' This writ petition has been brought for a declaration to the effect that the result of a secret ballot to determine a collective bargaining agent for the open line establishment of Pakistan Railways held by the Commission /respondent No, 1 from 20th October, 1981 to 31st October, 1981, as exhibited in letter dated 11th November, 1981 be declared as without lawful authority and of no legal effect seeking a direction as well to respondent No, 1 to determine new collective bargaining units and then included every eligible worker as a voter and determine as collective bargaining agent by a secret ballot amongst all the registered trade unions-registered upto date and also declare one- third at least the basic requirement for the determination of collective bargaining agent.
2. Briefly the facts of the case as alleged by the petitioner are that on 3rd June, 1974 the Secretary of respondent No, 2 moved an application to respondent No, 1 requesting it to determine a collective bargaining agent through a secret ballot under section 22 of the Industrial Relations Ordinance, 1969 for the whole of Pakistan Railways. On 5th June, 1975 respondent No, 1 issued notice under section 22 (3) (a) to thirteen registered trade unions asking to indicate whether those would be participating in the referendum. No notice was issued to respondent No, 3 as by that time it was not a registered trade union. During its initial preparation for the referendum the Secretary Ministry of Railways applied under section 22 (EE) of the Ordinance for the determination of two collective bargaining units in the Pakistan Railways. Respondent No, 1, on 2nd July, 1978 declared the two collective bargaining units, workshop establishment and open line establishment. After declaration of two collective bargaining units no new application was made either by the respondent No, 2 or by any registered trade union for the determination of collective bargaining agent. The proceedings taken on the application were already pending since 1974. Respondent No, 3 was associated on 25th November, 1978 with the referendum on which date fresh notice was issued to the trade unions. The secret ballot as to the referendum was held from 20th October, 1981 to 31st October, 1981 in which seven trade unions participated. No trade union could be certified as a collective bargaining agent since the runner up bad not been able to muster 1/3rd of the total strength of the workmen employed in the establishment, so the matter was left to be decided by a second poll to be held between the trade unions i. e. Pakistan Railways Employees' Union (respondent No, 3) Railways Workers' Union (respondent No, 4) who secured as to votes 1st and second positions. The petitioner secured 3rd position. The petitioner alongwith other unions applied for holding the second ballot amongst all the participants afresh. The application so made was rejected by the Member acting as Registrar National Industrial Relations Commission. After the issuance of letter dated 11th November, 1981 communicating the order of the learned senior member of the commission acting as Registrar of Trade Unions that a second ballot was to be held between the two unions only namely Pakistan Railways Employees Union respondent No, 3 and Railways Workers Union respondent No, 4 because in the first ballot the winning trade union had not been otherwise able to muster 1/3rd strength of the total workers employed in the open line establishment, one Mazdoor Union in, which the petitioner was one of the respondents, filed an appeal before the National Industrial Relations Commission Islamabad praying that a ballot be held among all the contesting unions and a fresh list of voters be prepared under proviso to Regulation 16 (22), Industrial Relations Commission (Procedure and Functions) Regulations, 1973.
The petitioner wanted the appellate Bench to interpret Regulation 16 (V) as prescribing the holding of the 2nd poll amongst all the contesting unions as against second proviso to section 22 (9) (e) of the Industrial Relations Ordinance, 1969 which provides the holding of second ballot (in the event of the winning contestant receiving the votes less than 1/3rd of the total number of the workmen in the establishment) between the trade unions which secure the two highest number of votes in the first poll. The learned appellate Bench was of the view that to give such an interpretation was to bring the subordinate legislation in conflict with the main legislation which limited the contest in second poll to two. The provision of Regulation 16 (22) of Regulations, 1973 which were framed under the power conferred by the main Statute i. e. Ordinance 1969 so it was to be construed subject to and in the light of the second proviso to section 22 (9) (e) of the Ordinance. As to the second prayer it was held that since the learned senior member as Registrar had not taken a decision as to the preparation of the fresh list of voters so the appeal was not maintainable on that point. The appeal was dismissed vide order, dated 10th December, 1981. The petitioner filed an appeal before the National Industrial Relations Commission setting out that respondent No, 3 was not registered at the start of the referendum proceedings so its participation in the referendum was void and without any effect as a consequence thereof the petitioner union (which had secured 3rd position in the first ballot) was to be declared as No, 2 and respondent No, 4 as No, 1 for the second poll. The learned appellate Bench observed that the petitioner was estopped from challenging the registration of Prem Union respondent No, 3 because prior to the first poll a voters list was prepared in which members of Prem Union were included to which no objection was taken by the petitioner on the ground then urged before the appellate Bench that the Prem Union was not duly registered at the relevant time. The petitioner had instead vide endorsement dated 26th March, 1983 on the voters list stated that it had no objection. On merits it was observed that though on the application moved by the employer on 3rd June, 1974 for holding the referendum in two establishments on 5th June, 1975 when notices were issued to the then thirteen registered Trade Unions under sections 22 (3) Industrial Relations Ordinance, 1969. Prem Union was not registered, it came to be registered for whole of the establishment on 22nd December, 1975. With the determination of two Collective Bargaining Units as to the entire establishment on 2nd July, 1978 under section 22 (EE) of the Industrial Relations Ordinance, 1969, fresh notice was given on 25th November, 1978 to all the registered Trade Unions under section 22 (3), Industrial Relations Ordinance, 1969 including the Prem Union. The contention of the petitioner that the proceedings for referendum commenced on 5th June, 1975 when the first notice was issued by the Registrar on which date Prem Union was not registered, was regarded as without any substance, on the ground that the notice became superseded after the determination of the Collective Bargaining Units and the notice issued on 25th November, 1978 was the required notice under section 22(3) of the Industrial Relations Ordinance, 1969, on which date the respondent Prem Union was duly registered.
The appeal was summarily dismissed on 16th March, 1982. The petitioner moved an application before respondent No, 1 under section 22 (EE) of the Ordinance for determination of new Collective Bargaining Units on the ground that due to re-organization of the Railways Board nearly 30,000 workers were to be effected. The application so made was dismissed. An appeal was filed therefrom which was pending disposal as stated in the writ petition.
3. The petitioner has challenged only two orders, dated 18th December, 1981 and 16th March, 1982 of respondent No, 1 to be declared as and without lawful authority, mala fide and of no legal effect.
' During the pendency of the present writ petition the second poll towards the referendum took place from 22nd August, 1982 to 7th September, 1982 in which only respondent No, 3 and respondent No, 4 participated under section 22 (9) (e) second proviso of the Industrial Relations Ordinance, 1969 in which respondent No, 3 secured 22,413 votes and respondent No, 4 secured votes 17,115.
4. The learned counsel for the petitioner has contended that under para. 22 of Regulation 16 of the N. I. R. C. (Procedure and Functions) Regulations, 1973, a fresh list for a second ballot has to be prepared in accordance with the provisions of subsection (5) of section 22 of the Industrial Relations Ordinance, 1969. The list is to be obtained from every contesting union. By the term 'the contesting union' is meant every union which participated in the first poll and not merely two unions participating in the second poll. The referendum continues even if the other contestants are dropped. The effect of any contrary interpretation will be to disfranchise the majority of the voters.
The proviso to para. 22 of Regulation 16 in fact governs the main para. Itself and is of a mandatory nature. Even the list prepared under this Regulation must be in accord- ' acne with section 22 of the Industrial Relations Ordinance. The word 'may' in proviso to para. 22 must be read as 'shall'. In any case if the second poll is held beyond three months or more from the first poll, then to give an effect to the language and the qualification prescribed in section 22 of the Industrial Relations Ordinance, 1969, the proviso in the Regulation, in the circumstances, becomes mandatory. The learned counsel has referred to para. 7 of the Regulation 16 of N.
1. R. C. (Procedure and Functions) Regulations, 1973, to show that where a particular thing is left to the discretion, the word 'discretion' has been expressly used. As to the interpretation of proviso to para. 22 of Regulation 16 the crucial word "may" assumes a mandatory meaning if the interval between the two elections is considerable so as to make the representation complete. It is required to enlist all the workers who by that time became qualified. The learned counsel has relied on Craies on. Statute Law Sixth Edition page 284 which says, "Statutes passed for the purpose of enabling something to be done are usually expressed in permissive language, that is to say, it is enacted that "it shall be lawful", etc. Or that "such and such a thing may be done". "Prima facie, these words import a discretion, and they must be construed as discretionary unless there be anything in the subject-matter to which they are applied, or in any other part of the statute, to show that they are meant to be imperative." He has maintained in conclusion that the list prepared for the second poll was not a legal one.
' The second contention of the learned counsel is that respondent No, 3 was not registered in the year 1974 when the proceedings for a secret ballot were initiated on the application of the employer. When on 5th June, 1975 the registered trade unions were asked to state whether they desired to contest in the secret ballot for the establishment under subsection (3) of section 22 of the Industrial Relations Ordinance, 1969 by that time respondent No, 3 was not registered and the same is an admitted fact. A trade union registered after such a notice can under para. 25 of Regulation 16 of N. I. R. C. (Procedure and Functions) Regulations, 1973, as amended, be allowed to participate in the ballot only. The ballot implies the voting and not the referendum as a whole.
Respondent No, 3, therefore, could no be a candidate in the referendum, as such, the results of the first poll are liable to be quashed or in the alternative if on the ground of disability respondent No, 3 is thrown out then the petitioner is entitled to participate in the second poll being the next contestant after respondent No,
4. It was wrongfully assumed by the Chairman and the members of the Commission while deciding the appeal vide order, dated 16th March, 1982 that there was no objection as to the inclusion of the members of respondent No, 3 in the voters list, so the petitioner was estopped from challenging the registration of respondent No,
3. The endorsement pointed out by the learned Full Bench was an endorsement as to the list of voters and not a candidature. As to the estoppel the learned counsel has maintained that there is no estoppel against the Statute.
Respondent No, 1 wrote letter dated 25th November, 1978 to respondent No, 3 to associate with the referendum proceedings which was a mala fide act.
5. The learned Deputy Attorney-General appearing for respondent No, 1 has in reply submitted that though he has raised this point in the connected writ petition i,e, W. P. 2438 of 1982 that the proviso to Regulation 16 (22) as to the fresh list is ultra vires the section 22 (5) of the Industrial Relations Ordinance because the original provision contemplates no fresh list for the second poll, yet if it is regarded as intra vires then the fresh list or the supplementary list if deemed as necessary is to be prepared under section 22 of the Industrial Relations Of dinance as is indicated in the proviso.
Subsection (5) of section 22, I. R.
0. Contemplates the preparation of a list of voters of those workmen whose period of employment is not less than three months and who are members of any of the contesting trade unions. The expression 'contesting trade union' is decisive of the voters list so t prepare such a list one is to keep before him only the contesting unions for B a particular ballot. The second ballot in this case was being held between respondents Nos, 3 and 4, therefore, those were the only contestants within the meaning of the provision to that effect which were to be required to submit the list of their members who were qualified as well.
' As to the second point raised by the learned counsel for the petitioner the learned Deputy Attorney-General has submitted that the employer i. e. The Pakistan Railways Board made an application, on 3rd June, 1974 for determining a Collective Bargaining Agent. On 12th October, 1974 Industrial Relations Ordinance, 1969 was amended by an Ordinance in 1974 and a new section 22
(EE) was inserted. On 5th June, 1975 respondent No, 1 issued an invitation pursuant to the application, dated 6th March, 1974 to the registered trade unions for providing the list of their members. The Prem Union (respondent No, 3) was registered, on 22nd December, 1975. This registration was subsequent to the issuance of the notice under subsection (3) of section 22, I. R.
0. On 2nd July, 1978 pursuan to the reference made by the Government under section 22 (EE) for deter mining the Collective Bargaining Units of the Pakistan Railways, the Commission determined &o C. B. Units namely Workshop Establishmen and Open Line Establishment. Thereafter the registered trade unions were asked to re-register themselves or to get their registration modified for the respective units. On 25th November, 1978 again a notice was sent to the registered trade unions for the Open Line Establishment under subsection (3) of section 22, I. R.
0. As a result of the first ballot respondent No, 3 secured the highest number of votes i. e. 18,980 and respondent No, 4 next to it secured 9,319 votes. The attack on the ground that respondent No, 3 was not a registered trade union on 3rd June, 1974 when the employer i. e. Pakistan Railways Board submitted an application for the determination of a Collective Bargaining Agent nor on 5th June, 1975 when the Registrar invited the trade unions to indicate their desire to participate in the secret ballot, loses its significance in the light of the fact that with the determination of two C. B. Units on 2nd July, 1978 every registered trade union was either to get its registration modified or get it registered if needed. A fresh notice on 25th November, 1978 was given to all the registered trade unions under section 22 (3) of the I.R.O. Which was also extended to respondent No, 3.
6. The learned counsel for respondent No, 3 has submitted that the petitioner had fully participated in the first poll in the hope of getting a favourable result. It is only after defeat it has chosen to come to this Court. The petitioner is estopped by its own conduct to challenge the result of the first poll. The petition has been filed after a lapse of one year from the first poll of the referendum. The petition is liable to be dismissed on the grounds of laches and estoppel. The Registrar has the powers under section 8 of the I. R.
0., 1969 to register a trade union at any time if it fulfils the condition as laid down in this section.
According to the amended Regulation 16 (25) of the N. I. R. C. (Procedure and Functions)
Regulations, 1973, which reads as Registration of Trade Unions during the pendency of Secret Ballot proceedings. "The Commission may allow or disallow a trade union to participate in the ballot which is registered during the pendency of the secret ballot proceedings", respondent No, 3 could be allowed to participate in the ballot. In addition to this the learned counsel for respondent No, 3 has advanced the same arguments as the learned Deputy Attorney-General has put in. However, respondent No, 4 has not addressed any argument.
7. As to the impugned judgment dated 10th December, 1981 the petitioner was one of the respondents. The appellant before the learned Full Bench was Railway Mazdoor Union. There the point raised was that a -fresh or a second ballot was to be ordered to be held between all the contestants rather than between the two under Regulation 16 (22) of Regulations, 1973 and for that a fresh list of voters was to be prepared by the Commission. The learned counsel for the petitioner has very wisely not raised that point as it was also raised by the petitioner or the other respondents in that appeal before the learned Full Bench because the second proviso to section 22 (9) (e) is quite explicit on the point that in which event a second ballot is to be held and between whom, but has at the same time developed the argument the other way round as set out above.
8. The provisions obtaining as to the preparation of a list of voters are given in section 22 (5) (6) of the Ordinance and Regulation 16 (22) of the N. I. R. C. (Procedure and Functions) Regulations, 1973, which are reproduced here for facility of reference :-{{TABLE TEXT}} "22. - Collective Bargaining Agent.- ... 1100
(5) The Registrar shall, after verification of the lists submitted by trade unions, prepare a list of voters in which shall be included the name of every workman whose period of employment, as computed in accordance with subsection (4) is not less than three months and who is a member of any of the contesting trade unions and shall, at least four days prior to the date fixed for the poll, send to each of the contesting trade unions a certified copy of the list of voters so prepared.
(6) Every workman who is a member of any of the contesting trade unions and whose name appears in the list of voters prepared under subsection (5) shall be entitled to vote at the poll to determine the collective bargaining agent."
"16 (22)-Ballot to be repeated in case a union receives less than the required number of votes. - Notwithstanding the provisions of paragraph (21), if the number of votes received by the winning trade union is less than one-third of the total number of workmen employed in the establishment, such trade union shall not be declared as Collective Bargaining Agent and the ballot shall be held afresh on such date and time as may be fixed by the Commission : 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."
A plain reading of the above-said provisions shows that the submissions in this behalf made by the learned Deputy Attorney-General and the learned counsel for respondent No, 3 are in accord with the expression used in subsection (5) of section 22 of the I. R.
0. Which lays down the manner of preparation of a list of voters with an emphasis on words "the contesting trade unions", so there is no requirement to invite a list from the unions which are not contestants in the second poll.
As to the nature of sub-regulation (22) of Regulation 16 of Regulations 1973, that whether it is mandatory or permissive, the point has been decided in the connected writ petition i. e. W.P. No, 2438/82, where it has been held that the preparation of a fresh list is discretionary, the discretion becomes however worth exercising if within the interval between the two polls certain persons are employed, or they retire or die, or the persons already employed become qualified. Since the petitioner or others are not qualified to take part in the second poll, therefore, these are in no way concerned with the above-said proviso.
9. The learned counsel for the petitioner has put a wrong construction on amended Para. No, (25) of Regulation 16 of the N. I. R. C. (Procedure and Functions) Regulations, 1973. In the expression, "to participate in the ballot". When the word 'ballot' is construed in the light of section 22 (2) of the Industrial Relations Ordinance, 1969, then it necessarily means a secret ballot to determine as to which one of the trade unions shall be the Collective Bargaining Agent for the establishment or a group of establishments.
10. As to the entitlement of respondent No, 3 the submission made in reply by the learned Deputy Attorney-General and the learned counsel for respondent No, 3 are with substance. Suffice it to say that the effective notice calling upon the registered trade unions to indicate their desire to be contestants in the secret ballot was issued by the Registrar on 25th November, 1978 after the determination of the two Collective Bargaining Units at which time respondent No, 3 was very much in the field as a registered trade union, so in law could not be ignored. The notice issued on 5th June, 1975 had lapsed as to its purpose with the stay of the proceedings of the secret ballot during the determination of two Collective Bargaining Units, therefore, the argument that respondent No, 3 was not registered at the time the first notice was issued has no bearing at all on the entitlement of respondent No, 3 to contest. The finding of the learned Full Bench as set out in paragraph No, 2 of this judgment is correct and suffers from no jurisdictional error. Resultantly this petition is dismissed with costs.