K.E.S.C. PROGRESSIVE WORKERS' UNION Through Its Chairman And Others vs K.E.S.C. LABOUR UNION Through Its General Secretary And Other

SHAFIUR RAHMAN, J.---By a short order, dated 11-2-1991 the review petitions were dismissed. The detailed reasons for the order are as under:--

1. These review petitions were admitted on the contention advanced by the learned counsel for the petitioners as hereunder:- "In support of the review petitions it is pointed out that for the purpose of count of "highest number of votes" for the declaration of the Collective Bargaining Agent in terms of the First Proviso to clause

(e) of subsection (9) of section 22 of the I.R.O. 1969, the total number of votes received by the Trade Union is to be not less than one-third of the total number of workmen employed in the establishment, and that the list of workmen in the establishment can be no other than, the one finalized under subsection, (5) of section 22. In this behalf, it is further pointed out that the total number of workmen employed in the establishment or group would also include those workmen who have not yet completed 90 days, although these workmen may not be voters."

2. An examination of all subsections of section 22 of the Industrial Relations Ordinance, 1969 discloses that there is no provision made therein for preparing a list of the total number of workmen employed in the establishment. The list finalized under subsection (5) of section 22 of the I.R.O. Is not a list of total workmen but it is a list of voters. Subsection (5) of section 22 of the I.R.O., 1969 makes this fact abundantly clear. It is reproduced hereunder:-- "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 union's 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."

3. There is no statutory provision made empowering the Registrar to call for a list of total workmen, or to verify and certify any such list of total workmen. The very ground which was made the basis for getting the review petitions admitted does not exist and on that account alone, these review petitions are liable to be dismissed.

4. We have nevertheless thought it fit to re-examine the entire law with a view to demonstrate the correctness of our conclusion and the sound legal basis for it.

5. We have a proviso (first proviso) to subsection (9) of section 22 of the I.R.O.; 1969 which is the subject matter of controversy. It reads as hereunder:-- "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;"

6. The accepted principles of interpreting a proviso have been ennunciated as hereunder:--

(i) Wilberfore on Statute Law, page 303 "A proviso is of great importance when the Court has to consider what cases come within the enacting part of a section and it is always to be construed with reference to the preceding parts of the clause to which it is appended."

(ii) Maxwell on the ' Interpretation of Statutes. Twelfth Edition by P. St. J. Lantan, page 189 "It will, however, generally be found that inconsistencies can be avoided by applying the general rule that the words of a proviso are not to be taken "absolutely in their strict literal sense," but that a proviso is "of necessity ...Limited in its operation to the ambit of the section which it qualifies".

(iii) The Interpretation of Statutes and General Clauses Acts------.Seventh Edition (1984) by N.S. Bindra, page 77: "A proviso must be considered with relation to the principal matter to which it stands as a proviso.

To treat the proviso as if it were an independent enacting clause instead of being dependent on the main enactment is to sin against the fundamental rule of construction, as observed by Moulton, L.J., in R. v. Dibdin (1910 P.57, 125 affirmed in 1912 A.C.533). Proviso and sub-clauses should be governed by the operative portion of the section."

(iv) Craies on Statute Law, Seventh Edition by S.G.G. Edear. Page 219 "The Courts, as, for instance, in Ex.p. Partington, [(1984) 6 Q.B. 649, 653], Re Brocklebank, [(1889) 23 Q.B.D. 461] and Hill v. East and West India Dock Co., [(1884) 9 App. Cas.448], have frequently pointed out this fallacy, and have refused to be led astray by arguments such as these which have been addressed to us, which depend solely on taking words absolutely in their strict literal sense, disregarding the fundamental consideration that they appear in the proviso."

(v)The Construction of Statutes by Earl T. Crawford, page 605 "As a general rule, however, the operation of a proviso should be confined to that clause or portion of the statute which directly precedes it in the statute".

(vi) Bennion on Statutory Interpretation, page 572 "In the case of precision drafting, the proviso is to be taken as limited in its operation to the section or other provision it qualifies."

7. Some of the illustrative cases in which this statement of law has found clear expression are; Leah v. Two Worlds Publishing Co. Ltd. [(1951) 1 Ch. 393], Lloyd and Scottish Finance Ltd. v. Modern Cars and Caravans (Kingston) Ltd. [(1966) 1 Q.B. 764] and Messrs East and West Steamp-ship Company v. Pakistan (PLD 1958 SC 41). In the case of Leah, at page 398 it was held as hereunder:-- "...Indeed it cannot be disputed, that a proviso must be construed and treated as if it were, not a parallel positive enactment, but a limitation on a proposition which is direct and objective.

In the second case i.e., Lloyd and Scottish Finance Ltd., it was held by Queens Bench Division at page 780 that "the proviso must of necessity be limited in its operation to the ambit of the section which it qualifies". In the third case i.e., East and West Steamship Co., at page 72, the following observations were made by the Supreme Court:-- "One of the plainest rules of statutory interpretation is that a proviso is to be regarded as something which excepts a particular case from a general principle. The effect of a proviso is to except something out of the preceding portion of the enactment or to qualify something enacted ' therein which but for the proviso would be within it."

8. The controlling features (underlined) of relevance to the question under examination are:--

(i) "every employer shall on being so required by the Registrar, submit a list of all workmen employed in the establishment in the establishment excluding those whose period of employment in the establishment is less than three months" [Section 22(4)(x) of I.R.O., 1969];

(ii) "The Registrar shall prepare a list of voters in which shall be included the name of every workman whose l2eriod of employment 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 polls send to each of the contesting trade unions a certified copy of the list of voters so prepared." [Section 22(5) of I.R.O., 1969].

9. In the first proviso to subsection (9) of section 22 of the I.R.O., 1969, the expression "total number of workmen employed in such establishment or group" must be read as qualified by the following which have preceded--

(i) whose period of employment is not less than three months;

(ii) who is a member of any of the contesting trade unions;

(iii) on the cut off date "four days prior to the date fixed for the polls".

10. Apart from these controlling features to which the proviso is subordinate, there is a substantive provision in subsection (6) of section 22 of the I.R.O., 1969 where under the determination of Collective Bargaining Agent is to take place by the voters alone. It provides as hereunder:--- "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."

11. If the non-voters are to play a part in the determination of the Collective Bargaining Agent, as is the contention, then the proviso has the effect of destroying this substantive provision. If the first proviso is treated as an independent enacting provision which exceptionally is permissible, six anomalies would arise: Firstly, no cut off date can be located in the proviso. Necessarily we have to import it, if at all, from.

The enacting provision, thereby demonstrating the control and avoiding the independence of the proviso; Secondly, there will be two cut off dates; one for circulating voters list four days before the polls and the other of certification of the Collective Bargaining Agent necessarily after the polls; Thirdly, there is no provision made, none at all, for preparation and certification of a list of total number of workmen employed in such establishments or group by which the requirement of proviso can be satisfied, immediately at the conclusion of the count; Fourthly, the whole process of election of Collective Bargaining Agent is likely to become highly manipulative; Fifthly, it will be solitary, and an unprincipled case, where a category of persons, not even qualified to be voters on the crucial dates or even on the date of declaration of result will decisively influence the result of the poll; and Finally, on the proposed interpretation, the whole provision becomes unworkable. To illustrate, in an establishment `A', with 100 employees, there are two trade Unions `B' with 60 members and `C' with 40. Of these 30 workmen being of less than three months employment are not entitled to vote.

At the polls, Union `B' receives 32 votes and Union `C' receives 28 votes. 10 voters do not cast their vote. Second proviso gets attracted only where there are more than two trade unions contesting the elections. None satisfies the test. Here, a repoll cannot take place nor can a Collective Bargaining Agent be declared.

Take another example. In establishment A, with 100 workmen, 30 of less than three months employment, there are three trade unions with membership of 35 for Trade Union `B', 25 for `C' and 10 for Union `D'. Union `D' does not contest. So, the poll takes place in which Unions `B' and `C' participate; `B' receiving 32 and `C' receiving 28 votes. Again the same stalemate occurs. The contention of the learned counsel for the petitioner therefore frustrates the very purpose of the enacting provisions.

12. Even the learned counsel seeking review does not want the first proviso to clause (e) of subsection (9) of section 22 of the I.R.O., 1969 to be read as an independent provision because he wants the cut off date mentioned in preceding section 22(5) to be imported and read at two stages, of voting and the count, as part of proviso without there being any reference to it. At the same time, he wants to avoid the controlled description of "all workmen" "every workman" given in section 22(4) and section 22(5) for interpreting "total number of workmen".

13. 1n the circumstances we find no merit in the review petitions.