' This appeal under section 8(7) read with section 22-B of the I.R.O., 1969 has been submitted by Mohammad Yusuf Khattak Surveryor in Oil and Gas Development Corporation, Jamshoro District Hyderabad against Musarat Ali, Superintendent and 14 others. The appellant who is a Surveyor in the Pakistan Oil and Gas Development Corporation is a member of Pakistan Oil and Gas Development Corporation Employees Union registered with the N.I.R.C. As an industry wise trade union. The membership of this Union is spread all over the country as the employees working at different locations are members of this Union.
2. It has been submitted that Annual Elections of the Union were announced to be held on 31-7- 1984 and the respondent No. 1 was appointed as Chief Election Commissioner. The appellant filed his nomination papers for the posts of Vice-President and the Joint Secretary which were accepted by the respondent No.
1. The Security Staff of the Corporation had illegally got their membership of the Union and fully participated in the elections. They alongwith respondents Nos. 2 to 15 formed a group and filed the nomination papers of the respondents Nos. 2 to 15 for different posts. They were allotted the symbol of Crescent and Star and thereafter they lodged joint election campaign. It has been alleged that about 500 to 600 employees of the Security Staff of the Corporation fully supported the respondents Nos. 2 to 15 and also pressurised and intimidated the members of the Union and got their votes cast in favour of the respondents and got them elected in the said Annual Elections. It has also been alleged that one of the members of the Union namely Wazir Ali who was supporting the rival candidates was beaten by the Security Staff. A complaint was lodged by him before the Director Admn. O.G.D.0 and the Departmental enquiry is being conducted.
3. It has been submitted that in view of the said facts the appellant stopped his election compaign and retired from contesting the election. Similarly about 1/3rd of the members of the Union did not cast their votes and the respondents Nos. 2 to 15 were declared elected. The appellant reported this fact to the Chairman, and the Registrar of the Commission and filed an application under section 8(7) of the I.R.O., 1969. The Registrar N.I.R.C. Accepted the change of office-bearers of the Union provisionally subject to verification and hence this appeal.
4. It has been submitted that the order dated 21-8-1984 is illegal inasmuch as the Registrar of Trade Unions has no powers to accept the change provisionally as no reasons have been given for acceptance of this change provisionally. The Registrar of Trade Unions also erred in law and failed to note that the non-members of the Union that is Security Staff not only cast their votes in favour of respondents Nos. 2 to 15 but had lodged full-fledged election campaign in favour of the respondents and got the respondents Nos. 2 to 15 elected in the annual elections of the Union. The Registrar of the Trade Unions also failed to note that due to the pressure on the voters of the Security Staff about 1/3rd voters did not cast their votes and as such the election as a whole became invalid and illegal due to the participation and indulgence of the Security Staff in the elections.
5. The learned counsel for the respondents submitted that in the O.G.D.C. There were about 3,100 workers who are members of the 0.G.D.C. Employees Union and that this was the only Union in the 0.G.D.C. And was certified as C.B.A. The elections of this Union are held after every two years. The election were held on 31-7-1984 under intimation to this Commission. The respondent No. 7 Mohammad Aslam secured 1,649 votes as against 762 obtained by his rival S. Afzal Hussain. S. Afzal Hussain was the General Secretary during the previous term and for the last 15 years. Mohammad Yusuf Khattak applied for two posts one for the post of Joint Secretary and the other for the post of Vice-President. For the post of Joint Secretary he secured 20 votes whereas his rival Mohammad Rashid who has been elected as Joint Secretary secured 1,609 votes. For the post of Vice-President he secured 24 votes as against 1,673 secured by Mr. Anwarul Haq who has been elected as Vice- President, it has been submitted that the total number of employees of 0.G.D.C. Establishment employed as Security and Fire-Fighting Staff is 354. The learned counsel submitted that even if it be presumed that all the employees employed as Security and Fire-Fighting Staff voted for the elected candidates and thus 354 votes are excluded from the count of every elected candidate it will be seen that the result of the election will not be affected at all as the defeated candidates lost by a great majority of about 1,000 votes or so. None of the candidates has challenged the election except the appellant. It has therefore, been prayed that the order issued by the Commission may be vacated.
6. I have also heard both the learned counsel in detail. It has been submitted by the learned counsel for the respondents that the appeal is not competent against the of provisional approval and that the appeal was mala fide and was being financed and backed by the ex-General Secretary S. Afzal Hussain. I hold that the appeal is maintainable as the rival group has raised a dispute and the Commission can take cognizance under section 8(7) of the I.R.O., 1969. He further submitted that the appellant has secured 24 votes for the post of Vice-President as against 1,673 secured by Anwarul Hay who has been declared elected. For the post of Joint Secretary he secured 20 votes as against 1,609 secured by Mohammad Rashid who has been declared elected as Joint Secretary. The preparation of voters list and the conduct of polls etc. Was fully in the hands of S. Afzal Hussain defeated General Secretary who remained in power for the last 15 years and the appellant belonged to his group. It has been submitted that the Security Staff openly supported S. Afzal Hussain and his group and the appellant and for this reasons the appellant did not remove the Security Staff and the Fire-Fighting Staff from the list of voters. As regards Wazir Ali's case it has been submitted that this related to 6-8-1984 that is a week after the election and the matter has been compromised and the respondents have attached documents in support of this contention.
7. The common facts in this case are that the elections of the union were held on 31-7-1984 and the total number of voters were 2,757. The number of votes polled were 2,411, whereas 346 members did not cast their votes and 354 members belonged to the Security and Fire-Fighting Staff. The learned counsel for the appellant was of the view that because the Security and Fire-Fighting Staff was allowed to cast their votes the entire election proceedings had become void. He cited PLD 1957 (W.P.) Kar. 387 in this connection in which the election was held to be illegal. The learned counsel for the respondents cited PLD 1968 SC 331. This ruling of the Supreme Court is of a later period and has dealt with an identical case where excess number of votes were found in the ballot boxes and after the deduction of these excess votes the result was not affected and the election was, therefore, held to be valid.
8. In the instant case all the arrangements were made by the out-going General Secretary and the voters list was also prepared by him. It appears that he intentionally included the Security and Fire- Fighting Staff in that list. Although it was in the knowledge of the appellant at that time, he failed to raise any objection in this connection. There is nothing on record to show that he pointed out this defect to the Election Commissioner or raised any protest against inclusion of this staff in the voters list and he cannot now raise this objection after he had lost the election.
9. The ruling of the Supreme Court in PLD 1968 SC 331 has dealt with a similar case. 78 excess votes were found in the ballot boxes. On this fact the election Tribunal held that this must have been the result of some malpractice or irregularity in the conduct of the election. There was apparently no evidence and no finding was given as to who was responsible for this state of affairs.
The Tribunal further went on say without giving any reason that the irregularity or the malpractice committed had materially affected the result of the election. He, therefore, declared the election as a whole to be void and directed the holding of fresh election. It was held by their Lordships of the Supreme Court that the responsibility for the excess votes being found in the ballot boxes, in the absence of any evidence to that effect, cannot be laid at the door of the appellant. It is an open possibility that the respondent or his agent may have manoeuvred to get these excess votes introduced into the ballot boxes just to spoil the election. The other possibility is that these 78 excess votes may have been actually issued but the officials concerned may have omitted to tick mark the corresponding entries in the voters lists. These extra votes should not be counted but even if they are wholly deducted from the votes obtained by the appellant he would still be leading the respondent by 13 votes. He himself not being the guilty party, there was no question of his being disqualified on the ground of commission of a corrupt practice by him. If some person or persons unknown were responsible for these excess votes being introduced into the ballot boxes that should not prejudice the appellant's case who had a clear majority over the respondent, after exclusion of the excess votes, from the count. If the election is set aside without a clear finding based on evidence that the result of the election had been materially affected, it would amount to disenfranchising the genuine voters who had apparently favoured the appellant as compared with the respondent. The order of the Tribunal setting aside the election as a whole was, therefore, declared to be without lawful authority and of no legal effect.
10. In this case as well no body has been held responsible for inclusion of the votes of the Security Staff. On the other hand the respondent have submitted that this has been manoeuvred by the ex- General Secretary and the appellant in order to spoil the election. Acting on the principle laid down by the Supreme Court that even if these extra votes are not counted then on the basis of the votes cast, the respondent was still to be leading by a comfortable majority, I hold that the election cannot be held to be void. If the election is held to be void it would amount to disenfranchising the genuine voters who had apparently favoured the respondents as compared with the appellant. In the same ruling their Lordships have quoted from an observation made at page 533 of the Law and Practice of Election and Election petitions by Pandi Nanak Chand. The learned Author says: "The result of the election had been materially affected, means that the majority of the return candidates would have been materially reduced he had not resorted to such corrupt practices. It is not necessary for the petitioner to prove the exact number of instances as would be sufficient to wipe out the majority of the returned candidates."
11. The 0.G.D.C. Establishments are spread all over Pakistan in far-flung areas and the employees are members of only one union. It must have consumed a lot of time of the Corporation as well as of the union officials in holding the election. It will be improper to order the re-election on the ground that the Security and the Fire-Fighting Staff was inadvertently included in the voters list. The objection if any should have been raised by the appellant before going to the polls and it appears that they kept silent to see if they win the election and if they did not win they would raise the objection relating to the inclusion of Security and Fire-Fighting Staff in the list of voters. To my mind the appellant himself could be held responsible for this state of affairs and this should not prejudice the respondents case who had a clear majority over the appellant after exclusion of the excess votes from the count. The genuine voters cannot be disenfranchised on account of these excess votes.
12. In view of the above discussions, I reject the appeal and recall the stay order dated 25-9-1984 granted by me.
Appeal rejected.