Stereo. H C J D A 38.

Judgment Sheet
IN THE LAHORE HIGH COURT AT LAHORE
JUDICIAL DEPARTMENT

W. P.No.24856 of 2013
Muhammad Munir Vs Registrar, Industry-wise Trade Unions (NIRC) etc.

JUDGMENT
Date of Hearing 19.12.2013
Petitioner By: Mr. Salman Riaz Chaudhry, Advocate.
Respondents By: Mr. Naveed Inayat Malik, DAG.
Muhammad Pervez Jalees Alvi, Respondent No.2 in
person.
Mr. Qaiser Saleem Niaz, Advocate for Respondent
No.3.

Ayesha A. Malik J: Through this petition, the Petitioner has

impugned order dated 31.7.2013 issued by the Respondent No.1 and order
dated 13.9.2013 issued by the Respondent No.5.

2. The facts of the case are that the National Industrial Relations
Commission, Islamabad initiated the process of election of Bata Mazdoor
League of Bata Pakistan and authorized the Respondent No.2 to conduct the
election proceedings. The Petitioner objected to the nomination filed by the
Respondent No.3 on the ground that he was no longer a workman as he had
retired from Bata Pakistan and that he was not working anywhere else, hence
he could not contest the election. The Respondent No.3 submitted his reply
to the objection. However, the Respondent No.2 without hearing the
objections disposed of the same vide his order dated 24.6.2013. The
Petitioner challenged this order in WP No.16511/2013 whereby the order of
24.6.2013 was set aside and the case was remanded to the Respondent No.1
to decide the matter afresh after hearing all the parties. The Respondent No.1
heard the objections and passed his order on 31.7.2013 wherein he allowed
the Respondent No.3 to contest the election of Bata Mazdoor League. The
Petitioner assailed this order before the Respondent No.5 wherein it was
held that the Respondent No.3 could contest the election for Bata Mazdoor
W.P. No.24856 of 2013 2

League as he fell within the category of 25% outsiders quota such that he did
not have to be a workman.

3. Learned counsel for the Petitioner argued that the interpretation by the
Respondent No.5 is contrary to the bare reading of Section 8(1)(d) of the
Industrial Relations Act, 2012 (Act of 2012). He argued that in terms of the
proviso to Section 8(1)(d) of the Act of 2012, the 25% quota was only
available to workman who was not employed in any establishment or an
industry for which trade union was being formed. Learned counsel further
argued that the interpretation given by the Respondent No.5 is contrary to
the law laid down in the case titled ‘Raja Muhammad Mumtaz Vs National
Industrial Relations Commission through Member and 2 others’ (2010 TD
(Labour) 113) wherein it is held that 25% quota of outsiders would have to
qualify as workman though not employed in the employment where the union
is to be registered. Learned counsel further argued that this judgment was
assailed before the Hon’ble Supreme Court of Pakistan in Civil Petition
No.1582-L of 2008 and the Leave to appeal was refused. The CPLA was
dismissed vide order dated 27.5.2009. Consequently the judgment of this
Court cited as 2010 TD (Labour) 113 (supra) was upheld.

4. Report and parawise comments have been filed by the Respondent

No.1. Learned DAG has appeared before this Court and stated that the
Respondent No.6 was Secretary Establishment Division. Upon a direction of
this Court instructions have been brought that the relevant Ministry is the
Ministry of Overseas and Human Resource Development and that the
Respondent No.2 who is party before this Court has been authorized to
represent the relevant Ministry. Therefore the Respondent No.2 shall argue
on behalf of the Ministry of Overseas and Human Resource Development.
The learned counsel for Respondent No.3 stated that he would argue the
matter and did not want to file a reply. Learned counsel for Respondent No.3
argued that the impugned orders are in accordance with law and that the
spirit of the proviso was to allow non-workman to participate in the affairs
of the Bata Trade Union. He argued that the Respondent No.3 was a
workman employed with the Respondent No.4, hence he is eligible to
W.P. No.24856 of 2013 3

contest the election as he fell in the 25% quota for outsiders under the
proviso of Section 8(1)(d) of 2012 Act.

5. Respondent No.2 argued that the intent of the proviso to Section

8(1)(d) of the Act of 2012 was that the 25% quota for outsiders means any
person from anywhere and such person did not have to be a workman. He
argued that the Proviso has an over-riding effect and control over the whole
Section. He argued that the word ‘shall’ in the proviso means that the person
shall not be a workman. This was mandatory due to the use of the word
‘shall’. He has placed reliance on the cases titled ‘Syed Mehmood Akhtar
Naqvi Vs Federation of Pakistan through Secretary Law and others’ (PLD
2012 SC 1089) and ‘In the matter of reference by the President of Pakistan
under Article 162 of the Constitution of Islamic Republic of Pakistan’ (PLD
1957 SC (Pak) 219).

6. I have heard the learned counsels and reviewed the record available
on the file.

7. The question before this Court is whether a person desirous of being

part of the executive of a trade union seeking registration under the Act of
2012 is required to be a workman. Section 8(1)(d) of the Act of 2012 reads
as follows:-

“8(1). A trade union shall not be entitled to registration

under this Act unless the constitution thereof provides for the
following matters, namely:-
(d) the number of persons forming the executive which shall
not exceed the prescribed limit and shall include not less
than seventy five percent from amongst the workmen
actually engaged or employed in the establishment or
establishments or the industry for which the trade union
has been formed.
Provided that the condition of being employed in
any establishment or an industry as aforesaid shall not
apply to the remaining twenty five percent of the
members of such executives”
As per this Section, the persons forming the executive of the union seeking
registration shall include establish 75% from amongst the workmen who are
employed in the establishment or the industry for which the union is being
registered. The section provides for two conditions, one that the person be a
W.P. No.24856 of 2013 4

workman and second that he be employed with the establishment or industry

for which the union is being registered. In terms of the proviso, the
remaining 25% of the members of the executive do not have to be employed
in the establishment or the industry for which the union is being formed.
Therefore, in order to be eligible under Section 8 (1) (d) of the Act of 2012 a
person must be a workman and must be engaged in the establishment or
establishments or industry for which the union is being formed. Under the
proviso the condition of being employed in the establishment or
establishments or industry shall not apply to the remaining 25% of the
members of the executive but the condition of being a workman shall
continue. The impugned order dated 13.9.2013 finds that in order to contest
the election under the 25% quota for outsiders, a candidate does not have to
be a workman and does not have to be employed by the establishment or
industry for which the union is being formed. The learned Member has come
to the conclusion that for a person who wants to contest election of the trade
union from the 25% quota of outsiders, it is not necessary for him to be a
workman. To my mind this interpretation is not in accordance with Section
8(1)(d) of the Act of 2012. The proviso states that the condition of being
employed in the establishment, establishments or industry for which the
trade union has been formed shall not apply. The proviso has excluded the
requirement of being employed in the establishment for which trade union
has been formed, meaning thereby it has excluded one out of the two
qualifications set out for persons forming the executive of the trade union
seeking registration. Section 8(1)(d) of the Act of 2012 requires that the
persons forming the executive of the trade union seeking registration shall be
(i) workman; and (ii) shall be engaged in the establishment or establishments
or industry for which union has been formed, hence the proviso has excluded
the specific requirement of being engaged in the establishment or industry
for which the union is being formed. The Respondent No.2 and the learned
counsel for the Respondent No.3 have emphasized on the word “any” in the
proviso. However, to my mind, this emphasis is misconceived as the proviso
simply states that the condition of being employed in any establishment or
industry as aforesaid meaning that the word “any” and the word “aforesaid”
W.P. No.24856 of 2013 5

shall be read together in conjunction with the condition imposed under

Section 8 (1)(d) of the Act of 2012 of being employed in the establishment
or establishments or industry for which the trade union has been formed. The
Respondent No.2 has also emphasized on the use of the word “members” of
such executive used in the proviso. Again I find that this emphasis is
misconceived as the proviso excludes one condition from the two conditions
stipulated in Section 8 (1)(d) of the Act of 2012. The use of the word
members is with reference to the executive and the trade union and does not
take away the requirement of being a workman.

8. As per the impugned order the Respondent No.3 was no longer an

employee of Sonexo Lab with effect from 19.6.2013 being the date from
which he was removed from service. Learned counsel for the Respondent
No.3 when asked whether Respondent No.3 had impugned this finding,
answered in the negative. Therefore the Respondent No.3 has not challenged
the finding that he is no longer in the employment of the Respondent No.4.
Since the Respondent No.3 is not in the employment of the Respondent
No.4, therefore, he is no longer a workman and since he is not a workman,
he is not eligible to contest the election for the Bata Mazoor League in terms
of the criteria given under Section 8(1)(d) of the Act of 2012. The Hon’ble
Supreme Court of Pakistan in Civil Petition No.1582-L of 2008 upheld the
findings of this Court in the judgment cited as 2010 TD (Labour) 113 (supra)
wherein it was held that It is important to note that the appellant is no more
employee of the organization where he wants to remain as General
Secretary of a C.B.A. and this very fact that a person who does not fall
within the category of workman and is asking for a relief for which he does
not entitle is a noval situation. This very controversy was already resolved in
a reported case Habib Sugar Mills Ltd v. Registrar of Trade Unions and
others 2001 PLC 441 wherein it is held that ‘the provisions of Industrial
Relations Ordinance, say only that 75% of the office-bearers of a trade
union shall be from amongst the workmen actually engaged or employed in
the industry 25% can be outsider but such an interpretation that these 25%
can be any person, even if they are not non-workmen would be contrary to
the essence and spirit of law. Some rational interpretation will be that 25%
 W.P. No.24856 of 2013 6

outsiders are also necessarily be in the category of workmen though not

employed in the employment where the union if applying for registration’.

9. In view of the aforesaid, this writ petition is allowed. The findings in

the impugned order dated 13.9.2013 with respect to the interpretation of the
proviso to Section 8(1)(d) of the Act of 2012, such that 25% quota for
outsiders is not applicable to workman is set aside being contrary to the
proviso of Section 8(1)(d) of the Act of 2012. The Respondent No.3 in terms
of the order of 13.9.2013 is not a workman with the Respondent No.4.
Therefore he is not eligible to contest the election for Bata Mazdoor League
under the 25% quota allocated for workmen who are not employed in the
establishment or industry for which the union is being formed.

(AYESHA A. MALIK)
JUDGE

Announced in an open Court on 3.1.2014.

JUDGE

Approved for reporting.

JUDGE

Allah Bakhsh*