ABDUL GHIAS NOUSHERWANI (MEMBER).--- Petitioner being aggrieved by the common order passed in two cases by Learned Presiding Officer 1st Labour Court Balochistan dated 30-4-2013 wherein conducting of referendum was directed by the Trial Court.
2. The petitioner in Case No.37 of 2012 is applicant and in Case No.35 of 2012 is respondent No.
1. Briefly stating the facts of the case that trade union of respondent No.2 in Case No.37 of 2012 was deregistered by the order of learned Labour Court which has been upheld till honorable High Court of Balochistan. Thereafter by a slight change of the name of trade union they formed another union which was registered by Registrar Trade Union. The appellant in Case No.37 of 2012 challenged the registration order of the rival union on the ground that the office barriers of union at serial Nos.1, 2, 6 and 11 are the same office bearer of the previous union which was deregistered by the court. In Case No.35 of 2012 the newly created Labour union challenged the registration of that union on the ground that its members mentioned in lists are fake, union was formed for a purpose to receive money and other facilities and mainly that the President of the said union was a retired officer and under the law retired Government servant cannot be elected office bearer and requested for the deregistration of the said union.
3. The learned Presiding Officer of 1st Labour Court after hearing the parties consolidated both the cases and came to the conclusion which is reproduced as under:--- "In the aforementioned discussed situation I am in the opinion that only solution for resolving the matter between both the Unions is that the matter should be sent to the Registrar Labour Trade Union for Referendum under section 42(2) of Balochistan Industrial Relations Act, 2010, After invoking the jurisdiction and powers given under section 12 of the Balochistan Industrial Relation Act, 2010. Thus, I, without any hesitation do sent the case of Sultan Muhammad Mazdoor Yar the General Secretary of Balochistan Public Health Engineering Unions and Balochistan Public Health Engineering Labour Union to the Registrar Trade Union for referendum between them strictly in accordance with the procedure mentioned under section 24(2) of Balochistan Industrial Relations Act, 2010, within the period of one month from the date of receiving the copy of order of this Honorable Court. The Registrar Trade Union is further directed to adopt the procedure mentioned in Balochistan Industrial Relations Act, 2010 and call the both applicants through proper notice.
Further after referendum to submits his detailed report before this Honorable Court without any delay.'
4. The learned counsel for appellant stated that respondent union was deregistered by the order of the court on the ground of disobedience of orders of the courts. Therefore the office bearers of disqualified union are not entitled to be elected as office-bearer. On the other hand the learned counsel for respondent No.1 contended that nothing mentioned in BIRA, 2010 and other relevant laws that the office-bearer of a deregistered union cannot be elected as office bearer of newly created union. Further submitted that the union of appellant has violated the law that a retired person could not hold/elected as office-bearer of union but the president of the union has been retired since long and even than he does not fall within the category of worker. After compulsory retirement he approached Service Tribunal for redressal of his grievance which was dismissed and now his appeal is pending before Honorable Supreme Court of Pakistan.
5. As stated in brief facts the moot question for consideration are as follow:---
(a) whether the office bearer of the deregistered union can be elected as office bearer in newly created union?
(b) Whether a retired person can hold/elect as office bearer in a union?
' So for as point 'a' is concerned though no bar has been mentioned about disqualification of office-bearer of deregistered union. The learned counsel for appellant in support of his contention referred two reported judgments of Punjab Labour Appellate Tribunal but both are not useful to determine this question for the reason that it is stated in afore said judgments that bar contained in sections 7 and 12(2) of Industrial Relation Act, 2008 are not qualified to be elected as office- bearers of union. Section 7 of the Act is with regard to disqualification for being an officer of a trade union which states that a person who has been convicted of offence under section 77 of the Act or heinous offence under the Pakistan Penal Code shall be disqualified from being elected as or from being an officer of a trade union. Section 12 subsection (2) of the Act states that where any person who is disqualified under section 7 from being elected as, or from being an officer' of a trade union is elected as officer of a registered trade union the registration of that trade union shall be cancelled in the Labour Court upon a complaint in writing made in this behalf by the Registrar.
From perusal of above mentioned sections of law it is clear that a person who was convicted under the relevant provision of Pakistan Penal Code cannot be elected as office bearer of a trade union.
In this contest nothing brought on record except reported judgment in 2010 PLC 477 and 1424 which has been discussed in above paragraph.
6. The important question is that a trade union dissolved/ deregistered by the order of the court but the office bearer of the dissolved trade union form and registered another union by the change of its name. It has to be determined that what is union? Whether the union as a body is liable to be dissolved/disqualified on the fault/wrong of its office-bearer. The Labour union has been defined in Black's Law Dictionary, Fifth Edn. in the following manner:--- "Definition---"incorporated" and "unincorporated" unions---Distinction.
' Union is an organization of employees furthering the interest of workers with respect to higher wages, improved Labour conditions, bettering the hours of Labour. In other word, it is a combination of workman for the purpose of securing by united action favourable conditions as regards wages, hours and terms of employment by bargaining on behalf of the workers with employers.
' A Labour union can either be a corporate body or an unincorporated body.
' An unincorporated union can function and for certain purposes, it can be treated as a legal entity.
However, it may be stated that since strictly speaking an unincorporated body is not a legal entity for all intents and purposes, it is doubtful, whether it can enter into a binding contract on behalf of its members with its employer. On the other hand, a corporated/registered union is a legal entity, and thus it can enter into a binding contract with an employer. Any change in the membership will not affect its legal status."
From perusal of definition of Labour union in my humble view a trade union is a body of Labours and the office bearers runs affairs of union according to the Constitution of the trade union for the welfare of its members. In other words the office bearers of the said union if violate the provision of the Constitution of the union the penalty of deregistration impose by the courts. Result is that on fault of office bearer the union is to be punished. Net shall result of above discussion is that it is not the fault of body of Labour (union) but that of the office bearer who are liable to be disqualified so being elected as office bearer of the newly created union. Therefore office-bearer of newly created union by name and Style Balochistan Public Health Engineering Workers Union who were officer of deregistered union are not qualified to be elected/chosen as office-bearer.
7.
Coming on point 'b' that whether a retired Government servant is qualified to be elected as office- bearer of union. Admittedly Noor-ud Din Bughti President Pakistan Public Health Engineering Labour Union was compulsory retired on 6-8-2011. Against removal order an appeal was filed by him before the Balochistan Service Tribunal Quetta bearing No.398 of 2012 which was dismissed on 12- 12-2012. Against this order Constitutional Petition No.88 of 2013 (service laws matters compulsory retirement) is pending in Honorable Supreme Court of Pakistan. The available record reveals that Noor-ud-Din Bughti was performing his duty with the Department as Drilling Supervisor. Meaning thereby that his services were supervisory in nature and does not fall within the definition of worker for the reason that category of supervisor apparently does not fall in the category of worker.
Secondly it is further establish that after his compulsory retirement he approached the Service Tribunal being a Government servant. Thereafter the dismissal of appeal he filed Constitution petition before honorable Supreme Court of Pakistan. Therefore he is not entitled/qualified to be elected to be President or any other post of office-bearer. The above contention is supported in a reported judgment 2007 PLC 240 wherein it is held, "Validity---Petitioner after his retirement being no more a workman, there was no question of any unfair Labour practice on part of employers against him or his victimization on account of his trade union activities, which were connected with his service which was no more in the field and a retired employee could not approach National Industrial Relation Commission."
8. In view of above discussion impugned order dated 30-4-2013 passed in Cases Nos.35 of 2012 and 37 of 2012 by learned 1st Labour Court Balochistan is upheld with the following modifications:-- -
(1) Both the cases are remanded to Learned Registrar in comply of this order by directing the office bearer of appellant unions to elect the qualified person as President to substitute Noor-ud-Din Bughti, as he is a retired Government servant.
(2) The other union namely Pakistan Public Health Engineering Workers Union be directed to substitute the office bearers at serial Nos.1, 2, 6, and 11 who were officer of the deregistered union.
(3) After receiving such change of office bearers the order ,of Learned Presiding Officer 1st Labour Court Balochistan dated 30-4-2013 be complied to conduct referendum in stipulated period under the law.
' However the parties are left to bear their own costs.
9. The copy of order along with original record of trail court be sent to trial court. Case after completion be consigned to record.