At, High Court of Judicature at Madras
By, THE HONOURABLE MR. JUSTICE K. CHANDRU
For the Appellant: L. Chandra Kumar, Advocate. For the Respondent: R3 - D. Ferdinand, Advocate.
(Prayer: Petition under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus, calling for records relating to the 2nd respondent's order made in B/20851/P/EIC(2)/1 dated 27.08.2010 to quash the same and consequently direct the Respondents and to continue the declared elected office bearers as per the original election.)
1. The petitioner is a Trade Union. It had filed the present writ petition, seeking to challenge an order dated 27.08.2010 passed by the second respondent Director General (Personnel), Engineer-in-Chief Branch, New Delhi.
2. When the matter came up on 23.09.2010, this Court directed private notices to be issued to the respondents and an interim stay was granted. Subsequently, the interim stay came to be extended from time to time.
3. On notice from this Court, the third respondent had filed a counter affidavit dated 20.04.2011.
4. It is the case of the petitioner that they are a registered Trade Union with Registration No.1183/VLR. They also affiliated their trade union with the All India Federation known as Indian Trade Union Congress (for short I.N.T.U.C.) The respondents have notified election in respect of allotment of seats in the Joint Consultative Machinery (JCM) fora. The original election notification fixed the election on 03.02.2010 by secret ballot and the unions were allotted election symbols. It was found that one of the trade union federation, AIDEF, complained regarding the discrepancies in the printing of ballot papers. A hearing was conducted on 29.07.2010 and the procedural lapse found was admitted. Therefore, re-election was ordered to be held in the CWE (Navy), Chennai/Arakkonam Unit. It is this impugned communication dated 27.08.2010 ordering re-election, which is under challenge in this writ petition.
5. Pursuant to the notice ordering for re-election, the petitioner Union sent a representation dated 03.09.2010 to the first respondent stating that re-election has been ordered without any notice or without consultation and it has been done to cover up the lapse and to satisfy the other Federation.
6. In the counter affidavit filed by the third respondent, these allegations were denied. In paragraphs 6 and 7 of the counter affidavit, it was averred as follows:-
"6. I state that the hearing was conducted in the presence of representatives of all the Federations and Units and the decision to conduct re-elections was taken after hearing all members present and the proceedings have also been duly signed by the members present. Moreover, the decision to hold re-elections was communicated to all federations along with comprehensive instructions by the 2nd respondent vide No.B/20851/P/E1C(2)/1 dated 27.08.2010, which is under challenge herein.
7. I state that the decision to hold re-elections were taken only after holding a hearing and coming to a finding that there were certain procedural lapses in the Arakkonam/Chennai Unit and not for any other reason as claimed by the petitioner. The said decision was also intimated to all Federations and Units along with the schedule for the election. It is incorrect to state that re-elections have been ordered only in the Arakkonam Unit and the re-elections have been ordered only as per the instructions of the Ministry of Defence."
7. First of all, in the present case, the elections are held only for the purpose of nominating seats in the JCM and it is not based upon any statutory rules framed. In the absence of any legal or enforceable right, it is not clear as to how such a writ petition is maintainable. The only allegation raised by the petitioner that they were not heard was also stoutly denied by the third respondent. The petitioner had also not impleaded the other trade Union, which is a party to the election. In a matter of this nature, such a writ petition cannot be admitted as held by the Division Bench of this Court in Sridharan K.V. v. S.Sundamoorthy reported in2009-II-LLJ-145 (Mad).Though it is pointed out that the said judgment was distinguished in a subsequent judgment in All India Postal Employees Union - Group C, Tiruvannamalai v. Chief Post Master General, Chennai and others reported in (2011) 1 MLJ 1229,this Court is unable to agree with the view taken by the learned Judge.
8. The Division Bench dealt with the case where it was recorded that in the State of Tamil Nadu, there is no law relating to grant of recognition for a trade Union and therefore, the question of entertaining writ petition at the instance of private parties will not arise. The said Division Bench judgment was got over in the subsequent judgment by stating that the Division Bench did not deal with elections to be held for the CWC. It will not be applicable in a case where results of the elections to a Central Working Committee was under challenge. Therefore, a writ petition will lie against the department not to accept the results passed by a Central Working Committee of Trade Union. It is rather unfortunate such a distinction should be made especially when there is a binding judgment of the Division bench, wherein, the law has been clearly laid down. The sum and substance of the judgment of the Division Bench is that in the absence of any law for trade union recognition in the State, the Cou
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rt cannot be saddled with disputes regarding elections, either an inter se election dispute or a dispute between the Union on the one hand and the government department on the other hand. The binding precedent of the judgment of the Division Bench in Sridharan's case (cited supra) will have to be followed. Further, in this case all the parties to the election have also been consulted and because of the procedural lapse, re-poll was reordered. 9. In the light of the above, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition stands closed.