' This is an appeal under section 37(3) of the Industrial Relations Ordinance, 1969, challenging the decision, dated 19th May, 1997, passed by the learned Sindh Labour Court No,VI, at Hyderabad, on application No,1 of 1997 under section 34 of I.R.O., 1969, dismissing the same on the ground that the employer has no right under section 34 to file an application in the Labour Court in respect of the matter in dispute i,e, the referendum between the two contesting unions or objecting to the acceptance of the change of office-bearers by the Registrar Trade Unions.
2. In support of the appeal, Mr. Khalid Javed, learned counsel for the appellant, raised the following pleas:--
(1) That section 22(4) of the I.R.O., requires the Registrar to get the list of workmen, engaged in the establishment, verified.
(2) The respondent No,5 (Malik M. Ajaib) was the General Secretary of Fauji Sugar Mills Mazdoor Union, as alleged, had no authority to file the application before the Registrar, Trade Unions in the name of the Union. Section 22(2) requires that the application is to be submitted to the Registrar by a trade union itself, unless it is shown on record that the General Secretary was duly authorised by.
The union to file such an application, the application itself was not maintainable before the Registrar. According to him, no resolution was passed by the union authorising the said General Secretary to move to the Registrar, Trade Unions to file application under section 22(2) of the I.R.O., 1969.
(3) In any case, and without prejudice to the above, the respondent No,5, being a dismissed employee of the appellant establishment, as confirmed by the Labour Court No,6, at Hyderabad, whose decision was upheld by this Tribunal as well, is not entitled to hold office of the trade union.
(4) The respondent No,5 does not fulfil the requirement of being a worker or workman; as such, he, even otherwise, is not entitled to make the said application.
3. Elaborating the first plea, the learned counsel for appellant submits that unless the employer is associated in the election by the Registrar to the effect that whether names of workers given by the contesting union, are the names of those workers who are actually engaged in the establishment or list of voters contained such voters, who have been employed for three months in a year, no list of voters can be finalised.
4. In support of the second plea, learned counsel for the appellant submits that since it is a union duly registered under the provisions of I.R.O., 1969 and has constitution of its own with a managing committee, unless any office-bearer is specifically authorised to act for the union for making application under section 22(2) to the Registrar by General Body or executive committee, such application is not maintainable in law, having been filed unauthorisedly. Reliance is placed on a case reported as Khan Iftikhar Hussain Khan of Mamdot v. M/s. Ghulam Nabi Corporation Ltd., Lahore (PLD 1971 SC 550).
5. Coming to the third plea, it was submitted that the respondent No,5 was dismissed by the employer on the charge of misconduct which was duly proved under enquiry, which was maintained by the Labour Court by its order, dated 22-8-1991 which was upheld by this Tribunal by its order, dated 17-9-1992. As such, being a dismissed employee, he is not entitled to hold office in the union.
6. Relying on the provisions, as contained in section 7(1)(d) of I.R.O., 1969, that the number of persons forming the executive may contain 25% from the outsiders, even by virtue of this provision, the respondent No,5 cannot hold office of the union for the reason that firstly he is a dismissed employee by the same establishment and consequently he is not a worker, as provided under the law.
7. Learned counsel lastly submitted that the learned Labour Court, instead of deciding the matter on merits, has dismissed the application under section 34 of I.R.O., 1969, on an application, moved by the respondent, under Order 7, Rule 11, C.P.C. The said order is illegal and is liable to be set aside and the case may be remanded to the learned Labour Court for proceeding afresh according to law.
8. Mr. Ali Amjad, learned counsel for respondents Nos,4 and 5, submits that subsection (4) of section 22 does not require, as mandatory, the association of the employer in preparing a list of voters. The union is required to submit the list. The Registrar can ask the employer to submit a list of workers, if he requires it. Submission of the list by the employer is not a right, guaranteed to the employer. He further submits that an employer is prohibited, under section 15 of I.R.0 ., 1969, from interfering with or influencing, in any way, the holding of a ballot for the determination of Collective Bargaining Agent between the contesting unions. For contravention, the employer is liable to punishment for three years' imprisonment. He further submits that this point was neither raised in the application nor argued before the learned Labour Court. Mr. Amjad submits that it was not raised before the Labour Court for a valid reason that the list of voters, which was issued by the Registrar, bearing the signatures of both the unions, and the employer. I asked him to submit the said list, which he accordingly did. The same is placed on record.
9. It was next submitted by him that subsequent to the referendum, having been held and certificate, on the basis of that referendum having been issued to a properly elected, C.B.A., in favour of Fauji Sugar Mills Mazdoor Union. Tando Muhammad Khan, a settlement was also arrived at between the said union and the management. The two years term of C.B.A., have been completed. Proceedings for the determination of the C.B.A, afresh have been initiated before the Registrar, Trade Unions.
10. As regards the fourth plea, Mr. Amjad submitted that it is not necessary that an office-bearer from outside must, necessarily be a workman.
11. I have carefully examined the submissions of the learned counsel for the parties and I am of the view that the submissions of the learned counsel for the appellant that the law makes it obligatory for the employer to submit list of workers to the Registrar Trade Unions for the purpose of holding referendum between the two contesting unions, is misconceived. Subsection (4) of section 22 of the I.R.O., 1969 starts with the words "every employer shall on being so required by the Registrar, submit a list of all workmen employed in the establishment, excluding those whose period of employment in the establishment is less than three months". The words "being so required by the Registrar" acts in the matter of submission of list of workers by the employer, as a condition precedent. If the Registrar considers it necessary, only then a duty is cast on the employer to do so.
The submission of the learned counsel that in the case of two contesting unions, it would be necessary to have list verified by the Registrar. It may or may not be so. It depends on the circumstances of every case. Even otherwise, in the present case, a list of workmen/voters, duly signed by both the contesting unions and the employer, has been placed on the record and the submission of the counsel falls flat.
12. The next submission of the counsel for the appellant that the respondent No,5, being a dismissed employee, had no locus standi to file an application before the Registrar, is not sustainable. He may be a dismissed employee, but there is no' bar to elect a dismissed employee as office-bearer of the union because 25% of the office bearers can be elected as office-bearers of the union from outside.
13. In the instant case, a referendum was held and a certificate, on the basis of that referendum having been issued to an elected C.B.A., in favour of Fauji Sugar Mills Mazdoor Union, Tando Muhammad Khan and subsequently a settlement has also been arrived at between the said union and the management, and on completion of two years' term of C.B.A., proceedings for determination of C.B.A., afresh, have now been initiated before the Registrar, Trade Unions. The submission will be a fait accomplii, contrary to the events, already -accomplished, as well as the logic.
14. As regards the last contention that, an office-bearer from outside must necessarily be a workman, has no basis. The point seems merely imaginative. The learned counsel failed to cite any law or authority in support thereof in spite of giving opportunity.
15. For the aforesaid discussion, the appeal is dismissed.
16. Miscellaneous Application No,21 of 1999 for placing the documents, Miscellaneous No,243 of 1999, for stay and 244 of 1999 for exemption from filing certified copy of impugned order, having become infructuous, are dismissed.
' Announced in open Court, this the 26th day of August, 1999.