IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10826 of 2012 For Approval and Signature:
HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No ========================================================= BANKIM CHANDRAKANT SHAH - Petitioner(s) Versus DEPUTY REGISTRAR OF TRADE UNIONS AND DEPUTY COMMISSIONER & 2 - Respondent(s) ========================================================= Appearance :
MR TR MISHRA for Petitioner MS TRUSHA MEHTA, ASSTT. GOVERNMENT PLEADER for Respondent No.1 None for Respondent(s): 2 - 3.
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CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI
Date : 08/08/2012 ORAL JUDGMENT
1. This petition under Article 226 of the Constitution of India has been preferred with the following prayers:
“(A) That Your Lordships be pleased to issue an order, direction or writ in the nature of certiorari and/or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 482012 marked Ann.A to this petition, being illegal, perverse, contrary to record and against the Constitution of the Union;
(B) That Your Lordships be pleased to declare and hold that the petitioner is entitled to contest the election of Bank of India Staff Union, Ahmedabad and Gujarat Branches, for the post of President/ General Secretary of the said Union and be further pleased to direct the Chief Election Officer to accept the application of the petitioner for contesting the election in the Proforma placed at Ann.M;
(C) Pending admission and final disposal of this petition, Your Lordships be pleased to direct the Chief Election Officer to accept the application of the petitioner for the post of President/ General Secretary;
ALTERNATIVELY
(D) Your Lordships be pleased to direct the Chief Election Officer to extend the date for accepting Nomination Form for contesting the election;
(E) Any other and such further relief as the Hon'ble court deem fit and proper in the interest of justice together with costs;”
2. The brief facts of the case are that, the petitioner was an employee of the Bank of India and remained an office bearer of the Bank of India Staff Union with effect from 14.09.2008 to 13.09.2010. He was dismissed from service in June 2002, and an industrial dispute has been raised by him with regard to his dismissal which is pending before the appropriate forum. It is averred that respondent No.2–Bank of India Staff Union (“the Union” for short) raised an industrial dispute before the Industrial Tribunal regarding the eligibility of its office bearers. It appears that there was a dispute between the petitioner and one Shri B.G.Ratda regarding their eligibility to contest the election to the Union. The Reference was registered as Reference (TU) No.10 of 2010. By an interim order dated 29.10.2010, the Industrial Tribunal directed the Managing Committee of the Union to decide, in accordance with the Constitution of the Union, regarding the eligibility of the petitioner and Shri B.G.Ratda. The Reference was ultimately disposed of by an order dated 03.01.2012, as it was submitted before the Industrial Tribunal that Shri B.G.Ratda has resigned from the Union on 11.04.2010. Thereafter, respondent No.2–Union filed a petition before this Court, being Special Civil Application No.3747 of 2012, inter alia, praying that the Registrar of Trade Unions be directed to interfere in the matter, call for the record, including the membership of Trade Union, audited balance sheets, expenses and account, etc. in order to enable the Union to declare the programme for elections. By an order dated 02.05.2012, this Court (Coram: K.S.Jhaveri, J.) directed the Registrar of Trade Unions to conduct the elections of the employees of the Union. The Election Programme was fixed by the Court and the Registrar of Trade Unions was directed to initiate the election process within a period of ten days from the date of receipt of the said order. Pursuant thereto, the Deputy Registrar of Trade Unions (respondent No.1) appointed a Chief Election Officer to conduct the election of the office bearers and the Managing Committee Members of the Union, for the term 201214. A Notice dated 25.07.2012 was issued by the Chief Election Officer, wherein it has been stated that the the Nomination Form, complete in all respects, is to be submitted to the Chief Election Officer latest by 6:00 p.m. on, or before, 09.08.2012. It is specified that Nomination Forms that are incomplete and/or received after the above specified time and date shall be treated as cancelled.
3. The petitioner is desirous of submitting his Nomination Form to contest the election of the Union. The petitioner addressed a letter dated 05.06.2012 to respondent No.1 informing him that he was coopted as a member of the Union by the Managing Committee in the meeting held on 17.01.2010, and this aspect has also been reiterated in the meeting of the Executive Committee held on 25.04.2010. The petitioner addressed another letter dated 30.07.2012 to respondent No.1 reiterating the same aspect. By these letters, the petitioner has requested respondent No.1 that he be permitted to contest the election and his name be included in the final list of Members (Voters' list).
4. The Deputy Registrar of Trade Unions (respondent No.1) passed an order dated 04.08.2012, wherein it is held that the petitioner is not eligible to contest the elections to the Union, as he has not been coopted as a member by the General Body and is not a member of the Union. It is further stated in the said order that for the above reason, the name of the petitioner cannot be included in the Voters' list. Aggrieved by the said order of respondent No.1, the petitioner has approached this Court.
5. Learned advocate for the petitioner had made a request for urgent circulation of the petition yesterday on the ground of urgency, which was permitted for today. An advance copy of the petition was directed to be supplied to the learned Assistant Government Pleader, who appears for respondent No.1. In view of the fact that the grievance of the petitioner is regarding the order passed by respondent No.1, and as the last date for filling the Nomination Form is 09.08.2012 by 6:00 p.m., with the consent of the learned advocate for the petitioner, the petition is being heard and finally decided.
6. It is submitted by Mr.T.R.Mishra, learned advocate for the petitioner, that as per Clause 22 of the Constitution of the Bank of India Staff Union (Ahmedabad and Gujarat Branches), the General Secretary is empowered to extend the General Body for a period of three months after expiry of the term of two years. However, if he fails to call the Biennial General Meeting after such extension, then the entire team of office bearers shall automatically be superseded and President's Rule shall be imposed. It is submitted that the last election of the General Body took place on 14.09.2008 and the term of the General Body was upto 13.09.2010. This term was extended for a period of three months, upto 13.12.2010, after which the General Body was superseded. It is contended that the petitioner was coopted as a member of the Union by the Managing Committee in the meeting of the Managing Committee that took place on 17.01.2010, which is before the supersession of the General Body on 13.12.2010; therefore, it cannot be said that the petitioner is not a member of the Union and is not eligible to contest the election. It is further submitted that in this view of the matter, the impugned order passed by respondent No.1 is illegal and contrary to the Constitution of the Union. It is further submitted that in the meeting of the Executive Committee held on 25.04.2010, it has been reiterated that the petitioner was made an Honorary Member of the Union in the meeting held on 17.01.2010. The petitioner is, therefore, entitled to have his name registered in the Voters' list and to contest the election of the Union.
7. It is further contended that the impugned order dated 04.08.2012 was received by the petitioner in the evening of 06.08.2012, after which the petitioner got the petition prepared and moved before the Court. That, respondent No.1 has deliberately not given the petitioner sufficient time to approach the Court so as to leave him without any remedy against the said order.
8. Referring to Clauses 4, 12 and 22 of the Constitution of the Union, it is submitted that Clause 4 of the Constitution of the Union stipulates that persons who are not eligible to become Ordinary Members of the Union may be admitted as Honorary Members of the Union for the purpose of being elected or coopted to the Managing Committee and as the petitioner has been coopted as a member of the Union, he is eligible to contest the elections.
9. In short, the crux of the submissions made by the learned advocate for the petitioner is that as the petitioner has been coopted as a member of the Union by the Managing Committee on 17.01.2010, which is before the date on which the General Body of the Union stood lapsed on 13.12.2010, he is eligible to contest the election, therefore, the impugned order be quashed and set aside.
10. The petition has been opposed by Ms.Trusha Mehta, learned Assistant Government Pleader for respondent No.1, who has appeared on supply of an advance copy of the petition. It is submitted by the learned Assistant Government Pleader that the petitioner is not eligible to contest the election of the Union as he has not been coopted by the General Body but by the Managing Committee, whereas it is the General Body that has power to coopt a Member as per the Constitution of the Union. It is further submitted that the petitioner was a member of the General Body of the Union from 14.09.2008 to 13.09.2010, and as the General Body has not co opted him as a Member of the Union thereafter, he is not entitled to contest the election. It is further submitted that the impugned order passed by respondent No.1 is just and proper and deserves no interference by this Court, therefore, the petition be rejected.
11. Having heard the learned counsel for the respective parties and upon perusal of the averments made in the petition and the documents on record, it would be necessary to refer to the relevant provisions of the Constitution of the Union, visavis the reasons for rejection of the candidature of the petitioner, as contained in the impugned order passed by respondent No.1.
12. As per the objects of the Union, as stipulated in the Constitution, any member of the staff of the Bank of India, Ahmedabad and Gujarat Branches, who has attained the age of 18 years, shall be entitled to become an Ordinary Member of the Union upon payment of the admission fees and monthly subscription as provided and shall abide by the Rules and Byelaws of the Union.
13. Clause 4 of the Constitution deals with admission of Honorary Members and reads as below:
“(4) Persons who are not eligible to become ordinary member of the Union may be admitted as Honorary members of the Union for the purpose of being elected or coopted to the Managing Committee and they shall be honorary members of the Union during the period of their office subject to the provisions of Section 22 of the Indian Trade Unions Act, 1926. Their number shall not exceed three.”
As per this clause, persons who are not eligible to become Ordinary Members of the Union may be admitted as Honorary Members for the purpose of being elected or coopted to the Managing Committee and they shall be Honorary Members of the Union during the period of their office subject to the provisions of Section 22 of the Indian Trade Unions Act, 1926.
14. Clause 11 of the Constitution deals with office bearers and is reproduced hereinbelow:
“The Union shall have a President, three vicepresidents (of which one is reserved for upcountry Branches of Gandhinagar Zone), a General Secretary, an Assistant General Secretary, a Legal Secretary, three Joint Secretaries (amongst them, one will be reserved for Ladies, one will be reserved for Sub Staff and one will be reserved for upcountry branches of Gandhinagar Zone), one Organising Secretary, a Treasurer and an Assistant Treasurer. All of them shall be elected at the Biennial General Meeting of the Union. They shall be eligible for re election. The President and the General Secretary alone may be outsiders.”
(emphasis supplied) A reading of the abovequoted clause makes it clear that the office bearers as mentioned therein are to be elected at the Biennial General Meeting of the Union.
15. Clause 12 relates to management of the Union and reads thus:
“Subject to the provisions of Section 24 of Managing Committee consisting of the office bearers and other members elected at the Biennial General Meeting. The total number of the members of the Managing Committee shall not be more than 50.”
16. The next relevant clause is 22 that relates to the General Body Meeting and reads as below:
“It shall be held within three months after the end of two financial years, after giving a notice of 30 days, a Biennial General Meeting of all members of the Union to transact the following business.
a) To adopt the report of the work done by the Union and audited statement of accounts B) To elect the office bearers and other Committee Members of the Managing Committee for a period of two years and until next election.
b) To transact such other business as may be brought forward with permission of the Chair.
c) To appoint auditors and to fix their remuneration.
In case of unforeseen circumstances, the General Secretary will be empowered to extend Biennial General Meeting for a period of three months by calling a meeting of the Committee. Such extension cannot be done more than once by the General Secretary. However, if the General Secretary fails to call the Biennial General meeting after such extension, then the entire team of office bearers shall automatically be superseded and the President's Rule shall be imposed. The President must call the Biennial General meeting within a period of 45 days after the termination.”
(emphasis supplied) As per this clause, the General Body Meeting is to be held within three months after the end of two financial years. Amongst the other businesses to be transacted at the Biennial General Meeting is the business to elect the office bearers of the Committee Members and other Members of the Managing Committee for a period of two years and until the next election. If the Biennial General Meeting is not held within three months after the end of two financial years, the General Secretary has no power to extend the period further. No further extension is envisaged. After the extended period of three months, the entire team of office bearers would automatically be superseded and President's Rule would be imposed.
17. In light of the above provisions, the issue to be decided by this Court is whether the cooption of the petitioner as a Member of the Union by the Managing Committee, and not by the General Body is valid, or not, and whether the petitioner is entitled to contest the elections that are scheduled to be held on 26.08.2012, for which the last date of filling in the Nomination Form is 09.08.2012 at 6:00 p.m.
18. Respondent No.1 has come to a conclusion vide the impugned order after noticing and discussing the aforestated clauses of the Constitution of the Union that the term of the last General Body was from 14.09.2008 to 13.09.2010, and after extension of further period of three months, as per Clause 22, it would come to an end on 13.12.2010. Thereafter the General Body would automatically stand superseded.
19. It is not disputed that though the petitioner was dismissed from service in June 2002, he remained an office bearer of the Union from 14.09.2008 to 13.09.2010. As per the extended period of three months under Clause 22, the General Body of the Union remained in force upto 13.12.2010, after which it was superseded and automatically came to an end. As per Clause 11, all office bearers of the Union are to be elected at the Biennial General Meeting of the Union. Clause 12 stipulates that the affairs of the Union shall be conducted by the Managing Committee consisted of office bearers and other Members elected at the Biennial General Meeting. As already noticed hereinabove, it is in the General Body Meeting that the office bearers of the Members of the Managing Committee are to be elected for a period of two years or until the next election. A conjoint reading of Clauses 4, 11, 12 and 22 of the Constitution of the Union leaves no manner of doubt that the Managing Committee has no power to coopt a person as a Member of the Union. There is no provision in the Constitution of the Union that confers power upon the Managing Committee to coopt a member at any meeting that may be called by it for any other purpose, or for the specific purpose of cooption. It has been contended by the learned advocate for the petitioner that if no specific power has been conferred on the Managing Committee to coopt a Member, there is also no prohibition in the Constitution. This submission does not appear to be a sound one as the clauses of the Constitution of the Union have to be read and interpreted as they are. What has not been stipulated cannot be presumed or inferred. A reading of the entire Constitution of the Union buttresses the conclusion that it is the General Body that has been conferred the power to elect or coopt the office bearers of the Union, and not the Managing Committee. The cooption of the petitioner by the Managing Committee, therefore, cannot be said to be validated by the Constitution of the Union.
20. Clause 13 of the Constitution deals with vacancies and removals and stipulates that when a vacancy occurs of the office bearers or the Members of the Managing Committee, it can be filled up by the Managing Committee by cooption. In the case of the petitioner, his cooption is not for filling in a vacancy in the Managing Committee, as is evident from the Minutes of the Meeting of the Managing Committee held on 17.01.2010, but is as a Member of the Union, for which the Managing Committee is not empowered by Clause 13.
21. As regards the submission of the learned counsel for the petitioner that respondent No.1 has deliberately sent the impugned order to the petitioner belatedly so that the petitioner cannot take legal recourse against the same is without any substance, because respondent No.1 has acted in pursuance of the order of this Court dated 02.05.2012. Besides, there is no reason why respondent No.1 should harbour illwill against the petitioner, and there is no material on record to suggest the same.
22. In view of aforesaid discussion and as the extended term of the General Body ended on 13.12.2010, and cooption of the petitioner as a Member of the Union on 17.01.2010 was not done by the General Body which ceased to exist after that date, but by the Managing Committee, this Court finds no merit in the petition. The reasons advanced by respondent No.1 in the impugned order are, in the view of this Court, based on a correct interpretation of the relevant Clauses of the Constitution of the Union. This Court does not find any irregularity or illegality in the impugned order passed by respondent No.1, so as to warrant interference.
23. For the aforestated reasons, the petition is rejected.
(sunil)
(Smt. Abhilasha Kumari, J.)