' ABDUL SHAKtJRUL SALAM, J.-The petitioner, Mazdoor Itehad Union, Thal Jute Mills Ltd., Muzaffargarh is a registered Trade Union established and registered under the industrial Relations Ordinance, 1969 since 1-7-1976. There are six other such Unions. All these function in Thai Jute Mills Ltd., Dera Ghazi Khan Road, Muzaffargarh, respondent No, 3, which is the Management. On 14-7-1976, the Management filed an application under section 22 of the Industrial Relations Ordinance, 1969 before the Registrar of Trade Unions, Multan Region, Multan for respondent No, 1 for holding a referendum for determining the Collective Bargaining Agent out of the aforesaid seven Trade Unions. A list of workers was attached with the application showing 6244 as the workmen. On 22-7- 1976, the Registrar issued a letter to all the seven Unions asking them to signify their consent in wr ding within 3 days (not later than 24th July, 1976) if they wanted to conies t in the scheduled referendum. They were also directed to supply the lists giving the names of their members and other particulars. It was stated that in case the lists were not furnished in due time, it shall be presumed that the recipients were not willing to contest the secret ballot and ex parte proceedings shall be taken. It was also stated that a joint meeting of the representatives of the seven Unions, shall be held on 28-7-1976 at 9-00 a.m for finalizing the list of voters, allotment of symbols etc. Which they were requested to attend so as to hold the ballot within the prescribed statutory period of 15 days. All the Unions excepting one i. e. Workers' Union attended the meeting. The meeting was adjourned to the next date and telegraphic message was sent to the representative of the absent Trade Union. A reference was also sent through the Labour Officer Factories, Muzaffargarh. The Union, however, did not turn up even on the 27th July, 1976. According to the minutes of the meeting, held on 27th July, 1976 all the other six Unions were represented and they "furnished the lists of their members for the preparation of voters' list for the secret ballot. After necessary scrutiny, a list of 6244 members was prepared with the mutual consent of the parties who were willing to contest the secret ballot". Then, there is a description of the symbols given to the six Unions and date of holding the secret ballot was fixed for 4-8-1976 from 6.30 a. m. To 5-00 p. m. The minutes of the meeting were signed by the Management as well as all the six participating Unions. It appears that an application was filed by the representative of the absent Union on 28-7-1976 asking for permission to participate in the secret ballot. It was stated in the office noting of the Registrar that since referendum is to take place on 4-8-1976 the request may be allowed. The request was acceded to. No body objected to this.
2. According to the case of the petitioners' Union, it came to know that some persons were shown by the Management on the voters' list who were not the workers of the Mills. Besides, one person Ashiq Hussain son of Elahi Bakhsh shown on the list was already dead. It was stated that the voters' list comprised of 6244 workmen and it was difficult for the petitioners to verify the particulars of each individual worker. It was requested that all those workers who had been shunted out or had left service, a list thereof be given so that the same could be submitted to the Registrar as the petitioner bad been directed by the Registrar previously on 30-7-1976 to obtain these particulars from the Management. This application is addressed to the Management and is dated 31-7-1976.
The Management sent a reply on 3-8-1976 in which it was said that "the lists of the workers supplied by the Management to the Registrar was thoroughiy re-checked and it was found that by clerical mistake names of many workers who were no more in the employment of the organization were entered in the list of workers supplied to the Registrar. The list of such persons is attached herewith" The attached list contained names of 256 members. The memorandum and the list were received by the petitioners on 5-8-1976.
3. The referendum was, as agreed to, held on 4-8-1976 in which all the seven Unions participated.
The petitioner-Union secared the second highest having 2166 votes, whereas the rival Union, the respondent No, 2, obtained the highest 2409 votes. Consequently, the respondent No, 2 was declared to be successful Collective Bargaining Agent for a period of two years with effect from 4- 8-1976 under subsection (9)(e) of section 22 of the Industrial Relations Ordinance, 1969.
4. The petitioner has filed a petition under Article 19) of the Constitution challenging the validity of the referendum held by the Registrar of Trade Unions as illegal, void, mala fide and without lawful authority and so also the election of the respondent No, 2 as a consequence thereof.
5. Learned counsel for the petitioner has contended, firstly, and that is the main contention, that the Registrar did not "verify" the list of voters as required by subsection (5) of section 22 of the Industrial Relations Ordinance: 1969 as it contained the name of one Ashiq Hussain who was already dead. It also contained names of some 18 persons from S. No, 54-79 onward which were twice over- recorded. Further the list contained names of 256 persons who had ceased t be workers as certified by the Management and it has also been admitted by the Management in its written statement that "the list was prepared about six months earlier and as such there were 3 to 4% discrepancies in the said list." It is concluded that the list of voters was, thus, incorrect containing names of 275 persons who were not eligible to vote. It is, therefore, clear that the list of voters was not correctly prepared, nor, verified by the Registrar. He has referred to the meaning of the word "verify" as given in Black's Law Dictionary, 1951 Edition, p. 1732 to mean "to confirm or substantiate by oath". The word "verified" when used in a statute, ordinarily imports a verity attested by the sanctity of an oath. It is frequently used interchangeably with "sworn". To prove to be true; to establish the turth of; to confirm; to confirm the truth or truthfulness of; to check or test the accuracy or exactness of; to confirm or establish the authenticity of; to authenticate; to prove; to maintain; to affirm; to support; second." It is, therefore, contended that the voters' list having not been verified by the Registrar, his action was contrary to subsection (5) of saection 22 of the said Ordinance and the resultant election held on the basis of such a list was invalid. Reliance is placed on Bakhsh Textile Mills Employee? Union, Thatta v. Registrar, Trade Unions, Karachi and 3 others (1) and on National Cement Industries Mazdoor Union v. Registrar of Trade-Unions, Karachi and 2 others (2).
He has referred to the case of Khairpur Textile Mills Employees' Union, Khairpur v. Registrar of Trade Unions, Karachi and 2 others (3) and explained that the case is distinguishable for the reason that the same is based on the principles applicable to voters' list prepared for general elections and the law whereunder such lists are prepared provide for an elaborate procedure for checking and raising of objection but there is no such procedure available under the Industrial Relations Ordinance, 1969. Therefore, the same principles would not be applicable to the case in hand. It is also submitted that the provisions of section 22(5) of the aforesaid Ordinance held to be directing in this decision have been found to be mandatory in the judgment subsequently delivered in the cam of Bakhsh Textile Mills Employees' Union, Thatta v. Registrar Trade Unions, Karachi and 3 others (4). Secondly, it is contended that under subsection (2) of section 22 of the said Ordinance, the election is to be held within 15 days from the making of the application but admittedly the election under question was held after 21 days. Therefore, it was not held in accordance with law and was, consequently, illegal. It is reiterated that the provisions of subsections (2) and (5) of section 22 of the aforesaid Ordinance are mandatory in character and any violation thereof would result in, annulling the action taken or election held. To the objection that the-petitioner had participated in the election and may not, therefore, be entitled to challenge the same, the learned counsel for the petitioner has contended" that there is no estoppel against a Statute. He has placed reliance on Ikram Bus Service and others v. Board of Revenue, West Pakistan and others (5),-The District Magistrate, Lahore and another v. The Faqir Sayyed Fayyazuddin and another (6) Ch. Rehmat Ali and others v. Custodian, Evacuee Property, Lahore and others (7) and Dil Muhammad v. Election Tribunal, Sialkot and others (8). He has also referred to Field's Law Relating to Estoppel by Sri T. L.
Venkatarama Aiyar, 1968 Edition, page 151 and has, read a passage that "There can be no estoppel against a statute. If the law requires that a certain tax be collected, it cannot be given up, and any assurance that it would not be collected, would not bind the State Government, whenever it chose to collect it." Further, that "even it is to be-assumed that the petitioner himself as Chairman of the Water Works Committee of the Board bad originally framed proposals for imposition of water tax, this does not take away his constitutional rights of challenging: the validity of the new taxation measure. There is no such thing as estoppel applying to a matter like this". Learned counsel has, then, contended that the petitioner had brought to the notice of the Registrar the inaccuracy in the list and on his asking had requested the Management to point out the persons who were shown on the voters' lists but had ceased to be workmen. Therefore, it cannot be said that the petitioner accepted the voters' list or did. Not object to that before the election and therefore, estopped to challenge the election on the basis of the incorrect list. Learned counsel has also
(1) PLD 1975 Kar. 474 (2) PLD 1975 Kar. 885
(3) PLD 1975 Kar. 225 (4) PLD 1975 Ker. 474:.
(5) PLD 1963 SC 564 (6) PLD 1965 SC 371
(7) PLD 1966 Kar. 31 (8) PLD 1966 Lah. 669 filed an affidavit of a person to the effect that some person on the voters' list who bad ceased to be workers had, in fact, voted in the election. Therefore, the learned counsel contends that the result of the election has been affected by casting of votes by unauthorised persons. Learned counsel for the petitioner has also contended, though not so vehemently, that the election had been held by the Registrar, respondent No, 1, mala fide in collusion with the Management, respondent No, 3 and that was why wrong list of voters was issued.
6. Mr. Khalid Naseer, Deputy Director, Labour, Multan for Registrar, Trade Unions, Multan, appeared in person with record. He has said that a meeting was held on 27-7-1976 in which the prepared voters' list was shown to the representatives of all the Trade Unions, including the petitioner, who agreed thereto and in token of correctness thereof, put their signatures, thus, they accepted the validity of the voters' list and it was, thereafter, that it was verified by him. He submitted that the time of 15 days for holding of the election was too short for the Registrar to verify individual entries on the voters' list which run to more than six thousand workmen and once the voters' list was accepted by all the participants, including the petitioner, it was verified and, thus subsection (5) of section 22 of Industrial Relations Ordinance, 1969 has been complied with. It is stated that no body had objected at any stage to the holding of the election on the ground that the voters' list was not correct and all the parties including the petitioner, participated in the election. Consequently, the election was rightly and legally held.
7. Learned counsel appearing for the Management, respondent No, 3,, has submitted that since the election had been held, the same may be maintained, although the list of voters was prepared six months earlier and that it contained 3 to 4% discrepancies and that the list was not verified by the Registrar in accordance with sub-section (5) of section 22 of the Industrial Relations Ordinance, 1969.
8. Mr. Taj Mohammad Langah, Advocate appearing for the successful Union, respondent No, 2, has vehemently opposed the petition. He has argued that the petitioner had participated in the election without any demur about the validity of the voters' list and having lost the election is not entitled to challenge the same and get the result of the election frustrated through the processes of Court. He has also submitted that the contention of the-petitioner that it bad objected to the voters' list before the election is incorrect and an afterthought and has been raised in connivance with the Management of which the petitioner is a pocket Union. He has strongly died upon Khairpur Textile Mills Employees' Union, Khairpur v. Registrar of Trade Unions, Karachi and 2 others. He has distinguished Folchsh Textile Mills Employees' Union, Thatta v. Registrar, Trade Unions, Karachi and 3 ethers by submitting that in this case, protest about the voters' list had been lodged before the election, which is not a fact in the present case. In any case, the matter is one of fact and being disputed is not amenable to be resolved in exercise of Constitutional jurisdiction. The petitioner may, if so advised, take the matter to the ordinary civil Courts.
' As regards the contention of the learned counsel for the petitioner that the election had been held mala fide, it need only be said that nct only it is an afterthought but is also not substantiated by any evidence on record. The allegation has been made without any basis. The substantial contentions of the learned counsel for the petitioner are, firstly, that the election hade been held not within 14 days as required under subsection (2) of section 22 of the Industrial Relations Ordinance, 1969 but was held after 21 days and is, therefore, illegal. Secondly and which has been emphatically canvassed is that the voters' list had not been verified by the Registrar as required by subsection (5) of section 22 of the aforesaid Ordinance, 1969 as it contained many inaccuracies and the provision being mandatory, the non-compliance thereof would annul the election. At this stage, relevant provisions of subsections (2) and (5) of section 22 of the Industrial Relations Ordinance, 1969 may be reproduced for facility of reference. Section 22. Collective Bargaining Agent (2). Where there are more registered Trade Unions than one in an establishment or a group of establishments, the Registrar shall upon an application made in this behalf by any such Trade Unions which has as its members not less than one-third of the total number of workmen employed in such establishment or group of establishments or by the employer, or the Government, hold within fifteen days from the making of the application, a secret ballot to determine as to which one of such Trade Unions shall be the collective Bargaining Agent for the establishment or group.
(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 Union 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." As regards the provisions in subsection (2) of section 22 of the aforesaid Ordinance that the Registrar shall hold the election within 15 days from the making of the application, no doubt, a period is prescribed by the Statute but the provision like similar provisions in other para materia Statutes is, in my humble opinion, directive in character and not mandatory, especially in view of the fact that the duty is cast on the Registrar to hold election and the parties who are to participate in the election are the Trade Unions. If the official is not efficient in performing his duties within the prescribed period and performs it a little later, the persons who participate in the election held after the due date cannot be ,deprived of their rights of franchise because to do so would amount to hold that a not so efficient an official can deprive people of their rights. Besides, nobody, including the petitioners, had objected to the holding of the election a little later, on the date when it was held. Therefore, there is no force in the contention of the learned counsel for the petitioner that since the election was held after 14 days as required under subsection (2) of section 22 of the aforesaid Ordinance, the election was invalid. The second contention of the learned counsel for the petitioner which he has canvassed vehemently is that the list of voters on the basis of which the petitioner and others went to polls was not verified by the Registrar in accordance with subsection
(5) of section 22 of the aforesaid Ordinance. The fact is being proved with reference to the entry of one man on the voters list who was dead, 18 voters entered twice over and 256 shown as voters though they had ceased to be workers of the Management and, therefore, being not workmen, were ineligible to be shown as voters. The Management has admitted that the list was old and contained 3 to 4% discrepancies, and by its letter dated 3-8-1976, it had been stated that "by clerical mistake names of many workers who are no more in the employment of the organization were entered in the list of workers supplied to the Registrar. The list of such persons is attached herewith". The attached list contained names of 256 workers. The Deputy Director. Labour, Multan has said that the list was prepared and delivered by the Management and so also the participating Unions gave the list. The list prepared by the Management was accepted by the participating Unions to be correct and they signed the same in token thereof. It was. Thereafter, that he verified the list. It is, however, not denied that he himself had not checked each individual voter as to be eligible under the Ordinance. He has explained by saying that that was not possible within the short period available. As the parties had accepted the list, he verified the same. In these circumstances, there is no denying the fact that the Registrar himself did not verify the list of the voters. He acted on the acceptance of the list by the participants, including the petitioner, to be valid and authenticated the same. Therefore, non-compliame of the provision under subsection
(5) of section 22 of the aforementioned Ordinance is clear to the extent that the Registrar himself, after verification of the lists, did not prepare a list of voters in accordance with the provision.
Reference may be made at this stage to the case of Bakhsh Textile Mills Employees' Union, Thatta v.
Registrar, Trade Unions, Karachi and 3 others heavily relied upon by the learned counsel for the petitioner decided by his Lordship Mr. Justice Dorab Patel, as his Lordship was then and now a learned Judge of Supreme Court of Pakistan. The facts of the case were that the Management was required under subsection (4) of section 22 to send to the Registrar a list of those workmen who have been employed for more than three months. Since the list was received by the Registrar late, it was not supplied to the then petitioner until the date of referendum. The petitioner's plea in this connection was that as this was in breach of the mandatory provisions of subsection (5) of section 22 of the said Ordinance, it had protested to the Registrar. It was, further, contended that the verified list was in breach of the mandatory provisions as subsections (4) and (5) of the said section 22 as it contained names of 100 workmen who had not the requiste standing of three months. The petitioner had, however, participated in the referendum but as it bad lost by 77 voters it filed a Constitutional petition to challenge the election of the Collective Bargaining Agent on the ground that the referendum was vitiated by the two illegalities above-mentioned. His Lordship found that a list which contained the names of workers with less than three months' service, a pre- requisite to be eligible to be a voter, was in contravention of the provisions of subsection (5) of section 22 of 'the Ordinance and the provisions being mandatory as it was prefaced with word 'shall', the list was not a valid voters' list and as the then petitioner had protested on the receipt of the list on the day of the referendum, the petitioner was entitled to relief. It would be seen that in this case, the facts were that the then petitioner was not delivered the list four days earlier than the referendum and protest was lodged and that the list contained names of 100 workers who were ineligible or debarred to be voters for lack of requisite service and the petitioner had lost only by 77 votes. Now, non-compliance of the provision for delivering the voters' list four days earlier than election would mean that the candidates would not know who would be their voters and that action would handicap them to participate fully in the election. It was also accepted that 100 persons on the voters list who were workmen with less than requisite service and, thus, ineligible to vote were also allowed to vote. The participation of 100 voters who were ineligible to vote would amount to saying that the result was materially affected as the then petitioner had only lost by 77 votes. Therefore, all ibis would mean that as the list was not supplied before the election as required, the candidates were handicapped in their electioneering efforts. The observation that the provisions of subsection (5) of section 22 were mandatory as the word employed in the Statute was "shall" is in the context that a right had been conferred on the contesting Unions to receive the list at least four days prior to the date fixed for the poll. Since the right of the contesting Trade Union to receive the list was being denied, the provision was held to be mandatory. Participation of 100 ineligible voters when the election was lost by 77 votes only could legitimately be taken to materially affect the election. Therefore, the election was rightly, if I may say so with utmost respect, set aside. However, the question in the present case is whether the holding of election after 15 days as required on the 21st day and on the basis of the voters' list which has been accepted by the- petitioner by affixing his signature can result in annulling the election when the petitioner had participated without demur or protest and the result of the election is by no means materially affected? Taking the question limb by limb, the election is to be held by the Registrar within fifteen days of the application. Now, if be holds the election a few days later and nohodyobjects, rather agrees to and participates in the election, can the election be annulled? Prescription of time limit in pari materia Statutes when that does not confer any right on any body because of lapse of time is usually directory and not mandatory. Moreover, a slight delay in performing his duties by a public official when that is done with the consent of the parties likely to be affected can hardly subsequently annul the action. Further, as held by a learned Division of this Court in which the judgment was delivered by the Chief Justice Mr. Justice S. Anwarul Hach as his Lordship then was and now a learned Judge of the Supreme Court of Pakistan, Malik Mohammad Akhtar v. Mian Salahuddin and 9 others (a 9t is well settled that as a general rule the statutory provisions are to be, regarded as directory, unless the Legislature itself has prescribed a penal consequence for their violation or non-compliance by the election officials, as otherwise dishonest or inefficient officials could easily defeat the very object of the election law." The same principles will be applicable to the voters' list prepared by the Registrar. If that is not correctly "verified" by the Registrar but is accepted by all the parties who acting thereon go to the polls, they can hardly turn round and raise an objection if the result happens to he adverse to them. Under the general law of elections voters lists are immune from attack after the election as regards the rights of the persons shown on the list to be voters. That is so because not only an elaborate procedure is provided for checking up of the list but also for the reason that after the election it becomes an extremely arduous and an unprofitable affair to question the veracity of the voters' list so as to annul the election. The exception to this principle is in the case of persons who contest the election having been shown as voters before. No other person's right to be on the voters' list is allowed to be challenged. The reason for the exception is obvious. As far as the candidates to an election are concerned, they have to be eligible to be elected which eligibility is usually dependent on their being a voter.
Therefore, their right to be voter may be challenged after the election as that may affect their eligibility to be elected and to hold a representative office. As regards others, it is presumed that they had no more interest than to cast their votes and since they a in huge numbers it is not allowed that each individual voter's right to vote may be questioned after the election. Reliance in this behalf may be placed on Ghulam Younas Khawaja v. Malik Falzullah and another (2). The
(1) PLD 1971 Lah. 737 (2) 1969 SC M R 183 ' contention of the learned counsel for the petitioner that these principles cannot be applied to a list of voters prepared under subsection (5) of section 22 of the said Ordinance because there is no elaborate procedure for preparation of the voters' list as is provided for under the general law of elections is not very sound for the reason that the elaborate procedure provided for in the matter of general elections proceeds on the basis that what the voters are doing is electing representatives who exercise sovereign or semi-sovereign powers, generally for a period of five years or more and, therefore, good care is taken that the persons who have their right to choose their representatives are correctly identified. The matter is of immense significance and of fundamental character in a democratic polity. On the other hand, in the matter of election of Collective Bargaining Agent in an industrial concern, the workmen are not electing their representatives to exercise sovereign or semi-sovereign powers. They are electing the representatives to bargain with the Management for certain benefits within the next two years. The matter is, therefore, of much lesser magnitude and of shorter duration. Consequently, the procedure for preparation of voters' list is also less elaborate, simple and summary. As elaborate a procedure as prescribed under the general law of election, starting from registration of voters, objection appeal, revision of electoral roll, then, challenge to election by election petition etc., can hardly be applied for electing a Collective Bargaining Agent for two years. If it were done, then, all the time of the workers would be consumed in the electioneering and the election process. No work would be done, nothing would be produced, and nothing would be there to bargain about.
Therefore, the Legislature in its wisdom has rightly prescribed a simpler procedure and when the parties had a fair chance to participate and contest wholeheartedly, they should accept the result of the contest as well. In the present case, under the law each participating Union is entitled to submit its own list of members and after verification of the lists, the Registrar is required to prepare list of voters. It is open to the Unions to seek correction of the list. In the present case, the list having been accepted by the participants, including the petitioner, the question arises whether the petitioner having participated in the election and lost in a rather close election fight, can be allowed to invoke the Constitutional jurisdiction of the Court to get the election annulled? No doubt, there is no estoppel against a Statute but that principle is applicable when a person who has acted in particular manse is held not to be debarred to question a right conferred on him by the Statute.
In the present case, no right is conferred by the Statute, Industrial Relations Ordinance, 1969, on the petitioner to question the list which he had accepted and on the basis of which he had participated in the election. The challenge thrown by the petitioner is that the voters' list was not verified by the Registrar and it contained inaccuracies. Even if it be taken that the petitioner had approached the Registrar and, then, the Management to point out the workers who had ceased to be workers for the purposes of getting the list corrected, even then, there is nothing on the record to show that the petitioner protested to the holding of the election on the basis of the incorrect list. On the other hand, there is positive proof that the petitioner signed the voters' Iist taking that to be correct and participated in the election. It gave quite a good close fight as well. It was only when the election was lost, that the petitioner has filed this petition challenging the voters' list. In the matter of elections, there are some principles of general application, first of which is that people who participate in an election without demur should accept the result thereof even if the same happens to be not according to their liking. One cannot eat one's cake and have it. The elementary principle for a person seeking a representative office through an election is that he should acquire the representative character. If he is not chosen as a representative, he should accept the defeat with good grace. Law and rules of procedure for elections are provided to facilitate election of a true representative of the voters. As long as the law and the rules of the procedure are followed to a substantial extent to provide for an election of representatives, then, the result of the election has to be accepted and it cannot be avoided on the ground that there has been some violation of some provisions of law or irregularity in the procedure unless the result of the election is materially affected by non-compliance with the law or rules of procedure. As long as the provisions are substantially complied with and the result is not materially affected by any non-compliance of any provision or irregularity of procedure, the result of an election cannot be annulled. The reason is simple and that is that for the mistakes or wrongs of the authorities conducting the election cannot denude the voters of their rights, nor, can those render the voters disfranchised. In a recent case of Morgan and others v. Simpson and another (1) the Court of Appeal, after a historical analysis of the election laws, in the words of the Master of Rolls, Lord Denning, laid down the following propositions t-
(1) If the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result was affected, or not. That is shown by the Hackney case, where two out of 19 polling stations were closed all day and 5,000 voters were unable to vote.
(2) If the election was so conducted that it was substantially in accordance with the law as to elections, it was not vitiated by a breach of the rules or a mistake at the polls provided that it did not affect the result of the election. That is shown by the Islington case where ballot papers were issued after 8 p. m.
(3) But even though the election was conducted substantially in accordance with the law as to elections, nevertheless if there was a breach of the rules or a mistake at the polls and it did affect the result then the election is vitiated. That is shown by Gann v. Sharpe where the mistake in not stamping 102 ballot papers did affect the result". Lord Stephenson L. J. Said that "the law as to elections is, to my understanding of the section, recognized as embodied in the Act and the rules, aria that an election will stand if there have been breaches of the law but they are not substantial or they have not elected the result." His Lordship, further, observed that "For an election to be conducted substantially in accordance with the law there must be a real election by ballot and no such substantial departure from the procedure laid down by Parliament as to make the ordinary man condemn the election as a sham or a travesty of an election by ballot. Instances of such a substantial departure would be allowing voters to vote for a person who was not in fact a eat didate or refusing to accept a qualified candidate on some ilk gal ground or disfranchising a substantial proportion of qualified
(1) (1974) 3 All E R 722 ' voters, but not such an irregularity as was committed in this case or perhaps in Gunn v. Sharpe."
The irregularities were not stamping the ballot papers but those had not affected the result of the election.
10. On principles and authorities, it stands established that if the election law is substantially complied with in holding and conducting the election and the election is not sham or travesty, then, any non-compliance with any provisions of law or irregularity of procedure would not result in the invalidity of the election, unless the result of the election is materially affected. In the present case, although the election was not held within 14 days as provided and the list was not, after verification, prepared by the Registrar, but all the same election was conducted a few days later and on the basis of the list which was consented to and authenticated by the participants, including the petitioner, therefore, as regards the election, substantial compliance with the law has been made and the non-compliance and irregularities have not rendered-the election as sham or travesty. Therefore, the next question that arises is whether the result of the election has been materially affected. Nothing in this behalf has been urged except that the voters' list contained the names of 275 persons who did not belong to the category of workers and were thus ineligible to vote. No proof has been adduced that all these persons had, in fact voted affecting the result of the election. The Deputy Director, Labour who appeared with record was asked as to whether these persons had voted. He has said that as against the names of these persons, there is a tick mark in respect of 75 only which means that these votes have been cast but as against the rest, no votes were cast. Now, the petitioner had got 2166 votes where as its rival respondent No, 2 had obtained 2409 votes. Thus, there was an excess of 243 votes (2409-2166) in favour of the respondent No, 2.
Even if all the 75 votes of ineligible persons cast were to be taken to have been cast for the respondent, then, after deducting these 75 votes from the votes secured by the respondent No, 2, the respondent No, 2 would still have a majority of 168 votes (243-75). Thus, giving the utmost latitude to the petitioner, still the petitioner would not be successful as against its rival, the respondent No,
2. Learned counsel for the petitioner has half-heartedly objected to the statement of the Deputy Director, Labour on this point on the ground that the petitioner has no means of verifying the statement but the statement has been made by the Deputy Director, after his attention had been drawn to the point by the Court, and there is no reason to believe that he would make an incorrect statement when he has checked the record in open Court. Therefore, it is quite clear that the result of the election has not been affected materially or otherwise by the inaccurate list.
11. In view of what has been stated above, in spite of non-strict compliance with the provisions of subsection (2) and (5) of section 22 of Industrial Relations Ordinance, 1969, the election having been held substantially in accordance with the relevant election law, and the noncompliance having not materially affected the result, the non-observance of some provisions of law by the Registrar would not, when election has been, held fairly and squarely in which the participants, including the petitioner had fully participated, annul the election. For an act or omission to act; by a public authority, the people cannot be deprived of their rights nor; disfranchised, nor, will their valid and expressed will be frustrated. Candidates; seeking representative office on the basis of election must abide by the result thereof unless by non-compliance of some provisions of law, the election itself and its processes have been manipulated, frustrated or abused resulting in making the election a sham or travesty or fictitious. If these results do not follow, the people who have chosen their representatives cannot be frustrated in their efforts and a candidate who had lost on the polls cannot be imposed by a Court as a representative of the voters who had refused to instal him in the office. In this view of the matter, as seen above. Election having been held fairly and squarely, in which the petitioner participated fully and willingly, the result of the election having, in no case, been materially affected, the petitioner must accept the result with good grace. Therefore, there is no force in this petition and the same is, accordingly, dismissed but the parties are left to bear their own costs in the circumstances.