1. ' Heard the learned representatives of the respective parties and perused the record. Perused the present application under Order XXXIX, rules 1 and 2, C.P.C. Read with section 36 of the I.R.O., 1969 alongwith the affidavits of the parties filed therefor.
2. ' The applicant had filed an application under section 34 of the I.R.O., 1969 stating therein that the applicant is a Union having a status of the C.B.A. In the Habib Bank Limited under the Constitution.
3. Elections for the office-bearers of the union are to be held after every two years. The elections are scheduled to be held this year. The respondent No. 1 is the Acting Secretary-General of the Union.
4. This application has been filed by the Chairman, Finance Secretary, Joint Secretary and some of the Councillors. It is alleged that the respondent No. 2, who is also an employee of the Bank had issued a Notification on 4-3-1984 claiming himself to have been appointed as an Election Commissioner by the General Body assuring that he would conduct the election in accordance with the Constitution. In fact no General Body meeting was held on 27-2-1984 or on any other date.
5. It is further alleged that the respondent No. 2 in violation of the constitutional provision demanded Rs.100 as Security deposit and Rs.10 per form, towards election expenses. He further appointed 9 members to assist him during the elections and in this respect he has collected Rs.4,900 as security deposit and Rs.550 as form fee. It is said that the respondent No. 2 with a mala fide intent rejected the forms of Taj Mohammad Afridi and Faqir Mohammad who had filed forms for the post of General Secretary. Thus the respondent No. 2 declared the respondent No. 1 as unopposed on 15- 3-1984 and all this was done a mere device to instal respondent No. 1 by unfair and corrupt means.
6. These acts of the respondent No. 2 go to deny the vested rights to the workmen in general in a most corrupt means. It is alleged by the applicant that the respondents Nos. 1 and 2 are acting against the law and constitution and resorting to corrupt and unfair means. It is prayed by the applicant that this Court be pleased to declare and enforce the rights of workmen actually engaged or employed in Habib Bank Limited, the appointment of respondent No. 2 and acts done by him be declared as illegal and against the constitution. The collection of funds in shape of security deposit and form fees is against the law and unwarranted.
7. ' Alongwith the application/petition the applicant moved the present application under section 36 of I.R.O. Read with section 151 and Order 39, rules 1 & 2, C.P.C. The petitioner in support of this application has filed his own affidavit and affidavits of Gohar Din, Sikandar, Aqqal Badshah, Abdus Sattar etc. The respondents filed their objections. The respondent No. 1 filed his own counter- affidavit and so also the respondent No. 2 alleging that the general body meeting was actually held on 27-2-1984 which resolved and appointed respondent No. 2 as Election Commissioner. Prior to this, permission was also sought from the Directorate of Labour before this general body meeting. There was no illegality in the process.
8. ' I have carefully gone through the affidavits of the parties and perused the documents on the record.
9. ' Mr.Shahani the learned Advocate of the respondents Nos. 1 and 2, right at the outset, objected that the matter could not come up under section 34 of the I.R.O. As there is no dispute arising out of an award or settlement. Nor it is an application by the C.B.A. Against the employer. Obviously, the ingredient of section 34 is that there should exist an Industrial dispute as defined under section 2
(xiii) of the Ordinance. Clause (xiii) of section 2 clearly shows that the industrial dispute means any dispute or difference between Employees and Employers or between employers and workmen or between workmen and workmen which is connected with the employment or non-employment or the terms of the employment or conditions of work of any person and is not in respect of enforcement of any rights guaranteed or secured to him by or under any law, other than this Ordinance or any award or settlement for the time being in force.
10. ' In the instant case before me, there is admittedly no dispute or difference between the workmen and workmen which is connected with the employment or non-employment, nor it pertains to the - terms of employment or conditions of work of any of them. Admittedly, the petitioners claim that their guaranteed rights are being infringed by the respondent who, obviously, are also employees of the same establishment. The provision goes further to clarify the situation in the following words which has been inserted subsequently and read as under:-- "and is not in respect of the enforcement of any right guaranteed or secured to him by or under any law, other than this Ordinance or any award or settlement for the time being in force."
11. Hence it would seem that the present dispute may not be an industrial dispute. Thus present application appears to be bad on this score alone.
12. ' It has been contended on behalf of the petitioner that according to the constitution of the union the general body has to select the Election Commissioner who has to conduct the elections but no general body elections were over held as such the appointment of the respondent No. 2 as such is illegal and hence every act done by him has no legal effect. The Notifications issued by him or declaring the respondent No.1 as unopposed successful General Secretary is unwarranted and he has no legal sanctity. It is also contended that the demanding Of the fee of form as well as the security deposit from the candidates was also an act having no sanctity under law as the constitution does not provide the recovery of any fees. Thus the petitioners, it is argued have a prima facie a case and in case the injunction is not continued the illegal acts of the respondents will further be strengthened and great inconvenience will be caused to the petitioner in particular and the employees in general. Thus it is argued that the ad interim order be confirmed.
13. ' The other side has challenged this situation. It has been contended by the Advocate for the respondents Nos. 1 and 2 that the respondent No.2 has committed no illegality. He was duly appointed an Election Commissioner in a meeting of Genaral Body which was held on 27-2-1984 after obtaining permission from the Directorate of Labour. A copy of the letter has been filed by the respondent No.1 alongwith his counter-affidavit which is dated 13-2-1984. Thereafter a notice of the meeting was issued on 24-2-1984 and then the General Body meeting was held on 27-2-1984. It is also contended that the General Body decided to appoint the respondent No.2 as Election Commissioner to hold elections as per constitution. A photo copy of the minutes has been filed. It is further contended that thereafter the respondent No.2 by his Executive Act has fixed the fee of Rs.500 security deposit and Rs.50 form fees. It is pointed out that the petitioner who claim themselves as representative of the employees, have themselves deposited this amount and there is nothing on the record to show that they had deposited this under a protest or objection hence now they do not have to raise objections to this. Even the selection of persons for assistance by the respondent No.2 to assist him in election work was within the knowledge of the petitioner and this act too has the sanction of the general body who have authorised the respondent No.2 to hold elections fairly and if he has appointed the respondent No.3 onwards to his assistance is not illegal.
14. Above all, the averments of the counter-affidavits of respondents Nos. 1 and 2 go uncontroverted as no rejoinder has been filed by the petitioner. It is argued, that, if the forms of the other candidates were illegally rejected by the Election Commissioner the petitioner should have gone first to the Registrar of the Trade Unions under section 8(4) and (5) and then to this Court under section 8(7) of the I.R.O. As this act appeared to the petitioner an act in controvertion of the constitution. It is finally argued that in this situation it will appear that the petitioner have no case at all. In case the elections are stayed the 5,000 workers will be deprived from exercising the right of vote. Since the petitioners have no prima facie case nor the balance of convenience is on their side, they will in fact suffer no irreparable injury. They can still seek their redress adequately hence the interim order be vacated.
15. ' I have carefully gone through the record. Admittedly, the counter-affidavits of the respondents have not been controverted hence the presumption would be that the averments therein are true and not challenged. The counsel for the petitioner chose to argue the matter straightaway consequently he did not file the rejoinder. The photo copy of the permission for general body meeting granted by the Assistant Director Labour dated 13-2-1984 has been annexed with the counter-affidavit of the respondent No.1, which clearly indicates that the permission was obtained from the competent authority. A copy of the notice of General Body meeting issued on 16-2-1984 has been filed. This notice clearly shows that it was brought to the notice of all the workers that the meeting would be held on 26-2-1984. Even the venue has been intimated. A photo copy of the minutes of the General Body meeting has been filed also by the respondent No.1 which has been annexed as B/1 on the second page of Annexure B/1 filed by the respondent No.1. It is clearly mentioned that the respondent No.2 has been appointed Election Commissioner and has been authorised to select his sides and hold the election. What it appears to me is that the petitioner and the persons who have filed affidavits in favour of the petitioner though members of G.B. Seems to have been ousted out and in desperation, now they have filed the affidavit. Of course what will be the evidentiary value of their statements will be ascertained at the trial. At any rate, their allegations have been controverted by the respondents Nos. 1 and 2 by way of counter-affidavits which go unchallenged. Admittedly, the petitioner had also deposited the fees per list annexed as Annexure 'F', obviously at the directions of the respondent No.2, now are estopped to object to this.
16. Their objections, therefore, carry no weight at this stage.
17. ' In view of the above situation and documents discussed it becomes crystal clear that the petitioners have miserably failed to make out prima facie case. The balance of convenience is also not in their side. It may be mentioned here that if the interim order is allowed to continue the workers 5,000 in number will be deprived of their rights of vote. Thus, as already mentioned the petitioner have also failed in establishing a balance of convenience. They have also failed to establish any irreparable injury or substantial injury likely to be caused to them.
18. ' I am therefore clear in my mind that the present application under Order XXXIX, rules 1 and 2 merits no consideration. I accordingly, dismiss the same. The interim order dated 17-3-1984 is hereby recalled.