Dismissed or terminated workers barred from trade union

Background
Salma Masud Chowdhury, J: This Rule Nisi was issued calling upon the respondent to show cause as to why the order contained in the impugned letter No. RTU/CAB (539)/2001/699 dated 9.9.2001 issued by the Registrar of Trade Union Government of Bangladesh Respondent No. 1 (Annexure-A to this petition) should not be declared to have been made without any lawful authority and is of no legal effect and why the respondent No. 1 should not be directed to take proper steps for cancellation of the Registration of the respondent No. 2 Union under section 10 (1) and (2) of the IRO for electing as its President, General Secretary and members of the Executive committee some persons who are disqualified under section 7A of the IRO and for contravening the provisions of IRO and the rules of their own constitution or such other or further order or orders passed as to this court may seem fit and proper.

Facts in brief
The case of the petitioner is that the petitioner company is engaged in the sale and distribution of petroleum products in the country and there are two registered Trade Unions of workers and employees of the company namely Padma Oil Company Ltd Labour Union Registration No. B-48 i.e. respondent No. 2 and Padma Oil Company Limited Sramik League Registration No. 2019. In the CBA election held on 6.9.2001 the respondent No. 2 was declared CBA by Respondent No. 1 and it has been alleged that respondent No. 2 illegally participated in the election as Respondent No. 2 i.e. Padma Oil Company Limited Labour Union (Registration No. B-48) was not legally constituted as per law. Because the Executive Committee consisted of disqualified persons as President, General Secretary and Member, who were terminated and dismissed from service on 10.7.97 and 29.4.98 . This fact was brought to the notice of Respondent No. 1 by the petitioner Company before the CBA election. But the Respondent No. 1 took a view which was not in accordance with law. The petitioner challenged the declaration of Respondent No. 2 as CBA by Respondent No. 1 (Annexure-A) and prayed for a direction upon the Respondent No. 1 to take proper steps for cancellation of the registration of respondent No. 2 and accordingly moved this court and obtained the present Rule.

Mr. Rafique-UI-Huq, the learned Senior counsel appeared with Mr. Khalilur Rahman and Mr. Zubayer Rahman Chowdhury on behalf of the petitioner and submitted that the President and the General Secretary of the Executive Committee of the Trade Union Respondent No. 2 were disqualified persons as per section 7-A (1) (b) of the Industrial Relation Ordinance and as such the declaration of that Trade Union to act as a CBA was unlawful. He has also submitted that if a person is not actually employed or engaged in the establishment due to his termination or dismissal from his service he is disqualified from being a member or officer of the Trade Union. He has pointed out that the position of law has been explained and settled by the High Court division in Writ Petition No. 6111 of 1997, which was filed by a disqualified member of the respondent Trade Union.

He has further submitted that an employee who has ceased to be in employment is disqualified from being an officer or member of Trade Union after his termination or dismissal. He drew our attention to the fact that Rafiqul Islam was terminated from service on 10.7.97, Aminul Haque was terminated from service on 29.4.98 and Mohsin Ali Chowdhury was dismissed on 13.4.99. During the last election of the office bearers of Respondent No. 2 held on 11.11. 2000, they were elected as office bearers by falsely showing themselves as existing employees of the petitioner and subsequently that Trade Union was declared to be the CBA by the election held on 6.9.2001. The learned counsel further submitted that since some officers or members of the Trade Union (the Respondent No. 2) are disqualified for being the same as per section 7-A(1) (b) of IRO, the registration of such Trade Union must be cancelled in compliance with section 10 (1) (b) (1) and (h) of IRO.

Lastly the learned counsel appearing on behalf of the petitioner has submitted that three disqualified persons after their termination or dismissal filed cases before the Labour Court which were decided in their favour along with orders for their reinstatements but against that the petitioner preferred writ petition numbers 2237, 4096 and 3597 of 2000 before the High Court Division in which rule was issued and operation of the judgement of the Labour Court were stayed.

Mr Tufailur Rahman, the learned counsel appeared on behalf of the respondent No. 2 and filed the affidavit in opposition. The learned counsel appearing on behalf of the respondent No. 2 submitted that three persons who were in the Trade Union were dismissed or terminated in a most unlawful manner and those orders were set aside by the Labour Court along with the direction for their reinstatement. But subsequently the judgements of the Labour Court were stayed in the writ petitions, which are pending for disposal. He further submitted that the Executive Committee of Respondent No. 2 Trade Union has already been re-constituted on 12.9.2001 following resignation by the disqualified persons on 30.8.2001 and a letter dated 19.9.2001 intimating the re-constitution was sent to the Registrar of the Trade Union.

With reference to that he drew our attention to annexure-5 and 6 of the affidavit-in-opposition and submitted that since the disqualified persons were dropped the registrar lawfully declared Respondent No. 2 as CBA. He has further submitted that the registration of Trade Union cannot be challenged merely on the ground that two or three of its members are not qualified. Lastly the learned counsel submitted that the petitioner is not an aggrieved body and thus the write petition is not at all maintainable, and moreover the company has no scope to interfere with the internal domestic management and affairs of the Trade Union by seeking remedy under writ jurisdiction.

The learned Assistant Attorney General appearing on behalf of the respondent No. 1 supported the contention made by the learned lawyer appearing on behalf of the respondent No. 2.

Deliberation
We have considered the submission made by the learned lawyers appearing on behalf of the petitioner and respondents and perused the writ petition, affidavit-in-opposition including the Annexures and the relevant provision of law i.e. sections 7-A and 10 of the IRO, Section 7-A of the Industrial Relations Ordinance 1967 mentions about the persons who will be disqualified from being an officer or a member of a Trade Union.

Section 7-A (1) (b) makes it clear that a person shall not be entitled to be a member or officer of a Trade Union formed in any establishment or group of establishments if he is not or was employed or engaged in that establishment. It is admitted that some of the dismissed and terminated employees of Padma Oil Company Limited were elected as members of the executive committee of the Trade Union being registration No. B-48 (Respondent No. 2) and the employer petitioner approached the Registrar of the Trade Union (Respondent No. 1) for taking appropriate steps against Respondent No. 2 the Trade Union (Registration No. B 48) for concealing the fact that the President, the General Secretary and a member were not the employees of the petitioner as they were dismissed or terminated workers.

We find the reply of the Registrar in Annexure-D wherein the registrar considered the application of the present petitioner for taking steps against the Trade Union (Respondent No. 2). In the reply, Registrar has clearly mentioned that a dismissed member cannot be either an officer or a member of the Trade Union. In fact we find that this is the legal position as per section 7-A of the IRO.

From annexure-6 of the affidavit-in-opposition we find that the executive committee of the Trade Union (Respondent No. 2) was reconstituted and the dismissed and the terminated employees were excluded from the executive committee on 19.9.2001 and thus till that date the dismissed or terminated workers were office bearers which is in clear violation of section 7-A of the IRO.

Section 10 (1) (b) (h) of the IRO provides that the registration of a Trade Union may be cancelled by the Registrar if the trade union has obtained registration by fraud or by misrepresentation of facts or if the trade union has elected as its office a person who is disqualified under section 7A.

As it is admitted that one or two of the office bearers were dismissed workers, the view taken by the Registrar of the Trade Union as we find from annexure-D1, appears to us to be incorrect. The Registrar has given interpretation about the terminated workers but remained silent about the dismissed workers. We find that there were also dismissed workers who became members of the executive committee of the Trade Union and thus the Registrar had the scope to take action under section 10 of the IRO.

The dismissed and terminated workers filed cases before the Labour Court in which their termination and dismissal were declared illegal but we find that the operation of the judgement of the Labour Court has been stayed by the High Court Division in writ petitions Ns. 2227, 4096 and 3597 of 2000 and thus those workers and employees still remain dismissed of terminated.

Regarding the submissions made on the question of maintainability of the writ petition by the learned lawyer of Respondent No. 2 that the petitioner is not aggrieved we cannot accept this view because the petitioner being the employer is entitled to challenge the declaration of CBA as made by the Registrar of the Trade Union.

Decision
From our above discussion we find that when the respondent No. 2 Trade Union being registration no. B-48 was declared CBA of Padma Oil Company Limited, at that time its President and General Secretary were either dismissed or terminated and thus were not qualified for being an officer or a member of a Trade Union in view of section 7-A of the IRO. We have also found that the Registrar of the Trade Union had the scope to take steps or cancellation of the registration of the Trade Union under section 10 of the IRO in view of the disqualification of the President and General Secretary of the Trade Union concerned.

So, in the result, the Rule is made absolute. The impugned declaration of CBA in favour of Respondent No. 2 vide annexure-A by Respondent No. 1 is unlawful and is of no legal effect. The Registrar of the Trade Union i.e. Respondent No. 1 shall take steps regarding the prayer of the petitioner for cancellation of registration of respondent No. 2 Trade Union (Respondent No. B-48) in accordance with law.

Mr. Rafique- Ul- Huq with Mr. Khalilur Rahman with Mr. Tufailur Rahman for the respondent No 2 and Mr. Md. Afsar Hossain, AAG for the respondent No 1.