This is an appeal against order dated 10-3-1998 passed by learned Single Bench of Mr. Ghulam Nauman .Sheikh, Member Karachi Bench whereby the learned Single Bench dismissed the application under Regulation 32(2) of the N.I.R.C. (P&F) Regulations 1973.
2. The brief and relevant facts for disposal of the appeal are that once on 6-11-1994 referendum was held for determination of CBA in the Airport Hotel Karachi. It was challenged by Airport Hotel Progressive Workers Union through a petition hearing No. 4A(332)95K.The grounds for challenging the said referendum were that the management influenced and interfered with the balloting within the meaning of Sub-Section (2) of Section .16 and Clause-G of Sub-Section (i) of Section 15 of I.R.O.
1969. The then learned Member Karachi of this Commission was pleased to observe that the referendum was void and illegal inter alia on the ground that 13 Shift Incharges were allowed to cast their votes as they were included in the voters list. Moreover some Security Guards were also allowed to cast votes, as they were also included in the Voters list. Both the categories of employees do not fall within the definition of workmen. The then learned Member also directed to the Registrar Trade Unions East Karachi to hold fresh referendum after examining/scrutinizing the voters list and hearing the objections of the parties in accordance with law within the prescribed period. The appeals were filed by the aggrieved parties against the above said order which were disposed of by the Full Bench of this Commission with the observation that the same had become infructuous.
3. The Director Labour Karachi East in the capacity of Registrar Trade Unions started working on holding referendum in the appellant establishment and asked for the list of workers from the appellant which was provided. According to the list submitted by the appellant the shift incharges and security staff were not included as voters because they did not fall within the definition of workmen. The respondent No. 2 filed objections to the list provided by the appellant that the shift incharges and security staff were very much their members and as such they should not be excluded from the voters list. The appellant filed counter objections stating the law and the orders dated 9-9-1996 passed by the learned Member NIRC Karachi Bench that the shift incharges and security staff were not workmen. The respondent No. 1 did not consider the list provided by the appellant and ordered to include the names of shift incharges and security staff in the voters list.
The respondent No. 1 also hastily announced the date of referendum in the establishment of the appellant for 9-9-1997. The appellant filed a Civil Suit in the Hon'ble Senior Civil Judge Malir Karachi challenging the illegality committed by the respondent No. 1 in collusion with respondent No. 2. The Hon'ble Court of Senior Civil Judge was pleased to return the plaint on the ground of jurisdiction.
The appellant preferred to file the petition under Section 22-A(8)(g) of the IRO 1969 which bears No. 4A(305)/97-K alongwith stay application bearing No. 24(309)97-K. On preliminary hearing the learned Member of Karachi Bench was pleased to restrain the respondents by a detailed order from holding referendum for determination of CBA in the respondents establishment, but later on 19-3-1998 the learned Member dismissed the stay application. Against which the instant appeal has been filed.
4. We have heard the learned counsel appearing on behalf of the parties at quite some length and perused the material placed on record. The difference/controvercy between the parties is that whether the shift incharges and security staff fall within the definition of workmen or not?.
According to the contentions of the appellant the said staff does not fall within the definition of workman but according to the respondents it does fall within the definition of workman. We shall prefer to reproduce the observation of the learned Single Bench in his order which has been impugned in the instant appeal and is reproduced:- "It is not designation, but nature of duties performed by the employee, which is determining factor, and obviously that requires recording of evidence and since the petitioner management has filed the present petition, denying the status of shift incharges as workmen, the onus lies on the petitioner management to prove -that they do not fall within the definition of workmen, when such evidence is produced, then onus will shift to other side".
5. In our view in the instant appeal and petition mixed questions of law and facts are involved which could be determined by adducing evidence by the parties. At this stage allowing to hold referendum shall cause and entail further long litigation. At the moment balance of convenience lies that the referendum should not be held till the determination of the status of the disputed staff/shift incharges and security guards.
6. In the light of the above it shall be appropriate that first the status of disputed staff who are included in the voters list be determined after taking evidence of the parties and then the referendum should be ordered to be held. As a consequence we are inclined to accept the appeal and set aside the order dated 10-3- 1998 passed by the learned Single Bench. The learned Single Bench is directed to decide the main petition as expeditiously as possible, in the interest of justice.