Indrajitinh Vijaysinh Solanki and Others vs The Commissioner of Labour and Others

N.V. Anjaria, J.—The petitioners herein are the members of Electricity Mazdoor Sabha, a registered union, who have by filing the present petition prayed for issuance of a writ or direction to direct respondent No. 2-the Registrar of Trade Unions to immediately hold the election of the office bearers of the Electricity Mazdoor Sabha under its supervision and control to elect new office bearers for the period 2012 onwards before any negotiation/settlement with regard to wage revision is finalised. The relevant facts and the contentions of the parties in light of which the aforesaid prayer falls for consideration may be set out.

It is the grievance of the petitioner that the existing office bearers of the union have been avoiding the holding of elections which are due from October, 2012 and for which the process was required to be started in August-September, 2012. It is stated that in order that the elections are held in time, they addressed letters and representations to the Deputy Commissioner of Labour on 28.08.2012. Thereafter again on 11.09.2012, a representation was addressed to the Registrar, Trade Unions and the Deputy Labour Commissioner respectively, requesting them to immediately start the election process and hold elections. It is further stated in the petition that along with the aforesaid letter dated 11.09.2012, list of signatures of 1700 workers out of total 2600 members of the union was forwarded emphasizing immediate holding of elections which were already due. It is the further case that individual as well as joint representations dated 13.09.2012, 25.09.2012, 11.10.2012, 21.12.2012, 24.12.2012, etc., were addressed to the competent authorities reiterating the request.

2.1 A case is put forth that the elections to the union are not being conducted deliberately and it is suspected that the existing office bearers may unauthorisedly enter into settlement with respondent No. 3 Company regarding wage revision against the interest of the workers'' community at large. In this context it was submitted that the settlement has to be arrived at with proper representation of the workers and after proper negotiations. It was submitted that unless the negotiation for settlement are undertaken by and through the duly elected representatives of the union, the workers'' rights and interests may suffer in ultimate analysis. It was submitted that the holding of elections without any delay and in the free and fair manner was thus necessary.

2.2 Respondent Nos. 4 and 5 being the President and the General Secretary of the union filed their affidavit-in-reply dated 23.01.2013, and contended that the petitioners have wrongly stated that they were the members, as they have been suspended for 10 years by the union in its Annual General Meeting. It was stated that the union had arrived at settlement with the Company in the interest of the workers. It was stated that the Executive Committee members of the respondent union in its meeting held on 28.08.2010 before the last election had unanimously decided to resolve that the tenure of the next elected Executive Committee would be upto 31.12.2012. Respondent Nos. 4 and 5 further stated that they were elected in July, 2007 and again in 2010 and during their tenure, the settlement in question was arrived at, they having negotiated with the Company. With regard to holding of elections it was averred that Annual General Meeting was convened on 24.12.2012 and another Meeting in connection with the election of the office bearers was convened on 29.12.2012 and in that regard respondent No. 2-Registrar of Trade Unions was intimated by letter dated 22.12.2012.

2.3 Respondent No. 3 Company responding to the petition filed affidavit-in-reply dated 19.01.2013 and inter alia opposed the case of the petitioners, stating in paragraph 9 of the petition that the petition is an attempt to disturb industrial peace prevailing in the respondent Company. It was contended that Electricity Mazdoor Sabha is a trade union different from its office bearers and there can be no bar to negotiations with the union. It was contended that the petition involved dispute amongst the members of the union. It was further contended that the Company had entered into settlement with trade union on 22.03.2010 u/s 18(1) read with Section 2(p) of the Industrial Disputes Act, 1947 which was arrived at in course of conciliation proceedings and the period of said settlement was from 01.04.2009 to 31.03.2013. Since the period of operation of the settlement came to end on 31.03.2013, the union has raised fresh demands by its letter dated 10.11.2012. It is stated that the Company and the union have been amicably settled the demands by way of mutual negotiations. The affidavit of the Company further mentioned that during the continuance of such negotiations and deliberations, it received copy of the present petition to know about the dispute regarding elections of the office bearers of the union, therefore, by letter dated 15.01.2013 it inquired, and said union by letter dated 16.01.2013 clarified that the Samanya Karobari Samiti in its meeting dated 16.07.2012 and thereafter in the General Meeting of the union held on 29.12.2012, resolved that the present Committee of the office bearers have been authorised to deliberate and negotiate the settlement and to hold the election once the settlement has been arrived between the parties.

2.4 Reply affidavit on behalf of respondent Nos. 1 and 2 is also filed in which it is stated on behalf of Deputy Labour Commissioner that pursuant to representation of petitioners dated 28.08.2012 and 11.09.2012 regarding holding of election to the union, the office of the Deputy Labour Commissioner informed respondent Nos. 4 and 5 by letter dated 03.10.2012 that election process was required to be initiated within time as the term had already expired. It is further stated that as respondent Nos. 4 and 5 ignored the directions from the office of the Deponent, a show cause notice dated 18.01.2013 for cancellation of registration of the union was issued. It was further stated that in the Trade Unions Act, 1926 there was no provision for disqualifying the office bearers of the union for not holding the election timely.

2.5 The respective parties filed their rejoinder affidavits and sub-rejoinder affidavits. Respondent Nos. 4 and 5 denied that 1700 members had joined the petitioners in requesting for holding of immediate election as claimed. The pleadings contained allegations and counter-allegations in this regard. With regard to the Meeting dated 29.12.2012 it was the case that the said Meeting was called pursuant to notice dated 14.12.2012. In that it was resolved by passing Resolution to give authority to the existing Committee to deliberate with regard to the pay-scales. It was further resolved that the existing Committee of the office bearers would continue in respect of negotiating on the new pay-scales applicable from April, 2013.

Heard learned advocate Mr. T.R. Mishra for the petitioners, learned senior counsel Mr. Mihir Joshi appearing for M/s. Trivedi and Gupta with learned advocate Mr. K.B. Nayak for respondent No. 3 and learned advocate Mr. D.G. Shukla for respondent Nos. 4 and 5. Learned Assistant Government Pleader appeared on behalf of respondent Nos. 1 and 2 authorities to assist the Court.

3.1 It was submitted by learned advocate for the petitioner that attempt to thwart and delay the election by respondent Nos. 4 and 5 was evident from the facts of the case. It was submitted that though the term of the office bearers of the union has been over, the office bearers have unauthorisedly continued themselves in the office. By referring to the affidavit-in-reply of the Company, it was submitted by learned advocate for the petitioner that the stand taken by it was indicative that the Company and the office bearers are hand-in-glow. He submitted that elections are overdue and required to be held under supervision of an independent authority. He then additionally submitted that the petitioners are also entitled to participate in the elections. He submitted that the Resolution was passed to suspend the petitioners from the membership, which was not approved by the Deputy Registrar of Trade Unions, and the same was cancelled and the petitioners continued to the members.

3.2 In support of his contentions, learned advocate for the petitioner relied on the decisions in B.C. Sharma and Another Vs. M.L. Bhalla and Others, as well as in North Eastern Railway Employees Union and Others Vs. IIIrd Additional District Judge, Farukhabad and Others,

3.3 Learned advocate Mr. D.G. Shukla for respondent Nos. 4 and 5 submitted that the said respondent was elected as office bearers of the Union in the past year also, that they were instrumental in negotiating the settlement with the company. The settlement was arrived at for the period from 01.04.2009 to 31.03.2013, under which the workers could get the monitory benefits to their benefit and the total amount ran into about Rs. 75 crores. On the basis of affidavit in reply, it was further contended that in the last election held on 27.09.2010, both the petitioners also contested the election to the post of General Secretary but were not elected.

3.4 Learned advocate for the respondent Nos. 4 and 5 relied on these decisions to buttress his contentions: (i) Triloki Nath Tripathi Vs. Allahabad Divisional Branch of All India Postal Workers Union Class III and Others, (ii) O.P. Gupta Vs. Union of India and Others, and (iii) Tata Workers Union Vs. State of Jharkhand and Another,

3.5 Learned senior counsel Shri Mihir Joshi with learned advocate Mr. K. B. Naik for M/s. Trivedi and Gupta, appearing for respondent No. 3-company submitted that the anxiety of the company was to see that the process of settlement with the workers is not stalled. It was submitted that three years settlement was entered into by the Union which was in particular benefit of he members of the union-all the workers. It was submitted that the company was for industrial peace and for negotiating the settlement, as the period of earlier one has expired and therefore, interested to see that the election to the office bearer of the union are held without unnecessary delay.

The Constitution of the Electricity Mazdoor Sabha-respondent Union produced at Annexure-L at page 25, regarding election to the Union, rule 35 deals with the election rules. It contemplates for appointment of selection officer, providing that such officer shall not be one having direct or indirect interest with any candidate or any panel of candidates. The duties of the election officers are mentioned. The rules also deal with the manner of voting and the steps in the election process until declaration of the results. The terms of office is provided for 2 years.

4.1 From the facts narrated above and the pleadings and contentions of the respective parties, certain factual aspects emerged which could not be disputed. Firstly, the term of the present office bearers of the respondent-union already expired in September, 2012. At the end of the two years term, elections were required to be held, which are not held. Therefore there is no gainsaying that the election to the office bearers of the union is overdue. Secondly, there has been repeated request not only by the petitioners, but there has been a strict intimation from the competent authorities to the office bearers who are elected in the last elections and continuing in office, to start the election process and to hold the election. On record, its letter dated 18.01.2013 produced at page 82 of the compilation of the petition, letter from the Deputy Registrar, Trade Unions wherein a serious exception is taken for not initiating the election process and for not holding the election and to show cause as to why the registration of the union should not be cancelled. It further appears, as noted above, by another letter dated 15.01.2013, the Registrar Trade Union intimated that the resolution No. 2 and 3 passed by the Union in the general meeting dated 29.12.2012 were cancelled as the elections were not held and the constitution of the Union was being violated by not holding the election.

4.2 Thirdly, requiring the holding of timely elections are emphasized in the context of undertaking and continuing with the negotiations for settlement of wages, etc., with the Company. Fourthly, there cannot be two views that the settlement, etc., and other matters relating to the rights and interest of the workers has to be negotiated with the employer-Company by and through elected representatives. The elections are therefore necessary so that the workers can choose their representatives for the purpose.

4.3 In the next place, as coming out from paragraph 4.7 of affidavit-in-reply on behalf of respondent Nos. 4 and 5, that the executive committee members of the respondent-Union at its meeting held on 28.08.2010 before the last election, unanimously decided to extend the tenure of the executive committee upto 31.12.2012. In meeting held on 12.07.2012, it was resolved by the committee members to submit the charter of demand for revision of pay scales as the existing settlement to expire on 31.03.2013. It was also proposed to postpone the election of the committee members and to hold the elections after new memorandum of settlement was arrived at. It was further intimated that the resolution whereby the petitioners and other seven members were came to be suspended was also not approved and it was further stated that those persons continues to be the members of the Union. By another letter dated 05.03.2013, the very authority has required respondent Nos. 4 and 5 to start the election process stating that the term of two years was already over.

A contention was raised by learned advocate for the petitioner that the petitioners apprehend seriously that they would not be allowed to participate, vote and contest in the election. This grievance is outside the compass of the basic controversy in the petition and is beyond the prayers of the petition. Any dispute, if at all arises or any objection to the eligibility of the petitioners as members entitled to participate or vote in or contest the election would be in the nature of election dispute arising in course of the election process only, and if such dispute arises, it would have to be dealt with in accordance with law and the machinery provided in law. The apprehension of the petitioners is accordingly misplaced. Nothing further could be observed in that regard.

It was stated that Election Officer has been appointed, which shows inclination on part of respondent Nos. 4 and 5 to hold the election. On the other hand, in this regard, learned advocate for the petitioner took exception and contended that holding of the election should be supervised and controlled by independent Officer and another person independent of any side should be there to conduct the election.

Even as per the parties came out with their pleadings and contentions as above, they all were in a way unanimous to the extent that the elections are due and are required to be held. The contesting parties in course of the hearing also suggested from their respective side, the names of the persons who may be the Election Officer to conduct the elections. However, the parties could not agree on the name.

In the facts and circumstances of the case, it would be proper and apposite that the election to the office bearers of the union are conducted under the supervision of an independent officer. The election should not only be held free and fair, but it must seen that they are held free and fair. Therefore, a direction in this regard is issued herein. Since an independent officer is being directed to be appointed to supervise the election, it would be in fitness of the things that the entire initiation of the elections including the appointment of Election Officer is done by such officer.

8.1 In the context of the scenario emerging as above, following directions would meet the ends of justice. (i) The election to the office bearers of the respondent-Union shall be held within the time frame provided herein and the same shall be held under the supervision of an officer to be appointed by the Deputy Labour Commissioner from his office.

(ii) Such officer shall be other than the Deputy Registrar, Trade Unions. The exclusion of the Deputy Registrar, Trade Unions provided hereinabove, is upon joint request of the parties and it is clarified that his exclusion does not cast anything adverse on the person or the post.

(iii) Such officer shall be named by the office of Deputy Commissioner of labour within one week from the date of receipt of this order. For this purpose, the Registry of this court shall forward a copy of this order to the Dy. Commissioner of Labour.

(iv) The officer to be appointed as per (i) above, shall appoint an election officer to conduct the election to the office bearers of the Union, from amongst the persons experienced in holding the Union election. While it would be open for the supervising officer to take suggestion from both the sides on the name of the persons to be appointed as election officer, the ultimate decision shall be taken by him and shall be final and binding.

(v) The officer concerned shall appoint an election officer within ten days.

(vi) The election officer shall thereafter immediately proceed to commence the election process by publishing the preliminary list of voters. The list of voters shall be displayed at a proper place. The election officer shall fix the election schedule wherein time bound programme for inviting objections to the preliminary list of voters, considerations of the objections and publication for final list of voters shall be provided for.

(vii) The time wise stages shall also be fixed by the election officer in the election process for conducting the election right from the stage of filing of nominations, withdrawal of nominations, scrutiny thereof, publication of final list of candidates, holding of actual counting and the declaration of final result, which shall be having due regard to rules provided in the constitution of the Union.

(viii) The election officer shall complete the entire election process within a period of six weeks from the date of his assuming the charge.

(ix) The officer who will be appointed as per direction Nos. (i) and (ii) hereinabove by the Deputy Commissioner of Labour shall supervise the process of election to ensure that the elections are held in accordance with law and in free and fair way.

The petition is allowed in terms of the directions and observations above.