' GULZAR AHMED, J. --- In Civil Petition No, 629 of 2008 filed by the NBP Staff Union, this Court directed the NIRC to hold fresh elections of all CBUs in "the establishment of National Bank of Pakistan (NBP). Pursuant to this direction, the Chairman, NIRC authorized the Registrar, NIRC to hold elections of National Bank of Pakistan Employees Front (NBP Employees Front) Head Office, Karachi, CBU. The list of members of NBP Employees Front was furnished to the Authorized Officer (Registrar). Objections were filed to the list of members by Messrs Shah Rehman and Abdur Rashid respectively candidates for the post of General Secretary and President. Objections were also filed by the NBP. The substance of the objections before the Registrar was that officers Grade-I to III are not workmen and their names should not be included in the list of members of NBP Employees Front. The Registrar through his order dated 30.09.2009 concluded that Officers Grade-I to III are workmen and thus rejected the objections. NBP challenged this order of the Registrar by appeal before the Full Bench of NIRC which through its order dated 29.04.2010, allowed the appeal by setting aside the Registrar's order dated 30.09.2009 and directed that the process of holding of elections be initiated afresh with finding that Officers Grade-I to III are not workmen. NBP Employees Front challenged this order of the Full Bench of NIRC in Writ Petition No, 2402 of 2010 in the Lahore High Court, Rawalpindi Bench, which was transfered to the Islamabad High Court. The Islamabad High Court disposed of the Writ Petition vide order dated 12.03.2013 on the basis that parties have amicably decided that the list finalized by the Registrar be used for the purpose of elections. NBP filed review application against the order dated 12.03.2013. Two Writ Petitions No, 3948 of 2013 and 4061 of 2013 were filed in the Islamabau High Court, Islamabad.
2. Writ Petition No, 4061 of 2013 was filed by Muhammad Afzal, a candidate for Joint Secretary challenging the inclusion of the names of Officers Grade-I to III in the list of members of NBP Employees Front and has also challenged the list prepared in 2009 with further observations and that despite the order dated 12.03.2013 in Writ Petition No, 2402 of 2010, the order of the NIRC holds the field.
3. "Writ Petition No, 3948 of 2013 was filed by Anwar Shah, Chairman, NBP Employees Front and Fahim Ahmed Khan, Senior Vice President, NBP Employees Front challenging the candidature of Respondents No, 3 to 13 on the ground that they are not workmen. The order dated 12.03.2013 passed in Writ Petition No, 2402 of 2010 was assailed being not based on amicable settlement. The calling of meeting on 07.10.2013 finalizing the schedule and issuing final list of candidates on 14.10.2013 by the Registrar was also questioned.
4. The Review Petition of NBP and the two Writ Petitions were heard by a learned Judge in Chamber who through a common judgment dated 29.10.2013 allowed both the writ .petitions declaring the election process earlier initiated to be illegal as it was based on old list on which the Court was misguided and directed the Registrar to conduct elections by announcing schedule after preparation of voters list by elaborate sifting of those who cannot be termed as workmen' as defined by law. The Review Petition was also disposed of with same consequence. The NBP Employees Front filed two ICAs against this judgment being ICA No, 1131 of 2013 and 1132 of 2013. On 01.04.2013 both these ICAs were withdrawn to approach this Court. NBP Employees Front filed C.P.
No, 800 of 2014 against the impugned judgment dated 29.10.2013, passed in Writ Petition No, 3948 of 2013. NBP has filed C.Ps. No, 2119 to 2121 of 2013.against the impugned judgment, passed in the two Writ Petitions so also the order passed in the review petition. ICA No, 1131 of 2013 was filed by NBP Employees Front against the judgment passed in Writ Petition No, 4061 of 2013 but it appears that after withdrawing of the said ICA, it did not file any proceeding in this Court against the judgment in. Writ Petition No, 4061 of 2013.
5. We have heard the learned counsel for the parties at length and have also gene through the record of the case.
6. Mr. Shahid Anwar Bajwa, learned ASC for the NBP during the course of his submission has brought to our notice that in compliance of the impugned judgment, the Registrar has concluded the proceeding of finalization of the list of members of NBP Employees Front in which he has excluded Officers Grade-I to III from the category of workmen with the observations that status of Officers Grade-1 to III could only be decided by a competent forum and has Qunalized the list of candidates and announced the election schedule. The order dated 11.02.2014 of the Registrar was placed on record. Qazi Ahmed Naeem Qureshi, learned ASC appearing for NBP Employees Front conceded that this order of the Registrar has not been challenged.
7. The basic thrust of the arguments of the learned ASCs for the parties before us has been on the point whether Officers Grade-I to III are workmen or not. The contention of Mr. Shahid Anwar Bajwa, learned ASC for the NBP was that the Officers Grade-I to III are not workmen as per the very definitions of the terms 'workmen' and 'employer' given in the Industrial Relations Act, 2012 (the Act) and on added grounds that these Officers are not the beneficiary of settlement made between the CBA and the management of NBP and secondly as per Section 22 of the Act no subscription for union is deducted from their salary. He further contended that in terms of sub-section (5) of Section 19 of the Act, the Registrar is required to prepare a list of voters in which shall be included the name of workman and who is also a member of the contesting trade unions. The learned ASC relied upon the case of National Bank of Pakistan v. Punjab Labour Court No, 7, Gujranwala '& others (1992 SCM R 1891) and National Bank of Pakistan v. Punjab Labour Court No, 5, Faisalabad & others (1993 SCM R 672). On the other hand, Qazi Ahmed Naeem Qureshi, learned ASC for the NBP Employees Front has in the first instance contended that as the NBP Employees Front had availed remedy of filing an ICA and on learning that such ICA is not maintainable, immediately withdrew the same and filed a petition in this Court. He contended that the delay in filing of the petition be condoned. He further contended that the definition of the term 'workmen' includes a supervisor also and the Officers Grade-I to III are doing work of a supervisory nature, therefore, they are workmen as defined in the Act. As regards subscription, he contended that deduction of subscription from the salary of some of the officers was made but NBP had stopped making such deductions. In support of his submissions, the learned ASC has relied upon the case of Abdul Sattar v. Vth Sindh Labour Court, Karachi & 2 others (1984 PLC 181), Abdul Razzaq v. Messrs lhsan Sons Limited & 2 others (1992 SCM R 505) and Dost Mohammad Cotton Mills Ltd., Karachi v. Mohammad Abdul Ghani & another (PLD 1975 Karachi 342).
8. Although Civil Petition No, 800 of 2014 is barred by 109 days and it is explained that such time was consumed in pursuing remedy of ICA. As the impugned judgment in all the four petitions being the same and decision in the three petitions of NBP will also decide the issue raised by it before this Court, therefore, in these peculiar circumstances, we condone the delay. Section 2 (xxxiii) of the Act defines the terms 'worker' and 'workman', which is as follows:--- "worker" and "workman" mean 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 are 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 enforcement 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."
' Section 2(ix) of the Act defines the term 'employer' which is as follows:--- "employer" in relation to an means any person or body of persons, whether incorporated or not, who or which employs workmen in the establishment under a contract of employment and includes--- (a).........
(b).......
(c)........
(d)..........
(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;"
' The 'worker' and the 'workman' defined in the Act mean person not falling within the definition of 'employer' who is employed as a supervisor or as an apprentice but does not include a person who is employed mainly in managerial or administrative capacity. On the other hand, the 'employer' as defined in the Act includes a person who is proprietor, director, manager, secretary, agent or officer or person concerned with the management of the affairs of the establishment. The term 'officer' is specifically mentioned in the definition of term 'employer'. However, as has been noted from the case-law cited by the learned counsel for the parties, the Courts have not considered the designation of a person to be a factor determining his status of employment in an establishment to be that of an officer or a workman rather the Court has always considered the nature of duties and functions of a person to be the factor which will determine his status as to whether he is a workman or not. In this respect, we may refer to the case of National Bank of Pakistan v. Punjab Labour Court No, 5, Faisalabad (1993 SCM R 672), which was a case relating to an Officer Grade-II of NBP against whom disciplinary action was taken. He approached the Labour Court for redressal of his grievance claiming himself to be a workman. The matter came up to this Court and it was held that the designation per se is not determinative of a person being a workman rather the nature of duties and function determine his status and the burden is on him to establish that he is a workman. As the Officer Grade-II failed to discharge his burden, he was held not to be a 'workman' and his grievance petition was dismissed. The ratio of this case and also of the other cases that have been relied upon by the learned counsel for the parties is that the person who approaches a Labour Court for redressal of his grievance claiming himself to be a workman and such status of workman being denied by the employer, it becomes a bounden duty of a person who approaches the Labour forum to demonstrate through evidence that his nature of duties and functions were that of a workman and not that of a managerial or administrative capacity and that he was not an employer. Unless such categorical evidence is led by him, he will not be considered to be a workman and his grievance petition will not be maintainable before the Labour forum. It, therefore, implies that the officer cannot be assumed to be workman nor such can be declared on mere asking. The argument that officers Grade-I to III are performing supervisory function in itself means that this has to be established by evidence. In this view, of the, matter, on a solitary claim of the union no blanket declaration can be given that the Officers Grade-I to III in the establishment of NBP are workmen.
9. We may also here make reference to the case of Karachi Pipe Mills Employees Union v. Karachi Pipe Mills Ltd., Karachi (1992 SCMR 35), where union has filed an application under Section 34 of erstwhile Industrial Relations Ordinance, 1969, claiming payment of benefit of overtime to the workers employed in the Mills. This Court, after elaborate discussion, came to the conclusion that CBA in an application under Section 34 of the Ordinance can only raise grievance before a Labour Court for enforcement of ;ts own rights guaranteed under the law, award and settlement and not the rights of an individual worker who has remedy under Section 25A of Ordinance to raise his own grievance in respect of right guaranteed to him under any law, award or settlement. Sections 60 and 33 of the Act are in similar term as that of Sections 34 and 25-A,of the Ordinance. Thus, for this reason also NBP Employees Front was not competent in taking up the cause of Officers Grade-I to III of having them declared as 'workmen'.
10.After hearing learned counsel for the parties, the following short order was passed by the Court:-- "For the reasons to be recorded later, C. Ps. No, 2119 to 2121/2013 are converted into appeals and allowed. The impugned judgment of the High Court is set aside and that of the NIRC dated 29.04.2010, is maintained However, if anyone has individual grievance against the said order, he may approach the appropriate forum. Consequently, C.P.No, 800/2014 is dismissed".
11.Above are the reasons for the same.