Naeemullah Khan etc Vs Haji Maqbool-ur-Rehman Khan Jadoon etc

JUDGMENT SHEET

II,{ THE PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(Judicial Department)

'L.c. R No. 02-N2A24

Na,eemullah Khan & another.

(Petitioner/s)

VS

Haji Maqbool-ur-Rehman Khan Judoon (President) & others.

(Respondents)

Present: Mr. Abdur Rehman Qadir, Advocate, for petitioners.

Mr. Jehangir Khan, Advocate, for respondents

Date of hearing: A7 J0.2024

JUDGMENT

Through the

instant civil revision petition, petitioners have challenged the judgment and order of learned Presiding Officer Labour Court, Haripur dated 12.03.2,024, whereby, the learned Presiding Officer set aside the order'of withdrawal of CBA dated N 02.10.2023 passed by respondent No.l/Registrar of Trade Unions, HazaraDivision at Haripur.

Precisely, the facts leading for the filing of the instant petition are that respondent No.1 to 5 being office bearers of an Association Tahir Saleem (S.8.) Hon'ble Mr. Justice Muhammad Ijaz Khan

namely Anjuman-e-Arthian New Sabzi Mandi, Abbottabad and having registration No. 0612020 applied to the proforma respondent No. 1 with the claim 'that their association be certified as Collective Bargaining Agent (CBA) and upon this, respondent No. 1 issued CBA Certificate dated 23.11.2022 whereby he certified their association as Collective Bargaining Agent (CBA) with effect from 23'd November, 2022, however, when petitioner's Association namely Arhtian & Commission Agents Association Sabzi and Fruit Mandi Abbottabad, which is registered under The Khyber Pakhtunkhwa Industrial Relations Act, 2010 vide registration dated 18.08.2023 applied to the respondent No. 1 that their membership is more than the membership of Anjuman-e-Arthian New Sabzi Mandi, Abbottabad, therefore, a referendum be held amongst both Associations to determine that which of the Association will act as Collective Bargaining Agent (CBA), however, their application was rejected by respondent No. I vide letter dated 21.,09.2023. Thereafter, respondent No. 1 vide order dated 04.10.2023 withdrew the Collective Bargaining Certificate (CBA) issued to Anjuman-e-Arthian New Sabzi Mandi Abbottabad Tahir Saleem (S.8.) Hon'hle Mr. Justice Muhammad Ijaz Khan

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being not in accordance with law and, thereafter, to 5 preferred an appeal

against the orders dated 02.10.2023 and 21.09,2023 of proforma respondent No. l/Registrar Trade Union at Haripur, and the learned Presiding Officer Labour Court after seeking reply has set aside the order of withdrawal of CBA certificate dated 02.10.2A23 and feeling aggrieved of the same, the petitioners have now approached to this Court through the instant labour revision petition.

J. Arguments of learned counsel for

parties were heard in considerabtre detail and the record perused with their able assistance.

4.Learned counsel for the petitioners at the very beginning argued that the I'abour Court was not having jurisdiction to entertain a petition Collective Bargaining Agent Certificate could not be certified in cases of eu AS

under the law the same could only be certified in cases of workmen Association, whereas, the stance of learned counsel representing the respondents was that since the petitioners as well as the respondents are the employees of TMA being their tenants, Tahir Saleem (S'8.) Hon'ble Mr. Justice Muhammad Ijaz Khan

therefore, they are not employers rather they are worker. His next submission was that since there are factual controversies between the parties, therefore, the same requires recording of evidence for which petitioners may approach to the civil Court(s).

5.Keeping in view the aforesaid

submissions of learned counsels for both the parties, the only controversy before this Court is that as to whether the Collective Bargaining Agent Certificate has rightly been issued/certified in favour of the respondents or not?. Admittedly, though the petitioners as well as respondents are registered as "employer Association" as their certificate available at page 29 of the file shows "Representing Employers". As per The Industrial Relations Act, 2010 "workmen" and "employer" has distinctly been defined and the same being relevant for the present controversy are reproduced below;

,r{ "@!" and "@." mean a Pguon-aql- fiiting within the de.finition o.f emplo:ter who is employed (including employment as q supervisor or as an apprentice) in an uitoblith*ent or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and, for the purpose of any proceedings under this Act in relation to an Tahir Saleem (S.8,) Hon'ble Mr' Justice Muhammad Ijaz Khan

industrial dispute includes a person who has been dismissed, discharged, retrenched, laidoff or otherwise removed -from employment in connection with or os a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-ffi or removal has led to that dispute but does not include any person who is employed mainly in managerial or administrative capacity.

means any person or body of persons, whether incorporated or not, who or which emplolts workmen in the establishment under a contract of employment and includes,-

(a)an heir, successor or assignee, as the cose may be, ofsuch person or body as aforesaid;

any person responsible -fo, the management, supervision and control of the establishment;

in relalion to an eslablishment run by the authority of any of the Government, the appointed in this behalf or, where no authority is so appointed, the Head of the department; qnd

(d)in relation to an establishment run by or on behalf of a local authority, the fficer appoi,nted in this behalf, or where no officer is so aPPointed, the chief executi,ve fficer of that authority;

k) in relation to any other establishment, the proprietor of such establishment and every director, manoger' secretary, agent or fficer or Person concerned with the management of the affairs thereof.

Similarly, workers as rwell as employers h{ have their right to establish and to join their respective association as per their own choice' Section 3 of The Act of 2OtO bestowed such right upon the workers and employers. The same being relevant is also reproduced below.

Tahir Saleem 6.8.) Hon'ble Mr. Justice Muhammad Ijaz Khan

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Section 3. Trade unions and freedom of association,-*-Subject to the provisions of this Act and nohryithstanding anything contained in any other law for the time being inforce;

(i)workgrs, without distinction whatsoever, shall have the right to establish and, subject to the rules of the organization concerned, to join associations of their own choice without previous authorization:

Pravided that no worker shall be entitled to be a member of more than one trade union at any one time and on ioining another trade union the earlier membership shall automatically stand cancelled;

(ii)employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join associatiotns af their own choice without pr ev io us autho r i zatio n ;

(iii)every trade union and emPloYers" association shall frame its own constitution and rules to elect its representatives in full freedom to organize its administration and activities and to formulate its programmes; and

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(iv)workers" ond employers" organizations shall have the right to establish and join federations and confederations and any such organtzation, federation or confe;deration shall have the right to ffiliate with international organizations and confederations of workers" and employer s " or ganizations.

The aforesaid provisions of law specifically show that "workers" and "employer" shall establish and have their righl to join their respective Tahir Saleem (S.8.) Hon'ble Mr. Justice Muhammad Ijaz Khan

associations and the association shall frame its own constitution and rules to elect its representative.

Similarly, every workers and employers' organization shall have a right to establish and to join the federation and confuderation and shall have right to affiliate with International organization and confederation of the workers and employers'

0.The combined perusal of the aforesaid provision of law manifestly' shows that o'workers" and "employers" are two distinct classes and thus both set of persons have the right to establish and join their respective trade unions and as such a "worker" could not be member of "employer association" nor a member of employer association could be a member of "workers association" law has provided two different

mechanism to protect and regulate their rights qua the formation of their respective associations L. Now the next question is that to whom f, i.e. as to whether an employer association or workmen union is to be certified as a Collective Bargaining Agent for an establishment? The Act of zArc provides a cornplete mechanism for issuance Tahir Saleem (S.8,) Hon'ble Mr. Justice Muhammad Ijaz Khan

of a Collective Bargaining Agent certificate, the same being relevant is also reproduced below.

24.Collective bargaining agent. --

(l)Where there is only one registered trade union in an establishment or a group of establishments or industry, that trade union shall if it has as its members not less than one- third of the total number of worlcrnen emplolted in such establishment or group of establishments, or industry upon an application made in this behalf be certified by the Registrar in the prescribed manner to be the collec,tive bargaining agent for such establishment or group of establishments or industry.

(2)Where there are more registered trade unions than one in an establishment or a group of establishments, or industry, the Registrar shall upon an application made in this behalf by any such trade union which has as its members not less than one-fifth of the total number o.f worlvnen emplqted in such establishment or group of establishments or industry or by the emPloYer or the Government, hold within fifteen days from the making of the application, a secret ballot to determine as to which one of such trade unions shall be the collective bargaining agent for the establishment or group of establishments or industrY :

Provided that the Registrar may, in the case of a large establishment having its branches in more than one town, hold the secret ballot within thirty days from the making of the application:

Provided further that the Registrar shall not entertain any application..under this sub-section in respect of an establishment or group of establishments, consisting of, or dl, incliding, o seasonal factory within the meaning of section 3 of the Factories Act, 1934 (XXV of 19j4), unless such application is made during the month in which the number of workmen employed in such factory in a year is usuallY the maximum.

(3)upon receipt of an apptication under sub- section (2), the Registrar shall, by notice in writing call upon every registered trade union in llrc establishment or grouP of Tahir Saleem (S.8.) ,Hon'ble Mr. Justice Muhammad Ijaz Khan

establishments or industry to which the application relates:

(a)to indicate whether it desires to be q contestant in the secret ballot to be held for determining the collective bargaining agent in relation to such establishment or group or industry,'

(b)if it so desires, to submit to him within the time specified in the notice a list of its members showing, in resPect of 'each member, his parentage, age, the section or department and the place in which he ls employed, his ticket number and the date of his becoming a member ond if union is a federation of trade unions, a list of its ffiliated trade unions together with a list of members of each such trade union showing in respect of each such member the said particulars.

(4)Every employer shall,-

(a)on being so required by the Registrar, submit a list of all worhnen employed in the establishment or grouq of establishments or industry excluding those whose period of employment in thet establiihment or grouP of establishments or industry is less than three months and showing, in respect of each workman, his Parentage, og€, the section or dePartment and the place in which he is emPloYed, his ticket number and the date of his employment in the establishment or group of establishments or industry; and

(b)provide such facilities for verification of the lists submitted by him and the

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tr;ade unions as the Registrar maY require:

Provided that in comPuting the period of three months referued to in clause (a) in the case of a worlcrnan employed in a seasonal factory within the meaning of section 4 of the Factories Act, 1934 (XW of 1934), the period -in during which he was employed that factory during the preceding seoson shall also be taken into account.

Tahir Saleem (S.8.) Hon'ble Mr. Justict : Muhammad ljaz Khan

(5)The Registrar shall, after verification of the lists submitted by the trade unions, prepore a list of voters in which shall be included the name of every worlcrnan whose period of employmenl as computed in accordance with sub-section (4), is not less thon three months and who is a member of any of the contesting trade unions and shall, at least four days prior to the date fixed for the poll, send to each of the contesting trade unions a certified copy of the list of voters so prepared.

(6)Everyt workman who is a member qf ary) qf the contesting trade unions and whose name qppeqrs in the list of voters prepared under sub-section (5) shall be entitled to vote at the poll to determine the collective bargaining ogent.

(7)Everlt emplqter shall provide all such .facilities in his establishment as mqt be required b)t the. Registrar for the conduct o.f thi poll but shall not interfere with, or in qnv wq)t influence lhe voting.

(S)No person shall convass for vote within a radius offifty mteters of the polling station.

(9)For the purpose of holding secret ballot to determine the collective bargaining agent, the Registrar shall-

(a)fix the date for the poll and intimate the same to each of the contesting trade unions and also to everY employer;

on the date fixed for the poll so place in the polling station set up for the purpose, the ballot boxes which shall be sealed in the Presence of the representatives of the contesting trade unions as to receive the ballot papers;

r @ conduct the poll at the polling station at which the representatives of the contesting trade unions shqll have the right to be Present:

(d)after the conclusion of the poll and in the Presence of such of the representatives of the contesting trade uiiort as maY be Present, oPen the ballot boxes and count the votes; and

(e)after the conclusion of thy cotmt, received the highest number of votes to be the collective bargaining agent:

Tahir Saleem (S.8.) Hon'bte Mr. Justice Muhammad ljaz Khan

Provided that no trade union shall be emplqted in such establishment or group or induslry;

Provided further that if no trade union secures such number of votes in the first poll, a second poll shall be held between the trade unions which secure the two highest numbers of votes in the first poll and the trade union which secures a maiority of the votes cast at the secoid potl shatl be certified in the prescribed manner to be the collective bargaining agent:

Provided also that f the number of votes secured by two or more trade unions securing the highest number of votes is equal, further polt shall be held between them until one of them secures a maiority of the votes cast at suchfurther Poll.

(10)If no trade union indicates under clause (a) of sub-section (3) that it desires to be a coni,testant in the secret ballot, the Registrar shall certify the trade union which has made the application under sub-section (2) to be the colle ctive bar gaining agent :

Provided that no trade union shall be certified to be collective bargaining agent for an establtshment, or group of establishments or industry under sub-section (10) unless it has as its members not less than one third of the total number of the workrnen employed in the establishment or group of establishments or industrY.

a registered trade union has been under clause (e) of sub-section (9) to ( co,llective an establishment or or industry, no application for the determination of the'colleciive borgaining agent for such istablishment or group of establishments or industry shall be entertained within a period of two years from the date of such certification ixcept' where the registration of such a regiitered trade union is cancelled before the expiration of the Period'

(12)A collective bargaining ogent may' wiihour preiudice to its o.wn position' implead as a party to any proceedings under this Act to

Tahir Saleem (S.8.) Hon'ble Mr. Justice Muhammad Ijaz Khan

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which it is itself a pdrty or any federation of trade unions ofwhich il is a member.

(13)The collective bargaining agent in relation to qn establishment or group of establishments or industry shall be entitled to-

(a)collective with the employer or employers on matters connected with emPloYment, nonemployment, , the term o{ employment or the conditions of work other than matters which relate to the enforcement of any right guaranteed or secured to it or any workman bY or under any law, other than this Act, or any award or settlement;

(b)represent all or any of the workmen in any proceeding;

@ give notice of, and declare, a strike in accordance with the provisions of this Act,'and

(d)nominate representatives of worlcrnen on the Board of Trustees of anY welfare institutions or Provident Funds and of the Workers Participation Fund established under lhe ComPanies Profits (lVorkers Participation) Act, 1968 (Act XII of 1e6S).

Qa) The Registrar may authorize in writing an fficer to Perform all or anY of his functions under this section,

The plain reading of the aforesaid provision of the relevant law would manifestly show that it speaks about the "workmen" and the same is completely silent about the "grnploJel", therefore, the respondent No.l/Registrar of Trade Unions, has V rightly withdrawn the already issued Collective Bargaining Agent certltlcate 1I1 favour of the respondents' Association as they are the members of "employers Assoeiation" and not that of "workmen Tahir Saleem (S.B') Hon'ble Mr' Justice Muhammad Ijaz Khan

union" as under the aforesaid reproduced law the Collective Bargaining Agent could not be certified in favour of an employer association rather the same is to be certified,, in ,favour of workmen association.

E The next question that as to whether the Labour Court was having jurisdiction to entertain the objections of the petitioners against the withdrawal of Collective Bargaining Agent Certificate issued in favour of the respondents or not, the answer to the aforesaid question, the power and functions of the Labour Court has been given in section 9 (7) and section 46 of The Act of 2010, therefore, the same being relevant is reproduced below.

Section 9 (X) In case there is a dispute in relation to the election of the officers or change of officers or alteration made in the constitution of a trade union, the Registrar or any trade union aggrieved by the refusal of the Registrar under subsection (5), any office bearers or member of the trade union may apply or appeal to the Labour Court, who shall *ithi, seven days of receipt of the application r or appeal, as the case may be, pass an order eithii, directing. the Registrar to register the change or alteration in the constitution or in the officers of the trade union or may, for reasons to be recorded in writing, direct the R.;ittt* to hold fresh elections of the union under his suPervision.

46, Application to Labour Court'--- Any collective bargaining agent ^or any .-ploy.t may apply to the Labour Court for the enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement.

Tahir Saleem (S.8.) Hon'ble Mr. Justice Muhammad ljaz Khan

The aforesaid reproduced provision of The Act of 2010 pertaining to the power, function & jurisdiction of the Labour Court would also show withdrawal or cancellation of Collective Bargaining Agent certificate could not be entertained by it as it is settled since long that a Court or authority can only exercise jurisdiction with respect to matter which are specifically shown as ad-judicable by such Court or authority.

9.In view of the above, the T abour Court has acted beyond its jurisdiction as the controversy of withdrawal of the Collective Bargaining Agent certificate does not fall within its domain and thus it has wrongly assumed the jurisdiction and thus the instant labour fevision petition is allowed and the impugned order dated 12,03.7024 of the Labour Court is set' aside and that of Registrar Trade Union/Respondent No. 1 dated 02.10.2023 is restored and maintained. Order accordingly. r6 Announced 07.r0.2024

JUDGE

Tahir Saleem (S.8.) Hon'ble Mr. Justice Muhammad Ijaz Khan