Find a Lawyer

Writ Petition No. 2438 of 1982, decided on 10th January, 1984.

‑‑ Para. 16 (22) read with Industrial Relations Ordinance (XXIII of 1969), S. 22 & 22(F)‑Determination of Collective Bargaining Agent‑National Industrial Relations Commission competent to make regulations of procedure for determination of Collective Bargaining Agent‑Proviso to para. 16 (22) of Regulations, 1973 intra vires pro visions of S. 22 and instead of conflicting with main provision carries out purposes of Ordinance‑Word "provided" used in proviso ibid Means "it has also been provided"‑‑Expression "fresh ballot may be held on the basis of afresh list of voters", interpretation of Expression used with emphasis on word "may", held, can be construed simply that it has also been provided meaning thereby dis cretion to go for a fresh list of voters just to bring list up‑to‑date if necessity arises without terming it as a limitation or a qualification to preceding provision or as a condition precedent regarding entire proviso construing word "may" as "shall"‑Words to be attached their ordinary meanings without adding or derogating therefrom when language of provision unambiguous ‑Interpretation of statutes.

Crawford's Statutory Construction 1940 Art. 297, p. 604 ; Craies on Statute Law, 1963 Edn., p. 280 ; Bindra s Interpretation of Statutes, 3^rd Edn.. p. 48; Farani s Interpretation of Statutes, 1970 Edn., Chap. II, p. 602; Maxwell's Interpretation of Statutes, 10th Edn., pp. 239, 243, 244 ; State of U.P. v. Manbodhan Lai P L D 1958 S C (Ind.) 170 ; Shahabuddin v. Pakistan P L, D 1957 (W. P.) Kar. 854 ; Saleemsons Ltd. v. Second Sind Labour Court P L D 1973 Kar. l ; Muhammad Shaft v. Chief Secretary and others P L D 1973 Alad J & K 27 ; .V. Noman v. Dacca Improvement Trust P L D 1964 Dacca 6. Muhammad Saleh v. The Chief Settlement Commis sioner P L D 1972 S C 326 ; Abdul Mutaleb v. Razia Begum P L D 1970 S C 185 and Commissioner of Income‑tax v. Khatija Begum P L D 1965 S C 472 ref.

S. Muhammad Din & Sons Ltd. v. Assistant Director Labour Welfare P L D 1968 Lah, 1012 ; Ghulam Rasul Shah v. Chief Land Commissioner, Lahore P L D 1967 Kar. 618 and Afalik Muhammad Akhtar v. Salahuddin and 9 others P 1, D 171 La 1% 737 ref.

‑‑‑‑ Art. 9‑Industrial Relations Ordinance (XXIII of 1969), S. 22 (5) & (9) (a) read with National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, para. 16(22), proviso [as amended on 2nd August, 1980]‑Determination of Collective Bargain ing Agent‑Referendum‑‑‑Repeated ballot in case a union receives less than required number of votes‑‑Preparation of fresh list of voters by National Industrial Relations Commission so as to make it up‑to date‑Discretionary‑Circumstances worth exercising discretion dis cussed ‑ Discretion if exercised, to be exercised in accordance with and in manner provided in S. 22 (5) of the Ordinance‑Restriction and limit imposed by Member, National Industrial Relations Commission acting as Registrar resulting in exclusion of qualified and eligible workers from fresh list, held, a breach of law‑Appeal of Workers' Union against such action before Full Bench of National Industrial Relations Commission rejected‑Union challenging same before High Court in writ petition ‑‑Second poll for referendum meanwhile com pleted with petitioners participation‑Non‑compliance of provisions of S. 22 (5) in preparing fresh list of voters, in circumstances, held, will not per se vitiate referendum unless its gravity shown as affecting result of referendum materially ‑‑‑Material on record not establishing that result of referendum affected materially in sense that number of workers or members of petitioner union allegedly excluded was more than the difference of votes between petitioner and respondent union‑Interference, in circumstances, refused and under writ petition dismissed‑Questioning validity of referendum‑Writ jurisdiction.

Mazdoor Ittehad Union v. The Registrar, Trade Unions, Multan Region,

Multan and 2 others P L D 1977 Lah. 588 and Morgan and others v. Simpson and another (1974) 3 All E R 722 rel.

PECO Office staff Union v. The Registrar of Trade Unions P L D 1979 Lah. 820; Airport Development F/M .Labour Union v. Registrar, Trade Unions, Karachi and others 1982 P L C 26 ; National Cement Industries Mazdoor Union v. Registrar of Trade Unions P L D 1975 Kar. 885 ; Karachi Warehouse and Carriers Workers' Union v. Pakistan Warehouse Carries Workers' Union P L D :978 Lah. 417; Abdus Sattar Rana v. S.M. Zaidi and another P L D 1968 S C 331; Badrul Haq Khan v. Election Tribunal, Dacca F L D 1963 S C 704 ; Muh,7mmad Hussain and other v. Sikandar and others c" L D 1974 S C 139 and Hussain Bakhsh v. Settlement Commissioner,

Rawalpindi and others P L D 1970 S C 1 ref.

Abid Hassan Minto for Petitioner.

Syed Iftikhar Ahmad, D. A.‑G. for Respondents Nos. 1 to 3.

M.A. Rehman, Irshad Ahmad Qureshi and S. A. Latif for Respondent No. 4.

Muhammad Ismail Bhatti for Respondent No. 5.

Date of hearing: 16th November, 1983.

The petitioner through this writ petition initially sought a declaration to _e effect that an order, dated 15th April, 1982 passed by the respondent No. 2 dismissing the application of the petitioner as to the preparation of a fresh list of the voters was illegal, without lawful authority and of no legal effect with a direction to respondents Nos. 1 and 3 to prepare a voters' list in accordance with the procedure prescribed by section 22 of the Industrial 1 elations Ordinance, 1969 alongwith a temporary injunction for restraining Respondent No. 1 from fixing the date for holding the referendum.

2. The petitioner had already addressed an appeal to respondent No. 1 against the same order of respondent No. 2 which was pending by that Lime since no Full Bench of the Commission had been constituted for the disposal of the appeal. During the pendency of this writ petition the appeal the petitioner was taken up by a Full Bench then constituted which Bench dismissed the appeal of the petitioner. The petitioner, sought permission in this writ petition to bring on to the record the order, dated 4th August, 'Q passed by the Full Bench and also to impugn the same. The permission was granted.

3. Briefly the facts are that on an application ,made by the employer respondent No. 5 under section 22 of the Industrial ' Relations Ordinance, 1969 a secret ballot to determine a Collective Bargaining Agent (C.B.A.) under subsection (2) of section 22 of the Ordinance for Pakistan Railways open Line Establishment was scheduled to be held in the month of October, 1981. The petitioner and six other registered trade unions in the establishment participated in the contest. As a result of the poll respondent No. 4 secured the highest number of votes (18,980) and the petitioner secured next to it (9,319). Respondent No. 4 was not certified as a Collective Bargaining Agent for the establishment since the number of votes received by it were less than one‑third of the total number of workmen employed in the establishment. A second poll was to be held between respondent No. 4 and the petitioner under the second proviso to subsection (9) (e) of section 22 of the Ordinance Where the securing of a majority of the votes cast at the poll was to be decisive. The Senior Member of the Commission acting as Registrar passed an order, dated 2nd January, 1982 to the effect that the same voters' list was to be retained but the names of the voters who has since died or retired were to be removed and an additional list of those workers who were employed after 1st January, 1979 and were members of the contesting unions was to be prepared. The petitioner submitted an application on 18th January, 1982 to the Senior Member of respondent No. 1 praying that all the railways workmen employees in the Open Line Establishment having three months service be given the right of vote or a fresh list of voters be prepared by the Commission in the manner as provided in section 22 of the Ordinance and as laid down in the N.I.R.C. (Procedure and Functions) Regulations, 1973, vide S.O.R. 816 (1)/80. The application was dismissed by the learned Senior Member on 26th January, 1982 who stuck to his previous order, dated 2nd January, 1982. The petitioner filed an appeal against the aforesaid order to the Full Bench of the National Industrial Relations Commission which was dismissed by the learned Bench on 16th March, 1982 observing that the point raised by the petitioner that the workers who were not members of the contesting unions on the date when the final list of voters was prepared had since become members of either of the unions were to be included in the supplementary list, was not specifically raised before the learned Senior Member, though no direction could be issued, the petitioner was free to move the necessary application in that behalf. The petitioner on the same date submitted another application before Mr. Aziz Ahmad Member II (respondent No. 2). The learned Member dismissed the application vide his order, dated 15th April, 1982 holding

"It has been conceded by the learned counsel for the applicant union that the preparation of fresh voters list was discretionary but that dis cretion should be exercised in full. Once it has been conceded that an act to be performed is discretionary, the exercise of such power in any manner cannot be challenged. The learned Senior Member has exercised the discretion judiciously, and I do not find any reason to upset the decision."

4. The petitioner being aggrieved therefrom filed an appeal which was decided by the Full Bench. As to the contention of the petitioner that though the preparation of a fresh list was discretionary but once the discretion was exercised a fresh list had to be prepared in the manner as provided within section 22 of the Industrial Relations Ordi nance, 1969 as laid down in proviso to Regulation 16(22) of the National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, the learned Full Bench observed that there was no provision in the Ordi nance itself for the preparation of a fresh list in tote case of a second poll. The provision as given in the Regulations of 1973 was only to permit the Commission to update the list of voters by deleting the names of those workers who had since died, retired or removed from service and including the names of those workers who had been appointed after the previous list was prepared and had become eligible to cast their votes. That was a right guaranteed to such workers under subsection (5) of section 22 of the Indus trial Relations Ordinance, 1969. The second poll was in continuation of the procedure adopted for the first. poll to determine a Collective Bargaining Agent. The purpose of Regulations 1973 was just to carry out the pro. visions of the Ordinance, 1969. The regulation could not override the pro visions of the Ordinance. The Bench was of the opinion that in case the contention of the petitioner was accepted then there would be no finality to the preparation of the voters list as the changes in the membership of the contesting unions might take place until the last moment necessitating the preparation of a fresh list every time such a change took place. The appeal was dismissed vide order, dated 4th August, 1982.

5. When the appeal of the petitioner was being disposed of the second poll was scheduled to be held from 22nd August, 1982 to 7th September, 1982. The second poll. took place as scheduled in which respondent No. 4 secured 22,413 votes and the petitioner secured 17,115 votes. It is worth noting that the petitioner did not amend his petition after its participation in the second poll so as to challenge the second poll to be declared as with out lawful authority as having proceeded on the list of voters illegally ' pre pared, perhaps the petitioner felt contented that since the referendum had taken place during the pendency of its writ petition, therefore, in case of its success as to two orders impugned the second poll would become auto matically annulled.

6. The learned counsel for the petitioner has contended that the cons truction placed by the Commission on the provision of Regulation 16 (22) of the Regulations, 1973, is contrary to the plain language of the provision itself. According to the learned counsel the proviso to the above‑said Regulation spells out a clear mandate for the preparation of a fresh list when it says, "provided that the fresh ballot may be held on the basis of a fresh list of voters to be prepared by the Commission in the manner provided in section 22". The word "may" used in the context shall be read as "shall" so as to bring it in alignment with the word "provided". The word "may" is to be construed as subsidiary to the word "provided". In any case the criterion fixed by the Registrar as well as the Commission has no sanction of law instead it is contrary to the provision of section 22 of the Industrial Relations Ordinance, 1969. The arbitrary action of the Commission has de prived the workmen of their right who were in employment but not qualified at the time of the preparation of the original list but became so subsequently after 1st January, 1979, they stood excluded because no allowance was made for them in the supplementary list. According to the restriction imposed by the Registrar and upheld by the National Industrial Relations Commission the persons employed after 1st January, 1979 were to be the voters if they were otherwise qualified in other words those who were already in employ ment but were not qualified earlier and had become qualified after the pre paration of first list, were not to be included in the list later prepared. The action so manifested is in violation of the plain language of subsections (5) and (6) of section 22 of the Ordinance, 1969 which refers to the first poll. The subsequent development was to be governed by subsection (9) clause (e) of section 22 of Industrial Relations Ordinance, 1969 read with regulation 16, sub‑regulation 22 of Regulations, 1973. It became necessary to ask the two highest contestants to provide the list of their members. The first list when that was prepared the contest was among the seven contestants. The amended provision as to the regulation was introduced after feeling for the procedural necessity as to the entire procedure including that of the fresh list. The learned counsel while addressing as to the meanings to be given to the proviso in issue has further submitted that whether the expression or the word "provided" is to be construed in accordance with its ordinary connota tions‑ and the proviso is to be treated as a condition precedent for holding second poll or it is to be construed as simply providing a discretion as t the preparation of afresh list, for this he has referred to books on the construction of Statute. His first reference is to the Statutory construction by Crawford published in‑1940, Article 297 page 604, "even though the primary purpose of the proviso is to limit or restrain the general language of a statute the legislature, unfortunately, does not always use it with technical correct ness. Consequently, where its use creates an ambiguity, it is the duty of the Court to ascertain the legislative intention, through resort to the usual rules of construction applicable to statutes generally, and give it effect even though the statute is thereby enlarged, or the proviso‑ made to assume the force of an independent enactment, and although a proviso as such has no existence apart from the provision which it is designed to limit or to qualify it should also be construed in harmony with the rest of the statute". At page 607 it is given that generally a proviso is to be regarded as restrictive or explanatory, Article 262 at page 519, where it is gives, "Ordinarily the words "shall" and "must" are mandatory, and the word "may" is directory, although they are often used interchangeably in legislation. This use with out regard to their literal meaning generally makes it necessary for the Courts to resort to construction in order to discover the real intention of the legislature. Nevertheless, it will always be presumed by the Court that the legislature intended to use the words in their usual and natural meaning. If such a meaning, however, leads to absurdity, to great inconvenience, or for some other reason : clearly contrary to the obvious intention of the legislature, then words which ordinarily are manda tory in their nature will be construed as directory, or vice versa." In on Statute Law by Craies 1963 Edition, at page 280, it is given that the sections though framed as provisos on preceding sections may exceptionally contain matter which is in substance a fresh enactment adding to and not merely qualifying what goes before. According to the meaning of word "proviso" as given in the Wharton's Law Lexicon it is a stipulation caution, a condi tion inserted in any deed. The term proviso and a condition are synony mous and signify to quality annexed to a real state by virtue of which it. may be defeated, enlarged or created. In Bindra's Interpretation of Statute (Third Edition) at page 48, it is mentioned that a proviso controls the pro vision. It is a qualification to the main enactment. A proviso is very much the very active part of the provision for the purpose of interpretation. In the book the interpretation of the Statute by Farani published in 1970 in Chapter 11 on interpretation of provisos it is said at page 602. The natural and appropriate office of a proviso is to create a condition precedent, to except something from the enacting clause, to limit, restrict, or qualify the statute in whole or in part, or to exclude from the scope of the statute that which otherwise would be within its terms. A proviso is not, however, always so used. It does not necessarily constitute a condition precedent. At times, it is employed, out of abundant caution, merely to explain the general words of the enactment and to guard against a possible construction that is not intended". Maxwell on the Interpretation of Statutes (tenth Edition) at page 239, 243. and 244, throws light on the words "May and Must". "Statutes which authorise persons to do acts for the benefit of others, or, as it is sometimes said, for the public good or the advancement of justice, have often given rise to controversy when conferring the authority in terms simply enabling and not mandatory.....cases in which the donee of the power has only his own interests or convenience to' consult, the word "may" is plainly permissive only, and a mere privilege or licence is con ferred which he may exercise or not at pleasure". In addition to these books the learned counsel has referred to State of U. P. v. Manbodhan Lal (P L D 1958 S C (Ind.) 170) wherein the impact of words "may" and "shall" occurring in a Statute has been interpreted. "The use of the word "shall" in a Statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect ... ..on the other hand it is not always correct to say that where the word "may" has been used, the statute is only permissive or directory in the sense that non‑compliance with those provisions will not render the proceeding invalid. In Shahabuddin v. Pakistan (P L D 1957 (W: P.) Kar. 854) it was held

"The Courts can take into consideration detailed affidavits containing facts forming the background of enactments. Such facts do not fix and limit the objects of the legislation because it is not possible to limit its purpose by the statements made by the executive, .but they do clarify and explain the situation existing at the time of the enactment and at the time of its enforcement so that the facts forming the basis of the legislation may be elucidated, and the limits within which the executive means to enforce a law may be discovered ; and thus at least attacks on those matters which may be outside these limits may be eliminated." '

In Saleemsons Ltd. v. Second Sind Labour Court (P L D 1973 Kar. 1), it has been observed that the use of the words such as may' or shall' as representing the permis sive or compulsive nature respectively of the act intended to be done has long ceased to be a conclusive and unerring index to the intention of the Legislature. To ascertain the real intention of the Legislature it is necessary to examine the subject‑matter, the scope and the object of the enactment whether the act creates public duties or confers private rights ; whether any injury will result from ignoring it ; whether it requires some antecedent and prerequisite conditions to the performance of an act or taking of a proceeding in order to invest it with validity ; Muhammad Shafi v. Chief Secretary and others (P L D 1973 Azad J & K 27). In this case also as to the interpretation of statute, it was observed that, "it is no doubt correct that the word "may", in isolation from the context in which it is used in a statute, would be treated as permissive in nature and thus import a discretionary power but the difficulty with a Court of law is that it cannot just ignore the context and make the power thus conferred subservient to the ordinary meaning of the word "may" or "shall". That is why the proposition that the word "may" has sometimes to be read as imposing a duty, is no longer open to doubt." In M. Noman v. Dacca Impressments Trust (P L D 1964 Dacca 671) it has been held that the Statutes enacted for the purpose of enabling something to be done are usually expressed in permissive language by using the words "may", "it shall be lawful" or' "may be done" etc. Muhammad Saleh v. The Chief Settlement Commissioner (PLD 1972SC326), in this case it has been observed that the use of the words "may" and "shall" is interchangeable depending upon the context in which they are used ; Abdul Mutaleb v. Razia Begum (PLD 1970SC 185) in this case it has been observed that the construction of the provision in a Statute must be put in accord with reason, justice and fairness, and which avoids injustice. Commissioner of Income Tax v. Khatija Begum (P L D 1965 S C 472), this was a case of income‑tax where the words occurring in section 16 (3) (a) (ii) any individual such individual were doubtful whether those: included a female. The Supreme Court held that the words of doubtful meaning were to be interpreted in the manner which best harmonized with the subject of statute and object of the Legis lature.

The learned counsel for the petitioner has after the above‑said references maintained that Regulation 16 (22) of the Regulations, 1973, is a mandatory provision and not merely a directory or discretionary provision. In the alternative the learned counsel has submitted that if Regulation 16 (22) of Regulations, 1973, is taken as not mandatory but vesting a discretion in the authorities even then the vital question which arises is that whether .in the present case the authority has exercised that discretion legally or in violation of the law. As to the preparation of the fresh list the proviso is to be read as an emphasis where more than three months pass a new list then is a necessity on the ground that new members become entitled to participate. The first list was prepared on 31st December, 1978 as to the first round of the referendum. A period of three years and eight months had elapsed from the preparation of the first list to that of the second list for the purpose of second poll. He has next submitted that the expression fresh list of voters' does not denote an additional list but a list altogether afresh. The list which was prepared was a fresh list and that could be regarded as having been prepared under section 22 of the main Statute though not in comp liance thereof.

7. As to the preparation of the list he has referred to section 22 of the Industrial Relations Ordinance, 1969 which provides the basic law with regard to the referendum and has addressed as to the qualification of the participants in the referendum and the voters, the position of a union to be declared as a Collective Bargaining Agent after the count of the votes and as to the necessity of holding a second poll. As to the preparation of a list of voters he has also referred to Peco Read Office Staff Union v. The Regis trar of Trade Unions (P L D 1979 Lah. 820) wherein it is held that the preparation of a list of voters is a duty of the Registrar and non‑supply of list by the Union cannot deprive the workmen who become voters from being brought on the list ; Airport Development F/M Labour Union v. Registrar Trade Unions, Karachi and others (1982 P L C 26) wherein it is held that . a workman who has qualified to become a voter cannot be disfranchised even by the consent of the contesting unions. The list prepared by excluding the names of those workmen who were qualified but had been kept out by the consent of the contesting parties was regarded as illegal. National Cement Industries Mazdoor Union v. Registrar of Trade Unions (P L D 1975 Kar, 885) and Karachi Warehouse and Carriers Workers Union v. Pakistan Warehouse Carriers Workers Union (P L 1) 1978 Kar. 417). In both the cases it is held with a direction to prepare a fresh list, that a list prepared in violation of section 22 (3) (4) (5) of the Industrial Relations Ordinance, 1969 is of no legal consequence. According to the learned counsel whenever a list is to be prepared a recourse is to be had to section 22 of the Ordinance, 1969 and the same is to be prepared answering the letter and spirit of the provision. The three categories of workmen had become eligible to vote for the second poll. Those workmen who were employed before 1st January, 1979 but had not completed their three months even if they had joined a trade union, those who had completed their three months before 1st January, 1979 but had not become members of a trade union and those who were not in employment before 1st January, 1979 and came to be employed afterwards and joined a trade union later on. He has next submitted that in a fresh or the supplementary list an arbitrary date had been fixed from which the new voters were to be brought on the list and an illegality had been committed which had the effect of disfranchising the eligible workmen. The order, dated 2nd January, 1982 as to the manner of preparation of the fresh list was without lawful authority and the order of the learned Member, dated 15th April, 19252 and the order of the Commission in appeal, dated 4th August, 1982, are as such, illegal, without jurisdiction and of no legal effect. Once the impugned orders are declared as without lawful authority the subsequent event i. e. the holding of the second poll and its result, therefore, become null and void.

8. The learned Deputy Attorney‑General appearing for respondents Nos. 1 to 3, in reply to the contentions raised by the learned counsel for the petitioner has submitted that it is not the intention of the Legislature as manifested by section 22 of the Ordinance, 1969 that each time a fresh list is to be prepared as to the successive polls. Section 22 of the Ordinance provides for a detailed procedure in respect with the preparation of voters list and 'hat is exhaustive. In the original Regulation No. 16 it is provided that the Commission shall follow the procedure as laid down by the Indus trial Relations Ordinance, 1969. The amended Regulation 16 (22) of Regulations, 1973, specifically the proviso as to the fresh list is ultra vires the provision of section 22 of the Ordinance, 1969. The regulation as amended is in conflict with the provision of the parent Statute since what has been provided r, way of proviso is not the requirement of section 22 of the Industrial Relations Ordinance. The learned Deputy Attorney‑General for the appreciation of this point has relied on S. Muhammad Din & Sons Ltd. v. Asstt. Director Labour Welfare (P L D 1968 Lah. 1012) wherein it has been held that it is a cardinal principle of interpretation of statutes that the rules are subordinate to the section under which they are made. If reconciliation between the section and the rules is not possible, the rules must give way. And if they have meaning and effect which is not consistent with the Act under which they are made, they are ultra vires. Ghulam Rasool Shah v. Chief Land Commissioner, Lahore (P L a 1967 Kar. 618) in this decision it has been observed that "there is a conflict sometimes between two sections to be found in the same Act. One has to try and reconcile them as best one can. If one cannot, one has to determine which is the leading provision and which the subordinate provision, and which must give way to the other".

He has next submitted that in matters of violation the procedural provisions in election matters are generally taken as directory and not mandatory. He has relied upon Malik Muhammad Akhtar v. Salahuddin and 9 others (P L D 1971 Lah. 737) in which it has been held that statutory provisions in election laws are generally regarded as directory. The right which a work man draws from section 22 of the Ordinance, 1969 for enlistment as a voter is not unqualified. A worker cannot directly seek a remedy in law, for the inclusion of his name in the voters' list. The learned Deputy Attorney. General has next submitted that even if it is held that certain voters were illegally excluded that will not serve the purpose of the petitioner because the petitioner has participated in the second poll and now the petitioner is to show that the exclusion of the voters had materially affected the result of the second poll. He has relied upon Abdus Sattar Rona v. S. M. Zaidi & another (P L D 1968 S C 331). In the election related to Electoral Unit 763 Renala Khurd, seventy‑eight excess votes were found in ballot boxes. The Election Tribunal regarded the excess votes as a result of some malpractice or irregularity in the conduct of election. The Tribunal declared the election as void as a whole on the ground that the irregularity or malpractice had materially affected the result of the election on a petition the High Court declined to interfere in its constitutional jurisdiction. The Supreme Court on appeal found that "the responsibility for the excess votes being found in the ballot boxes, in the absence of any evidence to that effect, cannot be laid at the door of the appellant. It is an open possibility that the respondent or his agent may have manoeuvred to get these excess votes introduced into the ballot boxes just to spoil the election. The other possibility is that these 78 excess votes may have been actually issued but the officials concerned may have omitted to tick‑mark the corresponding entries in the voters' lists. These extra votes should not be counted, but even if they are wholly deducted from the votes obtained by the appellant, he would still be leading the respondent by 13 votes. He himself not being the guilty party, there is no question of his being disqualified on the ground of commission of a corrupt practice by him. If some person or persons unknown, are responsible for these excess votes being introduced into the ballot boxes, that should not prejudice the appellant's case who had a clear majority over the respondent, after exclusion of the excess votes, from the count. If the election is set aside without a clear finding based on evidence that the result of the election had been materially affected it would amount to disfranchising the genuine voters who had apparently favoured the appellant as compared with the respondent ... ... ... ... ... ... ... ... ... ... .. ... ... ... .. A consideration of the authorities, cited in support of the appeal, clearly lends point to the contention raised on behalf of the appellant that in the circumstances of this case, it could nor be said that the result of the election was materially affected by what was done by some person or persons unknown, in putting excess ballot papers in the boxes of the two candidates. "In support of the above proposition the learned counsel has also relied upon 1969 D L C 577. He has submitted that in view of the difference of votes between the petitioner and respondent No. 4 even the inclusion of 2620 workmen who were excluded by the registrar from the list submitted by the petitioner would not have affected the result materially. As to whether the orders passed by the Single Bench and the Full Bench of the Commission are without lawful authority, the learned counsel has referred to Badrul Haq Khan v. Election Tribunal Dacca (P L D 1963 S C 704) wherein it has been held that it is the fundamental rule that the statute is to be interpreted according to the intent of those who made it. The learned Deputy Attorney‑General has lastly submitted that the writ as brought cannot be issued because it touches upon the conclusions of law and fact in view of Muhammad Hussain and others v. Sikandar and others (P L D 1974 S C 139) wherein it has been observed, as to the expressions "without lawful authority and of no legal effect", 'these are expressions of art and refer to jurisdictional defects as distinguished from a mere erroneous decisions whether on a question of fact or even of law. It is well‑settled that where a Court or a Tribunal has jurisdiction and it deter mines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law".

9. The learned counsel appearing for respondent No. 4 has raised three preliminary objections as to the maintainability of the writ petition by submitting that no right of the petitioner union has been violated so the petitioner union has no locus standi to invoke the extraordinary jurisdiction of this Court. Petitioner union having acquiesced in the preparation and verification of the fresh voters list by participating in the second poll and by asking for the count of votes soon after the poll was over, is to be deemed to have waived all its objections and has no right to challenge the validity and legality of the list of voters or the election through the writ petition. The petitioner union has failed to show after participating in the second poll that the result of the election has been materially affected even if there is any irregularity. The learned counsel has submitted in reply that the words "fresh list of voters" appearing in the proviso to Regulation 16 (22) of Regulations, 1973, "fresh" does not necessarily mean "newly‑made or obtained" or "new" or "not previously known". It also means "additional or further". By the deletion of certain names and by the addition of further names the original list as to voters becomes the fresh list for the second poll as finalized. The proviso to the Regulation is not mandatory in nature but it is directory as in such like cases the superior Courts have already observed. The invitation for list of the members was first for 23rd of January, 1982 which was extended to 27th January, 1982 and ultimately fixed as 7th February, 1982. Respondent No. 4 did not submit any list but the petitioner submitted first list. on 7th February, 1982 containing the names of 2,213 persons and second list on 8th February, 1982 which included the ineligible members. The third list was submitted on 21st February, 1982. The ,total of three lists came to 5,080. These lists included the names of those work men as well who were working in the Railways prior to the preparation of the first list but as they had not exercised their right to become members of any trade union, they were not enlisted as voters. All the three lists were submitted after the prescribed date. The lists were accepted but as a matter of grace. By the manner in which these lists were determined by the Commission five days after the prescribed date no right of the petitioner was violated which could be made a subject‑matter of this writ petition. The contention of the learned counsel for the petitioner that the third list did not include the workmen employed prior to 1st January, 1979 because of the order of the Commission no right as to that was reserved in Exh. R/3. The list R/3 was submitted as the final list. Both the unions had signed the final list as to voters without reserving any right. The second poll was conducted on the basis of the voters list brought up‑to‑date. Since the petitioner union participated in the referendum on .the same list in the second poll without any reservation or objection in which poll the petitioner was defeated by respondent No. 4 with a lead of 8,000 votes, as such, the petitioner cannot now even question the legality of the supplementary list. According to the learned, counsel the second poll was held in accordance with the letter and spirit of the law and the discretion exercised by the authorities concerned as to the supplementary list did not suffer from any legal infirmity. Section 22 of the Industrial Relations Ordinance, 1969, while providing for holding a second ballot has trot prescribed that a fresh voters list is to be prepared for the, same. No further list is required because the second poll is in continuation of the first one. The Registrar National Industrial Relations Commission in the exercise of the power vesting in him under Regulations, 1973, decided to revise the list for the second poll by excluding from the voters list the names of those workmen who were no more in service and through a supplementary list to include the names of those workers who had been employed after the preparation of the original voters list and they possessed the requisite qualifications. The discretion exercised by the authorities was neither whimsical, arbitrary nor capricious. The petitioner has not submitted in his writ petition that by the time a fresh list was gone into how many persons had by that time ‑ become qualified. The petitioner has also not mentioned the number of the persons who had been left out when the supplementary list was prepared. According to Hussain Bakhsh v. Settlement Commissioner Rawalpindi and others (PLD 1970 S C 1). Civil Procedure Code applies as a general provision, therefore, under Order VIII, rules 3, 4 and 5, sub‑paragraph (m), the written statement goes unrebutted. The learned counsel has concluded his submissions by submitting that the writ petition as brought is liable to be dismissed being without any merit.

10. Mr. M. Ismail Bhatti, Advocate has adopted the arguments ad vanced by the learned Deputy Attorney‑General.

11. The learned counsel for the petitioner Mr. Abid Hassan Minto, in reply as to the arguments of the learned counsel for the respondents that the petitioner is to show that the result has been materially affected, has sub mitted that the argument so advanced is totally misconceived. The writ petition was filed long before the second poll challenging the specific orders of the N.I.R.C. relating to the preparation of the list. The result of the election has nothing to do with the main contention. If these orders are declared as without lawful ;authority the superstructure falls altogether as a matter of course and law. The validity of the referendum remains subject to the legality of the supplementary list. The concept of effect on the result arises only in those cases where a challenge is thrown to the result of the election. The petitioner has not challenged the result. The referendum was held by the authorities knowing full well that their original orders were under challenge in this Court. In any case the number of the workmen who were eligible to be brought on the list is more than 8,000 as it has been sub mitted in an affidavit filed by the petitioner.

12. In order to appreciate the contentions raised by the learned counsel for the parties it is necessary to refer to the relevant provisions. Section 22 of the Industrial Relations Ordinance, 1969 provided a secret ballot to de termine as to which one of the registered unions shall be the Collective Bargaining Agent for the establishment or group. Section 22 is reproduced here for facility of reference

"22. Collective Bargaining Agent

(1)

(2) Where there are more registered trade unions than one .in an establishment or a group of establishments, the Registrar shall, upon an application made in this behalf by any such trade union which has as its members not less than one‑third of the total number of workmen employed .in such establishment or group of establishments 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 collec tive bargaining agent for the establishment or group

Provided

..

Provided further

(3) Upon receipt of an application under subsection (2) the Registrar shall, by notice in writing, call upon every registered trade union in the establishment or group of establishments to which the applica tion relates;

(a) to indicate whether it desires to be contestant in the secret ballot to be held for determining the Collective Bargaining Agent in relation to such establishment or group ; and

(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 is employed, his ticket number and the date of his becoming a member and if the trade union is a federation of trade unions, a list of its affiliated 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 workmen employed in the establishment excluding those whose period of employment in the establishment is less than three months and showing, in respect of each workman, his parent age, age, the section or department and the place in which he is employed, his ticket number and the date of his employment in the establishment ; and

(b) provide such facilities for verification of the lists submitted by him and‑the trade unions as the Registrar may require

Provided that in computing the period of three months referred to in clause (a) in the case of a workman employed in a seasonal factory within the meaning of section 4 of the Factories Act, 1934 (XXV of 1934), the period during which he was employed in that factory during the preceding season shall also be taken into account.

(5). The Registrar shall, after verification of the lists submitted by trade unions, prepare a list of voters in which shall be included the name of every workman whose period of employment, as computed in accordance with subsection (4) ; is not less than 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). Every workman who is a member of any of the contesting trade unions and whose name appears in the list of voters prepared under subsection (5) shall be entitled to vote at the poll to determine the collective bargaining agent.

(7)

(8)

(9) For the purpose of holding secret ballot to determine the Collective Bargaining Agent, the Registrar shall

(a)

(b)

(c)

(e) after the conclusion of the count, certify the trade union which has received the highest number of votes to be the Collective Bargaining Agent:

Provided that no trade union shall be certified to be the collective bargaining agent for an establishment or group of establishments unless the number of votes received by it is not less than one‑third of the total number of workmen employed in such establishment or group

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 number of votes in the first poll and the trade union which secures a majority of the votes cast at the second poll shall be certified in the pres cribed manner to be the Collective Bargaining Agent :

Provided further that, if the number of votes secured by two or more trade unions securing the highest number of votes is equal, further poll shall be held between them until one of them secures a majority of the votes cast at such further poll."

(9‑a)

(10)

(12)

(13)

According to the National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regulation 16 was :

"For the purpose of determining the collective bargaining agent amongst the registered industry‑wise trade unions, federations of such trade unions and the federations at the national level, the Commission shall follow the procedure laid down in section 22."

On 2nd August, 1980 Regulation 16 relating to the Procedure was amended. The amended provision reads as "16. Collective Bargaining Agent

(2) .. .

(3) .. .

(4) .. .

(5) .. .

(6) .. .

(7) .. .

(8) .. .

(9) .. .

(10) .. .

(11) .. .

(12) .. .

(13) .. .

(14) .. .

(15) .. .

(16) .. .

(17) .. .

(18) .. .

(19) .. .

(20) .. .

(21) .. .

(22) Ballot to be repeated in case a union receives less than the required number of votes.‑Notwithstanding the provisions of paragraph (21), if the number of votes received by the winning trade union is less than one‑third of the total number of workmen employed in the establishment, such trade union shall not be declared as Collec tive Bargaining Agent and the ballot shall be held afresh on such date and time as may be fixed by the Commission : ,, v3:

Provided that the fresh ballot may be held on the basis of a fresh list of voters to be prepared by the Commission in the manner pro vided in section 22.

(23) ... ... ... ... ... ... ...

(24) ... ... ... ... ... ... ...

(25) ... ... ... ... ... ... ...

(26) ... ... ... ... ... ... ...

(27) ... ... ... ... ... ... ,

Before this provision is analysed as to its interpretation the point raised by the learned Deputy Attorney‑General that the proviso to the sub‑para. (22 of Regulation 16 is ultra vires the main provision i.e. the enactment under section 22 of the Industrial Relations Ordinance, 1969, requires examination.

The submission of the learned Deputy Attorney‑General precisely is that subsection (5) of section 22 of the Ordinance contemplates the preparation of only one list of voters which is to be adhered to for the entire referendum and since the amended provision provides a discretion to hold the fresh ballot on the basis of a fresh list of voters to be prepared by the Commission, as such, is in conflict with the main provision because the procedure set there under section 22 (5) of the Ordinance is exhaustive. Had it been the intention of the Legislature the provision as to fresh list would have been provided within section 22 itself, hence the proviso to sub‑para. (22) of Regu lation 16 of the National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, is ultra vires the main Statute.

13. The section 22(f) of the Industrial Relations Ordinance provides "22‑F Power to make regulations.:

(1) Subject to the provisions of this Ordinance, the Commission may, with the prior approval of the Federal Government, make such regulations relating to its procedure and the performance of its functions as it may deem fit, and the regulations ,shall have effect notwithstanding anything inconsistent therewith contained in the Evidence Act, 1872 (I of 1872), the Code of Criminal Procedure, 1898 (Act V of 1898), the Code of Civil Procedure, 1908 (Act V of 1908), or any other law for the time being in force.

(2) In particular and without prejudice to the generality of the fore going power, such regulations may provide for all or any of the following matters, namely

(a) .. .

(aa) .. .

(b) determination of Collective Bargaining Agent from amongst the industry‑wise trade unions, federations of such trade unions or, as the case may be, federations at the national level, and the procedure therefore.

(d) .. .

(e) .. .

(f) .. .

(g) .. .

(h) .. .

So it is obvious from the above‑said provision that the Commission i competent to make the regulations subject to all the formalities towards the determination of Collective Bargaining Agent and provide for the procedure thereof. The preparation of afresh list is a procedural step towards the said determination, as such, the proviso is intra vires the section 22 of the Industrial Relations Ordinance, 1969.

The learned Deputy Attorney‑General in his arguments overlooks the utility of the above said proviso. It appears that it has been framed just to bring a list of voters up‑to‑date if the necessity arises. There may be that during the interval between the two polls many newly‑employed workers or the workers already employed become qualified as voters and some of the workmen already listed, retire or die. Instead of conflicting with the main provision the proviso so given carries out the purpose of the Ordinance.

14. A serious thought has been given to the significance of a proviso as submitted by the learned counsel for the petitioner with reference to the books referred by him as to the general meaning accorded to a proviso. The present proviso requires its interpretation in keeping with the language em ployed therein. There is no necessity of further straining the predominant expression under the proviso that "flesh ballot may be held on the basis of a fresh list of voters". According to its ordinary meaning the expression so used with an emphasis on the word may' as is apparent, vests with a dis cretion to hold the fresh ballot on the basis of a fresh list of voters without making it mandatory. Once it has been come to this way then the word "provided" as used can be construed simply that it has also been provided meaning thereby the discretion to go for a fresh list without terming it as limitation or a qualification to the preceding provision or as a condition pre cedent regarding the entire proviso construing the word "may" as "shall", or in other words the word "provided" according to its use here means that "it has been added". The contention of the learned counsel that the word "may" is to be construed as "shall" within the context of this proviso because it has been framed as a proviso so as to read it as a mandatory pro vision, has no force for the simple reason that when the language of a pro vision is unambiguous then each word is to be attached its ordinary meanings without adding or derrogating therefrom. To hold it otherwise would be doing violence to the words used which is not permitted under any cannot of interpretation. Even if the proviso is taken as qualifying the preceding provision it does so only by vesting a discretion as to holding of afresh ballot on the basis of afresh list. Now when such a discretion becomes worth exercising it depends upon the interval if the matter comes to such a pass between the first ballot and the second ballot. If it is not so large then the necessity for exercising the discretion may not .be felt. But if the interval is larger and within that many persons are newly employed, many persons already employed retire or die and the workers already employed become qualified within that time then the discretion to hold second ballot on a fresh list becomes worth exercising.

15. In the present case the discretion was exercised so as to make the list up‑to‑date. There is much substance in the contention, , in the alter native of the learned counsel for the petitioner that once you come to exercise your discretion then you are to exercise it in accordance with the provision which is meant for listing the voters then you cannot take the framing o the list as to its point of inclusion also within your discretion so as to put a limit from which onward you will be causing the inclusion o the workmen as voters. As to the preparation of the list of voters subsection (5) of section 22 of the Ordinance speaks of the qualifications of a voter. As it is obvious from the language of the proviso to Regulation 16 (22 of Regulations, 1973, itself that the admitted list was to be prepared by the Commission in the manner provided in section 23 of the Ordinance. p In fixing the limit that the workers who had been employed after Is January, 1979 were to be entered as voters, the Commission had not kept in view the requirement as to the fresh list because with the limit so placed those persons who had been employed earlier to that date and had become qualified after completing three months service or those workers who bad not become members of any union earlier might have become members and qualified as such, all stood excluded despite being eligible which could ‑not be done in view of the provision of subsection (5) of section 22 of the Ordinance, therefore, the supplementary list as to make the previous list up‑to‑date and a fresh one as such was not prepared in. accordance with the provision as quoted‑above. Had the matter rested there then the ‑ order of ‑the‑Registrar for preparing the list and the decision of the member of the Commission upholding the order of the Registrar and the Full Bench who regarded the matter as completely within the discretion of the Registrar without caring that the list as ordered to be entered, was not done so as provided in section 22 of the Industrial Relations Ordi nance, 1969, would have been regarded as in breach of the law and a direction issued to the Registrar so as to frame the list as provided in section 22 of the Industrial Relations Ordinance. Since the matter has, passed that stage and the second poll as to the referendum has been held during the pendency of this writ petition in which the petitioner has' fully participated, therefore, now for the petitioner to succeed further the next ,question which arises is as to its impact on the second poll. The' matters has been in this regard fully debated. The stand of the learned counsel for the petitioner is that if it is held that the order of the Registrar, and the subsequent decisions are without lawful authority then the second poll automatically falls though but the learned Deputy Attorney‑General and the learned counsel appearing for respondent No. 4, both have argued that the referendum can be made to fall through only if the petitioner cane successfully show that the non‑inclusion of the voters who were members of the petitioner union has materially affected the result. I agree in his behalf with both the learned Deputy Attorney‑General and the learned' counsel for respondent No. 4.

16. The law as it stands has not provided in this regard any provision distinctly for questioning the validity of referendum therefore, as to this matter the general principles will be looked into. In Mazdoor Ittehad Union v. The Registrar Trade Unions Multan Region, Multan and 2 others (P L D 1977 Lab. 588) while viewing the validity of a secret ballot under section 22(2) (5) of the Industrial Relations Ordinance, 1969, the learned Judge relied on a case Morgan and others v. Simpson and another ((1974) 3 All E R 722), the crux as to the pro position and principle of which as given is : ‑

"(1) If the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result was affected, or not. That is shown by the Hackney case, where two out of 19 polling stations were closed all day and 5,000 voters were unable to vote.

(2) If the election was so conducted that it was substantially in accord ance with the law as to elections, it was not vitiated by a breach of the rules or a mistake at the polls provided that it did not affect the result of the election. That is shown by the Islington case where ballot papers were issued after 8 p. m.

(3) But even though the election was conducted substantially in accord ance with the law as to elections, nevertheless if there was a breach of the rules or a mistake at the polls and it did affect the result then the election is vitiated. That is shown by Gunn v. Sharpe where the mistake in not stamping 102 ballot papers did affect the result". Lord Stephenson L. J. said that "the law as to elections is, to my understanding of the section, recognized as embodied in the Act and the rules, and that an election will stand if there have been breaches of the law but they are not substantial or they have not affected the result." His Lordship, further, observed that "For an election to be conducted substantially in accordance with the law there must be a real election by ballot and no such substantial departure from the procedure laid down by Parliament as to make the ordinary man condemn the election as a sham or a travesty of an election by ballot. Instances of such a substantial departure would be allowing voters to vote for a person who was not in fact a candidate or refusing to accept a qualified candidate on some illegal ground or disfranchising a substantial proportion of qualified voters, but not such an irregular ity as was committed in this case or perhaps in Gunn v. Sharpe. "The irregularities were not stamping the ballot papers but those had not affected the result of the election."

17. In view of the principle quoted above the non‑compliance as said above will per se not vitiate the referendum unless its gravity is shown now as affecting the result materially. This is so because the fate of an election .is not left to the mercy of those who are entrusted with its conduct, since those who participate they do so at the expense and labour and the law does not view certain departures as to the conduct of the election so as to waste the expense and labour, defeat the position gained by a winning contestant and frustrate a majority of voters as to their wish, unless it is shown that the election as held cannot be regarded as a true election within the contemplation of the law. Here the question is of non‑inclusion of workmen in the list ordered to be prepared by the Registrar who were the members of the petitioners union and had become qualified within the meaning of section 22 of the Industrial Relations Ordinance so as to be included as voters. The difference of votes between the petitioner and respondent No. 4 in the second poll is 5,298. The petitioner submitted an affidavit, dated 30th October, 1982 that the petitioner had a list of 8,500 additional workers who were qualified under the law but were kept out because of the Senior Member's decision. This affidavit was submitted after respondent No. 4 had filed its written statement dated 2nd October, 1982 in which it was stated that the petitioner union (according to unofficial result) had secured about 18,000 votes whereas respondent No. 4 had polled about 26,000 votes f. e. about 8,000 votes more than the petitioners union. The affidavit of the petitioner was contradicted by respondent No. 4 by its affidavit dated 3rd November, 1.982 in which it was stated that the figure of 8,500 additional votes was latter coined by the petitioner union so as to suit the expediency, which had no foundation in fact. In his affidavit dated 16th October, 1982 Hafiz Muhammad Younis Deputy Registrar N. I. R. C. stated that the additional list of members by the petitioner was submitted in three parts which consisted of 5,082 names out of which 1396 persons were found eligible to take part in the referendum as such their names were included by the Commission in the additional list. Out of the remaining 3,686 persons the names of 973 were existing in the voters list. From the total number of 5082 the number of persons who were allowed to cast vote were 1396+973=2369. The particulars of 93 persons were not verified so they were not eligible to take part in the referendum. 2620 persons were such who were enrolled prior to 1st January, 1979 and had not become . members of any union, therefore, they did not fall within the purview of the order dated 26th January, 1982, passed by the borned Senior member and could not, therefore, take part in the referendum against which; the Posi tion of the petitioner is that it 'submitted the first list on 7th February, 1982 that related to the general store. This list included the names of all the members of the petitioners union employed in the general who would have qualified to become voters but for the orders of the Senior Member. The other list which was submitted by the petitioner was about the workers who were qualified according to the petitioner's interpretation of the law and as the Deputy Registrar insisted that he would be looking into only those names who were qualified according to the Senior Member's instructions, so the petitioner submitted a third list of only those who were qualified as per Senior Member's direction.

It is worthnoting that right from the first application to this writ petition the petitioner has not mentioned anywhere that how many workers or the members of its union to its knowledge otherwise stood excluded by the Registrars order as to the fresh list except a belated affidavit which too was contradicted. Now whether the non‑compliance of the provision of section 22 (5) of the Industrial Relations Ordinance, 1969, has material affected the result of the second poll in the sense that whether the number of workers or the members of the petitioner union who stood excluded a alleged is more than the difference of the votes between the petitioner an respondent No. 4. From the material placed on the file of this case cannot be said that the non‑compliance of the above‑said provision, materially affected the result of the second poll. This petition in the circum stances prevailing now, is dismissed. However, the parties are left to bear their own costs.

A. B. Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.