' ABDULLAH BALOCH, MEMBER.--- This Revision Petition is directed against the impugned judgment dated 30-04-2015 passed by the 1st Labour Court Quetta Balochistan, wherein application under section 9(7) of Balochistan Industrial Relations Act, 2010 filed by the respondent No, 1 was allowed.
2. Brief facts of the instant petition are that the respondent No,1 filed an application under section 9(7) of BIRA, 2010, that the respondent is a bona fide member of Agriculture Engineering Employees Union Balochistan and contesting candidate as president of Mazdoor Itehad Panel in the election of union and the petitioners Nos.1 and 2 were Ex-President and Ex-General Secretary of Agriculture Engineering Employees Union Balochistan. Their tenure was expired on 07-08-2014. The respondent filed an application to the Registrar Trade Union i.e, is respondent No,3 for conduct of fresh elections for the year 2014-2016, but in contrary the petitioners nominated one Mr. Abdul Hayee, Chairman election committee who is office bearer of WAPDA Hydro Electric Labour Union. The Chairman announced the election schedule on 24-09-2014, whereupon the respondent/applicant filed an application before the registrar to conduct election under his supervision because the petitioners have no mandate after expiry of their tenure to nominate chairman election committee of their own choice and conduct such election, it could not be free, fair and transparent. But the respondent No, 3 Registrar Trade Union failed to take any action on the application of the respondent/applicant. Resultantly, the respondent/applicant filed their nominations as well as raised objection against the Chairman Election Committee. However, thereafter the Chairman Election Committee resigned from his position and the elections were postponed. It is further submitted by the respondent/applicant, he was again approached the Registrar Trade Union vide application dated 16-10-2014, to conduct election of the said union under his supervision, however Registrar Trade Union called upon a meeting and with the consent of both parties an agreement dated 20-10-2014 was executed and signed by the Registrar Trade Union. But in contrary the petitioners on 06-11-2014 issued 2nd schedule of election by their own and thereafter appointed Mr. Abdul Baqi respondent No,2, as a chairman election committee, who is also office bearers of WAPDA Hydro Electric Labour Unions. The petitioners also increased the nomination fee of each candidate upto Two Thousand rupees. The respondent/applicant raised objection against the Chairman Election Committee as well as against the increase of nomination fee and also approached the Registrar Trade Union to conduct election on his supervision but without considering the above said application of the respondent/applicant the panel of the respondent/applicant was forcibly thrown out from the process of election and the Chairman Election Committee declared the panel of the petitioners unopposed successful vide his Notification dated 17-11-2014. It is further submitted by the respondent/applicant that the petitioner No,1 Abdul Ghaffar has been promoted as Workshop Superintendent/ Assistant Mechanical, Cultivation Officer (BPS-16) vide Notification dated 14-05-2014 and he is working and drawing the salary of Grade-16, being an officer, he doesn't fall within the definition of workmen, therefore the petitioner No,1 is not entitle to contest election of union and hold an office of union, and further prayed for declaring the election of petitioners as Null and Void.
3. The application of the respondent No,1 was contested by the petitioners Nos.1 and 2 by way of filing reply, wherein stated that the applicant neither a member of the said union nor he had paid dues from so many years as such he seized to be member of union and further submitted that their tenure was expired on 03-01-2015 because the change was approved by the registrar on 03- 01-2013, though the tenure of union was ended on 07-08-2014. They further submitted that the respondent No,.1 was provided full opportunity by the Election Committee to file its nomination papers, but he was failed to avail such opportunity within the prescribed schedule of election and as a result whereof they have been declared unopposed, successful office bearers. The application was also vehemently opposed and contested by the petitioners Nos.1 and 2 and prayed for dismissal of application filed by the respondent No, 1.
4. The application of respondent No,1 was also contested by the respondents Nos.3 and 4 by filing their written reply wherein vehemently opposed the contention of the respondent/applicant.
5. Out of the pleading of parties, the Learned 1st Labour Court Quetta framed as many as 6 issues as under: ISSUES:--
1. Whether the respondent No, 1 being an officer of grade-16 has the right to contest or hold the office of the Union under the Law of BIRA, 2010?
2. Whether the respondents Nos.1 and 2 elected unopposed according to Law?
3. Whether the applicant is Member of Agriculture Engineering Employees Union Balochistan and he has given the chance for submission of Nomination paper?
4. Whether the respondents Nos.1 and 2 were not bound to comply with the agreement dated 20- 10-2014 as signed by both the parties and respondent No,4?
5. Whether the respondents Nos.1 and 2 have the right under the Law to hold the offices of Union after expiration of tenure of two years?
6. Relief?
' After framing the issues both the parties were directed to adduce their respective evidence with regard to their claims, respondent/applicant produced PW-I Abdul Rehman S/o Haji Khaliq Dad and lastly record his own statement. In rebuttal the petitioner/respondents Nos.1 to 3 produced RW-I Muhammad Ramzan S/o Abdul Sattar, RW-II Abdul Ghafar S/o Abdullah Khan and RW-III Ghulam Sarwar S/o Qaim Khan.
6. After recording evidence and hearing the parties the Learned Trial Court accepted the application of the respondent/applicant, wherein held that the tenure of the said union was expired on 07-08-2014 and after expiry of their tenure respondents Nos.1 and 2 and other office bearers of their panel have no authority or right to hold office of union by using the previous designation and the Learned Trial Court also declared that the petitioner No,1 Abdul Ghaffar being Officer of Grade- 16 working as Workshop Superintendent, is incompetent to contest election of the Labour Union, therefore the election conducted under his Presidency has no authenticity in the eyes of law, as such the Notification dated 17-11-2014 is declared null and void. The Learned Trial Court further directed the Registrar Trade Union to conduct fresh election in his supervision after fulfillment of all codal formalities according to law within a period of one month.
7. Mr. Azam Jan Zarkoon Advocate counsel for the petitioners contended that the respondent No, 1 has no locus standi to file such application against the declaration of petitioners, because the respondent No,1 failed to deposit membership fee for so many years and seized his membership.
He further contended that the application filed by the respondent No,1 was not maintainable for misjoinder and non-joinder of necessary parties because the election was contested by the complete panel of the petitioners but except petitioners Nos.1 and 2. Non of the other successful Office Bearers were made party to the proceedings as such Judgment Impugned is not binding upon rest of the Office Bearers. He further contended that the objection against the status of the petitioner No,1 Abdul Ghaffar being Officer of Grade-16 is not sustainable because he is on acting charge and neither promoted nor holding a permanent post of Grade-16. Hence his services falls within the definition of workman. He further contended that the respondent No,1 was provided full and fair opportunity to contest election but he was failed to file his nomination papers within the prescribed schedule, hence lost his right to challenge the result of election. He further contended that the judgment impugned passed by the 1st Labour Court Quetta suffers from material illegalities and irregularities and not sustainable and liable to be set aside.
8. On the other hand Mr. Muhammad Ibrahim Khan Advocate counsel for the respondent No, 1 vehemently opposed the contention so raised by the counsel for the petitioners and contended that the earlier tenure of the petitioner was expired on 07-08-2014. They had no authority to announce election schedule on 06-11-2014 after expiry of their tenure and to nominate Chairman Election Committee. He further contended that the petitioner No,1 was promoted as Workshop Superintended/Assistant Mechanical Cultivation Officer BPS-16 on 14-05-2014, was not competent to contest election of Labours Union. He further contended that after expiry of their tenure the proceeding so carried out by the petitioners were illegal and without lawful authority. He further contended that the respondent and his panel was deprived from their legal rights of contesting election and casting their valuable votes, as such the unopposed declaration of petitioners as successful Office Bearers could not sustainable under the law. He further contended that the Learned Trial Court has rightly accepted application of the respondent, he further contended that the counsel for the petitioners has been failed to point out any illegality or irregularity in the Impugned judgment.
9. The respondent No,2 supported the contentions of the petitioners, while the representative of respondent No, 3 opposed the contentions of the petitioners and supported the impugned judgment.
10. I have heard the counsel for the parties at considerable length 'and has also gone through document annexed with the petition as well as case law cited at bar.
11. The record reveals that the tenure of the earlier cabinet of the elected body of union after completion of 2 years was expired on 07-08-2014, wherein petitioners Nos.1 and 2 were remain Ex- President and Ex-General Secretary respectively which is an admitted fact from the perusal of record and admission of the parties in their statement recorded before 1st Labour Court Quetta. In this regard Notification for change of Office Bearers for the year 2012-2014 was notified by the Registrar Trade Union vide its letter dated 03-01-2013, wherein clearly mentioned that the Office Bearer of Union selected unopposed on 07-08-2012. For year 2012-2014 Contents of the aforesaid Notifications were not denied by the parties, rather admitted by the petitioner No,1 in its cross- examination as well as admitted by the petitioner No,2 in his cross-examination. In view of the notification dated 03-01-2013 and admission of the fact, the tenure of the office was expired on 07- 08-2014, as such the petitioners were not competent to issue any schedule of election under their authority having no mandate under the law and all the election proceedings carried out and its outcome results becomes null and void.
12. Next question involved in instant petition is that whether the petitioner No,1 has hold the post of Superintendent BPS-16, on bear perusal of record. The Notification dated 14-05-2014 annexed with the record is clearly showing the petitioner No,1 was allowed to hold the acting charge of Workshop Superintendent/ Assisant Mechanical Cultivation BPS-16 to draw pay of the higher post. In this regard the pay slip of the petitioner No,1 was also part of record which was not denied by the petitioners. While the counsel for the petitioners agitated that the petitioner No,1 is holding acting charge of BPS-16 which doesn't change the status of the petitioner being workman. While on the other hand by query of this Tribunal, the petitioner No,1 admitted before the Court in presence of his counsel that 250 employees are working under his supervision being acting superintendent attention of counsel for petitioners was invited towards the definition of workman provided in section 2(dd) of Balochistan Industrial Relations Act, he agreed the same for convenience, the relevant section is reproduced as under: "S.2(dd) of BIRA, 2010 "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 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 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 who is employed mainly in managerial or administrative capacity."
13. The question for determination relates to the status of respondent is to whether he falls to the category of workman or not, I am fortified by the judgment of Honorable Supreme Court of Pakistan reported in 2007 PLC page 410, wherein held that, "7. The next question for determination relates to the status of the respondent as to whether he falls within the category of 'workman' or not. The respondent was employed as Superintendent (E&M) in Fauji Foundation and his duty was to check the work of contractors and prepare the measurement book, therefore, the question for consideration would be whether he predominantly was performing the manual work of preparing the measurement book or it was an ancillary duty to his main work of supervision of the contractors and consequently, the assignment of Superintendent (E&M) by designation and power vested in it appears to be supervisory in nature.
8. The expression "Superintendent" in plain words means, a person who exercises the power of superintending in supervisory jurisdiction with some authority or control in certain matters whereas the 'worker' section 2(xxviii) of Standing Orders Ordinance, 1968 as under:-- 2(i) "workman" means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward."
10. The careful examination of the proposition in the light of law on the subject, the expression 'Superintendent' in general is used in supervisory meanings and a person in such capacity by doing some manual work may not acquire the status of 'workman' in terms of IRO, 1969 and Standing Orders Ordinance, 1968. The mere fact that a person in supervisory capacity was also doing some manual work is not sufficient to hold that he is a workman and similarly mere supervisory designation may not bring a person out of the category of 'workman' ."
14. The fact remains that undoubtedly the petitioner No,1 in his capacity as superintendent BPS- 16 has been supervising the work of Agriculture Workshop for last one year, getting salary and all benefits whereof, no doubt he did not have the power to hire and fire, but the nature of job as performed by him and evident from record, primarily and essentially appeared to be of supervisory nature, which clearly fall beyond the ambit and purview of the term, "workman". In this regard I further rely upon the judgment reported in 2007 PLC Page 400, relevant portion is reproduced as under: "The fact remains that undoubtedly the petitioner in his capacity as Officer Grade-II has been heading a department of the respondent establishment independently and supervising the work of at least five persons. No doubt, he did not have the power of hire and fire, the nature of job as performed by him and evident from the record, including the power of attorney executed in his favour tends to show that he was not primarily unskilled work. The nature and duties performed by him primarily and essentially appeared to be of managerial and supervisory nature, which clearly fall beyond the ambit and purview of the term workman"."
15. In this regard the Learned Trial Court decided issue No,1 after proper appreciation of record and evaluation of evidence recorded by the parties and had rightly declared the petitioner No,1 being Officer, doesn't fall within the definition of workman. And also rightly declared that the petitioner No,1 was not entitled to contest the election of Labour Union, I agreed with the findings of the Trial Court.
16. The contention of counsel for the respondent No,1 that being member of the Union, the respondent No,1 was not given a fair chance for submission of his nomination paper and contesting election. In this regard record reveals that the election schedule was announced by the petitioners after expiry of their tenure was illegal exercise and the respondent No,1 raised objections time and again before the Registrar Trade Union and the same application are also annexed with the record and supported by the statements of the PWs and glaring admission of the fact by the RWs in their statements that the tenure of the earlier cabinet was expired on 07-08-2014. So admittedly the illegal and unlawful election schedule was announced and supervised by the petitioners and their nominee Chairman Election Committe with mala fide intention, just to debar the respondent No,1 from election process. The learned counsel for the respondent No,1 in support of his contention referred the case law reported in PLC 2010 Page 174, the relevant portion is reproduced as under: "----S.6(1)(J)--- period for holding office by elected office bearers---Scope---Under provision of S.(1)(J) of Industrial Relations Act, 2008, the period for which a office-bearer was elected, was a maximum of two years---If said period of two years had passed and an office bearer would continue to hold office without further election, then he would be treated as usurper; and his holding of such office would be without lawful authority and of no legal effect."
' The perusal of afore quoted judgment showing that after expiry of two years holding office of the union without further election it would be treated as "Usurper" and holding of such office would be without legal authority and having no legal value. Hence the contention of the learned counsel for the respondent No,1 is having force and I am of the firm view that the respondent No,1 was not provided fair opportunity to file nomination papers and contest election, the Trial Court has rightly decided the same point under issue No,3 and I agree with the findings of the Trial Court.
17. The learned counsel for the petitioners has been failed to point out any material, illegality, irregularity in impugned judgment.
18. In the given circumstances, I do not find any infirmity in impugned judgment that could warrant interference by this Court, the petition is devoid of merit is hereby dismissed.
19. The parties are left to bear their own cost.
20. The copy of order along with original record of Trial Court be sent to Trial Court. Case after completion be consigned to record.
21. GIVEN under my hand and seal of the court on 10th August, 2015.