ABBAS SHAH Versus REGISTRAR OF TRADE UNIONS
DECISION
By this Revision Application the applicant has challenged the legality, propriety and correctness of the order of Labour Court No.VI at Hyderabad dated 9-5-1991.
2. I have heard Mr. M.L.Shahani, learned Advocate for the applicant and Mr. Rana Mehmood Ali Khan, learned Representative for respondent No.4. Respondent No.3 present and heard in person and have also gone through the record and proceedings of the case.
3. The brief facts of the case appear to be that the learned Labour Court No. VI at Hyderabad vide its order, dated 2..''-11-1990 in Application No. 6 of 1990 filed by General Secretary of the Telegraph Store and Workshop Workmen Union, directed the Registrar Trade Unions to hold election of the said union under his supervision. In pursuance of that order Elections were held of the union on 31-12-1990 by the Election Committee constituted under the constitution of the union. The results of the election were declared on the same date and signed by the agents of the candidates. The present dispute is with regard to the election of Joint Secretary. The present applicant was declared to be successful having secured 303 votes whereas respondent No.4 stood No.2 securing 298 votes. Fifteen votes were rejected on the ground that they did not bear official mark. The results were sent to the Registrar of Trade Unions under section 8(4) of IRO 1969. The respondent No. 4 filed objections before the Registrar. The Registrar called the joint meeting of the parties and thereafter rejected the objections of respondent No.4 and notified the election results accepting the change in office-bearers by notifying the applicant as Joint Secretary. The respondent No.4 thereafter filed an application under section 8(7) of the IRO, 1969 challenging the above order of the Registrar. The learned Labour Court opened envelope containing 15 rejected votes in presence of parties and held 14 votes to be valid out of which 3 were held to be in favour of the present applicant, whereas 11 were held to be in favour of the Respondent No.4 and consequently appeal was allowed and the Registrar was given direction by the impugned order to declare respondent No.4 as Joint Secretary. In the present Revision Application the suo motu revisional powers of this Tribunal are invoked to examine the correctness, propriety and legality of the aforesaid order of the learned Labour Court.
4. The main objection of Mr. M.L.Shahani is that the Registrar could not refuse to accept the change of office-bearers except on the grounds that are mentioned under subsection (5) of section 8 of I.R.O., 1969 that is if the change or alteration was in contravention of provisions of this Ordinance or if it was in violation of the constitution of the Trade Union. Mr. Shahani contends, that in the application before the learned Labour Court the respondent No. 4 had not specifically alleged that there was any violation of the provision of this Ordinance or constitution. He further contends that in dispute with regard to change of office-bearer the application would lie under subsection (7) and not appeal and in the application it was obligatory for the learned Labour Court to have allowed the parties to lead evidence in support of their respective contentions. He contends that there is misprint in subsection (7). which in official publication actually reads as under:-
"In case there is a dispute in relation to the change of officers of a trade union, or any trade union is aggrieved by the refusal of the Registrar under subsection (5), any officer or member of the trade union may apply or appeal, to the Labour Court, who shall within seven days of receipt of the application or appeal, as the case may be; pass an order either directing the Registrar to register the change or the alteration in the constitution or in the officers of the trade union, or may, for reasons to be recorded in writing, direct the Registrar to hold ? fresh elections of the union under his supervision."
It is further contended by Mr. M.L. Shahani that the powers of the learned Labour Court to refuse change of office-bearers are same as that of the Registrar viz. only on the grounds as provided under subsection (5). Mr Shahani further contends that the Polling Agent of respondent No.4 had accepted the election results and also given the statement showing satisfaction with the manner the elections were held and the count. These two documents bearing signatures of Pervez Shafi Election Agent of respondent No.4 are pages 31 and 37 of the R & P of the learned Labour Court.
6. Mr Rana Mehmood Ali for respondent No.4 on the other hand contends that tire learned Labour Court was the only forum where the respondent No.4 could go against the order of the Registrar. In this context he is relied upon the authorities reported in 1982 PLC 742, 1984 PLC 61. Mr. Rana Mehmood Ali Khan further contends that proceedings before the Learned Labour Court were in appeal and therefore it was not necessary for the learned Labour Court to examine the witnesses of the parties. It is further contended by Mr. Rana Mehmood Ali Khan that it was not necessary that vote be marked in a particular form but if the intention of the voter is clear from marking then vote would have to be accepted as the valid vote. In this context he had relied upon 1981 CLC 1332, 1987 CLC 708, 1990 SCMR 877. He further contends that the applicant had not raised any objection before the learned Labour Court with regard to the procedure adopted by the learned Labour Court.
7. There is no dispute with regard to refusal of the change of office? bearers under subsection (5) by the Registrar as Registrar has accepted the change therefore the appeal against the refusal of Registrar would not lie. There is a dispute in relation to change of office-bearers as both the candidates claimed to have acquired more number of votes as such an application under subsection (7) would lit- to the Labour Court. This issue was discussed by this Tribunal in the case of Mansoor and others v. Registrar of Trade Unions and others in Revision Application No.KAR-137 of 1990, decided on 22-10-1990. It was observed:--
"On plain reading of this provision of the law it would be clear that under this provision appeal or application is not provided where Registrar allows the amendment or alteration of constitution of the Association. This subsection also does not provide any appeal or application where the change in office-bearers is not refused by the Registrar. However if there is a dispute with regard to change of office-bearers, the learned Labour Court can under this provision, for the reasons to be recorded, direct the Registrar to hold fresh elections under his supervision."
It was further observed:--
"The question as to whether there is dispute with regard to change of office-bearers or whether there are reasons, which may justify an order by the learned Labour Court to order fresh elections, can be decided only after evidence is recorded. Though under subsection (7) of section 8, the learned Labour Court does not have powers to order Registrar not to effect the alteration/amendment in the constitution nevertheless it has got powers to order fresh elections if it is satisfied that there is dispute over change of office-bearers and there are reasons to order that fresh elections should be held."
8. A careful analysis of provisions of subsection (7) of section 8 would show that on appeal under subsection (7) the Labour Court has got power to order the Registrar to register the change or alteration in the constitution of the trade union. However, with respect to dispute in relation to change of office-bearers on application under subsection (7) the only power the Labour Court has is that it could direct the Registrar to hold fresh elections under his supervision and that also for the reasons recorded in writing. Under this subsection the learned Labour Court does not have power to order change of office-bearers once it has been accepted by the Registrar. The fact that the Labour Court can pass order for holding fresh elections where there is dispute with regard to change of office-bearers of Trade Union and that also only after recording reasons for the same, would clearly imply that such an order could be passed only after evidence s recorded by the Court. In the instant case neither any evidence is recorded by the Labour Court nor the order directing the change of office-bearers passed by the learned Labour Court was within the jurisdiction of learned Labour Court. As such the order is not legal and is liable to be set aside.
9. I, accordingly set aside the order of the learned Labour Court and remand the case back for retrial in the light of the above observations. In view of the above order I need not discuss the other points raised by the parties as it might prejudice their case before the learned Labour Court. Revision allowed.
H.B.T./1947/LB.S ?????????????????????????????????????????????????????????????????????????????? Case remanded.