ZAFFAR HUSSAIN MIRZA, J.--Petitioners Nos. 1 to 5 in this petition were employees of Messrs. Atlas Autos Limited and were members of a union of workers known as Atlas Group of Companies Employees Union, Karachi. The second respondent in this petition was the General Secretary of the said union having been elected in the elections held in the year 1982 for one year. According to the petitioners the elections for the year 1983 were due in January, 1983 but since the second respondent allegedly managed to avoid the holding of elections, the petitioners approached the Sind Labour Court No. 1 and by a consent order, dated 10-5-1983 the Labour Court directed that the elections be held by the Registrar of Trade Unions, Sind, Karachi for the year 1983-84, under his supervision in accordance with law and the constitution, within one month. Persuant to this order petitioner No. 1 submitted his nomination for the post of General Secretary while petitioners Nos. 2 to 4 for the membership of the Managing Committee. However, there was a further delay in the holding of elections as in the meantime, on a Constitutional Petition filed by the union through the second respondent the stay order was issued by the High Court of Sind. The important events on which the ultimate decision of the controversy between the parties turns, then occurred, namely, that the employers removed petitioners Nos. 1 to 5 from service on the alleged ground of misconduct on their part. The case of the petitioners was that they were dismissed illegally in order to prevent them from participating in the election. Consequently they filed complaint before the National Industrial Relations Commission under sections 15/53 of the Industrial Relations Ordinance alleging unfair labour practice on the part of the employers by removing them from service. In the proceedings of the complaint filed by the petitioner the Chairman of the National Industrial Relations Commission by an interim order, dated 21-7-1983 expressed the view "that until adjudication of the status of the complainant whether he has been properly dismissed from service or not, he cannot be deprived of the right to remain member of his Trade Union and to contest the election and cast his vote." The legality of this order was challenged by the employers by means of a Constitutional Petition in the High Court with the result that the election which was scheduled to be held on 23-7-1983 could not be held. However, the Constitutional Petition of the employers was disposed of by a consent order permitting the holding of the election and the participation of petitioners Nos. 1 to 5 therein for the posts of office-bearers of the union. The Registrar, therefore, fixed the date of the election on 16-8-1983, but once again the second respondent challenged the right of the petitioners Nos. 1 to 5 to contest the election on the ground that having been dismissed from service they were no longer workers and members of the union and their participation in the election would be against the provisions of the union constitution according to which 75 per cent of the members of the Executive Committee were to be from amongst the employees and only 25 per cent could be outsiders. This Constitutional Petition was dismissed by a learned Single Judge of the High Court on 7-9-1983. However, in the meantime the Registrar held the election on 16-8-1983 in which petitioners Nos. 1 to 5 were elected as office- bearers alongwith other members of the union.
2. The second respondent being dissatisfied with the result of the election applied before the First Labour Court, Karachi under section 8(7) of the Industrial Relations Ordinance challenging the validity of the election as a whole. The Labour Court by its order, dated 25-10-1983 set aside the election and directed the Registrar of Trade Unions to hold fresh elections of the office-bearers of the union. Feeling aggrieved by this order petitioners Nos. 1 to 5 filed a Constitutional Petition before the Sind High Court which was dismissed by a learned Single Judge vide judgment, dated 5-1-1984.
The present petition is directed against the last mentioned judgment of the High Court and the petitioners pray for leave to appeal.
3. Now according to the view of the learned Judge in the High Court the election in question was bad in law as it was hit by the provisions of section 7(1)(d) of the Industrial Relations Ordinance, according to which the constitution of a registered union was required to provide, inter alia, that the Executive of the Union "shall include not less than 75 per cent from amongst the workmen actually engaged or employed in the--- establishment or establishments or the industry from which the trade union has been formed." The conclusion thus reached by the High Court proceeded on the basis that petitioners Nos. 1 to 5 having been dismissed from service on a date prior to the date of the election, could not enjoy the status of workmen "actually engaged or employed in the establishment" and, therefore, the 75/25 ratio between workers and outsiders in the elected executive as a result of the impugned election was violated. The contention of the petitioners that notwithstanding their allegedly illegal dismissal from service which was sub judice before a competent forum under the Industrial Relations Ordinance, more particularly in view of the interim orders passed by the National Industrial Relations Commission, they continued to enjoy the status of workmen within the meaning of the term as used in the Industrial Relations Ordinance, was repelled and it was held that in terms of the definition of the word "workmen" in section 2(xxviii) of the Industrial Relations Ordinance, they were not workmen for the purposes of section 8(7) prescribing the minimum representation of the workmen to the extent of 75 per cent in the executive of the union. It was further held by the learned Single Judge that the interim order passed by the Chairman of the National Industrial Relations Commission was without jurisdiction as he had no power under Regulation 32 (1) of the National Industrial Relations Commission Regulations to issue an order of such a nature.
4. After hearing the learned counsel for the parties at some length we feel that questions of public importance as to interpretation of section 2 (xxviii), section 8(7), of the Industrial Relations Ordinance and Regulation No. 32(1)(2) of the National Industrial Relations Commission Regulations arise for consideration in this case. The learned counsel appearing before us stated that there is no authoritative pronouncement of this Court on these questions of law heretofore. We, therefore, allow this petition and grant leave to appeal. Security for costs shall be furnished in the sum of Rs.
2,500. The appeal shall be prepared on the present record but it will be open to the parties to file additional documents, if any and shall be fixed for hearing in the month of April, 1984 during the next session of the Court at Karachi.
5. As far as the prayer for grant of stay it has been urged on behalf of the petitioners that the impugned judgment of the High Court as well as the order, dated 24-10-1983 passed by the Labour Court be suspended but we are not inclined, in the circumstances of this case, to grant the prayer to that extent. We would, however, order that the proposed fresh elections shall not be held until the disposal of the appeal as the counsel for the parties have agreed that it would be just and equitable to do so. Further Mr. M.L. Shahani has undertaken on behalf of respondent No. 2 not to negotiate any settlement with the employers during the pendency of the appeal.