DECISION ' The circumstances in which this Revision Application has been filed are as under:-
2. The Working Committee of the Pakistan Seamen's Union during a meeting on 4-2-1991 for holding of the general election, decided to nominate Mr. Irtiza Hussain Zaidi of K.P.T., as Chairman of the Election Commissions. The latter, having accepted the invitation, on 7-2-1991 announced the Elcci ion Schedule which was published in the "Evening" Special Edition of the `Mashriq', according to which the nomination papers for the various offices, as detailed therein, were to be filed on the 16th of February and the candidates could withdraw their names by the 18th of February, 1991. The polling was to take place on the 7th of March, 1991. By a circular, dated 21-2-1991 it was. Announced that the casting of votes was to be on the basis of "C.D.C. Roster Book Membership Card".
3. There were two contesting groups and the election symbols of "Wheel" and "Handshake"
(Ittehad) were allotted to them. The Roster Book and Membership Card and the Voters' List were delivered to the parties by the Election Commission on the Gth of March, 1991 and as earlier announced the polling took place at Khaliqdina Hall on the due date viz. 7th of March.
4. Things went on smoothly all along, but once the results were announced objection was taken by the `Ittehad Panel', the contesting respondents. They demanded re-counting of the votes.
5. The re-counting was to be done on the 26th March under the aegis of the Registrar bat could not be completed. It had therefore to be deferred for the next day. The 27th of March, 1991. Nothing untoward happened that day till there was a break during the proceedings. The `Ittehad Panel', thereafter, did not show up. As a result of this boycott the re-counting of the remaining ballot papers was left incomplete.
6. The result was notified and on 1-4-1991 the Registrar of Trade Unions, the respondent No,2 (herein) recorded the change for the various offices of the said Union. It appears that on 2-4-1991 Sher Ali Khan and Roohullah, respondents Nos,6 and 7, presented a list of a few persons who had been wrongly entered in the 'Voters List' and demanded action. On 4-4-1991 in a meeting held by the Registrar, it was decided that the list supplied would be referred to the "Shipping Master", Government of Pakistan, for verification whether the said persons fell under the category of 'Seamen', as defined under the Merchant Shipping Act? On the receipt of their reply it was then to be checked up whether they had exercised their right of vote. The next meeting was fixed for the 11th and the list was sent to the 'Shipping Master' but the same day, i,e,.4-4-1991 Ittehad Panel' preferred an appeal before the Labour' Court for the cancellation of the election results. As there was an order of ad interim status quo, no further proceedings were taken by the Registrar thereafter.
7. The learned Presiding Officer, 5th Labour Court, Karachi, after hearing the parties, came to the conclusion that the list of the voters prepared by the Union not having mentioned that the members were voters of C.D.C. And working as Pakistan Seamen at the relevant time, also that their names appeared in the General Roster of Seamen maintained in the Shipping Office in accordance with the rules and also in view of the fact that the Shipping Master had confirmed that few persons in the voters list (sixteen in number) did not fall within the meaning of 'Seamen' it could not be said that the elections were fair or that the same had been held impartially. He, therefore, allowed the appeal and ordered fresh elections resulting in this Revision application.
8. Mr. Talmiz S. Burney, learned counsel for the applicants raised three contentions during his address. The first was that the appeal before the Labour Court resulting in the impugned order was incompetent as under section 8, subsection (7) of the LR.O., appeal to the Labour Court would lie only if the Registrar refused to accept the change and alteration, and not in case of acceptance of the change. The second contention was that otherwise too, the appeal was improperly filed as the office-bearers of the Union were not individually pleaded as parties to the proceedings. The third contention was that the order suffered from misapprehension and incorrect appreciation of law and the circumstances involved in the dispute.
9. In support of his first contention Mr. Talmiz Burney sought support from the decisions reported in 1979 PLC 96 (Asmat Javed President of PIA Employees' Union v. Rafiq Ahmed and another) and 1980 PLC 908 (Shaikh Mazhar Hussain Shah v. Registrar of Trade Unions).
All I need to say is that I had taken the contrary view in an appeal decided by me some two-three weeks earlier (Appeal No, KAR-526 of 1991 Naboo Khan and others v. M/s. Danpak Food Industries Limited and others (1992 PLC 518)). Shortly stated the conclusion at which I reached, was in view of the fact that the last reported judgment which was of the learned N.I.R.C. Chairman, had been quashed in a writ petition before the Lahore High Court reported as 1980 PLC 219, and there was another judgment from the Sindh High Court in which the view taken by the Lahore High Court had been preferred. It is reported in 1982' PLC 74 (Shamsur Rehman and others v. Presiding Officer, Labour Court No, I and 19 others). I do not see any reason, by what was argued in that context, to revise my view.
10. Even the second contention is without any merit as the Union was a party to the appeal and there is not a faint suggestion that any prejudice had been caused to the present applicants.
11. As far as the last contention is concerned Mr. Talmiz Burney is on firmer ground. According to him the Elections were held in strict conformity with the Union's Constitution. The entire process from the announcement of the election upto the announcement of the results, was free from any taint, and moreover every step taken during this period was with the consensus of the two panels. The selection of the Chairman of the Election Commission was not opposed; the nominations were filed, and there were meetings in between, to thrash out various details on the conduct of the Election. The first protest was raised after the result had been announced. However, they had turned up for the re-counting of the votes as demanded by them and walked away only towards the end of the second day of the recounting as no fault could be found in the vote counting or in the identity of the voters.
12. Mr, Irtiza Hussain Zaidi, the Chairman of the Election Commission in para. No, 4 of the written statement filed by him before the Labour Court,. Maintained that the 'list of voters was finalised and the time for the same was extended twice on the request of and proposal of the Ittehad Panel'. He had filed various documents in support of his assertion. In para No, 6 he goes on to say 'the procedure for casting of votes was finalised with the consent of the contesting panels.' He further goes on to say that 'both the panels nominated their polling officers and polling agents including the Chief Polling Agents. The respective polling agents received the booth wise list of voters; the election was conducted according to the procedure agreed, voters were identified and scrutiny exercised prior to the issuance of the ballot papers, the identity cards were punched. And no complaint of whatsoever kind was received by the Commission'. He has filed documents in support of his version.
13. The Registrar, who is respondent No, 2 (herein) in his written statement had maintained that he had accepted the change as it was in accordance with the Constitution of the Union and when the protest was lodged the next day, he had forwarded the voters list to the Shipping Master for verification but the matters had rested there, because of the stay order from the Labour Court.
14. Mr. Shafiq Qureshi contended that the elections were not held in accordance with the Constitution of the Union and the provisions of the I.R.O. He had referred to section 22 of the I.R.O., which deals with the election of the Collective Bargaining Agent, and presupposes the presence of more than one registered trade union in an establishment or a group of establishments. That will not be relevant for the purpose of this dispute. We would, therefore, turn back to the Constitution of the Union itself.
15. Article 18(a) of the Constitution deals specifically with the election, which is being reproduced hereunder:- "Only the bona fide members having paid all union's fund will be allowed to exercise their vote in electing officers. The Managing Committee shall constitute an Election Commission of three persons one month in advance of the elections. The Commission shall invite nominations on prescribed forms certified by the Finance Secretary regarding union's dues; scrutinize them; publish list of candidates and after withdrawal, if any, the final list, prepare ballot papers and hold elections through secret ballot at the General Meeting."
' The General Meeting here obviously refers to the assemblage for the election.
16. The learned Labour Court has referred to the casting of bogus votes and the preparation of the list against the Articles of the Constitution without verification from the Shipping Master. He has also found that the voters list did not mention that the members were valid voters of the C.D.C. Or they were working Pakistan Seamen at the relevant time and that their names appeared in General Roster maintained in the Shipping Offices in accordance with Rules 7 and 22 of the (Seamen Employment) Rules, 1961. I am afraid this is not to be found in the Constitution and there was no protest on that count, when the list was given to the parties, as mentioned by the Election Commission. The photostat copy of the reply from the Deputy Shipping Master which had been produced on the record by one of the respondents mentions only sixteen persons as ineligible for the membership. Some of them were reported to be officers and may have been promoted lately and continued' on the list. It is to be noted that some 3,353 votes were cast out of the list of about double the number. Admittedly there was no challenge to the identity of any person and officers could easily be picked up by the Polling Agents. At any rate it is not known as to whether these sixteen persons had even exercised their right of vote. Assuming that all of them had cast their votes in favour of the present applicant, it has not been pointed out by the learned counsel for the respondents that it would have made any difference in the result of the election of any office- bearer. It will therefore, be neither here nor there.
17. It has also to be seen that the contesting respondents had participated in all the proceedings including the balloting of the votes without the slight murmur and even if there was any departure in the procedure the same had been ratified and condoned by the contesting respondent. Mr. Talmiz Burney, learned counsel for the applicants has referred to some cases where the parties raising not even their little finger till the election day and making vociferous protest after the result about illegalities here and there found themselves out of Court. The cases referred to by him were Ajmal Khan v. Khalid Baig 1988 CLC 1992, Muhammad Hussain v. Muhammad Afzal 1984 CLC 1313 and a few others. The pith and substance of the pronouncements is that if a contestant had nothing to complain about the wrongs and illegalities perpetrated by their opponents at different stages, they cannot be allowed to turn round and say after they had been worsted in the election, that the nomination papers were wrongly accepted, or that there was something wrong here and there. I had referred earlier to the conduct and stance of Ittehad Panel. They cannot make a grievance of any short measures given to them now which are not to be seen, and they have to thank themselves for their lack of vigilance. This does not entitle them to enter the ring once again for another round.
18. I am afraid I cannot agree with the conclusion reached by the learned Labour Court. It is a fit case for vacating the impugned order. I would, therefore, allow the Revision Application.