' The petitioner seeks a declaration that order dated 23-12-1999 passed by respondent No,1 is illegal, against the provisions of law, without jurisdiction and of no legal effect and the same be set aside with a direction to the Registrar of the Trade Union, Faisalabad to act strictly in accordance with law and to implement the order dated 14-12-1996 in letter and spirit and to hold the election of the Union under his supervision allowing only those voters who are eligible to cast their votes as per provisions of law.
2. Regarding the illegality of order dated 23-12-1999, learned counsel for the writ petitioner submitted that learned Punjab Labour Appellate Tribunal, Lahore vide order dated 14-12-1996 had finally disposed of Revision Petition No,FI-CDC/96 titled as "Imdad Awan. v. The Registrar of Trade Unions, Faisalabad Region, Faisalabad" with the observation that internal election of the Trade Unions, operating in the setup, shall be held by 15-1-1997. Determination of C.B.A. Through referendum shall then be taken in hand, without any loss of time by 7-2-1997 and the entire exercise shall be truly supervised by the Registrar. This order was not implemented and an application under section 38(5) of the Industrial Relations Ordinance, 1969, was moved to initiate contempt proceedigns. Learned counsel has submitted that he is aggrieved by the following observation made in the impugned order dated 23-12-1999 : -- ' 25% of the outsiders even would be eligible to vote but those who have been in service and have throughout been ordered to be treated to be in service must not be excluded from the exercise by under-hand and unlawful mechanisations."
3. Learned counsel for the writ petitioner submitted that there is no provision of law whereby 25% of the outsiders even would be eligible to vote and that to that extent the illegality in the order is as clear as the sun light.
4. Mr. Zubair Afzal Rana learned counsel for respondent No,4 supported the impugned order and stated that internal election of the union is being delayed on one pretext or the other and the persons entitled to contest and vote are being denied of their right.
5. Mr. Muhammad Yawar Ali, learned counsel for respondent No,3 (Management) submitted that the illegality cropped into the matter when in contempt proceedings, the learned Labour Appellate Tribunal ordered to treat in service certain employees who had already been removed from service without following the procedure laid down in section. 25-A of the Industrial Relations Ordinance, 1969. There was no grievance petition under section 25-A of the Industrial Relations Ordinance, 1969, nor even signed by those persons who have been re-instated. He further submitted that the persons removed have moved the National Industrial Relation Commission where the matter is subjudice and that even that fact was concealed from the learned Appellate Tribunal.
6. I have given due consideration to the, valuable arguments on both sides.
7. Section 38 of the Industrial Relations Ordinance, 1969, states the various powers of the Labour Appellate Tribunal. It is reproduced for ready reference: '38. Labour Appellate Tribunal.---(1)
(2) .....
(3) The Tribunal may, on appeal, confirm, set aside, vary or modify the award or decision given under section 25-A or section 34 or a sentence passed under clause (e) of subsection (5) of section 35 and shall exercise all the powers conferred by this Ordinance on the Labour Court, save as otherwise provided. The decision of the Tribunal shall be delivered as expeditiously as possible, within a period of 60 days following the filing of the appeal; provided that such decision shall not be rendered invalid by reasons of any delay in its delivery.
(3-a) The Tribunal may, on its own motion at any time. Call for the record of any case or proceedings under this Ordinance in which a Labour Court within its jurisdiction has passed an order, for the purpose of satisfying itself as to the correctness, legality, or propriety of such order, and may pass such order in relation thereto as it thinks fit: ' Provided that no order under this subsection shall be passed revising or modifying any order adversely affecting any person without giving such person a reasonable opportunity of being heard.
(4) The Tribunal shall follow such procedure as may be prescribed.
(5) The Tribunal shall have authority to punish for contempts of its authority, or that of any Labour Court subject to its appellate jurisdiction, as if it were a High Court.
(6) Any person convicted and sentenced by the Tribunal under subsection (5) to imprisonment for any period, or to pay a fine exceeding Rs,50 may prefer and appeal to the High Court.
(7) A Tribunal may, in its motion or on the application of a party, transfer any application or proceeding from a Labour Court within its jurisdiction to any other such Labour Court.
(8) Notwithstanding anything contained in subsection (3), if, in an appeal preferred to it against the order of a Labour Court directing the reinstatement of a workman, the Tribunal makes an order staying the operation of the order of the Labour Court, the Tribunal shall decide such appeal within twenty days of its being preferred: ' Provided that, if such appeal is not decided within the period aforesaid, the order of the Tribunal shall stand vacated on the expiration of that period."
8. Subsection (3) contains the appellate, power, subsection (4) contains the procedural power; subsections (5) and (6) contain the power to punish for contempt of its authority; subsection (7) vests the Tribunal the power to transfer any application or proceedings from one Labour Court to another within its jurisdiction; subsection (8) empowers the Tribunal to stay the operation of an order of the Labour Court directing reinstatement of workman. Such stay is to ensure for 20 days only.
9. The learned Punjab Labour Appellate Tribunal while deciding contempt proceedings has all the power to clarify its order and give certain A directions but those should be within the lawful powers of the Tribunal. Further, where on the application of the employees under section 22-A(8)(g) of the Industrial Relations Ordinance, 1969, cognizance had admittedly been taken by the National Industrial Relations Commission regarding removal of the employees by the Management on the basis of unfair labour practice specified in section 15 of the said Ordinance, the matter to that extent was exclusively falling within jurisdiction of the National Industrial Relations Commission and the Tribunal should not have taken any action.
10. To see as to whether 25% outsiders can vote under the law, the relevant provision is contained in clause (d) of subsection (1) of section 7 of the Industrial Relations Ordinance, 1969, which reads as under:--- "Requirements for registration.---(1) A trade union shall not be entitled to registration under this Ordinance unless the constitution thereof provides for the following matters, namely:--- (a to c)
(d) The number of persons forming the executive which shall not exceed the prescribed limit and shall include not less than seventy live percent from amongst the workmen actually engaged or employed in the establishment or establishments or the industry from which the trade union has been formed.
(e to 1)..."
According to this provision, seventy five per cent of the office bearers are to be elected from amongst the workmen actually engaged or employed in the establishment or establishments or the industry from which the trade union has been formed. From this analogy, 25 Woffice-bearers of a union can be elected even from outsiders. Electing of 25% outsiders is different from casting of vote by 25% outsiders. No outsider can cast any vote in the election of the office bearers. To this- extent, the illegality is also apparent on the face of the impugned order.
11. Regarding the observations "But those who have been in service and have throughout been ordered to be treated in service must not be excluded from the exercise by under-hand unlawful mechanisations", the impugned order, at its page 6, shows that the learned Tribunal on being convinced that Haji Munir Group was being subjected to victimization by the management, ordered that the workers be permitted to perform their duties. This order in an application of contempt is an illegality on the part of the learned Tribunal because the Tribunal while hearing a contempt application had no power to order to treat to be in service a workman who was terminated by the employer. There is no cavil that had there been a application under section 25-A of the Industrial Relations Ordinance, 1969, before the Labour Court and it had been disposed of by the Labour Court and an appeal or revision had come to the learned Tribunal, it would have all the jurisdiction to reinstate any person. But This was not the circumstance. As such, the observation of the learned Tribunal referred to above, is also not sustainable. Those workers whose matter are subjudice before the National Industrial Relations Commission regarding their removal on account of trade union activities, referred to and discussed above, are entitled to cast vote in the internal elections of the union. Availability of right to cast vote by such terminated workers should not be taken to mean that they have been reinstated. The question of their reinstatement will be decided in accordance with law by the proper forum which the said workers have chosen or will choose.
11. In this view of the matter, the portion of the impugned order dated 23-12-1999 containing the direction: "....25% of the outsiders even would be eligible to vote but those who have been in service and have throughout been ordered to be treated in service must not be excluded from the exercise by underhand and unlawful mechanisatinos." ' being illegal is held without lawful authority and void and is set aside. The rest of the order is perfectly legal and is maintained. The learned Registrar, Trade Unions, Faisalabad Region, Faisalabad is directed to implement it expeditiously and strictly in accordance with law.
' This writ petition is disposed of accordingly.