NATIONAL CEMENT INDUSTRIES MAZDOOR UNION Versus REGISTRAR OF TRADE UNIONS

1. This petition assails the validity of the list of voters prepared by they first respondent (Registrar, Trade Unions, Karachi) for the purposes of' holding secret ballot between the petitioner and the second respondent for the election of Collective Bargaining Agent.

2. The facts which form the background of this petition may briefly be narrated as under:‑

2. The petition is one of the registered Trade Unions of workers existing: in the National Cement Industries Limited, Karachi, the third respondent, it was registered on 17‑11‑1972 with the first respondent. Besides the: petitioner's union five other Unions exist in this establishment and all of them have been registered with the first respondent. The second respon dent which is one of the big Unions in the establishment was registered in February, 1975. It moved an application to the first respondent for holding secret ballot for the Election of collective bargaining agent within the meaning of section 22 of the Industrial Relations Ordinance of 1969 (herein referred. to as "the Ordinance"). On this application the first respondent issued a. letter calling upon all the Trade Unions existing in this establishment to inform him whether they were desirous of contesting the referendum or not. Simultaneously he asked the third respondent to supply him a list of the workers working in the establishment which was done. According to this list the total strength of the workers was 919 of which 63 workers had not completed 3 months' period of service and were not entitled to participate in the referendum. As such 856 workers were left who could exercise their right of vote in the referendum subject to the conditions laid downs in section 22 of the Ordinance.

3. The first respondent called a meeting of the office‑bearers of all the Trade Unions vide his letter dated 8‑4‑1975 (Annex. C) which was convened on 14‑4‑75.‑

4. In this meeting 4 of the Trade Unions refused to contest the referendum as such only 2 unions i. e., the petitioner and the second respondent remained in the field.

5. Subsequently, as required under section 22 of the Ordinance the petitioner and the second respondent were called upon by the first respondent to submit lists of their members. The petitioner submitted a‑list of 515 workers claiming them to be its members. A similar list showing the strength of its members was given by the second respondent. The third respondent also submitted a list of workers. The petitioner raised four objections on these lists. These objections were: (i) that 10 workers whose names were mentioned by him in his letter dated 16‑4‑1975 (Annex. D) had not beer included in the list prepared by the third respondent; (ii) some workers who had not completed 3 months' period of service with the third respondent had also been included in the list of workers; (iii) the workers who belonged to the non‑contesting Unions had also been shown in the list; and (iv) sufficient time had not been allowed to the petitioner to prepare the list of his members.

6. The first respondent fixed the matter for 17‑4‑75 to consider the objections raised by the petitioner. After hearing the parties he included 10 workers in the list who had been left out before and excluded the names of those workmen from the list of voters who had not completed 3 months' service with the third respondent. As regards third objection that only the workers belonging to the contesting trade unions should have been included in the list of voters prepared by the first respondent, he did not accept the petitioner's contention. The fourth objection was given up by the petitioner before the Registrar. He also does not want to press the same before me. So the only grievance left and which requires deter mination is whether all the workers who are working in the third respondent's establishment and have completed 3 months' period of service are eligible to cast their vote in the referendum or only those workers who belong to the contesting Trade Unions (i.e., petitioner and the third respondent) are legally entitled to participate in the referendum.

7. The petitioner's contention is that only those workers who are members of the contesting Unions are eligible to participate in the referendum and only their names should have appeared in the list of voters prepared by the first respondent. On the other hand the second respondent's con tention is that all the workers working in the organisation are eligible to participate in the referendum with the exception of those workers who have not yet completed their 3 months' period of service.

3. I will take up the contention of the learned counsel for the petitioner first. He has placed reliance on subsections (5) and (6) of section 22 of the Ordinance which read as under:

8. "(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 members 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."

9. It transpires from the plain reading of these provisions of law that the Registrar, Trade Unions is required to prepare a list of the voters after due verification of the lists of members submitted to him by the contesting trade unions and the Management in which he would include the names of all the workmen whose period of employment in their establishment is not less than 3 months and who are members of any of the contesting trade unions. He will then send to each of the contesting Trade Unions a certified copy of the list prepared by him at least 4 days before the polls, so that they may come to know about the names of participants in the referendum and may also raise objections, if any. Subsection (6) of section 22 of the Ordinance deals with the entitlement of the workmen to vote and entitles only those workers to vote in the ‑referendum whose names have appeared in the list prepared by the register under subsection (5). The language of sub section (5) does not admit of any ambiguity and is quite plain. It clearly points out as to which .of the workers working in an establishment would be entitled to participate in the referendum. It manifestly imposes two conditions on the Registrar, Trade Unions in respect of preparing the list of voters. i.e., he would include in the list the names of only those workers who have completed 3 months' service in the establishment and who are members of any one of the contesting Trade Unions. The learned counsel for the petitioner has placed reliance on section 2 of the Inter pretation of Statutes by Maxwell and has contended that language of the section being unambiguous the intention of the framers of law should be gathered by literal construction of the words used in this section. I may , quote as under the relevant passage relied upon by him:‑

10. "When the language is not only plain but admits of but one meaning, the task of interpretation can hardly he said to arise."

11. He has also relied upon the rule Expressio unlus est exclusio alterius and argued that the definite category of the workers who are eligible to vote in the referendum has been mentioned in subsections (5) and (6) by which fact all other categories of workers who work in the same establishment and who could be eligible to vote if they had fulfilled the conditions laid down in these provisions of law stand excluded, hence by no stretch of imagina tion any other category of workers can be regarded eligible to participate in the referendum.

12. So far as the language of subsections (5) and (6) is concerned, there can be no doubt about it that subsection (5) permits the inclusion of the names of only those workers in the list of voters whose period of employment is more than 3 months and who are members of any of the contesting trade unions.

13. Subsection (6) which speaks of entitlement to vote and makes it further clear that only those workers would be entitled to vote whose names have been entered in the list of voters prepared by the Registrar under subsection (5). The inclusion of a particular category of workers automatically excludes all other categories of workers for the purposes of referendum. The language used in these two subsection is simple and unambiguous and there is hardly any scope for embarking upon the test of interpretation. The literal meaning of these provisions of law are so clear that their scope cannot be enlarged. No other meaning can also be assigned to these provisions of law than those which have been given that is only those workers are eligible to part ‑I_ in the referendum, who have completed three months' service in the establishment and who belong to the contesting Trade Unions.

14. 4 The learned counsel for the second respondent has argued that all the workmen except those who have not completed 3 months' service in the establishment have a right to vote in any secret ballot held for the election of collective bargaining agent irrespective of the fact whether the union to which they belong is contesting the elections or not. He has placed reliance on: Tanzeem‑e‑Mulazmin Baldia and 2 others v. Government of West Pakistan (1), P. D. H Laboratories Employees and Workers' Union v. Registrar of Trade Unions, Lahore Region, Government of West Pakistan, Lahore (2) and Khairpur Textile Mills Employee' Union, Khairpur v. Registrar of Trade Unions, Karachi (3).

15. Before dealing with these cases I may mention that the Ordinance was promulgated on 30‑I1‑1969 and the relevant provisions i. e. subsections (7) and (8) of section 22 dealing with the referendum as originally enacted were as under:‑

16. "(7) The Trade Union or federation making application to the Registrar for being declared as collective bargaining agent under subsection (2) shall along with 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 the data of Trade Union membership and (b) in the case of a federation, 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 workmen employed in the establishment or industrial unit, or as the case may be, the whole industry from the employers. Such lists shall contain details as set out in subsection (7) of all workmen. The names of work men 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 these lists. The employers shall provide facilities to the Registrar for verification of these lists. Upon verification, the Registrar shall certify the lists and give copies thereof to each of the registered Trade Unions or Federation in the establish ment 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.

(a) The Registrar shall fix the date for the secret ballot and intimate the same to the applicant, to other Trade Unions or Federations and to the employers. The employers shall provide all necessary facilities in their establishments or industrial units for holding the secret ballot. Every person whose name appears on the lists prepared by the Registrar under clause (a) of this subsection shall be entitled to vote at the ballot.

(b) Ballot boxes shall be sealed in the presence of the representatives of contesting Trade Unions or Federations. Such representatives shall be present at the place of issue of ballot‑papers outside the polling booth during ballotings, and at the time of opening of boxes and counting of votes.

(c) No canvassing shall be allowed within the establishment and within 50 yards of the place of ballot. The employers shall not interfere with or in any way influence the balloting."

17. The entire section 22 was reconstituted by the first amendment carried out in the 1. R. O. in 1970. The provisions dealing with the preparation of list of voters by the Registrar and right to vote were also reconstituted and they have not undergone" any notable amendment since then despite that several amendments have taken place in the Ordinance and also in section 22 between 1872 t,‑i 1974. Provisions of section 22 dealing with the preparation of the list of voters and the category of workers which has a right to participate in the referendum has remained unchanged in sum and substance since the amendment of 1970. The first mentioned 2 rulings deal with the cases which had arisen during the existence of original section and though in the case cited at No. 2 it has been mentioned that the complexion of section 22 had undergone a change after amendment in 1970 yet the decision was given in accordance with the original section as it stood in 1969 because the facts of the case demanded so. In both these cases cited at Nos. 1 and 2 the original provisions of section 22 have been applied, these cases are not therefore applicable to the facts of this case. The last mentioned case deals with altogether a different proposition of law and is relevant only to the extent of first condition laid down by section 5 for the workers' eligibility to be included in the list of voters, i e. the period of service. This position has not been contested by the petitioner also. This ruling is silent about the second condition i.e. the workman should be a member of any one of the contesting trade unions to be eligible to participate in the referendum. The case is likewise of no help to the second respondent.

5. The counsel for the second respondent has next argued that the object of enacting the Ordinance was to give a right to all the workers to participate in the referendum. According to him this intention has been made public by the Government in its labour policy announced in 1969. For enlarging the scope of subsection (5) he has placed reliance on Bindra's Inter pretation of Statutes (Chapter VIII page 234) and has argued that where doubt exists regarding the meaning of the statute, it would be proper for the Court to give general policy of the State due consideration rather than to allow a miscarriage of the intention of the framers of law. I may quote the paragraph relied upon by him as under:

18. "Where doubt exists regarding the meaning of a statute, rather than to allow a miscarriage of the intention of the Legislature when that intention is in fact ascertainable, it would seem proper for the Court to give the general policy of the State some consideration. Never theless, if the Legislature reveals in intent to depart from existing public policy, that intent must be made effective; the Court should not ignore or override it."

19. The principle of the interpretation of statute relied upon by the counsel for the second respondent admits of no doubt about its correctness but in this case it would not hold good as the provisions of subsections (5) and (6) of section 22 are plain and unambiguous and do not admit of any other meaning except the meanings which have been assigned to them an discussed above. The intent and purpose of the Legislature is that the Registrar should verify the lists submitted by the trade unions and should himself prepare a list which should include the name of every workman who period of employment is not less than 3 months in the establishment and who is a member of any of the contesting trade unions. These workers according to subsection (6) are to be given an opportunity to participate an the referendum to be held for the election of collective bargaining agent. This being the position there is hardly any scope to go beyond the literal .constructions of these provisions of laws. The object behind the labour policy could only be considered if the said provisions of law were ambiguous .or they admitted of more than one meaning. The position not being so, I am unable to accept the contention of the learned counsel for the second respondent.

6. As a result of the above discussion I hold that the list (Annex. E) prepared by the first respondent for the purposes of holding referendum between the petitioner and second respondent has been prepared in violation .of provisions of section 22 of the Ordinance and the same is therefore of no legal consequence. The petition is allowed without costs and the case is remanded to the first respondent who should prepare a fresh list for the referendum in conformity with the provisions of subsection (5) of section 22 of the Ordinance and thereafter hold referendum between the petitioner and the second respondent.

20. S. A H. Petition allowed.