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Petitioner: RAILWAY WORKERS' UNION (REGD.) OPEN LINE ESTABLISHMENT VS Respondent: NATIONAL JUDGMENT
Court Name: Lahore High Court Judge(s): Muhammad Aslam Mian Title:RAILWAY WORKERS' UNION (REGD.) OPEN LINE ESTABLISHMENT vs NATIONAL
JUDGMENT
Reported As: 1984 PLC 327 Result: Appeal allowed Judgment JUDGMENT ' The petitioner through this writ petition initially sought a declaration to the 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 Relations 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 time 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 of 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, 1982 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
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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 discretion 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 Ordinance, 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 Ordinance itself for the preparation of a fresh list in the 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 Industrial 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 provisions of the Ordinance, 1969. The regulation could not override the provisions 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.
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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 without lawful authority as having proceeded on the list of voters illegally prepared, 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 automatically annulled. 6. The learned counsel for the petitioner has contended that the construction 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 deprived 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 employment but were not qualified earlier and had become qualified after the preparation 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 connotations and the proviso is to be treated as a condition precedent for hold in second poll or it is to be .Construed as simply providing a discretion as t " the preparation of a fresh 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 correctness. 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 given, "Ordinarily the words "shall" and "must" are mandatory, and the word "may" is directory, although they are often used interchangeably in legislation. This use without regard to their literal meaning
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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 mandatory 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 condition inserted in any deed. The term proviso and a condition are synonymous 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 provision. 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 II 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 conferred 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 (1)
{{FOOTNOTE}} (1) PLD 1958 SC (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 (1) 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 (2), it has been observed that the use of the words such as 'may' or 'shall' as representing the permissive or compulsive nature respectively of the act
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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 Shaft v. Chief Secretary and others (3), 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. .Homan v. Dacca Impre"ement Trust (4) 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 (5), 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 (6) 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 (7), this was a case of income-tax where the words occurring in section 16 (3) (a) (ii) 'any individual', 'such individual' were
{{FOOTNOTE}} (1) PLD 1957 (W: P.) Kar. 854 (2) PLD 1973 Kar. 1 (3) PLD 1973 Azad J & 27 (4) PLD 1964 Dacca 671 (5) PLD 1972 SC 326 (6) PLD 1970 SC 185 (7) PLD 1965 SC 472
' 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 harmonised with the subject of statute and object of the Legislature. ' 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
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regarded as having been prepared under section 22 of the main Statute though not in compliance 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 Head Office Staff Union v. The Registrar of Trade Unions (1) 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 (2) 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 (3) and Karachi Warehouse and Carriers Workers Union v. Pakistan Warehouse Carriers Workers Union (4). 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
{{FOOTNOTE}} (1) PLD 1979 Lah. 820 (2) 1982 PLC 26 (3) PLD 1975 Kar, 885 (4) PLD 1978 Kar. 417
' 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, 1982 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 1. 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 an 'hat is exhaustive. In the original Regulation No, 16 it is provided that the Commission shall follow the procedure as laid down by the Industrial 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,
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1969. The regulation as amended is in conflict with the provision of the parent Statute since what has been provided by 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 (1) 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 (2)-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 (3) in which it has been held that statutory provisions in election laws are generally regarded as directory. The right which a workman 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 arid now the petitioner is
{{FOOTNOTE}} (1) PLD 1968 Lah. 1012 (2) PLD 1967 Kar. 618 (3)…
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