' This petition is directed against the list of voters (Annexure E to the petition) prepared by the respondent No, 2.
' The brief facts leading to the filing of the petition are that the petitioner is a Trade Union and at present is also collective bargaining agent of the workers employed on work charged basis with the respondent No,
6. Whereas the respondents Nos. 3, 4 and 5 are also Trade Unions working in the respondent No, 6 organization. It seems that on 16th September, 1979 the election of the petitioner- Union Office bearers was held and one Imadullah was elected as the General Secretary, defeating his rival candidate S. Afzal Hussain. The above election was challenged in the Lower Court through an appeal under section 8 (7) of the R.
0. Which was dismissed by an order dated 12th January, 1980 (Annexure B to the petition). It further seems that the change in the office bearers was conveyed to the respondent No, 1 by the petitioner union through its letter dated 16th October, 1979, which was accepted by the aforesaid respondent No, 1 1. e. The Registrar of Trade Unions. It further seems that on 24th March, 1980, the respondent No, 5 moved an application before the respondent No, 1 for determining of a new Collective Bargaining Agent under section 22 2) of the I. R.
0. For the establishment of the respondent No,
6. Furled seems that the petitioner Union and the other unions raised no objection to the above request. It also seems that after that the respondent No, 2 prepared the voters list in pursuance of section 20 of the I, R.
0. With the object to hold the above election for electing the bargaining agent. It has been averred in the petition that the names of Imadullah referred to herein below and of 185 workmen have been illegally excluded from the aforesaid voters list. It seems that the respondent No, 2 through a letter dated 27th July, 1980, addressed to the President of the petitioner Union informed him that since Imadullah, the General Secretary of the Union was working in the supervisory category and was drawing more than Rs, 800 per month as salary, he did not come within the definition of workman as provided for in the I. R.
0. (Annexure C to the petition). The petitioner was also directed to replace said Mr. Imadullah from the post of the Union in accordance with Union Constitution. The petitioner-Union being aggrieved by the above direction and also by the impugned list of the voters has filed the present appeal.
(2)(a) In support of the above petition Mr. Shahenshah Hussain, the learned counsel for the petitioner has made the following submissions :-
(I) That the respondent No, 2 has no power to issue any direction to the petitioner to replace said Imadullah as the Secretary of the Union.
(ii) That Imadullah is in fact a workman within ambit of the 1. R. O.
(iii) That the exclusion of 185 workers from the voters list is ultra vires to the power of the respondent No, 2.
(b) Whereas Mr. Abbas Farooqi, learned counsel for the official respondents has submitted that the respondent No, 2 had the power to issue a direction asking the petitioner union to replace Imadullah as the General Secretary of the Union and that the question as to whether Imadullah comes within the ambit of worker or workman given in section 2(xxviii) of the L R.
0. Was within the jurisdiction of the respondent No, 2, and that this Court cannot interfere in constitutional writ jurisdiction even if there is any error in arriving at the conclusion that the said Imadullah was not a workman.
' As regards the exclusion of 165 workman the official respondents in their counter affidavit have stated that this was done by the consent of all the Unions concerned.
(c) Reverting to the first contention of Mr. Shahenshah Hussain, that the respondent No, 2 had no power to issue a direction to the petitioner Union to replace Imadullah as the General Secretary of the Union, it may be observed that Mr. Shahenshah Hussain has invited my attention to section 7(1)
(d), which provides that the number of persons forming executive, shall not exceed the prescribed limit and shall include not less 75% persons from among the workmen actually engaged or employed in the establishment or establishments or the industry from which Trade Union has been formed. It may be pertinent to observe that according to the above provision even an outsider can be a member of an executive of a Union, but there is an embargo provided so the effect that such number would be up to 25% of the total strength of the executive. In this view of the matter even if it is conceded for the sake of argument that Imadullah was not a workman within the purview of the I. R. 0, he could held the office of the General Secretary of the petitioner Union. The direction given by the respondent No, 2 is clearly without jurisdiction.
(d) Reverting to the second contention of Mr. Shahanshah Hussain that Imadullah falls within the definition of worker or workmen given in the I. R. 0, it may be pertinent to prefer to the definitions of 'employer' and `worker' or workman given in section 2 (viii) (xxviii), respectively which reads as follows :- "Employer, in relation to an establishment means any person or body of persons, whether incorporated or not, who or which employs workman in the establishment under a contract of employment and includes-
(a) an heir, success or assign as the case may be of such person or body as aforesaid ;
(b) any person responsible for the Management, supervision and control of the establishment ;
(c) ' in relation to an establishment run by or under the authority of any Department of the (Federal Government) or Provincial Government the authority appointed in this behalf or, where no authority is appointed the Head of the Department ;
(d) in relation to an establishment run by or on behalf of a local authority, the officer appointed in this behalf or where no officer is so appointed, the Chief Executive Officer of that authority Special provision.-For the purpose of distinction from the category of "worker or workman" officers and employees of a Department of the (Federal Government) or a Provincial Government or local authority, who belong to the superior, managerial, secretarial directional, supervisory or agency staff and who have been notified for this purpose in the official Gazette shall be deemed to fall within the category of employers.
(e) in relation to any other establishment, the proprietor of such establishment and every director, manager, secretary, agent or officer or person concerned with the Management of the affairs thereof."
"Worker" and "Workman" means any 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 be express or implied, and for the purpose of any proceeding under this Ordinance 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)-
(a) who is employed mainly in a managerial or administrative capacity, or
(b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him functions mainly of managerial nature)."
' It may be noticed that a person not falling within the definition of employer will be a worker or workman provided his salary is not more than Rs, 800 and provide further that he is not being, employed in a supervisor capacity. In the instant case it is an admitted position that In a was drawing more than Rs, 800 per month, and therefore, the only question which requires determination is, as to whether his duties were such which can bring him within the purview of the supervisory category as referred to in the above quoted definition of the worker or workman.
(c) Mr. Shahenshah Hussain, the learned counsel for the petitioner has referred to the case of Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another (1) in the case of Pak News Ltd. v. Sind Labour Court 2, Karachi and 2 others (2) in the case
(1) PLD 1975 Kar. 342 (2) PLD 1976 Kar. 73 ' of Bost Muhammad Cotton Mills v. 1Vth Sind Labour Court (1) and the case of Warner Lambort (Pak.
Ltd.) v. Sind Labour Court 3, Karachi and another (2) and the case of Brook Bond Pak. Ltd. v. Connciliator appointed by the Government of Sind and 6 others (3) in support of his contention that Mr. Imadullah given in the I. R.
0. Is a workman within the definition : #TBS (1) #TBE With reference to 1976 Karachi 342, it may be observed that a Judge of this Court while considering the definition of workman given in section 2(1) of the West Pakistan Industrial and Commercial Employees (Standing Orders) Ordinance, 1968 observed that the determination of the status of an employee does not depend upon his designation or salary but is to be determined from the nature of his duties and by ascertaining, whether the worker's duties answer to the description of the work given in the relevant provisions of law. It may be pertinent to observe that in the above case the question for consideration before the Court was, whether a chief accountant in the petitioner company was excluded from the definition of workman given in the aforesaid Ordinance of 1968 and it was held that he was included within the above definition.
(ii) Reverting to 1976 Karachi 73, it may be stated that in the above case the subject matter of the interpretation was the definition of workman given in the News Paper Employees (Condition of Service) Act, 1973, it was held that a circulation manager of the petitioner Company was a workman within the above definition and it was also observed that the duties of a workman whether skilled or unskilled, manual or clerical is the determining factor for the purpose of arriving whether a person falls within the definition of workman given in the Act.
(iii) As regards the 1979 PLC, it may be observed that a learned single Judge of this Court while construing the definition of workman given in section 2(1) of the 1980 Ordinance held that the shift incharge in the petitioner textile mills falls within the definition of worker/workman.
' Whereas in 1979 PLC 370, a learned Single Judge of this Court while construing section 2 (xxviii) of the I. R.
0. Has observed that the definition of workman given in the above provision is presumptive in character which presumes every employee to be a workman unless is covered by the category of supervisor or of employer or of manager or administrator.
(iv) Reverting to PLD 1977 SC 237, the Supreme Court while consultant provisions of section 2 (xxviii) of the I. R.
0. Held that a salesman is not concerned with the management, but incidentally has to account for sales and submit report to the manager and, therefore, he was a workman within the definition of workman given in the I. R.
0. It was also observed that in fact a Branch Manager in charge was in the administrative control and management of the affairs of a depot. {{FOOT NOTE}}
(1) PLD 1979 Dacca 369 (2) 1979 PLC 370
(3) PLD 1977 SC 237 {{FOOT NOTE}}
3. (a) From the above cited and discussed cases it is evident that it is not the designation of an employee which will determine the question as to whether he is a workman within the definition of section 2(xxviii) of the I. R. 0, but it is the nature of his duties. In the instant case the respondent No, 2 has relied upon the alleged statement made by the said Imadullah (Annexure A to the counter affidavit) in order to support the contention that laid Imadullah is not a workman. It may be advantageous to reproduce hereinbelow the above alleged statement which reads as under :- {{URDU TEXT}}
(b) It has been urged by Mr. Shahenshah Hussain that the above statement is fabricated document and that in any case even if it is to be accepted as a genuine statement made by Imadullah, the same does not support the conclusion arrived at by the respondent No, 2 ' On the other hand, it has been urged by Mr. Abbas Farooqui that the above statement was voluntarily made and that the nature of the duties disclosed in the statement clearly brings said Imadullah within the exception provided for in section 2(xxviii) (b) of the I. R.
0. It has also been urged by Mr. Farooqui that in case the respondent No, 2 was competent to decide the above question and even erronous decision would not confer jurisdiction on this Court to set aside the same.
' On the other hand, it has been urged by Mr. Shahenshah Hussain that the respondent No, 2 has no power to decide the question whether an employee is a workman or not but he has to prepare a list of voters on the basis of the lists submitted by the Union and by the employer. According to Mr. Shahenshah Hussain the name of Imadullah figured in the list submitted by the Union as well as by the employer i,e, the respondent No, 6, before taking up the above question as to whether Imadullah comes within the exception provided for in section 2(xxviii) (b), it may be pertinent to consider the question as to whether the respondent No, 2 while preparing the Voters' list for electing a Collective Bargaining Agent is entitled to go into the question, as to whether a particular employee is to be included in the voters list or not and for that to decide whether an employee is a workman within the purview of section 2 (xxviii) of the I. R.
0. I am not inclined to agree with the above contention of Mr. Shahenshah Hussain that the respondent No, 2 was obliged to accept the lists of the workman as submitted by the Union and the employer and that he could not go into the question as to whether a particular employee was a workman or not. In my view the respondent No, 2 was entitled to go into the above question. At the same time I am also not agreeable with Mr. Abbas Farooqui's contention that this Court cannot interfere in writ jurisdiction even if the respondent No, 2 has wrongly excluded the name of any workman from the voters list. In this regard, it may be pertinent to refer to the case of National Cement Industries Mazdoor Union v. Registrar of Trade Unions, Karachi and 2 others (1) in which the validity of a list of the voters for the purpose of Collective Bargaining Agent prepared by the Registrar was challenged and the writ was allowed. It was held that the intent of subsections (5) and (6) of section 20 of the I. R. O. Is that the Registrar should verify the list submitted by the Trade Union and should himself prepare a list which include the name of every workman whose period of employment is not less than 3 months the establishment and who is a member of any of the contesting trade unions and that these workers according to subsection (6) are to be given an opportunity to participate in the referendum to be held for election of Collective Bargaining Agent.
It was also held that a list prepared in violation of the provisions can be set aside by the High Court.
In my view the question as to whether an employee is entitled to cast his vote is a substantial question of law involving the right of franchise and this Court can interfere with an B order if an employee is excluded from the list of voters inspite of the fact that, be falls within the definition of a worker or workman given in section 2 (xxviii) of the I. R.
0.
(d) With reference to the merits of the contention namely, whether Imadullah falls within the definition of a workman given in section 2 (xxviii) of the I. R.
0. It may be observed that from the alleged statement of Imadullah, it seems that he obtains instructions from the Assistant Directors and assures that these instructions are carried out by the workers at the site of work. He also ensures that the work is executed as per Schedule. In my view the above duties do not make him a supervisor or a person holding a supervisory post as to bring him within the ambit of a section 2 (xxviii) (b) of the I. R.
0. The question whether a particular employee comes within the category of the supervisory staff has been the subject matter of the various cases before the superior Courts. In the above cited cases namely, PLD 1975 Kar. 342 and 1979 PLC 367, it has been held that the Chief Accountant and the Weaving Master respectively are workmen within the purview of section 2 (1) of the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968. It has been urged by Mr. Farooqui that since the subject matter of the above cases was the interpretation of a provision of a reenactment, the above rulings cannot be pressed into service for the purpose of deciding the controversy in issue. It is true that in the above two cases the subject (1) PLD 1975 Kar.
885 matter of the interpretation before the Court was section 2(i) of the aforesaid Ordinance. 1968 but the question before the Courts was what should be the criterion for the purpose of determining, whether an employee is a workman or falls within the supervisory category. The guideline provided in the above cases can be pressed into service for the purpose of determining, whether Imadullah falls within the definition of 'workman' given in section 2 (xxviii). It may be observed that in the Carly Warner Lambart (Pak. Ltd.) v. Sind Labour Court No, 3 Karachi, and the case of Brook Bond Pak. Ltd. v. Conciliator appointed by the Government of Sind and 6 others the subject matter of interpretation was section 2 (xxviii) of the I. R.
0. In the former case it was held that a medical representative of a pharmaceutical sales organisation is a workman, whereas in the latter case it was held that a salesman is a workman within the meaning of section 2 (xxviii). In my view as Imadullah had to obtain instructions from she Assistant Director, it cannot be said at he has been employed in a supervisory capacity as to exclude him from the definition of a workman.
(e) With reference to Mr. Shahenshah Hussain's contention that the statement of Imadullah (Annexure 'A' to the counter-affidavit) is fakes one, in my view it is not necessary to decide the above question. Even otherwise, from the comparison of the signatures on the petition and the statement prima facie it seems that the statement in question contains the signature of Imadullah and, therefore, the allegation that it is fake statement seems to be incorrect.
4. (a) Reverting to the last contention, that the respondent No, 2 had no power to exclude from the voters list 185 workmen, it may be pertinent, to refer to para. 9 (ii) of the counter affidavit of the respondent No, 2 which read as follows :- "9(ii) As to sub-para. (2) of para, (9) of the petition, it is submitted that the names of 185 workers were excluded on the joint request of all the contesting Trade Unions including the petitioner made in the joint meeting of referendum held on 31st May, 1980 as recorded in the minutes of the said meeting, because the said 185 workers were admitted on all hands to be contract labour and not the work-charged staff whose Unions were contesting the referendum. The contention that 762 regular employees have been included in the voters list who are not members of any contesting Trade Unions is utterly false to the definite knowledge of the Petitioner. The total number of listed voters is only 686 and the petitioner or any other Trade Union did never point out throughout the referendum proceedings that any of the persons included in the voters list is not a member of any of the contesting Unions."
' From the above quoted para. Of the counter-affidavit, it seems that the respondent No, 2 has excluded the names of 185 employees on the following two grounds :-
(I) That all the contesting Unions and allegedly agreed to exclude their names from the voters' list.
(ii) That it was admitted that the above 185 workmen were contract labour and do not fall within the category of the work-charged staff, whose unions were contesting referendum, It may be observed that the first ground that all the contesting unions had agreed to conclude their names from the voters' list parse itself is not sufficient to defranchise 185 workmen's. The consent on the part of the Unions cannot deprive the workers their rights to vote in electing a Collective Bargaining Agent if they fall within the category of the work charged staff.
(b) However, the second ground that the above 185 workers do not fall within the category of the work charged staff would be sufficient ground for excluding their names from the voters' list. I had called upon Mr. Abbas Farooqui to show me anything from the respondent No, 2's record to indicate that there has been any determination of the question that the above 185 workers do not fall within the category of charged staff, but are contract labour. He was unable to point out any document from the official record that this question was decided. It will suffice to observe that it will be still open to the respondent No, 2 to examine the above question and if on the basis of the evidence, he comes, to the conclusion that the above 185 workers do not fall within the category of the work, charged staff, he may exclude their names from the voters list.
(5) In view of the above discussion I allow the petition to the following extent :
(i) That it is declared that the direction of the respondent No, 2 to substitute Imadullah as the Generals Secretary of the petitioner Union by some other person and also the exclusion of his name from the voters' list are of without lawful authority and of no legal effect.
(ii) That the respondent No, 2 shall re-examine the question as to whether 185 workers excluded from the voters' list on the basis of the alleged consent of the Union fall within the category of charged staff or not, and in case he comes to the conclusion that they fall within the above category, their names will be included in the voters' list.
' The petition stands disposed of in the above terms with no order as to costs.