Heard learned counsel for the petitioner, Sri Sandeep Saxena, learned counsel for the respondents no. 2 and learned Standing Counsel, who has accepted notice on behalf of the respondent no. 1.
The present writ petition has been filed for writ of certiorari for quashing the order dated 17.3.2011 passed by Deputy Labour Commissioner, Jhansi Region Jhansi, whereby election of Executive Council of B.H.E.L. Shramik Sangh, Khailar, B.H.E.L. Jhansi, hereinafter referred as 'the Union',, conducted on 15.2.2011 was not found in accordance with law and form 'J" submitted by the petitioner no. 2 and Dhaniram Verma, President elected for the year 2011 has not been accepted and the alleged election of Executive Council of Union said to be conducted on 3.2.2011, whereby respondents no. 2 and 3 are shown to be elected as President and General Secretary, respectively, has been ordered to be registered in the Trade Union Registration Registrar.
Learned counsel for the petitioners has stated that there are bye-laws of the Union, which are approved and registered by the Registrar Trade Union, U.P. Lucknow. The Union is affiliated with the Bhartiya Mazdoor Sangh. After the election of the Executive Council of the Union in the year 2009 again from 'J' was submitted by the rival parties for the election of Executive Council of the Union for the year 2010 before the respondent no. 1 but vide order dated 4.8.2010, same was not registered by the respondent no.1 and he gave a finding that both the elections were not conducted in accordance with law. It is also stated that the agenda dated 1.1.2011 was issued for the election of the Union by the petitioner no. 2 and its other members. Thereafter a letter dated 31.1.2011 was sent by the Executive of the B.H.E.L. requiring the petitioner no. 2 and the respondent no. 2 to get any order from the Civil Court regarding the representation or to submit the necessary documents in respect of the representation after electing new Executive Council for the year 2011, copy of which has been filed as annexure-8 to the writ petition. Thereafter, the petitioner no. 2 sent an information to the Registrar, Trade Unions, Kanpur on 17.1.2011 and a notice was affixed on the notice board of the B.H.E.L. Factory mentioning therein that on 31.1.2011 a meeting of the Executive Council will be held and requested the concerned to attend the said meeting and news item in the said regard was also published in daily news papers 'Dainik Jagran', 'Amar Ujala' and 'Swadesh, Jhansi'. It is further submitted that in the meeting held on 31.1.2011 it was decided that the election of Executive Council of the Union will be held on 15.2.2011, therefore, letter dated 1.2.2011 was sent to the Registrar, Trade Unions, U.P. Kanpur, A.G.M. (Human Resource), B.H.E.L. Jhansi informing about the same, copy of which has been filed as annexure-10 to the writ petition. It is next submitted that the letter dated 10.2.2011 was sent to the respondent no.1 with the request to appoint a Supervisor for the supervision of the election scheduled to be held on 15.2.2011, copy of which has been filed as annexure-11 to the writ petition. On 3.2.2011 a news item was published in the news daily Amar Ujala, Jhansi regarding the date of election of the Executive Council of the Union and ultimately pursuant to the aforesaid schedule, election of the Executive Council of the Union was conducted on 15.2.2011 for the year 2011, in which Dhaniram Verma was elected as the President of the Union and the petitioner no. 2 was elected as General Secretary of the Union, the information of which was duly sent to the respondent no. 1 for its registration on 17.2.2011 in form 'J', copy of which has been filed as annexure-13 to the writ petition.
It is argued by the learned counsel for the petitioners that it appears that the respondent no. 2 and 3 has also shown a farzi election of the Union conducted on 3.2.2011 and information about the same was sent by the respondents no. 2 and 3 in form 'J' to the respondent no. 1 on 4.2.2011.
It is next submitted by the learned counsel for the petitioners that after receipt of the information in respect of the election of the Union of the petitioner no.2 and the respondents no. 2 and 3, the respondent no.1 got inquiry done into the matter by the Labour Enforcement Officer, Jhansi, who ultimately passed the order impugned dated 17.3.2011, whereby election of Executive Council of Union, conducted on 15.2.2011, was not found in accordance with law and thus, form 'J' submitted by the petitioner no. 2 was not accepted and the alleged election of the Executive Council of the Union said to be conducted on 3.2.2011, in which the respondents no. 2 and 3 are shown to be elected as President and General Secretary, respectively, has been ordered to be registered in the Trade Union Registration Registrar.
Learned counsel for the petitioners has drawn the attention of this Court to Clause 44 of the bye-laws, which provides that the Vice President will perform the duties of the President and in his absence he will discharge all the functions of the President. In the present case as the President of the Executive Council registered in the year 2009 was expelled in the accordance with law, hence, in his absence Vice President discharged the duties of the President and made his signature over form 'J' sent on 17.2.2011 for the election of the year 2011. Reference has also been drawn to Clause 46 of the bye-laws, which provides that Joint Secretary will assist the General Secretary in discharge of his duties but there is no provision that in the absence of the General Secretary, Sahayak Sangathan Mantri would make his signature, therefore, it is argued that, form 'J' sent by the respondents no. 2 and 3 under the signature of the respondent no. 2 and Kishori Sharan, the earlier registered Sangathan Mantri, was in contravention of aforesaid clause. It is argued by the learned counsel for the petitioners that the respondent no. 1 does not have any jurisdiction to decide the dispute between two rival parties with regard to the election of the Union and inspite of the said facts, order impugned has been passed. Special reference has been made to the earlier order dated 16.11.2009, by which respondent no. 1 refused to pass order on the form 'J' submitted by two rival parties regarding the election of the Union, copy of which has been filed as annexure-14 to the writ petition. It is, thus, argued that passing of the order impugned cannot be sustained in law.
It is further contended by the learned counsel for the petitioner that in the alleged election conducted by the respondents no. 2 and 3 on 3.2.2011, only 12 members of the Executive Council had participated and on 15.2.2011 as many as 29 members of the Executive Council of the Union were present. It is next contended that the respondents no. 2 and 3 did not give information to the respondent no. 1 and other members regarding the meeting prior to alleged election conducted on 3.2.2011, whereas the petitioner no.2 informed all the concerned that the election was to be conducted on 15.2.2011 including publication of said information in news daily. It is also contended that the finding recording by the respondent no. 1 in his order impugned that the expulsion of the earlier registered President Kuber Singh was bad in law, when in fact he was expelled by the majority of 2/3rd members of the Executive Council of the Union.
Learned counsel for the petitioners has further submitted that on 15.1.2011 a charge sheet was issued against the respondent no. 3, which was not received by him nor did he submitted his reply, consequently he was expelled from the post of President of Union and information regarding his expulsion was sent to the respondent no.1 and the Registrar, Trade Union, U.P. Kanpur and the Additional General Manager (Human Resource Department), B.H.E.L., Jhansi vide letter dated 2.2.2011. It is next submitted that no election whatsoever was held on 3.2.2011, therefore, passing of the order impugned is bad in law. Learned counsel for the petitioners has relied upon judgement of this Court in the case of Roadways Mazdoor Sabha, U.P. and another Vs. State of U.P. and others, reported in 2010 (127) FLR 221, in support of his contention, wherein it has been held that where there is a dispute regarding rival fractions of Trade Union claiming to be the office bearers of the Union, it is the Civil Court, which will have jurisdiction to decide the same. It has further been held that no doubt, in case of fraud, as fraud vitiates every action both administrative and judicial, it may be open to the Registrar to recall the order. Except for this limited purpose, the Registrar cannot interfere, otherwise, considering the scheme and the object of the Act. Even if such an exercise could be done if the fraud is patent and apparent from the record. Union must run its affairs under its office bearers. It is not possible to accept that the Registrar in all cases would be entitled to recall his order. The dispute as to whether fraud was played or illegality was committed in the election of office bearers and the dispute as to who are the office bearers can only be decided by a civil court on evidence being led before it. Therefore, the powers conferred on the Registrar and the limited scope of administrative enquiry under Section 28(3) of the Act read with Regulation 17(A) of the Regulations, leaves no manner of doubt that ordinarily, except in the case of patent fraud which must be apparent, the Registrar would have no jurisdiction to recall the communication made by him to a Union taking on record the list of office bearers.
Sri Sandeep Saxena, learned counsel for the respondent no. 2 has filed short counter affidavit, in which it has been stated that the respondent no. 2 is the valid and legal President of the B.H.E.L. Sharamik Sangh and he is still operating as such. It is also stated that the registered Trade Union had issued the election agenda on 3.1.2011, copy of which has been filed as annexure-1 to the counter affidavit, which was sent by U.P.C. to all the concerned members, who have acknowledged their receipt on 19.1.2011. It is further stated that the meeting of the registered body of the Executive of the Trade Union was held on 18.1.2011, which constitute undisputed office bearers of the Executive Committee of the last undisputed Trade Union. Thereafter notification of election was affixed on the notice boards on 19.1.2011 with regard to the intimation that the election of the Trade Union shall be held on 3.2.2011. Thereafter Kuber Singh, the President of the Trade Union intimated the respondent no.1 that the election of the office bearers of the registered Trade Union will be held on 3.2.2011. It is next contended that the intimation regarding the election to be held on 3.2.2011 was also published in the local newspaper Swadesh on 21.1.2011, copy of which has been filed as annexure-6 to the counter affidavit. The intimation with regard to the election of the office bearers of the Trade Union was published in the local news paper Swadesh on 5.2.2011 and on 4.2.2011 Form 'J' was submitted by the elected Joint Secretary of the Trade Union to the respondent no.1. It is next contended that the petitioners, after having knowledge of the defeat in the election, concocted fictitious election after the election of the respondent on 15.2.20111 and submitted fictitious and farzi Form 'J' on 17.2.2011. It is further contended that Registrar of Trade Union did not examine the evidence of the parties in a quasi judicial manner but in view of the Regulation 17-A of U.P. Trade Union Regulations scrutinized the matter to see that as to whether the change has been made in the manner provided in the registered Rules of the Trade Union or not and passed the order, which is perfectly just and legal. It is also contended that the respondent no. 1 has correctly held that Kuber Singh was the President of the Registered Trade Union in the year 2009, which was the last elected body therefore, according to the provisions of the Trade Union Act, it was only Kuber Singh, who was the authorized President under the Act to conduct the election proceedings, which was rightly conducted by him. It is next contended that the respondent no. 1 has rightly held that for removal of any office bearer of the Executive Body, the voting would be by secret ballot and in the present case the alleged proceedings for removal of Kuber Singh was admittedly not held by secret ballot, therefore, alleged expulsion is bad in law. It is, thus, contended that there is no illegality in the order impugned, which may call for any interference by this Court in exercise of powers under Article 226 of the Constitution of India.
Learned counsel for the respondent has relied upon a Judgment in the case of Ratan Kumar Dey and others Vs. Union of India and others, reported in 1991 LAB.I.C. 531, wherein it has been held that rival claims of office bearer of trade union is a private dispute for which writ jurisdiction cannot be invoked. Hence, it is argued that passing of the order dated 17.2.2011 suffers from no infirmity in law.
After hearing the learned counsel for the parties and after perusing the averments made in the writ petition as well as in the short counter affidavit, this Court finds that the respondent no.1 while passing the order impugned has recorded a finding that the respondent no.2 was sent the copy of the charge sheet dated 15.11.2011, which was refused to be accepted and again it was sent by the registered post after 19.1.2011 and thereafter on 31.1.2011 and President was expelled from his post and information regarding which was sent to the respondent no. 1 and the Registrar, Trade Union, U.P. Kanpur and the Additional General Manger (Human Resource Department) B.H.E.L., Jhansi vide order letter dated 1.2.2011 and therefore, recorded a finding that the stipulated period of service of notice lapsed, therefore, there was no valid expulsion. However, the finding has been returned that as per the bye-laws the President of Trade Union is to inform the respondent no.1 regarding the election of Officer Bearers of Trade Union, which intimation was given by Kuber Singh, which was also published in local news daily. It has further been noted that the intimation with regard to the election of the office bearers of the Trade Union was published in the local news paper on 5.2.2011 and on 4.2.2011 Form 'J' was submitted by the elected Joint Secretary of the Trade Union. It has been further held in the order impugned that Kuber Singh was the President of the Trade Union in the year 2009, which was the last elected body, therefore, according to the Trade Union Act, he was authorized to conduct the election, which election was conducted by the respondents no. 2 and 3.
The law as settled is that the nature of enquiry under Regulation 17-A of the U.P. Trade Union Regulations is administrative read with Section 28(2) and 28(4) of the Act. Further, the issue as to whether the civil court has jurisdiction when there is a dispute as to who are the office bearers, has also been considered by the Patna High Court in the matter of R.N. Singh and another Vs. State of Bihar and others and Bokaro Steel Workers Union and another Vs. State of Bihar and others, wherein it has been held that where there is a dispute regarding rival factions of Trade Union claiming to the office bearers of the Union, it is the civil court, which will have jurisdiction to decide the same. The jurisdiction of civil court is also not expressly outset even if the names of one frivolous office bearers are taken on record and the inquiry of the Registrar is limited to examine whether the elections are held in terms of the bye-laws of the Trade Union. The Registrar does not and cannot inquire into the election process. The nature of inquiry is absolutely administrative and summery. In view of the above that the finding of facts were recorded by the respondent no. 1 while passing the order impugned, wherein he has only made limited inquiry to the extent of scrutinizing whether the process has been followed and elections were held in terms of Rules or bye-laws, which can be well gone into by the competent forum, for which petitioner may approach, if so advised. Such finding of fact cannot be gone into in the writ jurisdiction under Article 226 of the Constitution of India.
Accordingly, the writ petition lacks merit and is dismissed. No orders as to costs.
Order Date :- 17.5.2011 Ashish