their candidature on 5-1-2013 and 7-1-2013.
11. It is necessary that point No.2 be looked in sequence of question No.1 where 9-1-2013 was fixed for scrutiny of nomination papers but the same was not conducted and the nomination paper of panel group of respondent No. 1/petitioner was rejected and panel of opposite party was declared to be successful panel. The Chairman Election Committee while rejected the panel group based his contention at item 20 of election schedule which has been reproduced hereinabove but the meaning of Item No.20 of election schedule is against the procedure adopted by Chairman Election Committee for the reason that it is mentioned in election schedule that if a party has not come before election committee the other group would be declared unopposed and the procedure of election would come to an end. According to available record and written statement of Chairman Election Committee respondent/petitioner filed panel nomination papers but later on according to Chairman Election Committee five candidates of the panel not only withdrawn their nomination papers but also declared their self to be not members of the concerned union. As stated above 9-1-2013 was fixed for scrutiny the Chairman Election Committee was under obligation to issue notice to the head of the panel group on the basis of applications of five candidates to clarify the position of panel group. It appeared that this procedure was not adopted by the Chairman Election Committee. Second remedy was that in the presence of the parties on 9- 1-2013 i.e. date of scrutiny would be conducted firstly on the ground that whether the applications of five candidates were genuine or otherwise, secondly the head of panel asked to substitute the five candidates a fresh or the nomination papers would be rejected to the extent of five withdrawn candidates but the Chairman Election Committee failed to adopt such procedure.
13. It is the case of respondent/petitioner that on 9-1-2013 he along with other candidates and members reached Animal Hospital at 10 a.m. for scrutiny but till 3:30 p.m. neither the Chairman of Committee nor Members reached there for the purpose of scrutiny. However on the next date they came to know that opposite party was declared unopposed. Such acts/practice indicates some mala fides on the part of Chairman Election Committee. It further revealed from record when election schedule was announced no authentic list of Labour was obtained from the concerned department. Contrary to this according to Election Committee a list was obtained from Ex- President who was himself a candidate in election. It was necessary that such list of Labour were required to be obtained from the concerned department through Registrar. However such list is not available on record. This aspect of the case also injured the process of election.
14. Usually for conducting of election of a union the involvement of Registrar Trade Union is necessary but here he was not involved. For this purpose section 24 subsection (5) of BIRA, 2010 is very clear though the above mentioned section is with regard to Collective Bargaining Agent but same is applicable in this matter because the matter of CBA was also required to be decided through election same is reproduced as under:--- "The Registrar shall, after verification of the lists submitted by the trade unions, prepare a list of voters in which shall be included the name of every workman whose period of employment as computed in accordance with subsection (4), is not less than three months and who is a member of any of the contesting trade unions and shell, at least four days prior to the date fixed for the poll, sent to each of the contesting trade unions a certified copy of the list of voters so prepared."
Likewise section 24 subsection (9) of BIRA, 2010 was also not taken into consideration for the purpose of election. Furthermore a list of workers prepared by the ex-president was taken into consideration by the Election Committee without verifying from other panel or that of concerned government department.
15. In view of discussion made hereinabove the Learned Labour Court was justified, for direction of holding fresh election between the parties in a fair manner. Therefore the order/judgment passed by Learned Labour Judge dated 19-6-2013 is upheld. Consequently appeal is dismissed having no force with no order as to cost.
16. The copy of order along with original record of trail court be sent to court. Case after completion be consigned to record. .