WRIT PETITION L No1532 OF 2008 & WRIT PETITION C No 4848 OF2008
1 Dakshin Purva Madhya Railway Mazdoor Sangh Regd No 79 2 South East Central Railway Mazdoor Congress
...Petitioners
Versus
Union of India & Others
...Respondents
! Shri VG Tamaskar Advocate for the petitioner & Shri Prafull N Bharat Advocate for the petitioner
^ Ms Naushina Afrin Ali Advocate appearing on behalf of Shri Amit Choudhary Standing Counsel for the Railways respondent
CORAM : Honble Shri Satish K Agnihotri J
Dated : 26/10/2009
: Judgement
J U D G M E N T
Passed on 26th day of October 2009
Writ Petitions under Article 226 of the Constitution of India
1. The petitioner, i.e. Dakshin Purva Madhya Railway
Mazdoor Sangh, in W.P.L) No.1532 of 2008 impugns the
order dated 4th December, 2007 Annexure P/12) passed by
the 4th respondent whereby South East Central Railway
Men's Union i.e. the 5th respondent herein for short
"the respondent Union"), was declared as recognized
union of South East Central Railway, after having
obtained 45.19% vote of total electorate with the symbol
`train', subject to outcome of Writ Petition No.7596
M/B) of 2007 filed by Rail Mazdoor Union in the High
Court at Lucknow Bench.
2. South East Central Railway Mazdoor Congress, petitioner in W.P. C) No. 4848 of 2008, challenges the legality and validity of the same order i.e. order dated 4th December, 2007 whereby the respondent Union was declared recognized on the same ground.
3. In view of foregoing, both the writ petitions are
being decided by this common order.
4. The indisputable facts, as projected by the
petitioners, are that the Dakshin Purva Madhya Railway
Mazdoor Sangh is a registered Trade Union bearing
Registration No.79 under the provisions of Trade Union
Act, 1926 for short "the Act, 1926"). 6th and 7th
respondents i.e. Rail Kamgar Sena and Rail Mazdoor Sangh
are also registered trade unions. Their registration is
with the Registrar of Trade Unions, Bombay in the State
of Maharashtra. 8th respondent i.e. South East Central
Railway Mazdoor Congress i.e. petitioner in W.P.C) No.
4848 of 2008) is also a registered trade union bearing
registration No.78 Annexure P/2). The respondent Union
is an unregistered body and, as such, was not entitled
to contest any election. 9th respondent was appointed as
returning officer for conducting the elections for
recognition of trade union scheduled to be held on
26.11.2007, 27.11.2007 and 28.11.2007. The registered
and local trade unions were only eligible to contest the
election as per para 2 C) of the modalities prepared by
the Secret Ballot Committee Annexure P/3). The 5th, 6th
and 7th respondents were not eligible to be recognized.
The petitioner alone was eligible for contesting the
election and being declared as recognized trade union.
6th and 7th respondents were not eligible to contest the
election in Chhattisgarh. The Registrar of Trade Unions,
Government of Chhattisgarh by letter dated 16th January,
2008 Annexure P/6) submitted that except following three
unions i.e. nf{k.k iwoZ e/; jsYos esal ;qfu;u] fcykliqj]
nf{k.k iwoZ e/; jsYos etnwj la?k] lkmFk bZLV lsUV&y
jsYos etnwj dkaxzsl] fcykliqj, no other union is
registered. 9th respondent accepted illegal nomination
of the respondent Union and also the 6th and 7th
respondent. In the ballot paper, name of the
unregistered trade union i.e. the respondent Union was
printed when the Registrar, Trade Unions have clearly
stated that there was no such union registered with the
Registrar, Trade Unions, Chhattisgarh. The 6th and 7th
respondents did not fulfill the conditions 2 C) as laid
down in the modalities Annexure P/3). Thus, declaration
of the respondent Union as the recognized trade union,
which is an unregistered and bogus trade union, is
illegal. Inclusion of 6th and 7th respondents to contest
the election was also contrary to the modalities and, as
such, 4th and 9th respondents have, therefore, violated
all the norms and declared the respondent
Union as the recognized trade union, which is contrary
to law.
5. Shri Tamaskar, learned counsel appearing for the petitioner in W.P. L) No.1532 of 2008 and Shri Prafull Bharat, learned counsel appearing for the petitioner in W.P.C) No.4848 of 2008, would submit that the election conducted by the Railway Department in November, 2007 whereby the respondent Union was declared as recognized trade union of South East Central Railway was bad in law, illegal and unconstitutional as is clear from the letter dated 16th January, 2008 Annexure P/6) that "Dakshin Purva Madhya Railway Men's Union", Dakshin Purva Madhya Railway Mazdoor Sangh and South East Central Railway Mazdoor Congress, only were registered with the Registrar, Trade Unions and the respondent Union i.e. South East Central Railway Men's Union was not registered with the Registrar, Trade Unions. The modalities Annexure P/3) clearly show that only the registered trade unions can contest the election and the respondent Union i.e. SECRMU was not a registered trade union, as aforementioned.
6. It is further submitted that the 9th respondent has
used the abbreviation i.e. SECRMU, which is similar to
the abbreviation of the petitioner's name i.e. SECRMC,
whereas the alleged name of the South East Central
Railway Men's Union is Dakshin Purva Madhya Railway
Men's Union and the abbreviation of which could only
have been DPMRMU. There was no proper scrutiny of the
nomination papers at the hands of 9th respondent. The
translation of the registered trade union is not
permissible under the law. Subsequently, during the
pendency of this petition, the Railway Department has
issued a corrigendum on 10th December, 2008 stating that
the Railway Department has corrected the mistake and
granted DPMRMU the recognition. The guidelines issued
for registering trade union held in Annexure P/3,
modalities has clearly provided that the unions are not
permitted to use translated version of the name of the
union in which it is registered with the Registrar,
Trade Unions. Thus, the petitions be allowed and the
impugned order be quashed.
7. It is submitted that the registration number of 57
is the registration number of nf{k.k iwoZ e/; jsYos esal
;qfu;u. It is evident that the translation of the
registered union in the name of nf{k.k iwoZ e/; jsYos
esal ;qfu;u is not permissible under law.
8. On the other hand, Ms Naushina Afrin Ali, learned
counsel appearing for the respondent-
authorities/Railways, would submit that the election for
recognition of trade unions was conducted as per the
Rules for the Recognition of Service Associations of
Railway Servants Chapter XXV {Indian Railway
Establishment Manual - Vol. II 1990 Edition}) for short
"the Railway Manual"). Rule 2512 of the Railway Manual
provides that the recognition will not ordinarily be
granted or continued to any association unless, inter
alia, it is registered under the Act, 1926. Modalities
for elections were accordingly prepared. Five trade
unions namely; Dakshin Purva Madhya Railway Majdoor
Sangh [Reg.No.79 Raipur)], Rail Kamgar Sena [Reg.
No.ALC/Karyasan/17/9630 Mumbai)], Rail Mazdoor Union
[Reg. No. BY-11-7867 Mumbai)], South East Central
Railway Mazdoor Congress [Reg. No.78 Raipur)] and
Dakshin Purva Madhya Railway Men's Union [Reg. No.57
Raipur)] participated in the election. The Registrar,
Trade Unions confirmed that the respondent Union was
registered with the office of Registrar, Trade Unions
and its registration number was 57.
9. Ms Ali would further submit that after due scrutiny of nomination forms symbols were allotted. The symbols as well as the abbreviations used by the contesting unions were published in ballot papers in English and Hindi. The work of Railways, being a Government organization, is to be done bilingually i.e. both in English and Hindi, as provided in sub section 3) of Section 3 of the Official Languages Act, 1963. Dakshin Purva Madhya Railway Men's Union was declared as recognized union in the result declared on the 3rd December, 2007. The letter of recognition was subsequently issued on the 4th December, 2007, as the respondent Union obtained more than 45.19% votes. Trade Unions need to be ordinarily registered and not necessarily registered. Even if the respondent union was not registered and fulfill the other requirements i.e. it must consist of a distinct class of Railway servants and must not be formed on the basis of any caste, tribe or religious denomination or of any group within or section of such caste, tribe or religious denomination; all railway servants of the same class must be eligible for membership; and it must be registered under the Indian Trade Unions Act. Ms Ali, would next submit that the recognition can be granted to the union by the Railway. A corrigendum was issued on the 10th December, 2008 to the effect that in place of `South East Central Railway Men's Union' it may be read as `Dakshin Purva Madhya Railway Men's Union'.
10. Shri Utkarsh Verma, learned counsel appearing for the respondent Union, would submit that the registration of the respondent union is done under the provisions of Section 5 of the Act, 1926 and the recognition is granted by the Railways as per the procedure laid down in Chapter XXV of the Railway Manual. Admittedly Dakshin Purva Madhya Railway Men's Union was registered with the office of the Registrar, Trade Unions on the 22nd November, 2002. The certificate of registration was issued as per the provisions of Section 9 of the Act, 1926 in form "C" Annexure - R5/1). The Indian Railways reconstituted its Railway Zones in March, 2003. South East Central Railway Zone with its headquarter at Bilaspur was carved out from an earlier existing Zone namely; South Eastern Railway having its headquarter at Graden Reach, Calcutta. Shri Verma, would submit that the union, which was registered with the South Eastern Railway, was the parent union in the name of South Eastern Railway Men's Union. Hence, after new Zone i.e. South East Central Railway came into existence the respondent union was registered and the said union was continued to be recognized as South East Central Railway Men's Union.
11. Shri Verma would further submit that there is no confusion in the minds of members of South East Central Railway Men's Union, who are Group `C' and `D' employees of South East Central Railway. Dakshin Purva Madhya Railway Men's Union is, in fact, South East Central Railway Men's Union. The respondent Union filed its nomination as Dakshin Purva Madhya Railway Men's Union in the proforma provided. After the election the respondent union was declared as recognized union South East Central Railway. The respondent union was allotted symbol `train', as is evident from Annexure - P/11 of W.P. L) No.1532 of 2008. All the contesting unions were communicated vide letter dated 4th December, 2007 Annexure - P/12) with regard to recognition of the respondent Union.
12. Shri Verma would next submit that the corrigendum
dated 10th December, 2008 has cured the defect as
pointed out by the petitioners. Thus, the writ petition
has become infructuous. The corrigendum cannot be
challenged without amending the writ petition by way of
rejoinder. Dakshin Purva Madhya Railway Men's Union has
not impleaded a party respondent and, as such, the writ
petitions deserve to be dismissed on account of non-
joinder of necessary parties also. There is a delay in
filing the petitions, as the letter dated 4th December,
2007 was communicated to the petitioner immediately and
the petitioner has filed this petition on the 7th March,
2008. There is no explanation for delay and laches on
the part of the petitioner.
13. Shri Koshy, learned counsel appearing for the
respondent No.8/ South East Central Railway Mazdoor
Congress in W.P. L) No.1532 of 2008, supporting the
petitioner, would submit that the election conducted by
the Railways in November, 2007 is illegal and
unconstitutional on the ground that the South East
Central Railway Men's Union is not a registered union
with the Registrar, Trade Unions. The said union should
not have been permitted to contest the elections in the
said name. The respondent union has participated in the
election playing fraud with the voters. The respondent
union used the abbreviation SECRMU, which is similar to
the abbreviation of the respondent No.8 i.e. SECRMC. The
respondent union ought to have used the abbreviation
DPMRMU. All these activities have been done by the
Railway with a mala fide intention of giving advantage
to the respondent union. The respondent union is not
permitted to translate its name in English as South East
Central Railway Men's Union. It ought to have been
written its name in English as Dakshin Purva Madhya
Railway Men's Union.
14. I have heard learned counsel appearing for the
respective parties, perused the pleadings and the
documents appended thereto.
15. Challenge in both the writ petitions is to the
recognition of the respondent union on South East
Central Railway. There is no dispute that Dakshin Purva
Madhya Railway Men's Union was registered with the
office of the Registrar, Trade Unions, Government of
Chhattisgarh with Registration No.57. In the nomination
form, which has been submitted by the respondent Union,
against the serial No.1 i.e. name of union, is Dakshin
Purva Madhya Railway Men's Union, in serial No.2 i.e.
abbreviation used by union it has been mentioned as
DPMRMU and against the serial No.3 i.e. abbreviation in
the local language if any) it has been mentioned as
SECRMU. The period of submission of nomination forms
was 15-10-2007 to 25-10-2007. The 9th respondent
accepted the nomination form of the respondent union
along with others and conducted the election for
recognition of trade unions on 26-11-2007, 27-11-2007
and 28-11-2007. Counting of votes was commenced and
completed on the 3rd December, 2007. Out of 5
contesting unions i.e. both the writ petitioners and
5th, 6th and 7th respondents in W.P. L) No.1532 of 2008.
The result was intimated by letter dated 4th December,
2007 to all the contesting trade union as under :
"On the basis of the above,
South East Central
Railwaymen's Union which has
obtained 45.19 %age vote of
total electorate with the
Symbol "Train" is declared as recognized Union on South East
Central Railway subject to
outcome of writ petition
No.7956 M/B) of 2007 filed by
Rail Mazdoor Union in the
Hon'ble High Court, Lucknow
Bench."
It was further stated that the recognition is
subject to conditions mentioned in Annexure - I.
16. During pendency of the writ petitions, on the 10th
December, 2008 the correction was made by the Railway
authorities stating that the Dakshin Purva Madhya
Railway Men's Union, Registration No.57 is declared as
recognized union on South East Central Railway. No
challenge was made in the writ petition except in the
rejoinder to quash the corrigendum dated 10th December,
2008 and recognition of the respondent union. No
necessary amendment was made in the prayer clause of the
main writ petition and, as such, I am of the view that
the challenge in the rejoinder cannot be held as
challenge in the main writ petition.
17. The other challenge is on the grounds that the
translated name of the original trade union i.e. Dakshin
Purva Madhya Railway Men's Union, Registration No.57
cannot be permitted to contest the election and, as
such, declaring the respondent union as recognition
trade union is bad in law. Secondly, there are gross
irregularities by publishing amendments to fabricate
voter list, without specifying particulars of voters
which has been fabricated.
18. It is worthwhile to mention here that no objection
was raised by the petitioners when the nomination form
was filed by the respondent union and the same was
accepted by the 9th respondent. The petitions were
filed by the petitioners after declaration of the result
on the ground that the respondent union is not a
registered union. Clause 27 of the Modalities for
conducting secret ballot for the purpose of granting
recognition to registered Railway trade unions
representing all categories of Group "C" and Group "D"
employees of Indian Railways for short `the Modalities")
provides that "any dispute regarding elections/counting
of votes shall be raised on the day following the last
day of the election/declaration of result. After expiry
of this period, the result declared by the General
Manager of the Zonal Railway will be treated as final."
The initial challenge ought to have been made at the
time of filing of nomination form, which was not done in
the present case and thereafter, the dispute could have
been raised. The petitioners have challenged the
declaration of results and nomination form submitted by
the respondent union in these writ petitions for the
first time.
19. On the 30th October, 2007 the Government of India, Ministry of Railways informed the Chief Personnel Officers, All Indian Railways that "in view of the decisions of the Hon'ble Courts at Delhi and Lucknow, clause 2 c) of the Modalities stands annulled for the present till the courts deliver final decision in the matter. The nomination should thus be scrutinized keeping this fact in mind." Clause 2 c) of the Modalities is with regard to the jurisdiction of the registered Trade Union, which should geographically conform to the jurisdiction of the concerned Zonal General Manager to whom the application is made and who is competent to recognize the union and also competent to take any action against unions as and when necessary.
20. On perusal of the nomination form, it appears the nomination form submitted by the respondent union bearing registration No.57 i.e. Dakshin Purva Madhya Railway Men's Union, however, against the column No.3 i.e. abbreviation in the local language if any), it has been mentioned as SECRMU. It appears that, the same was done on account of the fact that Dakshin Purva Madhya Railway Men's Union was known as SECRMU. This mistake was subsequently corrected by corrigendum dated 10th December, 2008. Thus, it cannot be held that the nomination form submitted by the respondent union was bad, as the same was filed by the respondent union, which was registered with the registration No.57.
21. Under clause 2512 of the Manual the provision does
not seem to be mandatory, as it starts with the word the
recognition will not ordinarily be granted or continued
to any association unless it complies with the following
conditions, inter alia, it must be registered under the
Indian Trade Unions Act. In the present case, the
nomination form was submitted by the respondent union
and is admittedly registered with the office of the
Registrar, Trade Unions having registration No.57.
There appears to be some mistake in the nomination from.
The same ought to have been raised by the other
contesting Trade Unions either at the time of acceptance
of nomination form or after declaration of result as
provided under the provisions of the Modalities. The
same having not been done, cannot be permitted to be
agitated in these writ petitions.
22. In support of their contention, learned counsel
appearing for the petitioners placed their reliance upon
the decisions of the Supreme Court rendered in Anil
Kumar Gupta and Others vs. State of U.P. and Others1 and
B. Srinivasa Reddy vs. Karnataka Urban Water Supply &
Drainage Board Employees' Assn. and Others2. The facts
of the said decisions are not applicable to the dispute
involved in the present case and even otherwise no
glaring illegality has been noticed, of which, this
Court should take cognizance.
23. In support of the contention that challenge by way
of rejoinder and subsequent development may be taken
cognizance by the Court, learned counsel for the
petitioners placed their reliance upon the decisions of
the Supreme Court rendered in Ramashray Singh vs. New
India Assurance Co. Ltd. and Others3 and Lachhman Das
vs. Jagat Ram and Others4. There is no subsequent
development in this case except that a corrigendum was
issued and that was not challenged by the petitioners by
seeking amendment in the writ petitions. The rejoinder
is a reply to the return/response filed by the
respondents and there is no occasion for the respondents
thereafter to file response to the challenge, if any,
made in the rejoinder.
24. In Rani Laxmibai Kshetriya, Gramin Bank v. Chand
Behari Kapoor and Others5, the Supreme Court observed as
under :
"8..It is too well settled
that the petitioner who
approaches the court invoking
the extraordinary jurisdiction
of the court under Article 226
must fully aver and establish
his rights flowing from the
bundle of facts thereby
requiring the respondent to
indicate its stand either by
denial or by positive
assertions. But in the absence
of any averments in the writ
petition or even in the
rejoinder-affidavit, it is not
permissible for a court to
arrive at a conclusion on a
factual position merely on the
basis of submissions made in
the course of hearing. The
High Court, therefore, in our
view committed serious error
in coming to the conclusion
that there existed vacancies
in the post of Field
Supervisor on the materials
produced before it.."
25. The Supreme Court in Chandigarh Administration v.
Laxman Roller Flour Mills Pvt. Ltd.,6 observed as under
:
"4.It is settled law that
unless the allegations are
made in the writ petition and
a relief to that effect is
also prayed for in the writ
petition, the High Court is
not justified in issuing any
order in excess of the relief
prayed for in the writ
petition. We are, therefore,
satisfied that in the absence
of pleading and prayer in the
writ petition, the High Court
fell in error in issuing
directions to the appellant to
issue completion certificate
to the writ petitioner-
respondent.."
26. In Life Insurance Corporation of India and Others
v. Jyotish Chandra Biswas7, the Supreme Court
observed as under :
"6..These being the facts and
circumstances of the case, in
our opinion the learned Single
Judge was right in dismissing
the writ petition. We find
that the order of the learned
Single Judge is a detailed and
considered one. We find it
difficult to accept the
observations made by the
Division Bench of the High
Court extracted above that the
order passed by the learned
Single Judge was laconic. When
there was no explanation
whatsoever given by the
respondent in the writ
petition for delay of about
six years, the learned Single
Judge was right in saying so
and dismissing it. When the
ground that the respondent was
deprived of a right to appeal
was not taken before the
learned Single Judge either in
the writ petition or in
arguments, the Division Bench
was not right and justified in
saying that the learned Single
Judge did not assign any
reason whatsoever in support
of his judgment in this
regard. We fail to understand
how such a non-existing ground
could be considered by the
learned Single Judge."
27. The Supreme Court in B.S.N. Joshi & Sons Ltd. v.
Nair Coal Services Ltd and Others8, observed as
under :
"37. Before we embark upon the
respective contentions made
before us on the said issue,
we may notice that although
the point was urged during
hearing before the High Court,
the first respondent in its
writ application did not raise
any plea in that behalf. The
High Court was not correct in
allowing the first respondent
to raise the said contention.
See Chimajirao Kanhojirao
Shirke v. Oriental Fire &
General Insurance Co. Ltd.,
SCC at p. 625.)"
28. In U.P. Gram Panchayat Adhikari Sangh and Others v.
Daya Ram Saroj and Others9, the Supreme Court
observed as under :
"34..There is no pleading in
the original petition, not
even a whisper, about the
legitimate expectation. It
appears that the High Court,
at the appellate stage made
observations which induced
some of the appellants at the
last minute to urge the ground
of legitimate expectation
which was permitted and on the
basis of it such finding has
been recorded. Such an
approach is not permissible.
See National Buildings
Construction Corpn. v. S.
Raghunathan."
29. The petitioners cannot challenge the subsequent
events in a rejoinder without filing any
application for amendment in the original writ
petition. See State Bank of India and Others vs.
S.N. Goyal10).
30. In the facts of the present case, the corrigendum
even otherwise does not bring any substantial
change in the petition i.e. respondent union, being
a registered union, was permitted to participate in
the election for recognition as trade union of the
South East Central Railway. The communication
dated 4th December, 2007, which is the subject
matter of these writ petitions, is not final, as
the same is subject to outcome of writ petition
No.7596 M/B) of 2007 filed by Rail Mazdoor Union in
the High Court of Lucknow Bench. I have perused the
pleadings of writ petition No.7596 M/B) of 2007,
where the basic challenge is to the clause 2 c) of
the Modalities. The present petitions are not
election petitions, which require going into the
minute details of nomination forms and other
relevant materials.
31. In view of foregoing, without expressing any
opinion on the merits of the case pending in writ
petition No.7596 M/B) of 2007, I am of the view
that there is no irregularity or illegality in the
election by accepting nomination of the respondent
union, as the respondent union filed the nomination
form in the name of Dakshin Purva Madhya Railway
Men's Union bearing registration No.57. The workers
have expressed their confidence in the respondent
union by casting 45.19% votes in its favour. In a
democratic country like India, will of the people
prevails and in the present case the workers have
confidence in the respondent union and, as such,
the respondent union has been recognized as
substantial body of workmen. Even otherwise,
declaration of result is subject to outcome of
decision of High Court of Lucknow Bench in writ
petition No.7596 M/B) of 2007. Looking from all
angles, the election/declaration of result seems to
be just & proper and no interference is warranted.
The question of recognition or de-recognition of
the respondent union cannot be decided in these
writ petitions. However, the petitioners are at
liberty to challenge the same, if so advised,
before the appropriate authority under the
provisions of law.
32. For the reasons mentioned hereinabove, both the
writ petitions are dismissed. No order asto costs.
J u d g e