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Petitioner: TANZEEM-E-MULAZAMIN BALDIYAAND 2 Others VS Respondent: GOVERNMENT OF WEST JUDGMENT
Court Name: Sindh High Court Judge(s): Abdul Qadir Sheikh, Muhammad Ali Sayeed Title:TANZEEM-E-MULAZAMIN BALDIYAAND 2 Others vs GOVERNMENT OF WEST
JUDGMENT
Reported As: 1972 PLC 91 Result: Petition dismissed Judgment JUDGMENT MUHAMMAD ALI SAYEED, J.-This petition has been brought to avoid the result of a poll held by the Registrar of Trade Unions on the 13th of May 1970 to determine the collective bargaining agent of the Karachi Municipal Corporation Workers in terms of section 22 of the Industrial Relations Ordinance, 1969. 2. The workers of the K. M. C. Were represented by as many as six registered Trade Unions and each one of them, it is stated, claimed the right to represent the employees and workers of the Corporation for the purpose of negotiations with the employers. It thus became necessary to determine as to which of the registered Trade Unions in the establishment commanded the largest support. Accordingly one of the Trade Unions, namely, the respondent No. 3 called upon the Registrar of Trade Unions to hold a referendum so as to resolve the dispute with regard to the true representative character of the rival Trade Unions. It may be mentioned that section 22 of the Industrial Relations Ordi--nance, 1969 provides the machinery by which a determination of the above nature may be made in case of dispute between multiple Trade Unions. Subsection (2) of section 22 of the said Ordinance provides that in case there are more than one registered Trade Union in an establishment the Registrar shall, within one month from the date of the written request in that behalf, hold a secret ballot to determine .The representation of each registered Trade Union. On the result of such secret ballot the Trade Union obtaining the highest number of votes is, under subsection (3), to be declared by the Registrar to be the collective bargaining agent In respect of the establishment such status being valid for a period of to years thereafter.
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3. Pursuant to a request received in this behalf by respondent No. 3 the Registrar, Trade Unions issued a letter dated 8th April 1970 directing the holding of a secret ballot on the 13th of May 1970. The letter in question also proceeded to set out the number of stations at which and the hours during which the polling will be held and the identifying colours of the ballot boxes for each of the contesting Unions. Thereafter, but before the date of the poll, the contesting Unions were furnished by the Registrar with lists of the voters who would participate in the poll. The referendum was accordingly held on the 13th of May 1970 and the result of the referendum was that respondent No. 3 secured the highest number of votescast. The break up of the votes was as under Petitioner No. 1 1,257 Petitioner No. 2 24 Petitioner No. 3 2,272 Respondent No. 35,194 Respondent No. 4694 Total 9,896 Pursuant to the above results, respondent No. 3 was declared to be the 'Collective Bargaining Agent'. 4. The petitioners now co-tend that the polls held by the 'Registrar of Trade Unions and the declaration of the respondent No. 3 as the Collective Bargaining Agent' as a result thereof is illegal since the conduct of the poll suffered from serious irregularities and corrupt practices. These irregularities have been listed by the petitioners in para. 11 of the petition and have been elaborated during the arguments at the bar by the learned counsel for the petitioners. Before proceeding to consider the alle--gations of the petitioners with regard to the alleged irregularities it will be useful to produce subsections (7) and (8) of section 22 of the Industrial Relations Ordinance which mainly deal with the procedure to be followed in the conduct of polls 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 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 lists 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 these lists. The employers shall provide facilities to the Registrar for verification of these lies. Upon verification, the Registrar shall certify the lists and give copies thereof to each of the registered Trade Unions or federations 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. (b) 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. (c) Ballot boxes shall be sealed in the presence of the representa-- tives of the 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 the of opening of boxes and counting of votes.
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(d) 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." 5. The first contention of the learned counsel for petitioners woe that the copies of the lists of workmen to participate in the polls were received by the petitioners only one day before the date of the poll while these lists were to be delivered to each pf the registered Trade Unions at least 4 days prior to the date of holding of the ballot, as provided under subsection (8) of section 22. This objection, in so far as the factual allegation is concerned, has, in our opinion, no substance since upon verifica--tion from the original record produced by the Registrar of Trade Unions we find that the lists in question had been received by the petitioners on the 7th of May 1970, that is, at least 5 days before the date of the poll. Moreover, it would appear that on the very day of the poll and while the poll was in progress the General Secretary of petitioner No. 1 wrote a letter to the returning officer incharge of the referendum setting out the various objec--tions to the manner in which the poll was being conducted. No reference was made in this letter to the grievance that the lists in question had not been supplied to the petitioners early enough. Learned counsel for the petitioners argued that this objection was to be read in the first irregularity pointed out by the said letter. The paragraph in question is in the following terms: "Lists of the voters is not properly published and supplied to the contesting parties." We see no justification for reading into the above paragraph the objection that lists had not been supplied at least 4 days before the date of the poll. If indeed the foregoing allegation of the petitioners was correct we have no doubt that it would have been taken up in a language which is specific and precise. However, as observed earlier it is in evidence that the lists in question were received by the petitioners on the 7th of May 1970 and the contention of the petitioners to the contrary has no basis. 6. The next contention of the petitioners, on which considerable stress was laid by their learned counsel, was that the lists of workers furnished to the petitioners was not in confirmity with subsections (7) and (8) of section 22 of the Ordinance, in that, they were lacking in the particulars prescribed by sub--section (7). More precisely the contention was that the lists of all workers required by subsection (8) (a) of section 22 to be furnished by the employer to the Registrar was, by the said subsection, to contain all the details set out in subsection (7). These details relate to parentage, age, section, Department and place of employment or ticket number and date of Trade Union membership. It is alleged that excepting name and parentage no other details as required under the said provision were furnished in the lists. In the absence of such details the petitioners, it was contended, had no means of verifying the genuineness of the voters that participated in the poll. It was alleged that a number of outsiders were found on the polling day to be standing in the queues leading to the polling booths. In their memo. Of objections addressed to the returning officer and delivered to him at 10-00 a. m. On the date when the polling was in progress the General Secretary of the first petitioners had contended that lists of voters were not properly published and supplied to the contesting parties and that since morning many outsiders from the Karachi Port Trust, Railways, Shipyard etc. Who had nothing to do with the referendum In question were standing in the ques and that to the absence of an official list it was not possible to verify the voters. The Registrar of Trade Unions, whose para-wise comments in relation to the petition were called for by us, answered this contention by stating that the lists of workers supplied by the Management contained all the necessary details pertaining to the name, parentage, Department and designation and the date of employment and that only the age of the workmen was not mentioned in the list. It was further urged that the details pertaining to the workers supplied in the lists contained sufficient information for purposes of identifying the work--men. We have ourselves examined these lists and we find that with the exception of details relating to to particulars, namely, "age" and `date of Trade Union membership' the lists otherwise conformed to the
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requirements of subsections (7) and (8) of section 22. The question which, therefore, arises for determination is whether the failure of the lists to set out the to foregoing particulars will operate to vitiate the poll. In order to answer this question it seems to us necessary in the first instance to consider whether the provisions of subsections (7) and (8) of section 22 of the Ordinance requiring the details to be set out in the lists are of a mandatory or of a directory character. If the said requirements are mandatory in nature, there should be no doubt that any failure in their literal compliance will vitiate the result. However, if these requirements are found to be directory in nature we will then proceed to consider if any prejudice has been caused by a departure therefrom. 7. The provisions of subsections (7) and (8) of section 22 of the Industrial Relations Ordinance, 1969 have been reproduced earlier. Under subsection (7) the Trade Union making the application to the Registrar for being declared as a collective bargaining agent is required to submit, along with the application 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. Upon receiving such an application the Registrar is, by subsection (8) (a) required to obtain lists of all workmen employed in the establishment or industrial unit from the employers. Such lists, it is provided, shall contain details as set out in subsection (7) of all workmen. Subsection (8) (a) further provides that the names of all workmen whose period of employment in the establishment or industrial unit is than three months, and who are not members of a Trade Union, shall be excluded from These lists. Obviously the submission of lists answering to the above, description is an obligation cast on the employers. It is on the receipt of such lists that the duty of the Registrar commences for the purpose of verification of the lists. The verification having been done the Registrar is required by subsection (8) (a) to certify the lists and give copies thereof to each of the registered Trade Union at least 4 days before the date of holding the ballot. Clause (b) of subsection (8) defines the persona who shall be entitled vote at the ballot as every person whose name appears on the lists prepared by the Registrar under clause (a) of subsection (8). 8. The learned counsel for the petitioners urged that the use of the word 'shall', both in subsection (7) as well as in subsection (8) (a) of section 22, indicated that the procedure and the particulars prescribed therein were of an imperative and man--datory character, that there was a definite purpose in providing that the lists shall contain the prescribed particulars, and that even whenever an at is expressly mentioned to be done in one particular way it impliedly excludes the doing of it in any other way. It was further contended that even if the requirements in question were found to be directory in nature they could not be ignored and brushed aside as if they were non-existent and that in any case there should still have to be substantial compliance. 9, While considering the foregoing contentions of the learned counsel for the petitioners the first aspect we would like to note is that the provisions of subsections (7) and (8) (a) of section 22, requiring certain particulars to be set out in the lists are of an affirmative character with no declaration of the consequences that are to follow on their non-compliance. The rule based on considerable authority appears to be that such prescriptions when imposed in relation to a public duty may well be regarded as intended to be directory and a failure of the strict compliance will not vitiate the result. The use of words such as 'may' and 'shall' as representing the permissive or nature respectively of the at intended to be done has long ceased to be a conclusive and unerring index to the intention of the Legislature and one may now venture to say this as an axiomatic pronouncement without feeling the necessity of covering the ground from Jullius v. Bishop of Oxford ((1880) 5 A C 214) onward. 10. Be that as it may, it seems to us that the truest guide to the interpretation of a statute must necessarily lie in a consideration of the object that the statute or a particular provision there is designed to achieve. As observed by Lord Campbell in Liverpool Borough Bank v. Turner ((1861) 30 L J Ch. 379): "It is the duty of Courts of justice to try to get at the real intention of the Legislature by
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carefully attending to the whole scope of the statute to be con--strued." Lord Penzance, after being through all the principal cases on the subject, found it impossible, in Howard v. Bodington ((1877) 2 P D 203), to reach a conclusion different from Lord Campbell. "In each case" he said "you must look to the subject-matter, consider the importance of the provision and the relation of that provision to the general object. Intended to be secured by the Act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory." This view has the and again been affirmed in a string of subsequent cases and has also been followed by our own Supreme Court it the case of Abdul Hamid v. Chief Settlement and Rehabilitation Commissioner (PLD 1968 SC 154). The same principle has been stated by Division Bench of the High Court of West Pakistan at Lahore in The case of Bashir Hussain and others v. Land Acquisition Collector, Lahore Improvement Trust and others (PLD 1970 Lah. 321) in the following obser--vation: "One has, therefore, .To determine each case on its own facts and for that purpose has to look into the subject-matter of the statute with a view to determining the importance of the provisions of law that has been disregarded and finding out the relation of that provision to the general object intended to be secured by the Act. If the object can be secured even without compliance such a provision, it could be safely dubbed as directory. If that be not so, the provision would be imperative or obligatory and non-compliance with it would result in nullification or vitiation of the Act which affects the rights of a citizen. " Applying then the foregoing principles of interpretation, we would enter on an analysis of the provisions of subsections (7) and (8) of section 22 of the Industrial Relations Ordinance with a view to determine the object these provisions are designed to achieve. Its is clear that the purpose of section 22 of the Ordinance is wholly to purvey for a situation in which multiple Trade Unions vie with each other in their respective claims to representative character. Such conflicting claims generally tend to create a confused state in which the master is unable to decide as to which Trade Union he should deal with. Section 22 of the Ordinance devises a machinery by which it is possible to identify the Trade Union commending the loyalty support of the largest number of workers for the purpose of dealing with it and designates such a Trade Union as "the collective bargaining agent." Subsections (7) and (8) of section 22 of the Ordinance prescribe the procedure for conduct--ing a poll for the purpose of determining the collective bargaining agent. Clause (b) of subsection (8) provides that only those workers whose names appear on the list prepared by the Registrar under clause (a) of subsection (8) will be entitled to vote at the ballot. In preparing the list the Registrar is to be guided by the procedure-- laid down in clause (a) of subsection (8). This procedure envisages that the Registrar shall in the first instance obtain lists of all workmen employed in the establishment from the employers. Such lists, it is provided, shall also contain details relating to parentage, age, section/Department and place of employment or ticket number and date of Trade Union membership. It is further provided that the names of workmen whose period of employment in their establishment or industrial unit is less than 3 months, and who are not members of a Trade Union shall be excluded from the lists. Upon receipt of such lists the Registrar has to verify the same and certify the lists giving copies thereof to each of the registered Trade Unions at least 4 days prior to the date of hold--ing of the ballot. It will be observed that the requirement with regard to the lists setting out certain particulars is affirmative in charcter without any nullification for disobedience being spelt out. But clause (a) of subsection (8) also incorporates an obligation that in submitting the lists the names of workmen whose period of employment In the establishment or industrial unit is less than three months, and who are not members of Trade Union shall be excluded. 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. The period of employment and membership of a Trade Union , thus appear to be the only relevant particulars on the basis of which the qualification of a worker to
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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 membership of Trade Union, This information once again seems to be wholly irrelevant for the purposes of determining 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 sections 22 is merely to demonstrate that the particulars stipulated in subsection (7) seem to be, unconnected with any information which will be relevant for purpose of excluding or including the names of the workers in the lists. It thus seem clear to us that any defect or irregularity in conforming to the particulars set out in subsection (7) cannot effect the vested right of the workers 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 subsection (7) as purely directory and of a procedural nature. 11. Learned counsel for the petitioners argued that in the absence of information regarding the age of the workers it was not possible to check their identity at the the of the poll. We are afraid this is to general a statement. It has not been alleged that there was in fact any confusion of identity in relation to any workers for want of information regarding age. In the absence of specific allegations we do not find it possible to address ourselves to this contention with any degree of seriousness. Moreover it can hardly be denied that information regarding age is not by itself a full proof mechanism for fixing the identity of an individual, unless the differences in age is very substantial. 12. Learned counsel for the petitioners then argued that even if the provisions regarding the particulars to be included in the lists are understood to be directory yet they are not intended by the statute to be disobeyed, particularly so when the provisions in question are meant to at as guidelines for an administrative set up. Reliance in this connection was placed on the case of Jamal Shah v. Election Commission (PLD 1970 Lah. 321). It is no doubt true that any procedure set out in a statute has always to be scrupulously g followed and it will be no excuse for an authority to say that the prescribed procedure has not been followed since it is of a directory nature. But where there is no evidence to suggest that the failure I to follow the prescribed procedure, was the result of a conscious, prescribed procedure, or calculated at or that such failure resulted in positive miscarriage of justice, there would be no justification in allowing the irregularity to affect the result. The learned counsel for the petitioners placed reliance on the case of Muhammad Akbar v. Dr. Khan Sahib (PLD 1957 Kar.. 387) where a Division Bench of the then High Court of West Pakistan at Karachi observed: "Where the whole aim and object of the Legislature would be plainly defeated if he command to do a thing in a particular manner did not imply a prohibition to do it in any other, no doubt can be entertained as to the intention. Where powers, rights or immunities are granted with a direction that certain regulations, formalities or conditions shall to complied with, it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred." On the strength of the foregoing dictum it was argued that the procedure prescribed in subsections (7) and (8) of section 22 of the Ordinance did not admit of any relaxation, and that the statute is deemed to have intended a full and punctilious observance. We have already dealt with the above aspect. But even so the facts of the case in the context of which the foregoing dictum was pressed in the service, were vastly different from the one before us. In the reported case of Muhammad Akbar v. Dr. Khan Sahib, the election of Dr. Khan Sahib to the Consti--tuent Assembly
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from Baluchistan was challenged on the ground that he could only be elected by the members of the Shahi Jirga and the non-official members of the Quetta Municipality. But that on the day Dr. Khan Sahib was elected the Quetta Municipality was not even in existence having been replaced by a nominated committee of 22 persons by the Agent of the Governor-General. It had been contended on behalf of Dr. Khan Saheb that the requirement in the law with regard to the right of the non-official members of the Quetta Municipality to elect a member had become impossible of observance in view of the non-existence of any such body. It was while repelling the above contention that the observation quoted earlier was made by the Court. It was further observed that the defect went to the root of the election by altering the very…
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