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 Ordinance, 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 two years thereafter.
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 votes cast. The break up of the votes was as under : Petitioner No, 1 1,257 Votes Petitioner No, 2 24 "
Petitioner No, 3 2,272 "
Respondent No, 35,194 "
Respondent No, 4694 "
Total 9,896 Votes Pursuant to the above results, respondent No, 3 was declared to be the 'Collective Bargaining Agent'.
4. The petitioners now contend 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 allegations 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 1. ss 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 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.
(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 representatives 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 time of opening of boxes and counting of votes.
(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 was 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 of the. registered Trade Unions at least 4 days prior to the date of holding of the ballot, as provided under sub-section (8) of section 22. This objection, in so far as the factual allegation is concerned, has, in our opinion, no substance since upon verification from the original record poduced 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 objections 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 conformity with subsections (7) and (8) of section 22 of the Ordinance, in that, they were lacking in the particulars prescribed by subsection (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 ques '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 in the absence of an official list it was not possible to verify the voters. The Registrar of Trade Unions, whose parawise 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 workmen. We have ourselves examined these lists and we find that with the exception of details relating to two perticulars, namely, "age" and 'date of Trade Union membership' the lists otherwise conformed to the 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 two 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 less 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 persons who shall be entitled to 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 mandatory character, that there was a definite purpose in providing that the lists shall contain the prescribed particulars, and that even whenever an act 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 their strict compliance will not vitiate the result. The use of words such as 'may' and 'shall' as representing the permissive or compulsive nature respectively of the act 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 aximotic pronouncement without feeling the necessity of covering the ground from Jullius v. Bishop of Oxford 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 therein is1 designed to achieve. As observed by Lord Campbell in Liverpool Borough Bank v. Turner : "It is the duty of Courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed." Lord Penzance, after being through all the principal cases on the subject, found it impossible, in Howard v. Bodington , to reach a conclusion different from Lord Campbells. "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 time and again been affirmed in a string of subsequent cases and has also been followed by our own Supreme Court in the case of Abdul Hamid v. Chief Settlement and Rehabilitation Commissioner . The same principle has been stated by a 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 in the following observation : "One has, therefore, to determine each case on its own facts and for that purpose has to look into the subjectmitter 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. It 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 or 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 conducting 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 holding of the ballot. It will be observed that the requirement with regard to the lists setting out certain particulars is affirmative in character 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 namesare liable to be excluded from the lists are those whose period of employment is less than 3 months, and who are2 3 4 5 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 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 particlulars 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 purposes of excluding or including the names of the workers in the lists. 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 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 time of the poll. We are afraid this is too general a statement. It has not been alleged that there was in fact any confusion of identity in relation to any worker s 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, particluarly so when the provisions in question are meant to act as guidelines for an administrative set up. Reliance in this connection was placed on the case of Jamal Shah v. Election Commission . It is no doubt true that any procedure set out in a statute has always to be scrupulouslylg 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 to follow the prescribed procedure, was the result of a conscious or calculated act 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 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 be 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 observaance. We have arleady 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 of6 7 Muhammad Akbar v. Dr. Khan Sahib, the election of Dr. Khan Sahib to the Constituent Assembly 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 constitution of the electorate and such a defect was not a mere irregularity. Thus the case cited by the learned counsel is no authority for his attempt to equate procedural provisions with mandatory provisions. There are few propositions more clearly established than the one that the non- observance of procedural and directory provisions of a statute will not vitiate the act unless prejudice is shown to have been occasioned.
13. While on this aspect we may mention that by going through the record of the Registrar we found that several meetings were held by him with the representatives of the various Trade Unions after receipt of the lists from the K. M. C. These meetings were obviously convened to consider and verify the lists and to chalk out the programme for the polls. In verifying the said lists the Registrar, it would seem had acted in the discharge of his obligation under subsection (8) (a) of section 22 and we would infer that all the objections to the lists referred to him were duly considered. There is however nothing on the records of the Registrar which would tend to show that any objection with regard to the non-compliance of the statutory provisions in compiling the lists was taken before him. Such being the conduct of the petitioners before the Registrar we would safely conclude that the petitioners had waived their objections, if any, to the lists in question and are now estopped from raising the issue in these proceedings.
14.The learned counsel for the petitioners next contended that at least two requirements mentioned in subsection (8) (a) were of a vital nature upon which would depend the very right of the worker to participate in the poll. These requirements pertian to the period of employment and Trade Union member-ship. Learned counsel for the petitioners contended that the lists submitted by the Corporation did not contain any information with regard to either the period of employment or to the Trade Union membership of a worker. This information was of vital importance in that the names of workmen whose period of employment in the establishment or industrial unit was less than 3 months, and who were not members of a Trade Union, were required to be excluded from the list with the result that they will not be entitled to exercise the right of vote. It is true that the only qualification placed upon a workman for being able to participate in poll is that he should have been in employment for at least 3 months in the establishment, unless he is a member of a Trade Union. We, however, find that the period of employment of worker or his membership of Trade Union simpliciter are not items on which information is required either under subsection (7) or subsection (8) to be furnished by the employer, although date of Trade Union membership is mentioned in subsection (7). Only an obligation has been cast on the employer to exclude such workers from the lists. If the employer, in the discharge of this obligation, acts wrongly or in bad faith we would imagine that the mischief could be rectified in the verification proceedings before the Registrar. In any case the information covered by the particulars is not statutorily required to be given and failure on the part of the employer to furnish them cannot as such affect the validity of the lists.
15.The ancillary contention to the one which we have just now considered was that in order to qualify a worker for participating in the poll he should not only have been in employment for at least 3 months but he should also have to be a member of a Trade Union. The view that has been canvassed before us is that the period of employment as well as Trade Union membership are two independent and necessary requirements for entitling a worker to be included in the lists.
According to the learned counsel the language of the provision as well as the punctuation employed therein was indicative of ouch intention.
In order to appreciate this contention it will be necessary to reproduce the relevant sentence appearing in subsection (8) (a) to section 22 of the Ordinance. This sentence reads as : "The names of workers 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 these lists."
The case of the petitioners is that the period of employment and the membership of a Trade Union are qualifications which are exclusive of each other as is suggested by the appearance of the punctuation mark 'comma' after the words 'less than three months' and that the use c f the word 'and' appearing therein should be read in a disjunctive sense by reason of the 'comma' appearing immediately before it. The result was that the two requirements will both have to be satisfied for entitling the workers to be included in the lists. We have given our earnest consideration to this contention. Punctuations may no doubt be an useful aid for the interpretation of a statute but where such punctuation is clearly repugnant to the object intended to be achieved it ceases to be of any significance. While addressing himself to this cuestion, Lord Hobhouse of the Privy Council observed in Maharari of Burdwan v. Murtunjong Singh "it was an error to rely on punctuation in construing Acts of the Legislature. It is from the words and from the content and not from the punctuation that the meaning of the statute is to be collected." The dictum laid down by Lord Hobhouse was followed in a Full Bench case of the Allahabad High Court, Edward Gaston v. L. K.
Gaston . The place of punctuation as an aid to the interpretation of statutes has been the subject of diverse comments in a number of Indian cases which came up for decision after the case of the Maharani of Burdwan. By and large the view seems to have been that unlike the old English Statutes where in recuorse was never had to punctuations in the drafting, the modern laws disclosed a conscious attempt by the Legislatures to use punctuation. It would therefore be wrong to completely ignore them in any attempt to construe the true intention of the Legislature. Thus a Full Bench of the Bombay High Court in the case of Isap Ahmad v. Ibrahimji Ahmadji proceeded to take full notice of a hyphen. In a Division Bench case of the Madras High Court, Board of Revenue, Madras v. S. R. M. A. R. Ramanathan Chetiar Schwabe, C. J. observed in emphatic terms "The Statute has been punctuated, and we must take the punctuation marks as part of the Statute." But in Niaz Ahmed v. Pursottum Chandra Suleman, J. following the dicta in the Privy Council cases of Maharani of Burdwan and Lewis Pugh v. Ashutosh held that punctuation is no part of a statute, and Court of Law was bound to interprete the section without the commas inserted in the print.
There have been several other cases in some of which punctuation has been ignored while in others it has been relied upon. However in a Full Bench case of the Lahore High Court, Gurmukh Singh v. Commissioner of Income-tax , Munir, J. as he then was observed. "In the interpretation of statutes punctuation, not being a part of the statute to be construed, is not the determining factor and if the provision as punctuated leads to an absurd result or conflicts with some other provision of the statute which is unambiguous and free from doubt, the punctuation must yield to an' interpretation that is reasonable and makes it consistent with the other provisions of the Act". We are in respectful agreement with this view and would add, as observed by the Supreme Court of India in Ashwini Kumar v. Arbinda Bose that punctuation may have its uses in some cases, but it cannot be allowed to control the plain meaning of the text.
16. Reverting now to section 22 of the Industrial Relations Ordinance, we have already observed that this section appears to be designed to meet a situation in which two or more rival Unions claim to represent the workers. Each Union may assert that it has more workers on its membership rolls8 9 10 11 12 13 14 15 than any of its rivals. But how is this to be established. Unions may not wish to disclose their records to the employees. There may also be several workers who, while not being members of any Trade Union would yet prefer to place their confidence in one particular Union. The object of conducting a poll in terms of section 22 is clearly not to ascertain the membership strength of the individual Unions but to find out as to which Union commands the largest support. The principle of determining the collective bargaining agent by means of a secret ballot has been visualised in the 'Workers Educational Manual' issued by the International Labour Office at Geneva in the year 1960 and at page 23 of the Manual it is observed that all workers, whether Union members or not, had a right to vote, and the Union which obtained the largest number of votes is given the right to represent the workers concerned for purposes of collective bargaining. If indeed the membership of a Trade Union was a necessary criterion to entitle a worker to participate in a poll there would hardly be any sense in holding ballot since the object would have been well achieved by obtaining the membership figures from each Trade Union, and declaring the Trade Union commanding the largest membership as the collective bargaining agent. A further aspect which we find it impossible to ignore is the total absence of any plausible reason to exclude all those workers who are not members of a Trade Union from having a voice in determining their representatives. It is not in dispute that a duly declared collective bargaining agent may commit not only its own members but all the workers of the establishment or industrial unit to a collective agreement. It is also not in dispute that a worker who belongs to one particular Trade Union is under no legal liability to vote only for that Trade Union. Then why, may one ask, should a worker who is not a member of any Trade Union and who is under no legal compulsion to seek such membership, be disqualified from having a say? Much as we have pondered over this question we are frankly unable to hit at any cogent answer. A possible explanation for the insistence on a worker being in employment for a minimum period of three months may be that by this provision an attempt is made to eliminate the possibility of the employers defeating a popular but intractable Trade Union by taking on its employment rolls temporary servants and terminating their service soon after the poll is conducted. This mechanism may not work if the employee joins a Trade Union and thus ceases to be a tool in the hands of the employer. Taking into consideration the several factors discussed above we are of the view that membership of a Trade Union is not an indispensable condition to entitle a worker to be included in the lists and if a worker is found to have been in employment with the establishment for at least three months, his nonmember ship of a Trade Union will not come in the way of his being otherwise qualified as a voter. In this view of the matter it seems to us that the true construction of the words "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" is that while submitting the lists of the workmen, the employer will exclude those workers whose period of employment is less than three months unless they are members of a Trade Union.
17. We would now come to the other contentions of the learned counsel for the petitioners with regard to the conduct of the poll. It was alleged that the yellow ballot box at polling station No, 4 belonging to the third petitioners was found, during the progress of the poll, to be broken. This fact has not been denied on behalf of the Registrar. He has, however, explained that the attention of the polling officer in this behalf was drawn at about 4-40 p.m. immediately where-upon the polling was stopped and the ballot papers of the broken box were removed to another box of yellow colour with the approval in writing of the polling agents. The polling was thereafter resumed and no further objections in this connection were received from any of the polling agents till the closure of the ballot. It has to be observed that it is not the grievance of the petitioners that the above circumstance adversely affected the result of the poll. Moreover we find that the strength of voters on the list of this polling station was 1,800. Out of these a total of 1,146 votes were cast and the third petitioners whose yellow ballot box is alleged to have been broken had secured the highest number of votes, namely 652. The respondent No, 3 had secured 466 votes, the petitioner No, 1, 21 votes, petitioner No, 2, 11 votes and the respondent No, 4, 14 votes. But even assuming that all the votes in relation to this particular polling station were cast in favour of the third petitioner yet this would not have displaced the overall result in favour of the respondent No, 3, The respondent No, 3, it would seem, secured 5,194 votes as against 2,772 secured by the third petitioner, incidents like the breaking of a ballot box cannot be wholly excluded from any election and such incidents cannot be permitted to undo the result unless they are shown to have materially affected it. We find that the polling officer in charge of the polling station in question had acted reasonably and in fairness on the complaint before him and that no prejudice has whatsoever been caused to the petitioners by the action that was taken. Moreover it is in evidence that the agents of the petitioners had given their consent to the said action without any reservations and we do not see how they can now be allowed to re-agitate the issue in these proceedings.
18.It was next contended that at the polling station No, 10, the Polling Officer stopped the polling and declared the result at 2-00 p.m. instead of at 6.00 p.m. in violation of the instructions issued by the Registrar. This fact has also not been denied by the Registrar but it is explained that this action was taken after all the available voters had cast their votes and the polling agents of the contesting Unions had agreed to the closing of the ballot at 2-00 p.m. It is however conceded that the counting of the votes before the scheduled time did constitute a minor irregularity but that this was done with the consent of the parties. We find that the number of voters on the list of polling station No, 10 was 786. Of this a total of 435 votes were cast. The first petitioner secured 66 votes, the petitioner No, 3 secured 3 votes and the respondent No, 3 a total of 353 votes. The respondent No, 4 secured 13 votes. Thus a total of 435 votes was cast. The third respondent met this contention by stating that the haulting of the ballot at 2 00 p m. was if at all, to the disadvantage of the third respondent since the third respondent was leading in the poll at this particular station by a good margin. It was further contended that even if all the remaining votes were cast against the respondent No, 3 yet in view of the said respondent having secured in all a total of 5,194 votes the result of the election would still not have been different. This contention, no doubt, has force. In a ballot of the present nature which merely seeks to determine the collective bargaining agent we can hardly afford to close our eyes to the fact that the respondent No, 3 has secured almost double the votes of the next highest result.
19.The other objection with regard to the irregularities in the conduct of the poll was that the polling should have continued from 7-00 a.m. to 6.00 p.m. without any break. It was alleged that the polling time was observed more in its breach, in that, at several polling stations the polling started 2 to 3 hours late and there were several breaks in between and in some cases the polling started before time and in others continued after time. The learned Registrar's comment on this allegation is that the schedule of the referendum could not be adhered to very strictly in view of the huge number of voters at each station and the inadequate staff at the disposal of the Registrar to conduct the ballot. The learned counsel for the third respondent, however, contended that only at 3 polling stations, namely, Saddar, Lea Market and Muslimabad the polling was continued beyond 6- 00 p.m. and the polling time at those stations was extended with the consent of the polling agents.
It is, however, pointed out that all the polling stations where time was extended it was the third respondent who had led the results. It was further argued that the number of voters on these stations was so great that even if a minute was assigned to each voter to cast his vote yet all the voters could not, in the space assigned in the schedule, have recoded their vote. In these circumstances it was agreed by the consent of all that the polling time be extended. Here again we must observe that our attention has not been drawn to any aspect by which it could be said that the petitioners suffered in their results on account of the extension in time. On the other hand we find that petitioner Nos, 3 have them-selves, in some cases, applied for extension of polling time.
20.As regards the curtailment of time we have no particulars before us except in relation to polling station No, 10 where the polling was stopped at 2-00 p.m. This irregularity has already been dealt with by us. We may, however, observe that apart from the fact that no special prejudice is shown or alleged to have been caused to the results of the petitioners owing to the foregoing irregularity the disadvantage, if any, on account thereof must have been equal to all the Unions.
21.We would here like to observe that the procedure for the conduct of the polls has not so far been prescribed by rules which the Provincial Government is, under section 66 of the Industrial Relations Ordinance, empowered to frame. In the absence of such rules the polls have been conducted in accordance with directions issued in each case by the Registrar of Trade Unions in this behalf. These directions can hardly have the same sanctity as statutory rules. Any contravention of such directions cannot, to our mind, ipso facto nullify the result unless it manifestly appears that the contravention complained of has precipitated a grave miscarriage of justice.
22.For the reasons mentioned above we dismiss this Constitutional petition but in the circumstances of the case the parties are left to bear their own costs. (1880) 5 A C 214 (1861) 30 L J Ch. 379 (1877) 2 P D 203 PLD 1968 SC 154 PLD 1970 Lab. 321 PLD 1966 SC 1 PLD 1957 Kar. 387 (1887) 14 I A 30 I L R 22 All. 270 (1917) 41 Bora. 588 AIR 1924 Mad. 455 AIR 1931 All. 154 AIR 1929 P C 69 AIR 1944 Lah. 353 AIR 1952 SC 369