1. WAJIHUDDIN AHMED, J.---At Serial No. 2 is an application under section 5 of the Limitation Act and seeks condonation of delay on the ground that because of contracting hepatitis the Secretary of the appellant --Union could not prefer this appeal in the. The period involved is stated to be 16 or 17 days. Due counter-affidavit to the application is filed. The mere fact that the appeal is filed by the Union, which is a legal entity, does not justify condonation solely because one of the officers of such legal entity was suffering from a disease, which had a potential to personally prevent him from preferring the requisite appeal, even if it is assumed that the disease had such a potential.
2. Quite plainly, other office-bearers could have acted to prevent default. The condonation, therefore, is not called for.
3. Even as to merits, the appellant does not have any plausible cause. In the petition, which was brought before a Single Bench of this Court, the prayer is as under: "It is, therefore, prayed that this Hon'ble Court may be pleased to:-
(i) summon the record and proceedings from respondent No. 1 respecting secret ballot proceedings from the commencement to the issuance of impugned certificate and may be pleased to hold and declare that respondent No. 2 union did not secure 1/3rd votes of total number of workmen (which are admittedly 13282) and as such the issuance of C.B.A. Certificate by respondent No. 1 in favour of respondent No. 2 vide Annexure 'G' to this petition is illegal, ab initio invalid, without lawful authority and/or jurisdiction; (ii)restrain the respondents Nos. 1, 2 and 10 from taking any advantage or benefit of impugned certificate dated 24-3-1996 (Annexure ' G' to this petition) by posting/claiming to be the Collective Bargaining Agent and the facilities allowed to the petitioner Union prior to 21-3-1996, may not be withdrawn; (i.e) any other relief which this Hon'ble Court may deem fit;
(iv) cost of the petition. "
4. It would thus seem that the entire grievance of the petitioner, who is the appellant herein, before the learned Single Judge was that respondent No.2-Union, which has since been declared to be the Collective Bargaining Agent of respondent No. 10-Establishment, the Karachi Water and Sewerage Board, did not qualify to be so declared as it did not, contrary to section 22(9) of the Industrial Relations Ordinance, 1969 (I.R.O.), poll the required minimum of not less than one-third of the total number of employed workmen, which were claimed to be 13282. However, the relevant provision in the I.R.O., pertaining-to the issuance of the voters' list is section 22(5), which is as follows:-- "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."
5. It will at once be seen that the list upon which the vote is to be held is one to be verified and prepared by the Registrar of Trade Unions and admittedly the relevant list carried 12873 voters and not the number claimed by the appellant. On such basis the respondent No. 2-Union, which polled 4330 votes, seems to have qualified the required limit in the first proviso to section 22(9) above. , Mr. Ch. Rasheed Ahmed for the appellant, however, has drawn our attention to a meeting held by the Registrar, Trade Unions on 11-1-1996 where, according to him, total strength of workmen in the respondent-Establishment was determined to be 13282 workmen and such was done with the consent of all the Unions represented. He relies on the following to passages from the minutes of that meeting:-- "The representatives of the Management has submitted a complete list of (13152 + 129 = 13282) workmen, the total number of workmen employed in KW&SB whose services are more than 3 months. He also submitted that there is no workman employed in the establishment whose service are more then 3 months.
6. The representatives of all the contestant Trade Unions, present in the meeting agreed that the above list of workmen may be treated as voters' list as the list contain names of all the members of all or either registered Trade Unions. "
7. The learned Single Judge, on the point, has observed that no such list of 13282, workmen was filed with the petition. What is more, we find that no such list was ever verified or prepared by the Registrar as envisioned in section 22(5) of the I.R.O. The requisite list under that proviso is postulated to be provided at least 4 days in advance of the date fixed for the poll, clearly leaving room open for a challenge, if warranted. That challenge never came through but Mr. Ch. Rasheed says that such transpired because the Registrar issued bifurcated booth-wise lists and not a comprehensive list. It is far to belated a plea. Even so, a simple exercise in arithmetic could have furnished the sum total of the enlisted voters for those who felt concerned, let alone aggrieved. The fact, therefore, remains that no challenge prior to the poll on the issued list was raised. Even after the poll no specific prayer in the petition was made, questioning the dimension of the voters' list though something might have been said in the body of the petition about the propriety of such a list. That was not enough and a specific prayer was warranted, preceded by a timely objection and an illegality committed by the Registrar either prior to or after the submission of such objection. The total number of employed workmen in section 22(9) cannot be an indefinite figure. It is to be based on the certified list of the voters prepared under section 22(5) of the I.R.O. In the circumstances, the learned Single Judge seems to have right in rejecting the plea that the respondent No. 2-Union did not poll the requisite minimum of one-third enlisted workmen.
8. Another plea before the learned Single Judge pertained to the alleged rigging. That plea was rejected on the ground that an enquiry into such questions of fact could not be undertaken in Constitutional jurisdiction. In fact, even that objection was precluded, although on the same ground as the first recapitulated above. The allegations of rigging, such as they may, have been, ought to have been raised at the level of the departmental functionaries and an enquiry ought to have been solicited. It was only against an outcome of such an exercise or refusal to process it that the relevant grievance could be brought to the High Court under Article 199 of the Constitution of Pakistan. There, it could be seen whether or not the, functionaries of the State had acted lawfully in the matter and only if such officers had acted illegally or otherwise than in due course of law that the necessary directive could issue, normally the corrective measure being confined to a proper, further or additional enquiry, leading to appropriate and lawful results rather than holding of the enquiry in the High Court itself.
9. On none of the grounds the appellant hag made out any case. Therefore, this appeal is not sustainable. The matters at Serial Nos. 1 and .2 are, accordingly, dismissed.