1984 PLP 327 (PLC)

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.