1. SALEEM A.KHTAR; J. --This petition is directed. Against the orders passed by National Industrial Relations Commission, Respondent No. 1, and the Registrar of Trade Unions, N. I. R. C. The Respondent No. 2. The peti--tioners are licensees for the supply of energy under the Electricity Act, 1910, the Respondent No. 4 is the Collective Bargaining Agent and the Respon--dents Nos. 3, 5, 6 and 7, are the registered Trade Unions of the workmen of the petitioners. On 17th April, 1981 and 27th July, 1981 the respondents Nos. 5 and ' respectively applied to the Respondent No, 2 under section 22 (ii) of I. R. O., 1961 for holding secret ballot for election of a C. B. A. The Respondent No. 2 authorised by the Respondent No. I called upon the petitioners under section 22 (iv) (b) of 1. R. O. To submit a list of all workers employed in group of establishment. The petitioners submitted a depart--mentwise list of the workers on 7th January, 1982 in which 7,952 workmen were shown as employed by them. The respondent No. 7 objected to the correctness of the list and alleged that 1,714 workmen have been omitted from the petitioners list. The list submitted by the respondents was given to the petitioners who replied that out of 1,714 workmen as alleged by respondent No. 7, 1,547 employees did not fall in the category of workman as defined by 1. R. O. 1969, 96 employees were no more in the service and that 71 work--men already find place in the list submitted by the petitioners.
2. After hearing the parties in which the petitioners also made written submission dated 27th March, 1982, the respondent No. 2 passed an order on 13th April, 1982 holding that the employees mentioned in the list submitted by the labour union should be treated as workmen for the purpose of this referendum and directed that the names of these workmen be included in the list of voters prepared for holding the referendum. The petitioners filed an appeal against this order which was dismissed by the impugned order dated 24th May, 1982 passed by the respondent No. 1. The main reasoning and the operative part of the order is reproduced hereinbelow: "No doubt, it is true, as contended by Mr. Nurul Hassan, that the question whether the employees designated as Supervisors by. The K. E. S. C. Are `workmen' or not, can be decided only after recording evidence as to the nature of the duties performed by each such employee. It is also true that there is no estoppel in law against the K. E. S. C. For accepting these employees as workers in the past. However, we feel that an enquiry of the nature suggested by Mr. Nurul Hassan for the Management, would take considerable time, with the result that the holding of the referendum for determining the C. B. A. Will be considerably delayed. Such delay is likely to lead to mischief and industrial unrest among the workers in the establish--ments. The K. E. S. C. Would be at liberty in the future to agitate this issue in the appropriate forum. We also fee! That balance of inconvenience is in favour of the trade unions who are likely to suffer more inconvenience if the referendum is postponed than any inconveni--hence to the K. E. S. C. If it is held now. We also fail to see how the K.
3. E. S. C. Is aggrieved by the inclusion of the disputed category of workers designated as Supervisors by them, in the referendum. It is also interesting to note that employees in pay Grade IV to VII have been shown as workmen in the Rationalisation Scheme of Industrial Workmen Trade and Grade Structure, published by -the K. E. S. C. Itself on 12th May, 1970. Similarly, the cadre of non-officers staff', other than Industrial Workmen in Grade IV to VII read with job definitions have also been treated as non-industrial workers.
4. For the foregoing reasons, we dismiss this appeal and direct the nominee of the Registrar to proceed with the holding of the referendum without any further delay."
5. Mr. Noorul Hassan the learned counsel for the petitioners has contended that the order passed by.
6. The Respondent No. 1 is unlawful, without jurisdiction as it is in violation of the mandatory provisions of law. It seems that respondents Nos. 1 and 2 have made emphasis on the fact the petitioners at one stage had conceded that the Supervisors included in the list of Respondent No. 7 were workmen and that for purposes of election in the year 1980-81 the list submitted by them included the names of the Supervisors.
7. Mr. Abdul Hamid Siddiqui the learned counsel for the respondent No. 4 has contended that once having conceded that these supervisors are workmen the petitioners cannot at this stage agitate this question for purposes of exclud--ing their names from the list of voters. I. R. O. Has defined `workmen and workman' and a particular meaning has been assigned to this category of employees. In this regard no amount of concession made by the petitioners will improve the respondents' case as there can be no estoppel against law and further the fact whether a person is a workman or not is a mixed question of law and fact which has to be determined by examining witnesses and record--ing the evidence in respect of the terms and conditions and duties performed by such employee;.
8. The present proceeding has arisen on an application made under section 22 (ii) of I. R. O. For holding secret ballot for determining the C. B. A. The law provides a procedure for holding a referendum for purposes of deter--mining the collective bargaining agent in an establishment or group of estab--lishments. Section 22 (ii) of 1. R. O. Provides that where .There are more than one trade unions in an establishment or a group of establishments, on an application made in this behalf by such trade union which has its mem--bers not less than 1/3rd, of the total number of workmen employed, the Registrar shall hold a secret ballot to determine as to which one of the trade unions shall be the C. B. A. Sub-clause (i.e) provides that on receipt of this application the Registrar shall require the trade union to indicate whether it desires to contest in the secret ballot and if it so desires, to submit to him within the time specified in the notice the list of its members giving full parti--culars of those members. Under sub-clause (iv) the Registrar is authorised to call upon an employer to submit a list of all workmen employed in the estab--lishment excluding those whose period of employment in the establish--ment is less than 3 months giving full particulars of the workmen mentioned in the list. A statutory duty is cast upon the Registrar to verify the list submitted by the trade unions and prepare a list of voters which shall include the name of every workman whose period of employment is not less than 3 months and who has been a member of the contesting trade union at least 4 days prior to the date fixed for the poll and such verified list is to be supplied to the trade unions. Every workman who is a member of any contesting trade union whose name appears in the list of voters pre--pared in this manner shall be entitled to vote at the polls. These provisions therefore lay down a procedure for preparation of the voters list which includes the submission of list of workers by the trade unions. The Regist--rar is not to accept the list submitted by them as a matter of course but he has to verify the list and after being satisfied about the correctness of the list in terms of the aforestated provision of law, the voters list is prepared and certified copy is supplied to the trade union. In this regard it is pertinent to note that under section 7 (2) (a) of 1. R. O. Without prejudice to the condi--tions laid down in subsection (1) of section 7 a trade union of workmen shall not be entitled to registration under the Ordinance unless all its mem--bers are workmen actually engaged or employed with the industry with which the trade union is connected.
9. The dispute arose when the list submitted by the petitioners did not include the name of 1,547 employees who were treated as supervisors and not workmen. The respondent No. 1 decided this controversy by the impugned order dated 13th April, 1982. It seems that the Respondents Nos. t and 2 did not hold any enquiry in the matter while deciding the status of those 1,547 employees but were more influenced by the fact that the names of these employees were included in all the referendums including the one which was to be held on Ist July, 1981 and also that they were treated as workers under the settlement dated 10th August, 1980. In this regard clause (58) of the settle--ment may be referred under which the supervisors were treated as "workmen' for the purposes of the settlement only. The settlement related to certain pecuniary demands that were made by the trade union which were settled by this agreement. By this concession it cannot be finally held that the super--visors were treated as workmen for the purposes of 1. R. O. Or for determin--ing C. B. A.
10. The Respondent No. 1 in the impugned order quoted above has accepted the contention of the petitioners that the question whether the employees designated as supervisors are workmen or not can be decided only after recording evidence with regard to the nature of duties performed by them. It also held that there can be no estoppel against law but was influenced by the fact that any enquiry of the nature for purposes of determining the status could take considerable time thereby delaying the referendum for determin--ing the C. B. A. It was also apprehended in the order that such delay may lead to mischief and industrial unrest among the workers of the establish--ment. Although the appeal was dismissed it was observed that the petitioners would be at liberty in future to agitate this issue in the appropriate forum. It therefore seems that the respondent No. 1 had made only an interim arrangement for the purposes of holding a secret ballot in pursuance of the application filed by respondent No. 7. The dispute which was raised at the time of verifying the voters' list was to remain open and could be agitated by the petitioners when again any referendum would have been held. This was not the proper course as it would create more inconvenience and encourage litigation and the referendum would take place on the basis of a list which was objected to by the petitioners and consisted of 1,547 voters about whom the defendant No. 1 itself did not hold to be workmen. The provisions of law are to be complied with and given effect to without consi--deration of the expediency and factors not provided by the statute. Extra-- considerations should not be allowed to restrict the specific provisions of law. The respondents Nos.
11. I and 2 have not decided on merits that whether such employees are workers or not. This was the only point for decision which they have consciously left open for decision mainly due to the exigencies and emergencies that have been stated in the order. The referendum was stayed by the Honourable Supreme Court till the final decision of this petition but nothing untoward has happened although sufficient time has passed. It would be better and in the interest of both the parties that this issue is settled finally and definitely by the respondents Nos. 1 and 2 according to law.
12. The law imposes a duty upon the Respondents No. 1 and 2 to prepare and verify list which should be of the workers who are members of the trade unions. It is these workers who are entitled to vote for determining the C. B. A. Of the petitioner's establishment. The Respondents Nos. 1 and 2 should have thus determined this issue finally instead of keeping it open for further determination. Such a policy will neither create any healthy atmos--phere nor develop industrial peace and security. 1f in future it were held that 1,547 persons are not workmen then the referendum held in pursuance of the impugned order and the result of such referendum will be on the basis of a voters list which included voters who were neither workmen nor entitled to be member of a trade union. Inclusion of such persons in the voters list is not only fraught with serious consequences but it will violate the provisions of law under which the list is prepared and referendum is held. Mr. Noorul Hassan the learned counsel for the petitioners has contented that the petitioners will be aggrieved and 'prejudiced with the inclusion of supervisors in the voters list as they are not workmen and cannot become the members of workers' trade union. The apprehension of the learned counsel for the petitioners is not without justification because if the employees who are not workmen are treated as workmen they may also be entitled to all such bene--fits and privileges which may be claimed under the labour laws. The trade union may also raise industrial disputes in respect of such employees who may according to the petitioners fall within the category of employees. In Pakistan Tobbaco Co. Ltd. v. Employees' Union (PLD 1961 SC 403) the company objected that its salesmen were not workmen. While referring the provisions of Industrial Disputes Act Cornelius, C. J. Observed as follows ;- "The directory organisation of a Company set above the category of the workmen may be defined as the organisational superstructure and the question may then be posed as follows viz. Can the workmen be per--mitted to raise as a point of dispute between themselves and the Com--pany matters relating to other employees or persons who are included in that superstructure ?
13. To me it seems that to allow this liberty is to open the door to a great variety of abuses of which the effect must necessarily be a "process opposite to that which is the overriding purpose of the Industrial Disputes Act, namely, that it must result in the break-up of harmo--nious relations within the superstructure, to the detriment of the Company by imperilling its very existence. The interest of workmen who derive their livelihood from the Company lies in doing nothing which would tend to disturb the functioning of the Company at the higher levels. It is not for them to exercise, or seek to exercise, control over, the constitution of the superstructure. When therefore the workmen take it up as a matter of dispute with the top organisa--tion of the Company that they, should improve or otherwise modify the serving conditions of persons who are included in the organisa--tional superstructure, qua the workmen, they are in fact being induced to break down the integrity of that organisation altogether. Since persons employed in the superstructure are not permitted by the Act to raise their own disputes with the Company directly. It is plain that any effect by the workmen on their behalf, the object of which is to utilize for such persons the machinery of the Act, can only be for a purpose for which it is expressly not available."
14. We are therefore of the view that the impugned orders passed by the Respondents Nos. I and 2 are without lawful authority and of no legal effect.
15. For these reasons .By the following short order dated 15th November. 1982 the petition was allowed: " For reasons to be recorded separately we allow this petition, declare the orders passed by respondents Nos. 1 and 2 dated 24th May, 1982 and 13th January, 1982, respectively as without any lawful authority. We further direct Respondent No. 1 to decide whether 1,647 persons who are shown as members of Respondents Nos. 4 and 7 are `workmen' or not within the meaning of 1. R. O. After holding enquiry in accordance with the law. This enquiry will be completed by Respon--dent No. 1 before 31st December, 1982 and thereafter a date will be fixed in accordance with the law for holding of the referendum for determination of the C. B. A. This short order passed by us today may be communicated to respondents Nos. 1 and 2 without awaiting for the detailed reasons. We will however, make no order as to costs.