ABDULLAH BALOCH, MEMBER.--- This appeal is directed against the Judgment dated 30-05-2015 passed by the 1st Labour Court A Quetta whereby accepted the complaint under section 77 of Balochistan Industrial Relation Act, 2010 filed by the complainant.
2. Brief facts arises from the instant appeal are that the respondent No,1 filed a complaint under section 77 of BIRA 2010 against the appellants Nos. 1, 2 and respondent No,4 in the Court of 1st Labour Court Quetta with the averments that he is elected President of Serena Hotel Labour Union, assumed the charge of his office after contesting of election, on 27-09-2012. It is further submitted by the complainant/ respondent No, 1 that the appellants were office bearer i.e, General Secretary and Finance Secretary of the union for last 12 years with exclusive power of Financial matters of the union without any proper' management, after taking charges of office the complainant/respondent called upon appellants to handover record of the union and books of accounts but they were reluctant to do so. It is further submitted by the complainant/respondent that as per provisions of the constitution of the union, the office bearers are duty bound to maintain books of accounts, book's of income and expenditure of the union but the appellants had been failed to maintain the same. Consequently the complainant filed application from time to time to the Registrar Trade Union i.e, respondent No,02 to conduct inquiry and pass direction to the appellants for handing over the union record to the complainant, but despite the directions of the respondent No, 02 the appellants had not provided the record to the complainant. It is further submitted by the complainant that the respondent No,02 conducted an Inquiry through its Inquiry Officer wherein it was found that a huge amount of Rs:1153640/- has been reimbursed from the union account with effect from 1998 to 2012 in the head of monthly subscription of the employees and rent of the office, the actual expenditure incurred to a tune of Rs:96421/- while record of Rs,953620/- and amount of Rs:166175/- shown as granted loan of the different employees was missing, the concerned employees denied to have received any loan. Hence a huge amount of Rs:953620/- and Rs: 166175/- has been embezzled and misappropriated by the appellants being former office bearer of the union and finally prayed for recovery of the aforesaid amount with penalty from the appellants.
3. The complaint filed by the respondent/complainant contested by the appellants on legal as well as on factual grounds wherein raised preliminary legal objections and stated that the appellants/respondents Nos.1 to 3 done all their acts as per the provisions of constitution of union during their tenure Without any complain, whereas the complainant itself was also member of the said cabinet as Joint Secretary in 2006. It is further submitted by the appellants/respondents that they had properly maintained the record and the same record and books of accounts were properly handed over to the newly elected representatives of complainant. They further submitted that since the appellants/ respondents are rival of the complainant's panel and the instant complaint is filed just to harass and blackmail the appellants. They vehemently denied the allegation of embezzlement and misappropriation of union funds.
4. The respondent No,2 also filed his Para wise comments of the complaint wherein supported the version of the complainant, while the respondent No,5 despite receipt of notice failed to contest and proceeded against ex parte.
5. Out of the pleadings of parties the Learned 1st Labour Court Quetta framed as many as four issues as under: "ISSUES:-
1. Whether the complaint is not maintainable in view of Preliminary Legal Objections 'B' and 'C' raised by respondents Nos.1 to 3 in their Written Statement?
' Whether the respondents Nos.1 to 3 refused to hand over the office record and record relating to accounts to the new elected Union?
' Whether the respondents Nos.1 to 3 misappropriated the Union Funds of Rs,953620/- and an amount of Rs,166175/- was given as loan to different employees having no record?
4. Relief?"
After recording evidence and hearing the parties, complaint was allowed vide impugned judgment dated 30-05-2015, by the Learned 1st Labour Court Quetta.
6. Mr. Sarfaraz Ahmed Sheikh Advocate learned counsel for appellants contended that complaint filed by the respondent No,1 against the appellants with mala fide intention, with ulterior motives because the appellants were rival of the panel of the respondent and the respondent leveled false, frivolous and concocted allegations against the appellants. After being elected the respondent No,1 cancelled the membership of the respondents as well as withdrawn the name of the appellants from the draw of Hajj scheme which reflects the mala fide ulterior motives of the respondent. He further contended that the appellants being former representative of the union had properly maintain the record and books of accounts of union in a proper manner and duly submitted the annual statements to the Registrar Trade Union i.e, respondent No,2 on expiry of each year. He further contended that the Inquiry Officer was in league with the complainant and he did not associated the appellants with inquiry proceedings and whatsoever been done by the Inquiry Officer was with the connivance of the respondent No,1 and his colleagues the data so brought on record called to be allegedly embezzled not supported from any sort of document relevant to the record rather the same datas were given to the Inquiry Officer by the complainant/ respondent No,1 and on his behest the Inquiry Officer without proper investigation and providing opportunity of hearing to the appellants given its findings which is not sustainable. It is further contended by the learned counsel prior to this inquiry another inquiry on same allegation was conducted by the respondent No,2's Officer namely Ghulam Rasool and matter between the parties was resolved, as such 2nd inquiry falls under Res judicata and the Learned Trial Court without application of Law and without proper appreciation of evidence given its judgment in an arbitrary manner which is not sustainable and liable to be set aside.
7. On the other hand Mr. Najim-ud-Mengal Mangal, Advocate assisted by Mr. Qazi Jamil-Ur- Rehman Advocate for respondent No,1 vehemently opposed the arguments so advanced by the learned counsel for the appellants and contended that the appellants were holding the office of the union for last 12 to 13 years and without maintaining record of union's funds and reimbursed a huge amount from the account of union. He further contended that the panel of respondent No,1 was elected and taken over the charge of the Office on 27-09-2012 and asked the appellants to provide the office record, Books of accounts of the union, but the appellants were reluctant to provide the same. However time and again the appellants were called upon but record was not handed over to the new elected Office Bearers as a result whereof the respondents filed so many applications with the Registrar Trade Union i.e, respondent' No, 2 to inquire into the matter and direct the appellants to hand over the record to the respondents. He further contended that after so many efforts of the respondents the learned Registrar Trade Union appointed Mr. Zahoor Ahmed Baloch as Inquiry Officer, who conducted inquiry and submitted his report to the Registrar Trade Union wherein held that the appellants had embezzled and misappropriated a huge amount as mentioned in the Inquiry report. He contended that on the basis of the Inquiry report the respondent No,1 filed the complaint before the 1st Labour Court, Quetta for recovery of the said amount from the appellants and the Learned Trial Court after proper appreciation of evidence allowed the complaint of the respondent No,1 and directed the appellants to deposit the same with penalty. He prayed for dismissal of appeal filed by the appellants.
8. The respondent No,4 Mr. Atique Khan present in person and supported the contentions of appellants.
9. The respondent No,2 was representated by Mr. Muhammad Adnan Saleem and Mr. Zahoor Ahmed Baloch Inquiry Officer. Mr. Zahoor Ahmed Baloch while assisting the Court on his Inquiry report contended that he was appointed as Inquiry Officer by the respondent No,2 i.e, Registrar Trade Union vide its letter dated 31-03-2014 to conduct inquiry towards the matter and thereafter he conducted inquiry from both the parties and submitted his Inquiry report on 09-05-2014 to the Registrar Trade Union (respondent No,2). At this juncture he showed his inquiry report as already produced before the Trial Court as Article C/4.
10. Mr. Zahir Shah Advocate junior counsel of Mr. Abdul Sattar Khan Advocate appeared on behalf of respondent No,3. Since the respondent No, 3 was respondent No,5 before the Trial Court and proceeded against Ex parte by the Trial Court vide order dated 16-06-2014 which is still in the field, however the appellants again arrayed them as respondent in their appeal, notices were issued to them but learned counsel had nothing to say for and against.
11. I have heard the counsel for the parties and parties at length with their able assistance and perused the record.
12. Record reveals that the respondent No, 1 being elected President of Serena Hotel Labour Union, elected on 27-09-2012 and thereafter further elected for 2014-2016 on behalf of his union asked the former union representatives i.e, appellants to hand over the record and books of account lying with them for the period 1998 to 2012 but the appellants were reluctant to handover the same.
13. The record further reveals that the respondents taken up the matter with the Registrar Trade Union (respondent No,2) from time to time, however particularly vide application dated 25-03-2014, the respondents made a request to the Registrar Trade Union to conduct inquiry of the union funds from the appellants, wherein leveled specific allegations of embezzlement and misappropriation of union funds by the appellants.
14. On receipt of the above said application the respondent No,2 appointed Mr. Zahoor Ahmed Baloch as Inquiry Officer to conduct inquiry of the matter and submit his findings and recommendations to him vide order dated 31-03-2014. Accordingly in compliance of the said order the Inquiry Officer conducted an inquiry and submitted its findings vide letter dated 09-05-2014 to the Registrar Trade Union (respondent No, 2)
15. It is pertinent to mention here that the moot question between parties is issue No, 3 which is reproduced herein under: "3. Whether the respondents Nos.1 to 3 misappropriated the Union Funds of Rs,953620/-and an amount of Rs,166175/- was given as loan to different employees having no record?"
16. To prove its case in the light of issue No,3, the respondent No,1 produced five witnesses including CW/2 official 'representative of respondent No,2 and Inquiry Officer as CW/4 and also recorded his own statement. All the above mentioned witnesses appeared before the Learned Trial Court, deposed the contents and figure of alleged misappropriation amount as incorporated in the inquiry report, rather relied upon the contents of the inquiry report.
17. On the other hand to rebut the allegation the appellants produced only one witness as power of attorney of them namely Atique Khan now respondent No,4 who deposed that the respondent/complainant is one of their rival panel contested election and after being elected filed the complaint just to harass and blackmail the respondents as matter of revenge, he further deposed in his examination in chief that the complaint was filed by the respondent with mala fide intentions for ulterior motives because the President of former body Dost Muhammad and the other Office Bearer were not made as party in the complaint, he was joined hand with them. He vehemently denied the allegations leveled against them by the respondent No,1 and specifically stated in his examination in chief that being former Office Bearer of the union they had properly maintained the record and filing the annual Return to the respondent No,2 i.e, Registrar, Trade Union at the end of each year since 1998 to December 2011.
18. It is pertinent to mention here that this portion of deposition of the witness was no where confronted or denied by the respondents during the course of cross-examination which is amount to admission of the same. The witness further deposed that as a revenge and victimization the respondents had cancelled their membership of union, withdrawn their names from draw of Hajj Quota Scheme and ultimately arranged to dismiss him from service. The witness further deposed that earlier to this inquiry another inquiry on the same allegation was conducted by Mr. Ghulam Rasool Joint Director Labour as Inquiry Officer on the complaint of the said respondent No,1 wherein matter between parties was amicably settled as such the second inquiry conducted at the behest of the respondent No,1 the Inquiry Officer was in league with the respondent No,1 and the appellants were not associated with the inquiry proceedings and they have been condemned unheard.
19. Before parting the judgment it would be appropriate for convenience to reproduce the inquiry report here in under: "From:- Research Officer/ Inquiry Officer Labour Welfare, Balochistan, Quetta.
To :- Director Labour Welfare/ Registrar Trade Unions, Balochistan.
No, 1/INQ/RTU/DLW/QTA 403 Dated 9/5/2014 Subject:- INQU IRY REPORT REGARDING INSPECTION OF ACCOUNTS AND RECORD OF THE UNION UNDER SECTION 15 (C) OF THE B.I.R.A, 2010.
' Kindly refer to your letter No: 175/RTU/DLW/QTA/1144-77 dated 9th December, 2013 and letter ' No,175/RZTU/DLW/QTA/3310334 Dated 31st March, 2014 undersigned was appointed as the inquiry officer to inspect the accounts and records of Quetta Serena Labour Union under section 15 (C ) of B.I.R.A, 2010.
' During the course of Inspection of accounts and record of the union and meeting with the representatives the union and Ex-Office Bearers of the union, the finding are as under:-- FINDINGS
1. That Serena Hotel Labour Union was registered on 16th February, 1989 under IRO, 1969 and the union was declared as Collective Bargaining Agent on 28th February, 1989.
2. After receiving the record from the office Bearers of the union it has been revealed that the Amount of Rs,1153640/- has been reimbursed to the union from 1998 to 2012 in the heads of monthly subscription of Employees and rent of the office. (Copy Attached).
3. During this period the actual expenditure incurred was amounting to Rs,96421/- were duly verified by the representatives of Union.
4. During the course of inspection it was also revealed that there is no record of Rs,953620/- and the amount of Rs,166175/- was granted as loan to different employees but the concerned employees showed their non affiliation to the loan and stated through Stamp papers that neither they have given any application for loan nor were granted any loan.
5. It was also revealed that there was not any proper mechanism of utilizing the Union Funds. The former representatives of the union did not bother to obtain monthly Bank statements from the Bank and there were any modus operandi for utilizing the union funds for the welfare of the Labour.
6. It was also revealed that during the specified time there was no any election for office bearers and Management of Serena Hotel has been approving charter of demand without approval of change of office bearer from the Registrar Trade Union Balochistan.
7. It was also revealed that all the matters of union were undertaken by the Ex General Secretary and Ex Finance Secretary and all other office bearers and members were not taken on board for the affairs of the union.
' Submitted for appropriate orders ' **SD** ' Research Officer/Inquiry Officer Labour Welfare Balochistan, Quetta "
20. It is worth to mention here that during the course of arguments the original record of Serena Hotel Employees Union called by the Tribunal from the Office of Registrar Trade Union (respondent No,2) through its representative Mr. Muhammad Adnan Saleem and Inquiry Officer Mr. Zahoor Ahmed Baloch which was produced before this Court, comprising on three volumes of files and after thorough examination of aforesaid files following questions were asked from the Inquiry Officer in presence of parties and their counsel: "Q.1. Whether during the course of Inquiry copies of allegation were given to the accused persons (appellants)?
Ans. No Sir, just verbally apprised to them.
Q.2Whether statements or either of the party or their witnesses were recorded?
Ans. No Sir.
Q.3Whether annual returns with effect from 1999 to 2011, copies whereof available in the record of Registrar Trade Union in Volume II, were examined and seen wherein details of income and expenditures were given?
Ans. No Sir, I was unaware and inexperienced to knew that the details of funds could be available on that "Returns" forms, J.
Q.4Whether books of accounts of union were inspected? Ans. No Sir.
Q.5Whether bank statement was taken from the Bank? Ans. No Sir.
Q.6Whether the cheques encashed were examined from the bank and counter foils were seen to ascertain signed by whom signatories?
Ans. No Sir.
Q.7Whether findings of embezzlement or misappropriation were given in the report?
Ans. No Sir, just irregularities were pointed out.
Q.8Whether parties were provided opportunities to set face to face and cross-examine each other?
Ans. No Sir, parties were called separately in different dates and times.
Q.9Whether the allegations were admitted or denied by accused persons (appellants)?
Ans. Allegations were denied by the accused persons verbally.
Q.10Whether any recommendations were given in the inquiry report for further action?
Ans. No Sir.
Q.11Whether any person was held responsible in your Inquiry report?
Ans. No Sir.
Q.12Whether you had conducted any inquiry prior to this in your carrier?
Ans. No Sir, this is my first experience.
From the face of above questions and answers it can be said safely that the inquiry conducted by the Inquiry Officer is defective in nature and findings of the report could not straight away made out a case of embezzlement or misappropriation.
21. However on examination of the record comprising on three volumes, it was observed that the annual returns from 1999 to 2011 were not submitted by the former office bearer of the union at the end of each and every year, rather submitted altogether during the course of first inquiry which was conducted by one Mr. Ghulam Rasool in the year 2013, which is gross negligence. The Office of the Registrar Trade Union had not taken necessary action against the defaulters, as required under the law of BIRA, 2010, as provided in "S.12 and S.15" is reproduced as under: "S.12. Cancellation of registration.- (1) The registration of a trade union shall be cancelled if the Labour Court so directs upon a complaint in writing made by the Registrar that the trade union has-- Contravened or has been registered in contravention of .any of the provisions of this Act or the rules; Contravened any of the provisions of its constitution; or Made in its constitution any provision which is inconsistent with this Act or the rules.
(2) 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 an officer of a registered trade union, the registration of that trade union shall be cancelled if the Labour Court, upon a complaint in writing made in this behalf by the Registrar, so directs.
(3) The registration of a trade union shall be cancelled by the Registrar if, after holding such inquiry as he deems fit, he finds that such trade union: has dissolved itself or has ceased to exist; or has not been a contestant in a referendum for the determination of collective bargaining agent; or has not applied for determination of collective bargaining agent under section 24(2) within two months of its registration as another union or promulgation of this Act, whichever is earlier, provided there does not already exist a collective bargaining agent determined under section 24(9)(e) in an establishment, or group of establishments or industry; or has secured less than fifteen percent of polled votes as per final list of voters, during a referendum for the determination of collective bargaining agent.
S.15.Powers and functions of Registrar.-- The Registrar shall have the following Powers and functions:-- the registration of trade unions. under this Act and the maintenance of a register for the purpose; to lodge, or authorize any person to lodge, complaints with the Labour Court or Commission for action, including prosecution, against trade unions, employers, workers or other persons for any alleged offence or any unfair labour practice or violation of any provision of the Act or for expending the funds of a trade union in contravention of the provisions of its constitution; the determination of the question as to which one of the trade unions in an establishment or an industry is entitled to be certified as the collective bargaining agent in relation to that establishment or industry. give notice of, and declare, a strike in accordance with the provisions of this Act; and to inspect the accounts and record of the registered trade unions, or investigate or hold such inquiry in the affairs of the trade unions as he deems fit either by himself or through any officer subordinate to him and to authorize him in writing in this behalf; and
(f) such other powers and function as may be prescribed."
22Such contravention of law benefited the Office Bearers of the union. It is further observed from the perusal of record that no inspection and audit of the said union had been carried out with effect from 1998 till date, which again shows the gross negligence and all such irregularities and illegalities were arisen.
23Unfortunately it is further observed that, the Learned Trial Court while trial the case miserably failed to call for the record from the Registrar Trade Union and to properly examine the same but in a hazard manner without proper appreciation of evidence and documents brought on record comes to the conclusion that the funds of Union has been embezzled.
24No doubt it is legal proposition that each and every union and its concerned Office Bearers i.e, President, General Secretary, Finance Secretary being signatories are fully responsible for maintaining of books of accounts filing of annual returns and answerable to the General Body for each and every transactions of income and expenditure and duty bound to get approval of change of Office Bearers after each term from the Registrar Trade Union, but all such facts are missing in the case in hand. fortunately it is further observed from the record that no change of Office Bearer for each term of two years was got approved by the Registrar Trade Union.
26Accordingly as discussed herein above no case of embezzlement or misappropriation could be made out merely on the basis of defective inquiry and hearsay witnesses, accordingly issue No, 3 is not proved and wrongly decided by the Learned Trial Court however material illegalities and irregularities were found in the record which required thorough impartial inquiry for fixing responsibilities after providing full and fair opportunities to the parties.
27I am of the firm view that the impugned judgment dated 30th May, 2015 passed by the 1st Labour Court Quetta is entirely based on the findings of Inquiry report which is defective in nature, wherein parties were not afforded opportunity of being heard as required by principle of natural justice "Audi Alterm Partem", Trial Court has been miserably failed to call for the relevant record and examine the same in accordance with law. Accordingly appeal is partly allowed. Impugned judgment is set aside and the matter is remanded to the Registrar Trade Union i.e, respondent No, 2 with the direction to constitute a two Member Committee of senior and experienced Officers specially one of them should be expert of accounts and audit and one of them should be expert of Labour Laws, to conduct a comprehensive inquiry with effect from 1998 to December, 2014. The committee shall provide full and fair opportunity to the parties to record statement and produce evidence if so desired, cross-examine, admit, confront and deny the documents for and against. The committee shall be empowered to access to the record of concern union from any concern quarters. Fix responsibilities for inefficiency, default, fraud and embezzlement if committed by any one of the former union Office Bearers being involved for such negligence, and submit its report to the Registrar Trade Union within a period of two months from the date of receipt of this judgment.
The Registrar Trade Union is further directed to supervise the progress of the inquiry by his own.
The parties are directed after receiving of notices from the committee shall appear before the committee and fully co-operate with the committee, provide access to the record. The Registrar Trade Union is further directed to take action on the recommendation of committee in accordance with law to avoid arising of such irregularities and illegalities in future. The petition is disposed off in above terms, with no order as to cost, Surety Bonds submitted by the appellants are hereby discharged and be returned on application of appellants after retaining, copy whereof on record.
28. GIVEN under my hand and seal of the Court on 9th September, 2015.