JUDGMENT : L. Rath, J. - Each of these petitions filed by rival trade unions arises out of orders passed by the Labour Commissioner, Orissa, in the same verification proceeding. Both the cases relate essentially to the same matter, i.e. recognition of trade unions operating in the Steel Plant at Rourkela. In O.J.C. No. 4426/89 notice was issued which was sufficient on all the opposite parties. During the course of hearing on admission it was directed by order No. 8 dated March 7, 1990 to put up the matter for final disposal. Counter affidavits have also been filed in the case by opposite party Nos. 1 and 16. Opposite party No. 18 in O.J.C. No. 4426/89 is the petitioner in O.J.C. No. 361/90 and the petitioner in O.J.C. No. 4426/89 is opposite party No,4 in O.J.C. No. 361/90. In O.J.C. No. 361/90 notice was also issued to al 1 the opposite parties except opposite party Nos 1, 8 and 17 who had already appeared. The notice issued was sufficient on all parties. In O.J.C. No. 4426/89 the opposite party Nos. 1 and 16 have filed counter affidavit. In O.J.C. No. 361/90 opposite party Nos. 1, 3, 4, 8, 14 and 17 have filed counter affidavit. Both the cases were heard for final disposal with consent of counsels for the parties and they are disposed of by this common judgment. O.J.C. No. 4426/89 was filed by the Rourkela Mazdoor Sabha (for brevity, referred to hereafter as 'the Mazdoor Sabha') seeking quashing of the orders passed by the Labour Commissioner, Orissa dated December 5, 1989, as the State Implementation and Evaluation Officer, authorising the Deputy Labour Commissioner, Rourkela to verify the membership of the registered trade unions named in the order in accordance with the procedure laid down for verification under the Code of Discipline (hereinafter referred to as 'the Code') and the order passed by the Deputy Labour Commissioner, Rourkela, opposite party No. 2 in that case on December 12, 1989 calling upon the petitioner to produce the records mentioned therein within ten days of receipt of the notice, for verification of the membership. Both these orders have been annexed to the writ petition as Annexures-4 and 6 respectively. Both these orders have been annexed to the writ petition as Annexures-4 and 6 respectively. O.J.C. No. 361 /90 was filed by the Rourkela Sramik Sangha (for brevity, referred to hereafter as 'the Sramik Sangha') and its members seeking direction to the Labour Commissioner-cum- Implementation and Evaluation Officer and the Deputy Labour Commissioner, opposite party Nos. 1 and 2 respectively, for completion of the procedure of verification of the unions in the Rourkela Steel Plant; fixing a time limit for grant of recognition and direction to opposite party Nos. 1 and 2 to comply with the same; as also the relief of quashing Annexure-10, the order passed by the Labour Commissioner accepting the plea of the Mazdoor Sabha to allow it time for production of the records and directing the Deputy Labour Commissioner, Rourkela, to issue a third notice to the Mazdoor Sabha in the first week of April, 1990 for production of the records and also to allow opportunity to other unions who had not produced the records in response to the second notice, by issuing a third notice. 2. The gist of the facts in both the cases is that this Court by its judgment dated September 5, 1988 in O.J.C. No. 1484/84 directed the Steel Industry of India Ltd., to take steps for reconstitution of the Works Committee of the Rourkela Steel Plant and in the event it failed to do so, the Labour Commissioner was to dissolve the Works Committee and take steps forthwith for reconstitution of the same. It is the case of the Sramik Sangha that in the election held for reconstitution of the Works Committee, all the seats for workmen were secured by it. Because of such results it addressed a letter to the Rour-Kela Steel Plant on October 2, 1989 to accord recognition to its union as the sole bargaining agent of the workmen in the Rourkela Steel Plant. Because of such results it addressed a letter to the Rour-Kela Steel Plant on October 2, 1989 to accord recognition to its union as the sole bargaining agent of the workmen in the Rourkela Steel Plant. Thereafter it addressed a letter, vide An-nexure-5, on October 9, 1989 to the Implementation and Evaluation Officer-cum-Labour Commissioner intimating him of having called upon the Rourkela Steel Plant to recognise it as the sole bargaining agent as per the Code but that the Steel Plant had not replied and that for such reason the Labour Commissioner should pass orders for immediate verification of the membership of all the trade unions operating in the Rourkela Steel Plant and recommend the majority one for being accorded recognition. On receipt of such request from the Sramik Sangha, the Labour Commissioner, as the Implementation and Evaluation Officer, authorised on December 5, 1989 the Deputy Labour Commissioner to carry out the verification process of membership of the registered trade unions under the Code and in pursuance of the same, the Deputy Labour Commissioner passed order on December 14, 1989 calling upon the different trade unions including the Sramik Sangha and the Mazdoor Sabha to produce the necessary records within ten days of receipt of the notice. As has been noted earlier, such orders passed by the Labour Commissioner and the Deputy Labour Commissioner are impugned in O.J.C. No. 4426/89. In that case, the Mazdoor Sabha also moved a petition registered as Misc. Case No. 5929/89 for stay of Annexure- 6, the order of the Deputy Labour Commissioner dated December 14, 1989, but this Court by order dated December 22, 1989, while declining to grant stay observed that in view of the practical difficulty on the part of the petitioner to produce the records the Court was sure that if the petitioner approached the appropriate authority its grievance would be duly looked into. In the meantime, the opposite party No. 2 issued a second and final notice on January 5, 1990 to the respective trade unions to produce the records for the purpose of verification. A copy of the notice issued to the Sramik Sangha has been annexed as Annexure-7/A to O.J.C. No. 361/90. The Mazdoor Sabha in the meantime approached Labour Commissioner, opposite party No. 1, for extension of time to it for production of the records before him. A copy of the notice issued to the Sramik Sangha has been annexed as Annexure-7/A to O.J.C. No. 361/90. The Mazdoor Sabha in the meantime approached Labour Commissioner, opposite party No. 1, for extension of time to it for production of the records before him. The Labour Commissioner, on consideration of the request of the Mazdoor Sabha, considered the grant of extension of time to it and other unions who had not been able to produce the records in pursuance of the first and second notices issued by the Deputy Labour Commissioner to be reasonable, and directed him to issue a third notice to the Mazdoor Sabha in the first week of April as also to grant the same opportunity to the other unions for production of records. In passing the order the Labour Commissioner also stated that issue of a third notice was permissible as per the clarification contained in the Government of India, Ministry of Labour dated May 23, 1980. The order of the Commissioner has been annexed to O.J.C. No. 361 of 1990 as Annexure-10 and is impugned therein. The order of the Central Government to which reference was made by the Labour Commissioner in Annexure-10 has been annexed as Annexure-2 to O.J.C No. 4426/89 and contains the view of the Government communicated to the Deputy Secretary to the Government of Orissa, Labour, Employment and Housing Department, that if any union fails to produce its records even after receipt of the notice on the second occasion, no effort should be made to verify its membership and the process should be confined only to such unions who cooperate with the verification machinery, but that if there were any genuine difficulties for any union to produce its records even after more than two chances, more chances may be given for the purpose depending upon the merits of each case. 3. 3. It is the submission of the Mazdoor Sabha in O.J.C. No. 4426/89 that the Code under which the verification of the membership of the different trade unions for the purpose of recommendation is made is wholly defective, realising which different State Government have enacted specific legislations in the matter and that even the Government of India has in the circular of May 23, 1980 itself suggested that the verification machinery may resort to a system of secret ballot provided all the contending unions and the concerned management agree for adoption of such a system. It is also further maintained by the Mazdoor Sabha that the very application of the Sramik Sangha to the Implementation and Evaluation Officer-cum-Labour Commissioner for the purpose of verification of membership of different trade unions was misconceived since no such application could be filed before the Labour Commissioner. Filing of such application before the Labour Commissioner was not contemplated under the very Code on the basis of which the verification was sought for, and that the Labour Commissioner had no power to proceed with or direct the verification on the basis of such a letter of the Sramik Sangha. On such premises it is contended that the entire verification process commenced at the instance of the Sramik Sangha under the orders of the Labour Commissioner is liable to be quashed. 4. On the other hand, it is the submission of the Sramik Sangha that the Code which has been adopted by all the central employers' and the workers' organisations at the 16th session of the Indian Labour Conference in 1958 was held the field throughout regarding all matters dealt with in the Code particularly in awarding recognition of the trade unions, and that since it has been accepted throughout by all the trade unions as also managements over the years as the binding procedure to be followed in the matter of grant of recognition it is binding on the trade unions as well as the management and the Government and its violations are justiciable in the Courts of law. It is further contended by Mr. Sanjit Mohanty, learned counsel appearing for the Sramik Sangha, that Appendix IV of the Code lays down the procedure for conduct of verification of membership of unions for the purpose of recognition and para (3) thereof makes specific provision regarding the number of notices to be issued. It is further contended by Mr. Sanjit Mohanty, learned counsel appearing for the Sramik Sangha, that Appendix IV of the Code lays down the procedure for conduct of verification of membership of unions for the purpose of recognition and para (3) thereof makes specific provision regarding the number of notices to be issued. The notice of the Court was invited to para (3) which states that the verification officer shall ask the unions by registered post with acknowledgement due to produce before him within ten days, at the stipulated place and time, the list of their members who have paid subscription for atleast three months during the last six months immediately preceding the date of reckoning and also to produce the different registers named therein. The time of ten days fixed in the notice is available to be enlarged, if the membership of the union is more than 10,000, at the rate of one additional day for every 2,000 members over 10,000. If any union fails to produce the list of its members within ten days' time or such longer period as may be applicable to the first notice and if the union fails to produce the list and records in spite of the second notice, no further attempt is to be made to verify its membership. Para (4) specifies the date of reckoning to be the first of the month in which the verification begins, i.e. when the verification officer asks the unions to submit their lists and books for scrutiny. It is because of such categorical provision that Mr. Mohanty submits that a direction by the Labour Commissioner to the Deputy Labour Commissioner to grant a third opportunity to the Mazdoor Sabha and others to produce their records is in violation of the provisions of the Code and hence illegal. It is his further submission that the direction of the Central Government as in Annexure-2 to O.J.C. No. 4426/89 also cannot operate either as an amendment or substitution for para (3) of Appendix IV since the Central Government has no power of directing deviation from the Code. 5. It is his further submission that the direction of the Central Government as in Annexure-2 to O.J.C. No. 4426/89 also cannot operate either as an amendment or substitution for para (3) of Appendix IV since the Central Government has no power of directing deviation from the Code. 5. Before the submissions raised by the learned counsel for the Sramik Sangha are taken up, it would be convenient to deal with the submission made by the learned counsel appearing for the Mazdoor Sabha since the question raised in O.J.C. No. 4426/89 is regarding the very maintainability of the application of the Sramik Sangha before the Labour Commissioner. To appreciate the submissions raised, Paras (1), (2) and (3) of Appendix IV of the Code which deal with the procedure for verification of membership of unions for the purpose of recognition may be extracted: "(1) On receipt of a representation from a union for recognition under the Code of Discipline, the Central/ State Implementation Machinery will first ascertain: (a) the name of unions functioning in the establishment together with their number and date of registration by reference to the Registrar of Trade Unions concerned; (b) whether any of the unions functioning in the establishment was responsible for an established breach of the Code during the past one year (By an 'established breach of the Code' is meant a breach reported to and an enquiry established by the Implementation Machinery of the State or the Centre); (c) whether the existing recognised union, if any, has completed a period of two years of recognition. (2) After ascertaining the above facts, the Implementation Machinery at the Centre will request the Chief Labour Commissioner to arrange verification of membership of unions entitled to recogniton under the Code. In the States, either the Implementation Officer will carry out this verification or get it done through the State Labour Commissioner, depending on the practice obtaining in each State. (3) The verification officer will ask the unions by registered post/A.D to produce before him within 10 days, at the stipulated place and time, a list of their members who have paid subscription for atleast 3 months during the period of six months immediately preceding the date of reckoning along with (i) membership-cum-subscription register, (ii) receipt counterfoils, (iii) cash and account books, (iv) bank books, and (v) a copy of the constitution of the union. If the number of members of a union is more than 10,000 a longer lime on the basis of one additonal day for every 2,000 members over 10,000 should be given for submission of its (list) of members and records. If any of the unions fails to produce the list of its members and records, a second and final notice will be given by register post/ A.D. asking it to produce them within 10 days or a longer period as mentioned above, if the membership of the union exceeds 10,000 at the stipulated place and time. If the union fails to produce the list and records on the second occasion also, no further attempt will be made to verify its membership. However, in respect of the union which has submitted its list and records, the verification officer will examine them and report its membership without inviting objections from the rival union, i.e. the defaulting union, and without doing any personal verification as mentioned in para (7) below. If more than one union produces its lists and records, the verification officer will check their membership in the manner described below ignoring the union which fails to produce its records." 6. A reading of the paragraphs of the Appendix would show that any move by a union for receiving recognition is to start by making a representation to the Implementation Machinery at the State level or the Central level, as the case may be. The function of the Implementation Machinery starts after receiving the representation from the union and consists of ascertaining from the Registrar of Trade Unions, the names, numbers and dates of registration of the unions functioning in the establishment; whether any such union is guilty of established breach of the Code during the preceding year, and whether two years have passed after the recognition of any existing union. Only after such facts atre ascertained by the Implementation Machinery, the next stage is to be taken by it to carry out the verification process. Only after such facts atre ascertained by the Implementation Machinery, the next stage is to be taken by it to carry out the verification process. If it is at the Central level, the Implementation Machinery is to request the Chief Labour Commissioner to arrange for verification of membership of the unions entitled to recognition and if it is at the State level, it shall request the implementation officer to carry out the verification, or where he is an officer different from the State Labour Commissioner, to get it done through the State Labour Commissioner depending upon the practice obtained in each State. Only after such a stage is over, the verification officer would start the actual process of verification. 7. The aforesaid provisions in paras (1), (2) and (3) of the Appendix would show that different functionaries have been conceived under it in relation to the verification process, they being respectively: (1) the implementation machinery, (2) the implementation officer, (3) State Labour Commissioner; and (4) the verification officer. The Code in Rule 2 deals with constitution of the Implementation Machinery and says that the machinery comprises of (a) the implementation units in Labour Department, and (b) the tripartite implementation committees at the Central, State and local levels. 8. The constitution of the implementation units has been specified in Rule 3 showing that implementaion units have been set up under the charge of either a whole-time officer of the Labour Department or of the State Labour Ministers' Conference held in January, 1960 and that the Implementation Officer in each State is to be, as far as possible, a whole-time officer of sufficient seniority. The Implementation Committees are as provided in Rule 6 of the Code and are designed at the Centre and the States, to represent both the Central Employers' and the Workers' Organisations. The State Implementation Committees are constituted in consultation with the Central Employers' and Workers' Organisations wherever such bodies have affiliates in the State/Territories concerned and such Committees are presided over, as far as possible, by the Labour Ministers and where it is not possible for them to do so, they are to associate themselves as far as possible with the deliberations of the Committees. The local level Implementation Committees have an equal number of employers and workers in the area and are presided over by an officer of the Labour Department or by a prominent person of the area. 9. A counter affidavit has been filed by the State on March 26, 1990 explaining, so far as the State of Orissa is concerned, the constitution of the Implementation Machinery. It has been stated that by the notification of the Government of India in the Ministry of Labour and Employment bearing No. E&I.1(2)A/68 dated May 26, 1959, the Labour Commissioner of Orissa has been recognised as the State Implementation & Evaluation Officer and it has been directed that all complaints regarding non-implementation of labour laws, awards, settlements, agreements, Code of Discipline, etc. relating to any undertaking in the State have to be referred in future to such Implementation Officer. The affidavit further explains that in the State an Implementation and Evaluation Committee has been constituted by the Government in accordance with the Code under the chairmanship of the Minister, Labour. The Committee is represented by employers, trade unions and Government nominees. The Implementation and Evaluation Officer functions as the Member-Secretary of the Committee. That apart, a part of the Labour Department also functions as the Implementation Unit. The Implementation Machinery in the State as such consists of both Implementation Committee and the Implementation Unit. The next functionary contemplated under Appendix IV is the verification officer whose function starts only after the two earlier stages as provided for in paragraphs (1) and (2) of the Appendix are over. The verification officer need not necessarily be either the Implementation Officer or the State Labour Commissioner. As the words of para (2) of the Appendix show, the Chief Labour Commissioner at the Central Level is to arrange verification of the membership at the request of the Implementation Machinery. Similarly, at the Stale level, the Implementation Officer is to either carry out the verification or get it done through the State Labour Commissioner. In the context, carrying out the verification by the Implementation Officer does not mean carrying out the process himself personally, nor does 'getting done through the Labour Commissioner' means that the Labour Commissioner is to make the verification personally. All that the paragraph means is that either the Implementation Officer shall carry it out or that the State Labour Commissioner shall carry it out. All that the paragraph means is that either the Implementation Officer shall carry it out or that the State Labour Commissioner shall carry it out. Both being officers of sufficient seniority and high authority, it is of course natural that they would get the process of verification done throught the officers subordinate to them. It has been explained in the very affidavit of the State that since physical presence of the verification officer is necessary at the time of conducting the verification, it is not practicable on the part of the Labour Commissioner who is also the Implementation and Evaluation Officer to conduct the verification personally and that at times the verification process has to be carried out at different places of the State simultaneously which is an impossible function if the Implementation and Evaluation Officer is expected to do it personally in all cases. Thus, the only reasonable conclusion can be that while the Implementation and Evaluation Officer is not deprived of his authority to carry out the verification process himself, yet is not also deprived of his authority to carry out the verification process through his subordinates and that when such subordinate is appointed for the purpose, he becomes the verification officer. 10. At this point it is also necessary to deal with the submission of Mr. Jayant Das, learned counsel for opposite party No. 14 in O.J.C. No. 361/90. It is his submission that if the verification officer is one who is different from the Labour Commissioner or the Implementation and Evaluation Officer, para (10) of the Appendix which requires the verification officer to submit his report can be submitted directly to such machinery by-passing the officer who engaged him for the verification. The submission has no force since the Implementation and Evaluation Officer or the Labour Commissioner, as the case may be, is himself a member of the Implementation Machinery and hence no question of bypassing him in the matter arises. 11. This being the scheme of the Appendix, it goes without saying that the application for recognition must in the first instance be made to the Implementation Machinery and not to the Implementation and Evaluation Officer. 11. This being the scheme of the Appendix, it goes without saying that the application for recognition must in the first instance be made to the Implementation Machinery and not to the Implementation and Evaluation Officer. Only after the Machinery has acted in pursuance of the application and has ascertained the facts as mentioned in sub-paras (a), (b) and (c) of para (1) of the Appendix, it shall request the Implementation and Evaluation Officer to arrange for verification of membership. Until such request is made, the Implementation Officer by himself would have no authority to start the verification process. Though I have reached such conclusion, yet it is admitted in the very affidavit of the State that the Implementation and Evaluation Officer receives the applications on behalf of the committee and that he, after being satisfied that verification has become due, conducts a preliminary scrutiny of the unions functioning in the establishment by referring to concerned registers of the trade unions as contemplated under Clause (a) to para (1) of Appendix IV and also makes the preliminary enquiries as contemplated in Clauses (b) and (c) to para (1) of the Appendix and after completion of the enquiries, authorises the local Field Officer of the Labour Directorate under whose jurisdiction the verification of membership is to be carried out to conduct the verification of membership and that precisely it is such procedure which has been adopted on the application of the Sramik Sangha. From the averments, it is apparent that the Implementation Machinery never came in to picture at all. While it must be competent for the Implementation and Evaluation Officer to receive applications on behalf of the Machinery since he acts as the Secretary of the Implementation Committee, yet there is no authority in such officer to substitute himself for the Machinery and carry out the functions which exclusively belong to the machinery alone. The statements in the affidavit rather show the Implementation Machinery to be not exercising its functions at all and the entire function of the Machinery to have been appropriated by the Implementation and Evaluation Officer. It was submitted by the learned Addl. Govt. Advocate Mr. Naidu that the officer assumes such function under the directive of the Central Government : in its notification of May 26, 1959 (supra). It was submitted by the learned Addl. Govt. Advocate Mr. Naidu that the officer assumes such function under the directive of the Central Government : in its notification of May 26, 1959 (supra). We are not sure that the notification authorises the officer to do any such function and at any rate the Government of India which was a party to the Code would have no powers, atleast nothing has been shown to us to that effect, to direct a deviation of the procedure in the Code. 12. It was submitted by Mr. A. Patnaik, learned counsel appearing for the petitioner, that the Code would show that though the Implementation Machinery consists of both the committee and the unit, yet in the entire Code there is no function required to be jointly discharged by both the wings of the machinery. It is his submission that separate functions have been provided for the unit and the committee as in paras 3 and 7 of the Code and that para 12 thereof would show that grant of recognition is the exclusive function of the implementation unit. The submission does not find force with me since the very para 12 states that in all States where the procedure of recognition is not governed by statute, the procedure of recognition shall be governed by the Code and that it is the responsibility of the Implementation Unit to ensure that recognition is granted to the union which satisfies the prescribed criteria and that the procedure to be followed for the purpose is as in Appendix IV. Thus, Appendix IV is itself accepted as the prescribed procedure for grant of recognition and the unit is only vested with the function of ensuring that recognition is granted. Since Appendix IV itself provides application for recognition to be addressed to the machinery and vests it also with the responsibility of making the preliminary enquiries to ascertain the facts and to request the Implementation and Evaluation Officer to carry out the verification process, and it is also charged with the responsibility of communicating the decision regarding recognition to the management as well as to the union, it is sufficient to indicate that the meeting point of the committee and the unit atleast is contemplated so far as recognition procedure is concerned and hence the procedure devised in the Appendix must be allowed to be followed in its full scope. 13. Since admittedly the application of the petitioners in O.J.C. No. 361/90 as in Annexure-5 was not addressed to the Implementation Machinery but to the Implementation Officer, the inescapable conclusion is that the application was not properly made. I would have been persuaded to uphold the application if though it was addressed to the Implementation Officer, yet it was in fact placed before the Machinery and that body after discharging its functions had directed the Implementation Officer to carry out the process of verification, but such is not the fact here. 14. In that view of the matter, since the application of the petitioners has not been made in accordance with the Code and has also not been dealt with in accordance with it, I must hold that the entire process initiated by the Implementation and Evaluation Officer, opposite party No. 1, to be without authority. Consequently, opposite party No. 2, the Deputy Labour Commissioner, must be held to have no authority to carry out the process of verification. Reaching such conclusion, 1 would allow O.J .C. No. 4426/89, quash Annexures-4 and 6 thereto, and dismiss O.J.C. No. 361/90 as no relief can be granted to the petitioner therein. It is however made clear that the result of the cases would in no way affect the powers of the Implementation and Evaluation Officer to place the application of the Sramik Sangha before the Implementation Machinery as required under Appendix IV and the process of verification undertaken thereafter. There shall be no order as to costs. Final Result : Allowed