KHAIRPUR TEXTILE MILLS EMPLOYEES UNION KHAIRPUR Versus REGISTRAR OF TRADE UNIONS KARACHI

The present petition has been filed on behalf of the Kairpur Textile Mills Ltd. Employees' Union through its General Secretary to challenge the election of respondent Khairpur Textile Mills Peoples' Union as the Collective Bargaining Agent of Khairpur Textile Mills Ltd. ,.

2. The brief facts are that there are two rival Trade Unions in Khairpur Textile Mills Ltd. at Khairpur. The Trade Unions are the Khairpur Textile Mills Employees' Union (the petitioner) and Khairpur Textile Mills Peoples' Union (respondent No. 3). On 16‑12‑1972, Taj Muhammad, the Secretary of the respondent‑Union requested the Director of Labour to hold an election for determination of Collective Bargaining Agent as he had formed the respondent‑Union. The Assistant Director of Labour, Khairpur Division, called upon Taj Muhammad to submit a list, showing among other parti?culars; the names, parentage, age and the date of enrolment of its members. A similar letter was also addressed by the Assistant Director of Labour, Khairpur Division to the General Secretary of the petitioner‑Union on 9‑1‑1973. Both the petitioner‑Union as well as the respondent‑Union submitted a list of their members as required under section 22 (4) of the Industrial Relations Ordinance. The two lists were consolidated by the Assistant Director of Labour and the consolidated list was signed by the representatives of .petitioner‑Union as well as the respondent‑Union in token of authenticity. Secret ballot was held on 30‑1‑1973 and as a result the respondent‑Union polled 1247 votes whereas the petitioner‑Union polled 1243 votes. Consequently, the respondent‑Union was declared the Collective Bargaining Agent.

3. In the present petition the authority of the Assistant Director of Labour (respondent No. 2) to hold the referendum was challenged and it was also averred in the petition that the respondent‑Union did not have I/3rd of the number of workmen employed in Khairpur Textile Mills Ltd. as members so that it was not entitled to make an application for holding of a referendum. The other ground on which this petition is founded is that 12 voters who were not entitled to vote as a result of having served for a period of less than 3 months, were allowed to cast their votes. At the time of hearing only the last point has been urged and canvassed before me by Mr. Ali Amjad, the learned Advocate for the petitioner.

4. The consolidated list prepared by the Registrar of the Trade Unions for the purpose of holding the ballot has been placed on record. This list is composed of two separate lists indicating the members of the two rival Unions. In each one of these two lists names of some workmen have been included who had served for less than 3 months. The total number of such ‑ workmen is 12, and since the respondent had defeated the petitioner‑Union by a majority of four votes, the contention on behalf of the petitioner‑Union is that the inclusion of these 12 voters had materially affected the result of the election.

Mr. Ali Aslam, the learned Advocate for the respondent‑Union has contended before me that it is not open to the petitioner to challenge the list prepared by the Registrar and in any case by his conduct the petitioner is estopped from challenging the validity of the secret ballot.

5. On such contentions of the parties, the only point that falls for determination is whether the inclusion of the names of 12 workmen who were otherwise not eligible to vote in the election, has vitiated the election itself. The relevant provisions in regard to preparation of the list of voters are contained in subsections (5) and (6) of section 22 of tire Industrial Relations Ordinance. These provisions read as follows:

"(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."

It would appear that on submission of the lists by the rival Trade Unions, the Registrar has to prepare a list of voters and such voters who have qualified for voting should have served for three months and should also be members of a contesting Trade Union. After preparation of such lists, certified copies of the same have to be forwarded by the Registrar to each of the contesting Trade Union. Every workman whose name appears in the list of voters is entitled to vote at the poll to be held thereafter. The con?tention of Mr. Ali Amjad is that the list prepared by the Registrar is in violation of the provisions of subsection (5) of section 22 of the Industrial Relations Ordinance because the same contained the names of 12 such voters who were not eligible to vote for reason of having served less than 3 months. The learned Advocate has sought to build up an argument that the list being in violation of the provisions of law in regard to inclusion of 12 voters, the election is vitiated. In support of such contention the learned Advocate has relied on two judgments of the Supreme Court namely, Ikram Bus Service and others v. Board of Revenue (P L D 1963 S C 564) and District Magistrate v. Fakir Syed Fayazud?din (P L D 1965 S C 371). None of these cases is an election case and both these cases relate to grant of transport or cinema licences. However, the principle laid down in these two cases is that if a statutory functionary acts contrary to statute, or in excess of powers under the law, the Courts will hit down any act which is in excess of the legal powers of such functionaries. There could possibly be no quarrel with such proposition of law but in the present case the sole question is whether the provisions of section 22(5) of the Industrial Relations Ordinance are directory or mandatory and whether the petitioner has by his conduct not disentitled himself from obtaining relief on the premises of acquiescing in the list that was prepared by the Registrar.

6. Section 22 of the Industrial Relations Ordinance of 1969 (Ordinance XXIII) was substituted by Act XXIX of 1973. The substituted provisions have been reproduced above whereas the original provisions contained in Ordinance XXIII of 1969 read as follows

"(7) The Trade Union or federation making application to the Registrar for being declared as Collective Bargaining Agent under subsection (2) shall, alongwith the application submit (a) in the case of a Trade Union a list of its members with details of parentage, age, section, department and place of employment or ticket number and date of Trade Union membership, and (b) in the case of a federation, a list of its affiliated Trade Unions, together with a list of members of each such Trade Union showing details as set out above.

(8) (a) The Registrar shall obtain lists of all workmen employed in the establishment or industrial unit, or as the case may be the whole industry from the employers: Such list shall contain details as set out in subsection (7) of all workmen. The names of workmen whose period of employment in their establishment or industrial unit is less than three months, and who are ‑not members of a Trade Union, shall be excluded from verification of these lists. Upon verification, the Registrar shall certify the lists and give copies thereof to each of the Registered Trade Unions or federations in the establishment or industrial unit or as the case may be the whole industry, at least four days prior to the date of holding of the ballot."

On a comparison of the provisions in the Ordinance which'‑was originally enacted in 1969, and as it stands today it would seem that in so far as the qualification of three months' service for eligibility to vote is concerned, the two provisions are couched in identical terms and seek to achieve the same end. Section 22 (8) (a) of the original Ordinance stated that the names of workmen whose period of employment was less than three months and who were not members of a Trade Union shall be excluded from the list of voters. Similarly section 22(5) of the new Ordinance states that the list shall include the names of every workman whose period of employment is not less than three months and who is a member of any of the contesting Trade Union. In essence therefore, there is no difference as between the qualifications of a voter in the old Ordinance and the newly enacted section 22. The question of binding nature of subsections (1) and (8) of section 22 of the original Ordinance was considered by a Division Bench of this Court in the case of Tanzeem‑e‑Mulazamin Baldiya v. Government of West Pakistan (P L D 1971 Kar. 535) and the learned Judges held that the procedure prescribed for preparation of the lifts was of a directory nature. It will be of benefit to reproduce a passage from this judgment which runs as follows:.

"Thus the only persons whose names are liable to be excluded from the lists are those whose period of employment is less than 3 months, and who are not members of a Trade Union, thus appear to be the only relevant particulars on the basis of which the qualification of a worker to participate in a poll is to be determined. Yet they are not items upon which information is required, by subsection (7) to be furnished. It will not therefore be possible for the Registrar to verify these particulars by mere reference to be submitted to him by the employer, since the lists are not to ‑contain those particulars. With regard, however, to Trade Union membership the only information sought is in relation to the date of Trade Union. This information once again seems to be wholly irrelevant for the purposes of deter?mining whether the worker has rightly or wrongly been included in the lists since it is not the period of membership of a Trade Union but membership simpliciter which entitles a workman to be included in the list. The object of entering on this analysis of the provisions of subsections (7) and (8) of section 22 is merely to demonstrate that the particulars stipulated in subsection (7) seem to be unconnected with any information which will be relevant in the list. It thus seems clear to us that any defect or irregularity in conforming to the particulars set out in subsection (7) cannot affect the vested right of a worker to participate in a poll for the simple reason that these particulars have no impact on the right of the worker to be included in the lists. Isolated thus, we cannot but view the provisions of sub?section (7) as purely directory and of a procedural nature."

I must in this context state that Mr. Ali Amjad the learned Advocate for the petitioner has attempted to distinguish the significance of the original enactment from the substituted provisions and the only argument advanced by the learned Advocate was, that while in the original Ordinance the words used were "the names of workmen whose period of employment in the establishment or Industrial Unit is less than three months" the words in the substituted provisions of section 22 are "the name of every workman whose period of employment is not less than three months". I have not been able to see any difference in the language employed in the two separate enactments and hold that the provisions of section 22 (5) of the Industrial Relations Ordinance are directory in nature.

7. Mr. Ali Aslam the learned Advocate for the respondent has strenu?ously argued that the petitioner has by his conduct waived his right to challenge the list of voters. In that context he has invited my attention to the various documents produced by the petitioner either with the petition or the affidavit in rejoinder. The list of voters was prepared on 26‑1‑1973 and transmitted to the petitioner‑Union but there was no objection from the said Union. On 24‑1‑1973 the petitioner‑Union accepted the list prepared by the Registrar and in the letter of acceptance it was stated that the petitioner shall have no objection in regard to the list prepared. On the same day the petitioner‑Union in its statement in writing stated that the lists were correct. At the time of polling, no representative of the petitioner objected to the 12 ineligible voters from casting their votes. On the conclusion of the poll, the agent of the petitioner signed the result sheet of the poll without any objection. Even after the poll, an application was made by the petitioner? Union to the Registrar on 1‑2‑1973 and even in this application no objection was taken in regard to the ineligibility of the 12 voters.

The petitioner had however, produced a copy of an application purported to have been made 'by the petitioner‑Union on 26‑1‑1973, viz. four days before the poll wherein it was stated that the names of 12 workmen have been wrongly included. The authenticity of this document is in serious dispute. In fact in the parawise comments submitted by the respondents, the Registrar and the Assistant Director of Labour, it has been stated that this application is forged. An affidavit of Syed Nazeer Hussain Shah, a General Clerk in the office of the Joint Director, Labour has been filed wherein it is stated the application which was seemingly submitted on 26‑1‑1973, was in fact submitted in the second week of February, 1973, and the date of receipt had not been marked by Syed Nazeer Hussain Shah and had been added by one Muhammad Aslam, another clerk in the office. The respondent‑Union has also disputed the authenticity of this application. In any case the poll was to be conducted by the Assistant Director, Labour under the supervision of the Registrar, Trade Unions and this application is addressed to Joint Director, Labour, Hyderabad, who had nothing to do with this poll. The law is well established that in exercise of jurisdiction under Article 201 of the Interim Constitution of Pakistan this Court would not enter into disputed questions of facts. In any case prima facie this application appears to be suspicious because even after the poll the petitioner made an application to the respon?dent Registrar in which they made grievance in regard to counting of votes; but made no grievance in regard to the ineligibility of 12 workmen to vote.

8. I have seriously considered whether the principles laying down immunity to challenge of the electoral rolls, in ordinary elections can be imported in this case. I am of the view that in essence the same principles could be safely imported even in this case. Mr. Ali Amjad, the learned Advocate for the petitioner has urged that the electoral rolls prepared for other elections like that of assemblies or public bodies acquire immunity because a scrupulous and tight procedure is prescribed in the statutes for bringing up the rolls to a higher degree of exactness. Such procedure in all such statutes only provides for objections to the illegal inclusion or exclusion of persons' name in the list and hearing of such objections. But section 22 (5) of the Industrial Relations Ordinance also provides that copies of the list prepared by the authority holding the election has to be sent to the rival Unions. The basic reason underlying such provision is to enable the contest?ing Unions to object to the list on grounds of illegal inclusion and exclusion of names in the voters' list. No further safeguard is necessary because the number of voters in the elections of Collective and Bargaining Agent is far fewer than in the ordinary elections held under relevant statutes and all the voters are generally the members of one or the other Union. In such case the chance of wrong inclusion and exclusion is reduced to the barest minimum and if a wrong is committed the same could be easily challenged unless a party acquiesces in it.

9. The law is well settled that as far as the entries of the names of voters in electoral rolls are concerned, no Court can question the same after the elections. Several cases have been decided by the Karachi Bench of the erstwhile High Court of West Pakistan on the point of finality of entries in an electoral roll and the consensus of judicial conclusions appear to be, that a person whose name is entered in an electoral roll as a voter, cannot be disfranchised and the Courts are forbidden from going behind the electoral rolls. Reference in this context may be made to the following cases:

(i) Ghulam Rasool v. by. Commissioner and Election Tribunal, Nawab Shah P L D 1966 Kar. 151.

(ii) Ghnlam Abbas v The Additional Commissioner & Election Tribunal, Khairpur P L D 1965 Kar. 625.

(iii) Muhammad Tufail v. Muhammad Saleem and others P L D 1967 Kar. 104.

In the same context there are also judgment of the Supreme Court viz. Serajul Islam Khan v. Ahsan Ali Mondal and others (P L D 1969 S C 5) and Imtiaz Ali v. Ghulam Muhammad Butt (P L D 1958 S C (Pak.) 228). In the later case Cornelius, J. stated as follows:

"This view is based upon a settled principle of election law that Election Commissions cannot go behind the final electoral rolls as amended in accordance with the final orders of the revising authority. It is settled that every person whose name is entered in this electoral roll is entitled to vote at the election to which the roll relates, unless there be some personal disqualification."

I may state that in Karachi cases disqualification has been distinguished from want of qualification.

(10) On a consideration of the various circumstances of this case I am of the view that the list of voters prepared by the Registrar is not open to challenge by way of the present proceedings, more so as no objection was taken by the petitioner in regard to the inclusion of the names of the 12 voters who are stated to be ineligible to cast a vote. In the result this petition is dismissed with costs.

S. A. H. ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ????????????????? Petition dismissed.

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