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2009 DIGILAW 602 (GAU)

Bijoy Kumar Gogoi v. Union of India

2009-08-25

ASHOK POTSANGBAM

body2009
JUDGMENT Ashok Potsangbam, J. 1. Heard Mr. A.C. Buragohain, learned Senior Counsel for the Petitioner. Also heard Mr. N. Borah, learned Central Govt. Standing Counsel appearing for the Respondent Nos. 1, 2 and 3 as well as Mr. M.G. Singh, learned Counsel appearing for the Respondent No. 5. 2. The controversy in this case relates to election for determining the strength of two registered Trade Unions operating in the ONGC area, namely (i) Assam Asset (Nazira and Sivasagar) and (ii) Assam & Arakan Basin (Jorhat) and grant of recognition to the Union securing the highest number of votes as the recognized trade union. 3. In order to enable the Court to examine and decide the issues raised in this petition in their correct perspective, a little narration of facts may be required and the same may be noticed as hereunder:- 3.1. Though there are other registered Unions which participated in the election referred to above, the real contest in the election is between the Petitioner's Association, the ONGC Purbanchal Employees Association (INTUC), Sivasagar, Assam, represented by its General Secretary and the Respondent No. 5, a registered Trade Union operating in the aforesaid area of ONGC under the name and style of ONGC Workers' Association (AITUC), Sivasagar, Assam. 3.2. There is no dispute that once a Union is given recognition on the basis of strength determined through election, the term of such Union will be two years. As the term of preceding Union came to an end sometime in the month of February/March, 2008, steps were taken by the Respondent authority to hold fresh election in terms of the instructions dated 28.12.1980 (Annexure D to the writ petition) issued by the Chief Labour Commissioner (Central) (hereinafter referred to as CLC(C), which may be broadly described as election Rules/Code. 3.3. In connection with the proposed election, Respondent No. 2 issued notification dated 29.2.2009 inviting eligible Trade Unions to file their nomination and schedule of election was published by the Respondent of No. 2, fixing 10.12.2008 and 11.12.2008 as the dates of poll and 12.3.2006 as the date of counting and declaration of result. In the aforesaid instructions dated 18.12.1980 issued by the Respondent No. 3, the procedures are laid down as to how steps are to be taken for notifying election by the Returning Officer, how election are to be conducted through secret ballot system with the assistance of the management etc. In the aforesaid instructions dated 18.12.1980 issued by the Respondent No. 3, the procedures are laid down as to how steps are to be taken for notifying election by the Returning Officer, how election are to be conducted through secret ballot system with the assistance of the management etc. The exhaustive procedure for publication of voter list, appointment of Presiding Officer, Polling Assistant, setting up of polling stations have also been laid down in the aforesaid instructions. In the instant case, we are concerned more with the interpretation and effect of paragraph Nos. 6, 7 and 8 of the aforesaid instructions dated 18.12.1980. The relevant portion of Para 6, 7 and 8 of the instructions are reproduced herein-below: 6. After the close of the polling, the ballot boxes will be opened and only valid votes would be counted by the Returning Officer or his representative in the present of representatives of each of the Unions. All votes which are marked more than once, spoiled, cancelled or damaged etc. will not be taken into account as valid votes but a separate account will be kept thereof. The Returning Officer will also render account of all postal ballots received by him separately in the report. 7. The result of voting shall be complied on the basis of valid votes polled in favour of each Union in the prescribed proforma (Annexure-III) and signature obtained thereon from the representatives of all the Unions concerned in lieu of counting having been done in their presence. After declaring the result on the basis of the votes polled in favour of each Union by the Returning Officer, he will send a report of his findings in duplicate to the CLC. 8. In case of any objections raised by any of the representatives of the participating Unions, and in the opinion of the Returning Officer, these objections are minor/flimsy objections and do not merit any examination at higher levels, he may declare the results and send a report to the CLC. However, wherever the objections raised are important and need examination/consideration at higher level, the Returning Officer shall withhold the declaration of the result and communicate the objections raised by the Unions together with his comments to the CLC. The CLC will enquire into the matter and furnish a report to the Ministry giving his observations/comments in this regard for decision of the Ministry. 3.5. The CLC will enquire into the matter and furnish a report to the Ministry giving his observations/comments in this regard for decision of the Ministry. 3.5. As per the provisions of the instructions as extracted hereinabove, all votes which are marked more than once, spoiled, cancelled or damaged will not be taken into account as valid votes but a separate account will be kept thereof. Secondly, in case of any objection raised by any of the participating Unions and if the Returning Officer considers such objection does not merit any examination at higher level, he may declare the result of the election and send a report to the CLC(C). However, when the objections raised are important and need examination and consideration at higher level, the Returning Officer is to withhold declaration of the result and communicate the objection raised by the Union together with his comment to the CLC(C). Thereafter, the CLC(C) will enquire into the matter and furnish a report to the Ministry giving his observation and comment on the matter for decision of the Ministry. Thus, the above extracted paragraph - 8 clearly shows that a decision has to be taken by the Returning Officer, if any objection is found meriting consideration at higher level and till such decision is taken, the Returning Officer is supposed to withhold declaration of the result of the election. 4. Before holding the proposed election, series of meetings were held between the registered Trade Unions and the representatives of the Management and the representatives of Regional Labour Commissioner (Central) for determining the procedure and modalities for execution of the election process. Minutes of the meeting were reduced in the form of an order which was published on 29.2.2008 (Annexure-B to the writ petition). As this order was issued after obtaining the views and consent of all the parties participated in the tripartite meeting as mentioned above, the same is to bind upon the parties who/which participated in the meetings. According to Para 18 of the order dated 29.2.2008 issued by the Respondent No. 2, the Returning Officer is empowered to decide any dispute on the validity of any used ballot papers and this necessarily implies that when such dispute is raised in the aforesaid manner, the Returning Officer is bound to take a decision. Paragraph - 18 of the order dated 29.2.2008 is quoted herein-below: 8. Paragraph - 18 of the order dated 29.2.2008 is quoted herein-below: 8. Any dispute on the validity of used ballot papers, counted at Nazira shall be decided by the Returning Officer. His decision shall be final while the counting incharges at other counting stations are authorized to decide the validity of the ballot papers accordingly. 5. It is not in dispute that six ballot papers were rejected by the Returning Officer as invalid during the course of counting on 12.3.2008. It is stated that Petitioner's Union through its representative raised serious objection against the aforesaid rejection of 6 ballot papers as invalid and requested the Respondent No. 2 to keep those six ballot papers, declared invalid, in sealed cover and also in a separate account as contemplated in Para Nos. 6 and 8 of the instructions referred to above. The Respondent No. 2 was also requested to take a decision in terms of the Paragraph 18 of the order dated 29.2.2008 read with paragraph 8 of the instructions dated 18.12.1980 with a further request to withhold declaration of the election result till such decision, as contemplated in the aforesaid provisions, is taken. The Petitioner was successful to the extent of persuading the Returning Officer i.e. Regional Level Commissioner(c) herein, to keep the aforesaid 6 (six) ballot papers rejected as invalid in sealed cover and in a separate account. But the request for a decision on the objection raised by the Petitioner's Union was neither accepted nor rejected. In other words, no decision was taken at all by the Returning Officer on the aforesaid request. This was one of the precise grievances raised by the Petitioner in this writ proceeding as well as in the earlier writ proceeding filed by the Petitioner. 6. It is noticed from the document available on record that the Returning Officer proceeded to declare the result of the election on 12.3.2008 as per schedule. As per the result available at Annexure-F to the writ petition, out of 2590 total votes, only 1855 votes were cast. In the aforesaid result, Petitioner is shown to have secured 784 votes and Respondent No. 5 is also shown to have secured 785 votes and eventually, Respondent No. 5 was declared elected. It is not relevant to mention the votes secured by other Unions as the real contest was between the Petitioner and the Respondent No. 5. 7. In the aforesaid result, Petitioner is shown to have secured 784 votes and Respondent No. 5 is also shown to have secured 785 votes and eventually, Respondent No. 5 was declared elected. It is not relevant to mention the votes secured by other Unions as the real contest was between the Petitioner and the Respondent No. 5. 7. Against the aforesaid result of election, a representation was filed by the Petitioner to the Respondent No. 3 with a request to hold the result of the controversial election until a probe into the anomalies alleged in the representation is conducted. Having failed to evoke any positive response from Respondent Nos. 1, 2 and 3, the Petitioner approached this Court in WP (C) No. 1064 of 2008. After hearing the learned Counsel for the parties including the counsel of the present Respondent No. 5 who was arrayed as Respondent No. 8 in the aforesaid writ petition, this Court disposed of the writ petition with certain direction. The relevant portion of the direction is reproduced herein-below: In view of the above, it is directed to look into the matter by the Chief Labour Commissioner(C) taking into account the aforesaid six rejected ballots as well as the plea of the Petitioner that three votes were illegally allowed to be casted in favour of the Respondent No. 8. The Chief Labour Commissioner(C) shall decide the matter in accordance with law after hearing all the parties. This shall be done as expeditiously as possible but not later than 30.4.2008. Till them, no formal recognition to the Respondent No. 8 shall be accorded. The Registry shall place the six (6) ballots in sealed cover and hand over the same to Mr. Borah, learned CGSC for his onward transmission to the authority concerned. 8. From the aforesaid order, as extracted hereinabove, it can be seen that only two issues were raised by the Petitioner, firstly, against the rejection of six ballot papers and secondly, against allowing three voters to cast their votes outside the designated polling booths. No other issue was raised by the contesting parties in the case except the aforesaid two issues. 9. No other issue was raised by the contesting parties in the case except the aforesaid two issues. 9. By way of complying with the direction of this Court, as extracted above, the CLC(C) took a decision on 30.4.2008 and the same was communicated with a forwarding letter dated 1.5.1008 to the registry of this Court with copies to the parties involved in the case. The decision of the Respondent No. 3 dated 30.4.2008 (Annexure-J to the writ petition) is impugned and challenged in the present writ petition. 10. It is stated by the Petitioner that the CLC(C) examined the validity of the rejected 6 Nos. of ballot papers in sealed cover as directed by this Court and they were exhibited as A, B, C, D, E and F. On reexamination of these six ballot papers, CLC(C) found that four of the ballot papers marked as A, B, C and D have the impression of authorized poll mark between the lines and accordingly, these four ballot papers were declared valid in favour of the Petitioner. However, the two ballot papers exhibited as E and F were declared as invalid as there was no sufficient evidence to establish the intention of the voters, as per the poll marks available on the ballot papers. By adding the aforesaid four votes, declared valid on re-examination, the total number of votes secured by the Petitioner came to 784. + 4 = 788. The Petitioner's Union have no grievance against the rejection of the two ballot papers by the CLC(C) for the reasons stated above. At the same time, it may be noted that the grievance of the Petitioner with regard to allowing three persons to cast their votes outside the designated polling booth as reflected in the order of the Court dated 2.4.2008, is not pursued at the time of hearing and as such, no further deliberation and finding on this issue is called for. 11. It is submitted by the Petitioner that after re-examination of six ballot papers in terms of the direction of this Court, exercise for re-examination of the ballot papers should have come to an end by declaring the Petitioner as elected but the exercise did not end there. 11. It is submitted by the Petitioner that after re-examination of six ballot papers in terms of the direction of this Court, exercise for re-examination of the ballot papers should have come to an end by declaring the Petitioner as elected but the exercise did not end there. It is further submitted that that Respondent No. 2 , the Returning Officer, submitted three cancelled ballot papers from nowhere for re- examination of their validity by the CLC(C), allegedly on mutual consent of the parties. These three cancelled votes were exhibited as G.H. & I and they were declared valid in favour of the Respondent No. 5 and adding these three votes to the votes secured by the Respondent No. 5, the number of votes secured by the Respondent No. 5 would come to 785 + 3 = 788, thereby equaling the number of votes secured by the Petitioner. Aggrieved by the aforesaid action of the Respondents, this writ petition has been filed challenging the impugned order dated 30.4.2008 (Annexure-J to the writ petition) with regard to the Re-examination and declaration of the three (3) cancelled ballots as valid and adding the same to the votes secured by the Respondent No. 5. 12. From the above narration of facts and on perusal of the pleadings of the parties in the case, the following two issues emerge for consideration of the Court. (a) Whether Respondent No. 3, while, allegedly, implementing the direction and mandate of the Court, could transgress from the direction of the Court by taking up the cases of other rejected/cancelled ballots which were not at all the subject matter in the earlier writ proceeding before this Court. (b) Whether the rejected/cancelled ballots, not having been kept in sealed cover and not having been objected to at the time of cancellation/rejection in terms of Para 6 and 8 of the instruction dated 18.12.1980, can be re-examined along with Court directed 6 ballots for the purpose of determining their validity and that too without any complaint from any of the participating Unions. 13. With regard to the first issue, it is submitted by the learned Counsel for the Petitioner that there is no provision in the instructions dated 28.12.1980 and order dated 29.2.2008 for re-examination of rejected/valid ballot papers, other than the provisions provided in Paragraph Nos. 13. With regard to the first issue, it is submitted by the learned Counsel for the Petitioner that there is no provision in the instructions dated 28.12.1980 and order dated 29.2.2008 for re-examination of rejected/valid ballot papers, other than the provisions provided in Paragraph Nos. 6 & 8 of the instructions referred to above and Paragraph 18 of the order dated 29.2.2008. As already noticed above, unless an objection is raised to the rejection or cancellation of ballot papers in the course of counting, such rejected ballot papers cannot be kept in sealed cover, and in a separate account to be maintained by the Returning Officer. If the objection is considered frivolous by the Returning Officer, he need not keep the rejected ballot papers in sealed cover and in a separate account and he may proceed with declaration of the result of the election on the basis of the valid votes counted. In case the objection has merit for examination and consideration by the higher authority, the Returning Officer after following the procedure as discussed above, may submit the objection to the higher authority with his own comments for consideration. This is the only procedure for re-examination of rejected or cancelled ballot papers. In the present case, admittedly, no objection was raised to the rejection/cancellation of the three ballot papers, in question, by any of the Unions which participated in the election process and as such, the additional three ballot papers were not kept in sealed cover nor in a separate account. Even at the subsequent stage, no grievance has been raised by any person/Union against the rejection/cancellation of the three controversial ballot papers and this may be confirmed from the very fact that such a plea/contention are found absent in the order dated 2.4.08, which was passed by this Court in W.P. (c) No. 1064 of 2008. Only those rejected/cancelled ballot papers, which were subjected to the procedure required under Paragraph 6 and 8 of the instruction dated 28.12.2008, as discussed above, may be considered for re-examination, not otherwise. 14. In the instant case, the election was over and result was declared without reexamination of the six rejected ballot papers despite having raised objection in time and formalities completed as required by the instructions and order referred to above. 14. In the instant case, the election was over and result was declared without reexamination of the six rejected ballot papers despite having raised objection in time and formalities completed as required by the instructions and order referred to above. As the Government Respondents declined to hold the declaration of the election result and not agreeing to re-examine the six rejected ballot papers, the Petitioner approached this Court in W.P. (c) 1064/2008 and this Court disposed of the aforesaid writ petition, after hearing the parties, with direction to reexamine the six ballot papers and to take a decision thereafter. The power and jurisdiction of the Respondent No. 3 to reexamine the six ballot papers is derived from the direction given in the order dated 2.4.2008 passed by this Court, as referred to above, and therefore the Respondents are bound to strictly adhere to and confine themselves within the mandate and direction of this Court. Nothing more, nothing less. If the Govt. Respondents have any valid reason to deviate and transgress from the direction of the court, it is the duty of such Respondents to approach and obtain permission from the court either by way of review or by way of clarification. Not having done that, the Respondent No. 3 is not authorized to deviate or transgress from the direction given by this Court and as such, re-examination of the additional three cancelled ballot papers on production by the Respondent No. 2, is neither authorized by the aforesaid judgment of this Court nor supported by any statute or administrative instructions issued in this regard. 15. It is to be noted that when the connected record along with the order of Respondent No. 3 was sent to the concerned Ministry of the Government of India for necessary approval, after the impugned order was issued by the Respondent No. 3, the Ministry expressed its reservation and this can be best found in Note No. 9.1 of the Joint Secretary, Labour and Employment, Government of India, File No. 31(5) 2008 VTN. In that noting, the Joint Secretary has clearly expressed his reservation as to how the three additional cancelled ballot papers, not under sealed cover, came to be reexamined by the CLC(C) while implementing the direction of the High Court and he further observed that such action could be a moot point and the same would be open to some query. In that noting, the Joint Secretary has clearly expressed his reservation as to how the three additional cancelled ballot papers, not under sealed cover, came to be reexamined by the CLC(C) while implementing the direction of the High Court and he further observed that such action could be a moot point and the same would be open to some query. The above reservation and observation of the Joint Secretary would leave no doubt that the jurisdiction and competency of the Respondent No. 3 to reexamine the aforesaid three ballot papers was doubted by the Ministry. That apart, in 2001 (4) SCC 9 (Dhanajaya Reddy v. State of Karnataka) the Apex Court held in paragraph 23 of the judgment that it is a settled principle of law that when a power is given to do a certain thing in a certain manner, things must be done in that way, not otherwise. Indisputably, the power and jurisdiction was given to the Govt. Respondents by the judgment and order dated 2.4.2008, only to re-examine the six rejected ballot papers under sealed cover and the issue whether three persons could be allowed to cast their vote in some other polling booth not designated for them and as such, it is impermissible for the Respondent No. 3 to re-examine any ballot paper other than the six ballot papers mentioned in the Court order. No effective argument has been advanced by the Respondents justifying the action of the Respondent No. 3. In the circumstances and in view of what has been discussed above, I have no hesitation to hold that the re-examination of controversial three additional ballot papers by the Respondent No. 3 and declaration of the same as valid is unauthorized, unsustainable and the same is outside the scope and ambit of direction of this Court which fact has already been pointed out by the Joint Secretary of the concerned Ministry, as noticed above. Thus, it is provided that the outcome of the reexamination of three additional ballot papers be treated as nonest in law. Thus, the two issued formulated are answered in the manner indicated above and the impugned order is interfered with to the extent indicated above. 16. The six ballot papers along with the three additional ballot papers which have been kept sealed as directed by this Court, are placed before the court. Thus, the two issued formulated are answered in the manner indicated above and the impugned order is interfered with to the extent indicated above. 16. The six ballot papers along with the three additional ballot papers which have been kept sealed as directed by this Court, are placed before the court. Though this Court is not coming to any conclusion or finding on the validity or otherwise of any of the ballot papers as such, yet, the Court is constrained to point out that two of the three additional ballot papers do not bear any authorized poll mark except some long horizontal stick like impression. 17. For the reasons discussed hereinabove, the writ petition is allowed to the extent indicated above. Accordingly, the Respondent Nos. 1, 2 and 3 are directed to take appropriate decision for declaring the result of the election, keeping in view the observation and finding as recorded above. The above exercise shall be completed within a period of 2 months from the date of receipt of a certified copy of this order. 18. No order as to cost. 19. The ballot papers and records requisitioned by the Court, be returned. Petition allowed.