JUDGMENT : S. C. DHARMADHIKARI, J.:- By this Petition under Article 226 of the Constitution' of India, the Petitioner Union has sought a declaration that the Secret Ballot method for ascertaining the majority is not permissible and the decision of Respondent No.3 to resort to Secret Ballot process for ascertaining the same, be quashed and set aside. 2. The Petitioner is a Trade Union, registered under the Trade Unions Act, 1926 and affiliated to Al1 India Port and Dock Workers' Federation & Hind Mazdoor Sabha. It claims majority amongst the employees/ workers employed at the Port Trust of Mormugao, which is a Body Corporate, constituted under the Major Port Trusts Act, 1963. 3. It is stated in the Petition that after liberation of Goa, the administration of Respondent No.1 Port was taken over by the Government of India on 8th January, 1962. Thereafter, in terms of Major Port Trusts Act, 1963 (hereinafter, for short, referred to as "the MPT Act"), the Mormugao Port Trust was declared as a "Major Port". Its administration is with the Trustees of the Port. It is stated that the First Respondent is a Major Port. It is submitted that the Petitioner was registered at Panaji on 22nd February, 1964. The First Respondent recognized the Petitioner by its letter dated 16th April, 1964 (Annexure P-2) as a Representative Union of the Employees of the Port, subject to the Petitioner agreeing to observe the Code of Discipline (for short “the Code”). A copy of the Code is annexed as Annexure P3. 4. It is stated that subsequently, there was a split in the Petitioner Union and some of the Members constituted a new Trade Union in November, 1977, known as “Goa Port & Dock Employees (Non-Ministerial) Workers’ Union”, which is Respondent No.5 to this Petition. During the course of time, many new Trade Unions were constituted and registered under the Trade Unions Act. They are respondents No.6 to 12. After referring to representation of these Unions, what is alleged is that the First Respondent was dealing with the Petitioner and Respondent No.5 in a satisfactory manner and important issues were discussed. It is stated that as far as Major Port Trusts in India are concerned; the Government of India found that recognition of major trade unions by “Check Off system for selecting the Union representative on the Board and various Committees was convenient, fair and acceptable. It is stated that as far as Major Port Trusts in India are concerned; the Government of India found that recognition of major trade unions by “Check Off system for selecting the Union representative on the Board and various Committees was convenient, fair and acceptable. It also assisted in administration of the Port, and it was decided to have this system at Major Ports. This system was evolved after consulting all five recognized Labour Federations and obtaining their consent. A reference is made to a meeting held under the Chairmanship of Secretary, Ministry of Surface Transport, on 20th April, 1998. It is stated that at this meeting, the Check Off System proposed by the Federations was approved with slight modification for implementation. Reliance is placed on Annexures P-4 and P-5 annexed to this Petition in this behalf. 5. After referring to the Code and its legal status, what is stated is that the Check Off System has advantage of ascertaining the relative strengths of trade unions, based on continuing loyalty reflected by the regular payment of Union subscription. Further this system avoids the incidents of dual membership. The results of this system were utilized for the purpose of appointment of Labour Trustees on Respondent No.1, appointment of members on various Committees. Under the Check Off System, an employee is allowed to subscribe to only one registered Trade Union of his choice. Collection of the employees' subscription to the Union is done on the basis of authorization letters given by them to that effect in the prescribed form. The authorization letter once given remains valid until revoked by the employee. Recovery of subscription is done from salary and wages payable to the employee. If the employee having given authorization letter in favour of one Union, gives without revoking that authorization, another authorization in favour of a second Union, Respondent No.1 has a right to refuse both the authorizations. The facility of Check Off system is available to an Union, as long as its registration under the Trade Unions Act, 1926 is in force. 6. The facility of Check Off system is available to an Union, as long as its registration under the Trade Unions Act, 1926 is in force. 6. It is stated that at the time of reconstitution of the Board of Trustees, Respondent No.1 consults all the registered Trade Unions and obtains two names in order of preference from each of the Unions along with required Certificates to the effect that the persons nominated do not incur any disqualification and, thereafter, Respondent No.1 intimates the names received along with the Certificates to the Central Government. After receiving the results of Check Off, the Ministry of Shipping assesses the entitlement of the Unions wherever necessary. It is the case of the Petitioners that out of the total employees employed at the First Respondent Board as on 31st January, 2009, namely, 2245, the Petitioner commands a strength of 1284 employees; Respondent No.5 - 923 employees, Respondent No.6 - 12 employees, Respondent No.10 - 7 employees, Respondent No.9 - 2 employees and Respondent No.12 - 17 employees. The strength for the year 2010 was yet to be assessed or declared. The letter dated 30th March, 2009, enclosing therewith this statement is annexed as Annexure P-5 collectively. It is contended that in June, 1998, the employees' strength at the First Respondent was 4228 and 95.11 % of these employees totalling to 3831 opted for implementation of the Check Off System in recognizing the Union strength and for appointing their representatives on Respondent No.1 and its various committees and the Check Off system continued and was operated very efficiently, particularly in the absence of any legislation on the subject. 7. It is further contended that the MPT Act empowers the Central Government to constitute Board of Respondent No.1 with Labour Representatives thereon. Such a Board has been constituted and its term expired on 31st March, 2010. After setting 'out the procedure adopted by the Central Government for appointing two Labour Representatives on the Board and emphasizing that it is by ascertaining the support of employees to a particular Union and to the extent of 60%, it is urged that from 1964 till 2009, the said procedure has been applied and it has worked well from 1964 to 1978. Two nominees of the Petitioner were on the Board and from 1979 one representative each of the Petitioner and Respondent No.5 is nominated on Respondent No.1. 8. Two nominees of the Petitioner were on the Board and from 1979 one representative each of the Petitioner and Respondent No.5 is nominated on Respondent No.1. 8. It is then contended that the First Respondent, in the year 1999 issued a Policy on Industrial Relations and Criteria to be adopted for recognition of Trade Unions functioning in the Port. A copy of this detailed Policy is annexed at Annexure P-6 and the Petitioner was permitted to nominate its Members on the Committees referred to in Paragraph 14 of the Petition. It is stated that this Policy was approved by Respondent No.1 in its meeting held on 29th December, 1999. However, it is contended that the Second National Commission on Labour, in its recommendation to the Government of India, strongly recommended that in undertakings wherein there are more than 300 workers employed, Check Off System should continue, as it will be difficult to hold Secret Ballot in large undertakings. The decision to continue with the Check Off System was taken at the joint meeting between the representatives of five recognized Federations of Port and Dock Workers and the Ministry of Shipping. It is stated that even otherwise, in the absence of any Legislation to hold Secret Ballot, it will be unjust and unfair to insist on the same. It is stated that it is the Ministry of Shipping which directed by letter dated 23rd April, 1998 introduction of Check Off System in all Major Ports, including the Mormugao Port Trust and it is pursuant thereto that the said system had been followed. It is then stated that the Petitioner has opposed certain Policies of privatization, initiated by the Port and, therefore, Respondent No.2, who was functioning as a Chairman, had some grudge against it and in such circumstances, he decided to introduce Secret Ballot System. Therefore, in January, 2010, Respondent no.2 did not credit the subscription amount in favour of the Petitioner to the extent of Rs.64,200/- which was collected from each Member Employee of the Petitioner. The Acting Secretary of the First Respondent then convened a meeting of the representatives of all the Registered Trade Unions regarding the implementation of Secret Ballot System, instead of Check Off System to ascertain the strength of membership of the Registered Trade Unions on 21st January, 2010 at 10.00 hours in the Board Room. The Acting Secretary of the First Respondent then convened a meeting of the representatives of all the Registered Trade Unions regarding the implementation of Secret Ballot System, instead of Check Off System to ascertain the strength of membership of the Registered Trade Unions on 21st January, 2010 at 10.00 hours in the Board Room. At this meeting, the Secretary informed that the directions were issued by the Ministry of Shipping vide letter dated 10th November, 2009 for implementation of Secret Ballot System, instead of Check Off System, and the meeting was convened to ascertain the views of each Union. It was assured that based on the views expressed at this meeting, a decision would be taken by the Chairman of the First Respondent and communicated to the Ministry of Shipping. At this meeting, the Petitioner and Respondent No.5 strongly objected to the implementation of Secret Ballot System and pointed out that this will result in exploitation of the employees by using money and muscle power and expressed that the issue was required to be discussed with five recognized Labour Federations. It was stated that the Secret Ballot System should not be imposed unless the Unions agree for its implementation. It was stated that the Petitioner and Respondent No.5 commanded support of 90% of the employees. Reliance is placed on the Minutes of the Meeting held on 21st January, 2010, copy of which is at Annexure P- 7 and a copy letter dated 2nd February, 2010. It is stated that by a letter dated 12th March, 2010 (Annexure P-9), the Ministry of Shipping directed Respondent No.2 to forward the result of Secret Ballot held in the Port along with two names in order of preference nominated by each of the Unions. However, it is urged that there is no direction to hold Secret Ballot, but, the communication only seeks information in terms of the prevailing system at the Port. It is stated that respondent No.2 did not act on this letter, nor did he forward the required information for following the Check Off System. It is stated that by letter dated 7th April, 2010, the Secretary of Respondent No. 1 informed the Petitioner that in the meeting held on 21st January, 2010, out of eight Unions, six Unions had given their consent for implementing the Secret Ballot System. It is stated that by letter dated 7th April, 2010, the Secretary of Respondent No. 1 informed the Petitioner that in the meeting held on 21st January, 2010, out of eight Unions, six Unions had given their consent for implementing the Secret Ballot System. It was further informed that the Ministry of Shipping had issued the directives to adopt the Secret Ballot System at the Port vide communication dated 15th February, 2010 which was the communication that was not enclosed with Annexure P-9. It was further informed that the Ministry of Labour had given its concurrence for implementing the Secret Ballot System by communication dated 23rd March, 2010 which was also not enclosed. Therefore, the directions to Respondent no.3 to conduct Secret Ballot at the Port and all the communications in that behalf are per se illegal, ab initio void and derogatory to the Code and the Check Off System. 9. It is stated that the Petitioner was further informed to apply for a symbol of the Union by 12th April 2010 and to participate in the Secret Ballot Election. It was informed that Respondent No.3 desired that all the Trade Unions should furnish details pertaining to their respective Unions in the prescribed proforma along with copy of the constitution and latest annual returns. However, by a letter dated 8th April, 2010, the Petitioner objected to the Secret Ballot Election on the ground that the six Unions which had allegedly consented to this System do not have more than 10 % of the total strength of the employees at the Port; whereas the Petitioner and Respondent No.5 have a strength of 90% employees and they are all opposed to the Secret Ballot System. It is in such circumstances that the Petitioner objected to this System. But respondents No.1 and 2 persisted and, therefore, the Petitioner was communicated by a letter dated 12th April, 2010 (Annexure P-12) that Respondent No.3 has been appointed as the Returning Officer to conduct the Secret Ballot Elections and he would convene a meeting on 16th April, 2010 in Mumbai to decide the date of elections and other modalities. The Petitioner was requested to send its President and General Secretary on 16th April, 2010 at Mumbai to attend the meeting. The Petitioner attended the scheduled meeting and by a letter dated 15th April, 2010 has even forwarded their written objections. The Petitioner was requested to send its President and General Secretary on 16th April, 2010 at Mumbai to attend the meeting. The Petitioner attended the scheduled meeting and by a letter dated 15th April, 2010 has even forwarded their written objections. The written objections were raised by the Petitioner and Respondent No.5. They reiterated them at the meeting, but it is alleged that the decisions taken at the meeting were not communicated. It is alleged that Respondent No.5 allegedly consented to the Secret Ballot System on 27th April, 2010. The Petitioner was then communicated by Annexure P-14 dated 20th April, 2010 that a meeting was convened on 27th April, 2010 by respondent No.3 in order to discuss and finalise the date of elections and to chalk out calendar of events accordingly. Once again the Petitioners were requested to nominate two officers to attend the meeting which the Petitioner did. They once again forwarded their written objections to the Secret Ballot Elections. However, on 27th April, 2010, Secret Ballot Elections were ordered by Respondent No.3 which was once again objected to by Annexures P-16 and P-17. 10. In these circumstances that this Petition is filed, impugning the recommendation to introduce the Secret Ballot System and the decision in that behalf, so also the elections. This Petition was filed in this Court on 4th May, 2010. 11. The Petition was circulated for admission and on 6th May, 2010, the Court directed that notices be issued and the matter was placed on Board on 4th May, 2010. On 12th May, 2010, after hearing both sides and considering the decisions brought to his notice, the learned Vacation Judge passed an Order. Para (4) of the said Order reads as under: “4. Considering these facts and circumstances, it would be appropriate to pass the following order: (a) The election process as commenced shall continue subject to the following directions: (i) Votes polled shall be kept sealed in the ballot boxes till further orders of this Court. (ii) The ballot boxes shall be sealed in the presence of one representative of the each Union including the petitioner where the voting boxes are placed. (iii) Sealing of the ballot boxes shall be carried out peacefully and no Union including the petitioner and the respondents shall create any law and order problem at the time of such sealing. (ii) The ballot boxes shall be sealed in the presence of one representative of the each Union including the petitioner where the voting boxes are placed. (iii) Sealing of the ballot boxes shall be carried out peacefully and no Union including the petitioner and the respondents shall create any law and order problem at the time of such sealing. (iv) Sealed ballot boxes shall be kept in the custody of the respondent No.3 - Returning Officer. (b) The petitioner and the respondents shall maintain peace in course of entire election process.” 12. Thereafter, an application for amendment was made in the light or the directions in the said order. The Petition has been amended to impugn the entire process and incorporating the subsequent events and additional grounds. After the Petition was amended, it was placed for admission before a Division Bench of this Court on 21st July, 2010 and this Court admitted the Writ Petition and directed that it should be heard peremptorily. Ad interim order was directed to continue. Subsequently, the Petition has been placed before us for hearing and final disposal. 13. In answer to the Petition, the Secretary of the First Respondent filed affidavits, first at the stage of grant of an ad interim relief on 11th May, 2010, in which an objection was raised that there were express directions from the Government of India to implement the recommendations of the All India Port Association. That recommendation was to ascertain the strength of the Unions by Secret Ballot System. In the light of these directions issued in letter dated 10th November, 2009 of the Ministry of Shipping, that the First Respondent convened a meeting and ultimately decided to hold Secret Ballot Elections. It was urged that the Petitioner allowed the process to be initiated and proceeded and they cannot, therefore, object and now seek a stay of the electoral process scheduled on 14th May, 2010. Needles, therefore, to refer to this Affidavit in further details, because, on the basis of this aftidavit and the stand taken therein that this Court granted the above limited ad interim relief. Some Affidavits were also filed on behalf of Respondent No.5 and Respondent No.8, opposing the grant of ad interim relief. 14. Respondent No.9 also supported the Secret Ballot System. Some Affidavits were also filed on behalf of Respondent No.5 and Respondent No.8, opposing the grant of ad interim relief. 14. Respondent No.9 also supported the Secret Ballot System. As far as Respondent no.12 is concerned, its stand is that the Secret Ballot is a democratic process adopted in various Central Public Sector Undertakings and even in other establishment like Nhava Sheva Port, Konkan Railways, ONGC, BSNL, etc. To these Affidavits, Rejoinder Affidavits came to be filed by the Petitioner on 12th May, 2010. 15. Thus, These are the Affidavits filed prior to the Amendment of the Petition. Upon amendment being carried out, the First Respondent filed a detailed Affidavit-in-Reply, affirmed on 3rd July, 2010, in which in paragraph 3, that is what is stated: “3. With reference to paragraphs 1 and 1A of the amended Petition, I say that it is not correct to say that the secret ballot system is implemented purely on the recommendations of the IPA. It is submitted that based on the recommendations of the IPA, a policy decision was taken by the Ministry of Shipping, Government of India to adopt an uniform procedure for ascertaining the strength of Unions through Secret Ballot System and this was communicated to all the Major Port Trusts. In this regard, attention is invited to paragraph 4 of the EXHIBIT P1 which clearly mentions that: “the recommendations made by the governing body of IPA have been accepted by the competent authority”. The IPA is the governing body for all major ports which assist the Ministry of Shipping to formulate Government policies which are then adopted by the Ministry for implementation. Further, it may be noted that Board of Trustees of MPT have passed a Policy on Industrial Relations and criteria to be adopted for recognition of Unions functioning in the Mormugao Port vide its Resolution No.257 dated 29th December, 1999 wherein, it has been clearly brought out depending upon the activities of the unions and persuasion of the members, it will be considered necessary that the workers should have the right to change union membership according to their choice. In such circumstances, it would be necessary to ascertain the membership strength of the union by either “check off system” or “secret ballot method”. In such circumstances, it would be necessary to ascertain the membership strength of the union by either “check off system” or “secret ballot method”. In fact, Appendix II to the said Industrial Policy at Clause 18(d) thereof clearly provides scheme and time-table for holding secret ballot in the Major Port Trusts and DLBs. However, the secret ballot system has been adopted based on the directives issued by the Ministry of Shipping (EXHIBIT P1) through an independent agency i.e. the Labour Ministry represented by Chief Labour Commissioner (Returning Officer). The said RO had held series of discussions with all the Unions concerned functioning at his Port and management representatives and only after considering views expressed by them, the Dy. CLC(C), Mumbai had come to the conclusions that secret ballot elections should be conducted in Mormugao Port Trust as per the decision communicated (EXHIBIT P1) by MOS, New Delhi. Majority of the unions (7 out of 10) have accorded their willingness for adoption of secret ballot system. It was thus the decision of the Ministry of Shipping, Government of India to implement the secret ballot system, which has been complied by this Respondent (MPT). It is thus denied, that acceptance of the Government directive by the MPT or by the Ministry of Labour, is arbitrary, unconstitutional and contrary to the Code of Discipline and Policy on Industrial Relations and that they are violative of Articles 14 and 19(c) of the Constitution of 1ndia. Moreover, it may be mentioned that though Petitioners have challenged the Government devision issued by the Ministry of Shipping (MOS) (EXHIBIT P1), they have not impleaded the MOS as Respondent. The secret ballot results would be utilized for nominating the Trustee on the Board and members on various committees.” 16. 1t is submitted that the figures mentioned at Annexure P-5 relate to the period ending on 31st January, 2009 based on the Annual Union Subscription recovered from the salary of employees in terms of the Check Off System which was then in vogue and it was an intimation sent by the Finance Department to the Dy. Secretary (Industrial Relations) as regards the Annual Union Subscription recovered from the employees and in the meanwhile, a decision came to be taken to adopt the Secret Ballot System. Secretary (Industrial Relations) as regards the Annual Union Subscription recovered from the employees and in the meanwhile, a decision came to be taken to adopt the Secret Ballot System. Therefore, it is submitted that the membership claimed by various Unions, if added, was found to be more than the total number of existing employees' strength of the Port Trust. Thus, misleading figures and information is being given by the Petitioner. It is stated that Postal Ballot was conducted on 11th May, 2010 and Secret Ballot was conducted on 14th May, 2010. The percentage of voting on 14th May, 2010 was 73 % of the total strength of employees of the Port. It is important to note that out of 2025 employees, who reported for duty on 14th May, 2010, 1944 employees participated in the Secret Ballot and voted for the Unions of their choice which was 96% of the employees' attendance on the relevant date. This establishes the fact that large number of employees believe in the process of Secret Ballot. This also ensures maintaining secrecy in the process. Thus, the procedure adopted is democratic. After setting out as to how this Secret Ballot System has been adopted by various Public Sector Undertakings, it is urged that this system is not contrary to the Code and it is not correct to state that minority will be nominated on the Board of Trustees. It is not against labour policy. These systems are compared in this Affidavit and it is contended that the policy decision conveyed by the Ministry of Shipping does not envisage obtaining consent, but having consultation with the Unions. It is stated that out of 10 Unions, seven Unions gave their consent for implementation of Secret Ballot System, two Unions neither attended the meeting nor communicated their stand on this issue. It is on the basis of concurrence of majority of Unions that the verification of membership of the Unions operating at the Port was conducted through the Secret Ballot under the Code and this is neither contrary to any law nor the Code. The method adopted is transparent, open, scientific, and democratic. For all these reasons, and on account of the directives given by the Ministry of Shipping that the First Respondent implemented the Secret Ballot System. 17. Thereafter, is an additional affidavit-in-reply to amended petition by Respondent No.5 who has supported the Secret Ballot System. The method adopted is transparent, open, scientific, and democratic. For all these reasons, and on account of the directives given by the Ministry of Shipping that the First Respondent implemented the Secret Ballot System. 17. Thereafter, is an additional affidavit-in-reply to amended petition by Respondent No.5 who has supported the Secret Ballot System. They urged that the elections have already been conducted and, therefore, the results be declared expeditiously. 18. There is an Affidavit-in-reply of Respondent No.7 which supported the Petitioner's stand and submitted that the Secret Ballot System is contrary to the Code. Reports of the National Commission of Labour made in the year 1969 and thereafter in the year 2002 were relied upon and it was urged that the Secret Ballot System is logistically and financially a difficult process and would involve expenditure of lakhs of rupees; whereas the Check Off System is a general pattern and should be adopted. Therefore, it was stated that the First Respondent should not foist the Secret Ballot System on the workers/employees. 19. The Petitioner, therefore, filed their Additional Affidavit-in-Rejoinder on 19th July, 2010, and in para 2 thereof stated thus: “2. I do not admit that the communication dated 10.11.2009 is a policy decision of the Central Government or of the Ministry of Shipping. I also deny that the Under Secretary to the Government of India is the competent authority to take the alleged policy decision on behalf of the Central Government or on behalf of the Ministry of Shipping. The competent authority cannot take a policy decision otherwise for the Central Government or the Ministry of Shipping. The communication is an individual decision of the competent authority. I shall rely upon true and correct interpretation of the resolution No.257 dated 29.12.1999. Resolution No.257 resolved to accept check off system. Any change should have been first considered by the Board of the Respondent No. 1.” 20. The Petitioners submitted that the Unions strength can be decided on the basis of the strength of the workers. The Petitioner commands 57.1 % of the labour strength at the Port and as regards remaining 40% of the labour strength, Respondent No.5 has a major share. Therefore, consultation with Respondents No.6 to 13 which command about 3% is no consultation at all and their consent is inconsequential. The Petitioner commands 57.1 % of the labour strength at the Port and as regards remaining 40% of the labour strength, Respondent No.5 has a major share. Therefore, consultation with Respondents No.6 to 13 which command about 3% is no consultation at all and their consent is inconsequential. The Petitioner contended that there is no policy decision, as the Ministry of Shipping or any officer of the said Ministry cannot take a decision. The decision should be that of the Department of Labour and Employment, Government of India. That admittedly is not there on record. It is the Labour Ministry which has formulated the Code. In these circumstances, the letter from the Department of Shipping cannot be said to be a directive or a policy decision. It is submitted that the Check Off System has several advantages and it is false to suggest that the Secret Ballot System has succeeded in other Public Sector Organizations or Ports. It is submitted that the Secret Ballot System failed in the Port of Paradip where no single Labour Trustee has been appointed for the last several years. Even at the Tuticorin Port, there was no Labour Trustee appointed for two terms. At JNPT, a minority Union supported by local political party, the Shiv Sena, is ruling the roost and its nominee has been appointed as Labour Trustee. It was submitted that four recognized Labour Federations had addressed a letter dated 7th July, 2010 to the Ministry of Labour on behalf of five recognized Labour Federations pointing out as to how Unions' strength should be ascertained from the list maintained by the Union. It is stated that at Chennai, Mumbai, Vishakhapattanam and Kolkata Port Trusts, the Labour Trustees have already been appointed from 1st April, 2010 on the basis of the existing strength of the year 2009, without conducting election by Secret Ballot System or ascertaining the strength by Check Off System. It is the First Respondent which addressed a letter dated 3rd March, 2010 to the Secretary, Ministry of Labour and Employment that the Secret Ballot System is required to be conducted preferably by 10th March, 2010 at Respondent No.1, so that the Labour Trustees for 2010-2012 could be appointed. Thus, it was the First Respondent which was keen in having this Secret Ballot System. Thus, it was the First Respondent which was keen in having this Secret Ballot System. Stating thus, all the allegations in the Affidavit-in-Reply of the First Respondent were dealt with and denied by this Rejoinder Affidavit affirmed on 19th July, 2010. 21. There is an Affidavit-in-Sur-Rejoinder. This Sur-Rejoinder Affidavit is filed on behalf of Respondent No.5. Since it was supporting the Secret Ballot System, it naturally controverted the Affidavit-in-Rejoinder. Thereafter, we have an affidavit of one Mr. I. P. Sasikumar Nair, who is the Under Secretary of the Government of India in the Ministry of Shipping, affirmed on 10th August, 2010 and paras 3 to 5 of the same, read thus: “3. I say that the Central Government noted that the three Major Ports viz. Jawaharlal Nehru Port Trust (JNPT), TPT and PPT were following secret ballot system for ascertaining the strength of membership of the Unions functioning in these Ports, whereas the remaining Ports were following check off system. 4. After ascertaining the views of the r different Major Ports, the matter was examined in consultation with IPA, a society a registered under the Societies Act, 1860, which represents the 11 major port trusts of the country, which recommended secret ballot system. 5. I say that the competent authority therefore took a policy decision to introduce the Secret Ballot System. Accordingly, communication No.LB-11021/36/2005-L-1 dated 10th November, 2009 was addressed to Chairman of all Major Port Trusts to implement the recommendations in consultation with the Unions operating in the respective ports.” 22. It is contended that the Secret Ballot System has been recommended by the Indian Ports Association, a Society registered under the Societies Registration Act, 1860 which represents 11 Port Trusts of the Country. It is in furtherance of the same that the communication dated 10th November, 2009 was addressed to the Chairmen of all Major Port Trusts to implement the recommendations in consultation with the Unions operating in the respective Ports. The decisions, therefore, do not violate Article 14 or Article 19 of the Constitution of India and the Petition be, thus, dismissed. 23. On this material, we have heard the learned Counsel appearing for the parties. 24. Shri. S. G. Dessai, learned Senior Counsel appearing for the Petitioner submits that the impugned decisions and recommendations are contrary to the Code. The decisions, therefore, do not violate Article 14 or Article 19 of the Constitution of India and the Petition be, thus, dismissed. 23. On this material, we have heard the learned Counsel appearing for the parties. 24. Shri. S. G. Dessai, learned Senior Counsel appearing for the Petitioner submits that the impugned decisions and recommendations are contrary to the Code. Relying upon the Code and then submitting that even the letter dated 10th November, 2009 postulates consultation with the employees of the Unions having majority, Mr. Dessai submits that the Petitioner is a recognized Union and it was not agreeable to change in method of ascertaining the strength of the Unions. It had made it very clear and the Petitioner stated that “it is only some minority Unions which are allegedly agreeable to the system”. Mr. Desai has invited our attention to the Minutes of the Meeting and submitted that if two major Unions controlling 97% of the employees' strength have not accepted the conversion from Check Off System to Secret Ballot System and the Check Off System having been successfully implemented and working well for more than a decade, it is submitted that the action taken is violative of the mandate of Article 19(1)(c) of the Constitution of India. He invited our attention to the communications and the Annexures to the Petition. He submits that at no stage was any impression given that there is a consent of the Unions to the Secret Ballot System. There was never any referendum taken. Even assuming that out of 8 Unions, six have given consent, their strength is what is referred to above. Therefore, he submits that the entire action is illegal, arbitrary, unconstitutional and deserves to be quashed by this Court. 25. Shri. Dessai has invited our attention to Section 3 of the MPT Act and to Section 6 of the Trade Unions Act, 1926. He has invited our attention to the merits of the Check Off System and demerits of the Secret Ballot System. Shri Dessai emphasized that Respondent No.7 has supported the Petitioner. He submits that the so called decision of the Central Government relied upon by the Port (Respondent no.1) seeks to foreclose both the options. He has invited our attention to the merits of the Check Off System and demerits of the Secret Ballot System. Shri Dessai emphasized that Respondent No.7 has supported the Petitioner. He submits that the so called decision of the Central Government relied upon by the Port (Respondent no.1) seeks to foreclose both the options. However, such an unilateral act of the Port will not be of any assistance to the Respondents who are opposing the Check Off System, because the Full Bench Decision of this Court makes the position clear. If the Full Bench decision is perused, it is clear that the actions and decisions cannot be sustained. Shri Dessai has taken us extensively through the record to submit that the Labour Conferences and the recommendations of the National Labour Policy repeatedly assert that the Check Off System has eliminated the malpractices and the Secret Ballot System would bring in concept of voting and elections to ascertain the Unions' strength. There will be, therefore, large scale use of money and muscle power, luring the voters. He submits that an one day affair is not the manner in which this strength can be ascertained. The support continuously given by employees is crucial. The Check Off System operates smoothly and ascertains the support over a passage of time, and does not give any vote or preference on a single day, but over a passage of time it indicates that by allowing subscription to be deducted qua an Union, that an employee supports its policies and is thus a member thereof. This procedure is fair, just and transparent and by substituting it with something which will not only be unfair, but harmful to the interest of the employees, as well as the employers in the long run, the Respondent Nos.1 to 3 have acted arbitrarily and unfairly. The recommendations from the expert bodies could not have been brushed aside. In these circumstances, and by the principles laid down in the Judgment of the Supreme Court followed by the Full Bench of this Court, it will not be possible to hold that the Secret Ballot System is valid, just and proper. For all these reasons the Petition be allowed. 26. In support of his submissions, Shri Dessai has relied upon the following decisions: (i) Automobile Products of India Employees' Union Vs. For all these reasons the Petition be allowed. 26. In support of his submissions, Shri Dessai has relied upon the following decisions: (i) Automobile Products of India Employees' Union Vs. Association of Engineering Workers Bombay and others, reported in 1990(2) SCC 444 ; (ii) General Secretary, Rourkela Sramik Sangh Vs. Rourkela Mazdoor Sabha and others, reported in 1991 Supp (1) S.C.C. 305; (iii) International Airports Authority of India Workers' Union Vs. International Airports Authority of India and others, reported in 1993 Supp (1) S.C.C. 229; (iv) Food Corporation of India Staff Union Vs. Food Corporation ofIndia and others, reported in 1995 Supp(1) S.C.C. 678; (v) Association of Engineering Workers Vs. Dockyard Labour Union and others, reported in 1995 Supp (4) S.C.C. 544; (vi) O.N.G.C. Mazdoor Sangh Vs. O.N.GC. Ltd. and others, reported in (2002)2 GLR 1295 ; (vii) Director of Settlements, A.P. and others Vs. Mr. Apparao and another, reported in (2002)4 S.C.C. 638; (viii) Air India Employees Guild and Another Vs. Air India Ltd., reported in (2005)107 BOM LR 535 = 2006(1) Bom.C.R. 111 ; (ix) Air India Employees Guild and Another Vs. Air India Ltd., reported in 2007(1) Bom.C.R. 529 ; and (x) Oriental Insurance Co. Ltd. Vs. Meena Variyal and Others, reported in (2007)5 Supreme Court Cases 428. 27. On the other hand, Mr. V. B. Nadkarni, learned Senior Counsel appearing on behalf of the First Respondent-Port Trust submits that no relief can be granted in this Petition. He submits that there is no pleading at all to challenge the impugned decisions and actions. By inviting our attention to the reliefs and the prayer clauses, Mr. Nadkarni submits that no relief beyond the prayers can be granted. He submits that the Petition is sketchily and improperly drafted and filed. The Union of India was not made a party earlier. It was subsequently made a party. Although the Petitioner is aware that it is the Union of India which takes a decision in these matters, yet, it did not implead it. Leave alone impleading, it being aware that it was the decision of the Union of India which is being implemented, the Petitioner did not challenge the letter/communication dated 10th November, 2009. In this behalf, he invited our attention to the grounds in the Petition. Relying upon the affidavit-in-Reply filed by the Union of India, Mr. Leave alone impleading, it being aware that it was the decision of the Union of India which is being implemented, the Petitioner did not challenge the letter/communication dated 10th November, 2009. In this behalf, he invited our attention to the grounds in the Petition. Relying upon the affidavit-in-Reply filed by the Union of India, Mr. Nadkarni submits that no amendment has been carried out to the Writ Petition after 10th August, 2010. The last Rejoinder is filed on 19th July, 2010. The Petition has been amended on 4th May, 2010. Thus, in the absence of a complete challenge and relevant factual details, this Court should not consider the pleas, and the contention now raised that the decision is not a policy directive or that the Central Government can deal with this matter through its Ministry of Labour and not the Ministry of Shipping, should not be entertained in the absence of proper pleading. Once, there is no challenge to the decision taken by the Central Government, then, on this short ground the Petition must fail. Mr. Nadkami has then invited our attention to page 28, Grounds (q), (r) and (s) in the Petition. 28. Alternatively, he submits that the policy decision must be read as a whole and carefully. No reliance can be placed only on the last para of the letter dated 10th November, 2009 to urge that the Unions have a right to choose the procedure. He submits that the implementation of the policy directives is what is set out in the last paragraph of this letter. The decision and the implementation must be seen in proper light. The clause about implementing the decision by holding consultations with the Unions does not mean that the direction is not binding. In these circumstances and when there is no right in the procedure to ascertain the strength, then, all the contentions must fail. The Petitioner has no right to oppose the Policy. Mr. Nadkarni has invited our attention to page 151, para 2 and pages 158-159 of the Paper Book and submitted that the later decision of the Division Bench of this Court would thus fully apply. Mr. Nadkarni then invited our attention to the Policy of the Mormugao Port Trust and the document at pages 59 to 61-62 of the Paper Book. He submits that the Code has been accepted by the Port subject to Clause 11 (k). Mr. Nadkarni then invited our attention to the Policy of the Mormugao Port Trust and the document at pages 59 to 61-62 of the Paper Book. He submits that the Code has been accepted by the Port subject to Clause 11 (k). In these circumstances and when the policy of the Port Trust is of 1999, the question of going back to Check Off System does not arise and that too in 2010-11. The clear directives of the Central Government would supersede any document or policy of the Port Trust. In these circumstances, it is his submission that the Government of India, Ministry of Surface Transport's letter dated 23rd April, 1998 introducing the Check Off System in all Major Ports can no longer be treated to be in operation or force and it is the later policy or the directive of the Central Government which alone binds Respondent No.1. Adaptation of Secret Ballot System cannot be treated as arbitrary or illegal. Shri Nadkarni has invited our attention to Section III of the MPT Act. In this behalf, Mr. Nadkami also invited our attention to page 223 of the Paper Book to urge that 96% of the employees attended the work on the relevant date i.e. 14th May, 2010, participated in the Secret Ballot and voted for the Unions of their choice. Thus, out of 2025 employees, 1944 employees participated in the Secret Ballot and percentage of voting was 73% of the total strength of the employees. In the circumstances, once this overwhelming support to the new system is placed on record, all other issues are academic and should not be gone into and decided. 29. Respondent Nos.8, 9, 10, and II have supported Shri. Nadkami’s arguments. They have invited our attention to the policy and their Affidavits. 30. Mr. V.A. Lawande, appearing for Respondent No.5 submitted that it is the second largest Union in the Port of Mormugao. The Petitioner does not have majority support as falsely contended. He submitted that the Code is not sacrosanct and ought not be treated as a Statute. In any event, it was followed in its entirety. Mr. 30. Mr. V.A. Lawande, appearing for Respondent No.5 submitted that it is the second largest Union in the Port of Mormugao. The Petitioner does not have majority support as falsely contended. He submitted that the Code is not sacrosanct and ought not be treated as a Statute. In any event, it was followed in its entirety. Mr. Lawande has invited our attention to paras 13 and 14 of the Writ Petition and submitted that the same would clearly show that the policy of Secret Ballot was approved at a meeting held on 29th December, 1999 and to the Resolution of that meeting, even the Petitioner is a party. Mr. Lawande then invited our attention to page 93 of the Paper Book and submitted that Resolution No.257 has been passed and it approved the proposed policy guidelines which speaks of only Secret Ballot System being adopted. It was only provisionally kept in abeyance. Shri. Lawande, therefore, submits that there is no substance in the contentions of the Petitioner and particularly when the Petitioner is affiliated to All Indian Federation which participated in the Secret Ballot at the Port of Tuticorin. He submits that the Federation to which the Petitioner is affiliated appears to have taken a contrary stand. He submits that the Petitioner's strength has not been ascertained even under the Check Off System. 31. Arguing in support of the Petition, Shri. Sonak, appearing for Respondent No.7 submits that the Letter dated 10th November, 2009 is not a direction under Section III of the MPT Act. He submits that there is no evidence to show that the same can constitute a direction and at the most, it is a request. The Secret Ballot System cannot be thrust on the Port/Board. Inviting our attention to Article 77 of the Constitution of India, he submits that the mode by which the Central Government acts is clear in law and the letter dated 10th November, 2009 cannot be construed as a Rule in terms of the constitutional provision. Inviting our attention to the Affidavit of the Central Government in this Petition, Shri. Sonak submits that it contains no statement that the letter dated 10th November, 2009 is a directive to the Board. Inviting our attention to the Affidavit of the Central Government in this Petition, Shri. Sonak submits that it contains no statement that the letter dated 10th November, 2009 is a directive to the Board. Shri. Sonak submits that ultimately, Section III must be perused as a whole and what could be termed as a directive to the Board which manages and administers the Port alone, is spelt out therein. Shri. Sonak submits that it is clear from the record and particularly from para 8 of the Affidavit filed on behalf of Respondent No.1 on 11th May, 2010 that the directions were to implement the recommendations of IPA. Therefore, what is directed to be implemented is clear. In any event, what is to be implemented is with consultation with the Unions. Unless and until there is a complete compliance, the Secret Ballot System could not have been introduced and thrust upon the Port. Shri Sonak was at pains to point out that Section 111 operates with its proviso. The power conferred thereunder cannot be exercised ignoring the proviso. Thus, there is no option left to the Board, because of the letter dated 10th November, 2009 is an untenable plea and should not be accpeted. Ultimately, there is no compliance with the letter as there is no material showing “consultation” with all the Unions operating at the Port. Shri. Sonak submits that the record would indicate that Respondent No.7 had no notice of the meeting convened and held at Mumbai. He submits that Paragraph 3 of the Affidavit-in-Reply filed on behalf of Respondent No.7 on 15th July, 2010 would make this aspect very clear and there are no denials of the factual statements in this paragraph. For all these reasons, Shri. Sonak submits that Shri. Dessai's contentions are well founded and the Petition must succeed. 32. In rejoinder, Shri. Dessai submits that the Petitioner has specifically challenged the letter dated 10th November, 2009. In this behalf, he invited our attention to pages 6-7 of the Writ Petition, as amended and particularly paragraph 1-A. He also invited our attention to Grounds (i) and G) at pages 27-30 of the Writ Petition. He, therefore, submits that the technical objections raised by Shri. Nadkami do not have any substance and they must be rejected. He also submits that the letter from the Central Government cannot become a policy decision. He, therefore, submits that the technical objections raised by Shri. Nadkami do not have any substance and they must be rejected. He also submits that the letter from the Central Government cannot become a policy decision. Alternatively, he submits that if the Petitioner has 57% representation from amongst the total employees working at the Port, then, a the consultation should have been initiated with the Petitioner and once there is no effective consultation, then, this Court should not uphold the letter dated 10th November, 2009, but proceed to quash it. Shri. Dessai submits that n the interim order in this Petition cannot be said to be a final opinion and the challenge in the Petition has not become academic, but it is still alive. For all these reasons, he submits that the Petition be allowed. 33. With the assistance of the Counsel appearing for the parties, we have perused the Petition and all annexures thereto, so also the Affidavits placed on record. We have carefully perused the statutory provisions and the decisions brought to our notice. At the outset, we arc of the view that there is no substance in the contention of Shri. Nadkarni that the decision communicated vide letter dated 10th November, 2009 has not been challenged in the Writ Petition. The Writ Petition must be seen, prior and post-amendment, in its entirety. It is only after the affidavits filed by the Port and upon knowledge of all documents that the Petitioner could have raised a proper challenge. It did raise a challenge as is clear from Para 1 of the Petition, wherein the decision of the competent Authority, as reflected in the communication dated 10th November, 2009, to hold the Secret Ballot elections, is specifically challenged. Thereafter, the elections held pursuant to such decision, is also subject-matter of challenge and both these acts have been termed as arbitrary, unconstitutional, de hors and contrary to the Code and the policy on Industrial Relations and Criteria to be adopted for recognition of the Trade Unions functioning in the Mormugao Port. The Petitioner has also challenged the recommendation in para 1A of the Petition and the communication dated 15th February, 2010 and acceptance thereof on 23rd March, 2010. They are challenged on the ground that they violate Articles 14, and 19(1)(c) of the Constitution of India. Further, in. The Petitioner has also challenged the recommendation in para 1A of the Petition and the communication dated 15th February, 2010 and acceptance thereof on 23rd March, 2010. They are challenged on the ground that they violate Articles 14, and 19(1)(c) of the Constitution of India. Further, in. the amended paras and grounds, the Petitioner has urged that the impugned decision and the election is derogatory to the advantages of the Check Off System and the policy on Industrial Relations. Thus, there is a specific challenge raised to the Secret Ballot System being adopted pursuant to the letter from the Union of India. Thus, the impugned letter and all incidental and consequential documents being subject-matter of challenge, it will not be possible to agree with Shri Nadkami that there is no pleading and there is no prayer, nor are necessary parties before the Court. We are therefore of the view that there is a challenge to the letter dated 10th November, 2009 raised specifically by the Petitioner and it would not be proper to throw out the Petition on some narrow technical grounds, more so, when it is admitted and an interim order has been passed. 34. The letter dated 10th November, 2009 is address to the Chairmen of Major Port Trusts and it reads as under: “No. LB-11021/36/2005-L-1 New Delhi, the 10th November, 2009. To The Chairmen, All Major Port Trusts. Subject: Procedure for ascertaining strength of Labour Unions in Major Port Trusts/Dock Labour Boards and guidelines for their recognition. Sir, The issues relating to uniform procedure for ascertaining strength of Unions and formulation of uniform guidelines for their recognition in the Major Ports were under consideration in this Ministry for a long time. In Major Ports a number of Unions are operating. Three Major Ports viz. JNPT, TPT and PPT are following secret ballot system for ascertaining the strength of the membership of the Unions, functioning in these Ports whereas the remaining Ports are following check off system. 2. At present, there is no central legislation to govern the conduct and recognition of unions. Ministry of Labour & Employment has formulated a Code of Discipline for guidance, However, it is not mandatory unless this is accepted by the Unions operating in that Organization. A copy of the ‘Code of Discipline' is enclosed at Annexure-I. 3. 2. At present, there is no central legislation to govern the conduct and recognition of unions. Ministry of Labour & Employment has formulated a Code of Discipline for guidance, However, it is not mandatory unless this is accepted by the Unions operating in that Organization. A copy of the ‘Code of Discipline' is enclosed at Annexure-I. 3. After ascertaining views of different Major Ports, the matter has been examined in consultation with Indian Ports Association. The governing body of IPA has recommended secret ballot system for ascertaining strength of Unions for a term of 2 years and accord recognition, ideally to the first three Unions having representation of at least 30% membership. The governing body also observed that not withstanding the recognition, there should not be any bar for any registered trade union, irrespective of the size of the membership, to approach the management for redressal of any of their genuine grievances. 4. The recommendations made by the governing body of the IPA have been accepted by the competent authority. 5. It is requested that the recommendations may be implemented by all Major Ports in consultation with the Unions operating in respective Ports. Yours faithfully, Sd/- (S.P. Shokhanda) Under Secretary to the Government of India Tele Fax No. 011-23714864” A perusal thereof will indicate that the three Major Ports are following Secret Ballot System for ascertaining the strength of the membership of their Unions; whereas the remaining Ports are following Check Off System. The issue was of framing of an uniform procedure for ascertaining the strength of the Unions and formulation of uniform guidelines for their recognition. Thus, there is no uniformity in the method followed at the Ports. Some of the Ports follow the procedure of Check Off System, while the others resort to Secret Ballot System for ascertaining the strength of membership. Admittedly, there is no Central Legislation to govern conduct and recognition of Unions. The Ministry of Labour and Employment has formed a Code of Discipline for guidance. However, it is not mandatory, unless it is accepted by the Authorities in that organization. In the Writ Petition, the Petitioner has placed reliance on a letter dated 16th April, 1964 which is annexed as Annexure P2. That recognizes the Petitioner as a Recognized Union. That says that the Petitioner should adhere to the Code. The Petitioner agreed and gave an undertaking to adhere to the Code. 35. In the Writ Petition, the Petitioner has placed reliance on a letter dated 16th April, 1964 which is annexed as Annexure P2. That recognizes the Petitioner as a Recognized Union. That says that the Petitioner should adhere to the Code. The Petitioner agreed and gave an undertaking to adhere to the Code. 35. In that Code, what has been referred to is that only the Union which observes the Code will be entitled to recognition. A recognition as representative union for an Industry makes relations between the employer and employees smooth and the employer is assured that he will have to deal with only such Union instead of dealing with all Unions which are functioning in that industry. On the other hand, the employees repose faith in one Union. The representative or the recognized Union assures them that their demands will be voiced and if voiced through the representative or recognized Union, they would be definitely considered. Further, the representatives or recognized unions would be benefited by getting a priority in negotiations with the employers. Therefore, the Code, in so far as this aspect is concerned, stated that an Union can claim recognition, provided it is functioning at least for one year and that its membership should cover at least 15 of the workers in the establishment concerned. It was agreed that the membership would be counted only of those who have paid the subscription for at least three months during the period of six months immediately preceding the recognition. An Union may claim to be recognized as a representative Union for an industry, if it has membership of at least 25% of the workers of that industry, in that area. When an Union has been recognized, there should be no change in its position for a period of two years and where there are several unions in an industry or establishment, the one with largest membership should be recognized. What has been stated in the Affidavit-in-reply filed on behalf of Respondent No.1 is that the Code may have been adhered and agreed to, but the policy has now been framed and there is a clear directive in this letter that procedure of Secret Ballot should be adopted. Further it is justified by urging that the same is n6t contrary to the Code and the policy on industrial relations. Further it is justified by urging that the same is n6t contrary to the Code and the policy on industrial relations. In this behalf, a further perusal of the subject-letter would indicate that what the Government decided is that after ascertaining the views of different Major Ports, the matter was examined in consultation with them and the 1ndian Port Association recommended Secret Ballot System for ascertaining strength of Unions. At the same time, the procedure should be applied for two years. The idea is that recognition will be given to just three unions, having representation of atleast 30 % membership. The governing body also indicated that notwithstanding the recognition, there should not be any bar for any registered trade union, irrespective of the size of the membership, to approach the management for redressal of any of their genuine grievances. Merely because these recommendations have been accepted by the competent authority, we find nothing therein which enables us to hold that the Secret Ballot procedure has to be adhered to in preference to the earlier Check Off System and the Check Off System has been completely given a goby. Had that been decided, it was unnecessary for the Secretary to the Government of India to state in Para 5 of this letter that the recommendations may be implemented by all Major Ports in consultation with the Unions operating in respective Ports. 36. As far as this aspect is concerned, we are not in agreement with Shri. Nadkarni, learned Senior Counsel appearing for the First Respondent that this letter amounts to a directive to shift from the existing system straight away and no reliance can be placed on the last part of this letter. It is not as if that there is any right of an Union in such matters and assuming that they have no right in matters of procedure adopted to ascertain their strength, yet, when this letter is being construed as a directive under Section III of the Act, then, it is not possible to ignore the contents of para 5 thereof. If the argument of Shri Nadkarni is that this letter must be read as a whole, then, all the more, it is not possible to ignore the contents of Para 5 of the same. If the argument of Shri Nadkarni is that this letter must be read as a whole, then, all the more, it is not possible to ignore the contents of Para 5 of the same. Ultimately, what the Under Secretary is doing is to bring to the notice of the Ports and their Chairmen, the views and recommendations of their Association, namely, the Indian Ports Association, speaking through its Governing Body. For these views and recommendations to be brought in force, they have to be implemented by individual Ports. These recommendations may have been accepted by the competent authority, according to this letter, yet, the same have to be implemented in consultation with the Unions operating in respective Ports. 37. Thus, it was present to the mind of the competent authority that there is the Check Off System in vogue and in force for decades, together. That the administration and management of the Port, is a matter dealt with by the Board of the respective Ports. Their Association may desire to have an uniform policy, so as to recognize the Unions operating and functioning within their areas and these views and recommendations may have been accepted, but unless and until the Unions are consulted, their implementation is not possible. Therefore, the shift from Check Off System in the instant case, to the Secret Ballot System was possible only if the consultation with the Unions operating in the respective Ports was held. 38. Shri Dessai is right in relying on the Judgments of the Hon'ble Supreme Court and this Court, interpreting the term “consultation” and emphasizing that it means effective and meaningful process and not an empty formality. 39. In the case of Supreme Court Advocates-on-Record Association and another Vs. Union of India, reported in AIR 1994 SC 268 , the Hon'ble Supreme Court had an occasion to consider as to what meaning could be given to the expression “in consultation with”. In this behalf, the Supreme Court holds thus: "317. ...The word ‘consult’ as understood in ordinary parlance means to ask or seek advice or the views of a person on any given subject i.e. to take counsel from another, but it does not convey that the consultant is bound by the advice. In certain situations an expert in the field may be consulted but it is only to help the consultant to take a final decision. In certain situations an expert in the field may be consulted but it is only to help the consultant to take a final decision. By consulting even an expert the consultant does not mortgage his decision, the advice given is only in-put among the various factors which enter decision making. He may consult one or more experts and he may accept the advise he considers most acceptable or rational but he is always free to reach his own conclusion. It is ultimately his responsibility to reach a sound decision and he is accountable for the same. Consultation would require at least two persons, they consult each there by correspondence or by sitting across the table. A may consult Bon a given subject, obtain the opinion of B and act on it or he may, if not satisfied, discuss that issue with him or convey his doubts in writing, seek his clarification and if satisfied accept the advise or depart therefrom. In Fletcher Vs. Minister of Town Planning (1947)2 All E.R. 496 the Minister's order designating an area of land as the site for the proposed new township was questioned on the ground that the requirements of the law were infringed inasmuch as there was no 'consultation' within the meaning of Section 1 (1) of the New Towns Act, 1946. The learned Judge observed: “The word ‘consultation’ is one that is in general use and that is well understood. No useful purpose would, in my view, be served by formulating words of definition. Nor would it be appropriate to seek to lay down the manner in which consultation must take place. The Act does not prescribe any particular from of consultation. If a complaint if made of failure to consult it will be for the Court to examine the facts and circumstances of the particular case and to decide whether consultation was, in fact, held. Consultation may often be a somewhat• continuous process and the happenings at one meeting may form the background of a later one. In deciding whether consultation has taken place, regard must, in my judgment, be paid to the substance of the events....” This passage was relied upon by Subba Rao, J. (as he then was) in R. Pushpam Vs. The State of Madras, AIR 1953 Madras 392 at 393. In deciding whether consultation has taken place, regard must, in my judgment, be paid to the substance of the events....” This passage was relied upon by Subba Rao, J. (as he then was) in R. Pushpam Vs. The State of Madras, AIR 1953 Madras 392 at 393. The learned judge after reproducing the passage proceeded to observe: “It is clear from the aforesaid observations that the Court will have to scrutinise in each case whether the requisite consultation has taken place having regard to the substance of the events. The word ‘consult’ implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct, or at least, a satisfactory solution. Such a consultation may take place at a conference table or through correspondence. The form is not material but the substance is important. It is necessary that the consultation shall be directed to the essential points and to the core of the subject involved in the discussions. The consultation must enable the consulter to consider the pros and cons of the question before coming to a decision. A person consults another to be elucidated on the subject matter of the consultation. A consultation may be between an uninformed person and an expert or between two experts. A patient consults a doctor; a client consults his lawyer; two lawyers or two doctors may hold consultation between themselves. In either case the final decision is with the consulter, but he will not generally ignore the advice except for good reasons. So too in the case of a public authority. Many instances may be found in statutes when an authority entrusted with a duty is directed to perform the same in consultation with another authority which is qualified to give advice in respect of that duty. It is true that the final order is made and the ultimate responsibility rests with the former authority. But it will not and cannot be a performance of duty if no consultation is made and even if made, is only is formal compliance with the provisions. In either case the order is not made in compliance with the provisions of the Act.” The view expressed in Fletcher's case on the content of consultation was affirmed in Rollo and Anr. Vs. In either case the order is not made in compliance with the provisions of the Act.” The view expressed in Fletcher's case on the content of consultation was affirmed in Rollo and Anr. Vs. Minister of Town & Country Planning (1948)ALL ER 13.-In Port Louis Corporation Vs. Attorney General, Mauritius (1965) App Cas 1111 the Judicial Committee of the Privy Council observed; "consultation" connotes an exchange of ideas, information and views, in which each side has a full opportunity of contributing to such an exchange; it is not a one way process but a two way process. According to their Lordships it is essential for the executive to advise with an open mind, that is, open to persuasion and open to appreciate the advice tendered and if one may add eschew his own point of view if satisfied about its weakness. The requirement of consultation is never to be taken perfunctorily of as a mere formality. Again in R. Vs. Secretary of State for Social Services, exparte Association of Metropolitan Authorities (1986)1 ALL ER 164 Webster, J. observed at page 167 as follows: “there is no general principle to be extracted from the case law as to what kind or amount of consultation is required before delegated legislation, of which consultation is a precondition, can validly be made. But in any context the essence of consultation is the communication of a genuine invitation to give advice and a genuine consideration of that advice. In my view it must go without saying that to achieve consultation sufficient information must be supplied by the consulting to the consulted party to enable it to tender helpful advice.... By helpful advice, in this context, I mean sufficiently informed and considered information or advice about aspects of the form or substance of the proposals, or their implications for the consulted party, being aspects material to the implementation of the proposal as to which the Secretary of State might not be fully informed or advised and as to which the party consulted might have relevant information or advice to offer.” 40. If the consultation is not to be an empty formality, but an exercise by which there is a meaningful dialogue and exchange of ideas and views, then, one must look at the record in this case to find out whether this process has been undertaken before the shift from Check Off System, to the Secret Ballot System/Procedure. 41. In this behalf, what the Writ Petitioner alleges is that Respondent No.2 directed Respondent No.1’s Secretary to convene a meeting with the representatives of all the registered trade unions, operating at the Port regarding implementation of Secret Ballot System, instead of Check Off System to ascertain the strength of membership of the registered Trade Unions on 21.1.2010 at 10.00 hours in the Board Room. At this meeting, the Secretary informed that directions were issued by the Ministry of Shipping by its letter dated 10th November, 2009 for implementation of Secret Ballot System, instead of Check Off System. The meeting was held to ascertain the views of each Union, promising that a decision would be taken by Respondent No.2 on the issue and will be communicated to the Ministry based on the deliberations in the meeting. It is stated that Petitioner and Respondent No.5 Unions strongly objected to implementation of Secret Ballot System, contending that there will be exploitation of the employees by use of money and muscle power. The Minutes of this meeting are annexed at Annexure P-7. This shows that the Mormugao Water Front Workers Union agreed to the System. Goa Port & Dock Employees agreed for Secret Ballot System. Mormugao port Trust Employees Union also agreed. As far as Goa Port & Dock Employees Union is concerned, Shri. L. Gawde, opposed the implementation of the Secret Ballot System, and the reason mentioned is that it will result in exploitation of employees. He argued that the issue should have been discussed at the Federation level by the Indian Port Association before directing the Unions to implement the same and insisted that the present system be continued. There are some other Unions which agreed. But, as far as the Petitioner is concerned, it opposed this system and stated that the Check Off System should be continued. It was stated that there must be a Central Legislation. There are some other Unions which agreed. But, as far as the Petitioner is concerned, it opposed this system and stated that the Check Off System should be continued. It was stated that there must be a Central Legislation. Before conclusion of the meeting, this is what the Minutes recorded, as having transpired:- “Secretary (i/c) requested the representatives, of all the Unions to give their views in writing, so that the same can be communicated to the Ministry and accordingly a decision can be taken. Secretary (i/c) also made it clear that the administration is not going to participate nor will be involved in any manner during secret ballot system and the entire exercise will be conducted by the Central Industrial machinery under the control of the Chief Labour Commissioner (Central). The assessment of strength of membership will be ascertained after counting the votes of the employees. He said, by secret ballot system, no employee will be targeted nor harassed by the members of the other Unions. The meeting ended with thanks to the Chair.” 42. The Petitioner, immediately addressed a letter dated 2nd February, 2010, wherein, while reiterating objections to the Secret Ballot System, it stated that the percentage of the membership of the Union favouring the Secret Ballot System may be indicated as also the percentage of members of Union opposing the proposal. Once again it stated that it is not agreeing to implement the Secret Ballot System and asserted that the Ministry of Labour has clearly indicated that the Secret Ballot System is not mandatory and, therefore, forceful efforts against this shall 1ead to labour unrest in the Port. 43. On 12th March, 2010, Exhibit P-9 was received from the Under Secretary to the Government of India, Ministry of Shipping, Road Transport and Highways which directed the Chairmen of All Port Trusts, except Jawaharlal Nehru Port, Tuticorin Port, and New Mangalore Port Trust, that the Board of their Port is due for reconstitution with effect from 1/4/2010 and as the Labour Trustees are being appointed based on strength of Unions, it is requested that the result of Secret Bal1et or otherwise held in their Port Trust during 2009 may be sent to the Ministry along with two names in order of preference. By no stretch of imagination this letter can be construed as a direction or command to hold Secret Ballot. By no stretch of imagination this letter can be construed as a direction or command to hold Secret Ballot. All that is requested is that the result of the Secret Ballot or otherwise, based on which the Union's strength has been ascertained in the year 2009, must be communicated, so that the Board can be reconstituted. The letter dated 15th February, 20 10 has been construed by the First Respondent as a directive to implement the Secret Ballot System and it addressed a letter dated 7th April, 2010 to the Petitioner which reads thus: “GAD/LB(25)/2010/75 Date: 7th April, 2010. To The President, Mormugao Port & Railway Workers' Union, Adjacent to Canteen, MPT A.O. Bldg., Headland-Sada. Sub: Implementation of Secret Ballot System to ascertain the strength of the registered Trade Unions operating at this Port. Sir, Pursuant to the directives issued by the Ministry of Shipping vide letter No.LB-11021/36/2005-L-I dated 10.11.09, a meeting was called with all the registered Unions operating at this Port on 21.1.2010. Whereas, out of 8 Unions who attended the meeting, 6 Unions have given their consent for implementing the Secret Ballot System at this Port. Accordingly, to comply with the Ministry's directives to adopt the Secret Ballot System at this Port for ascertaining the union membership strength, the Ministry of Labour was requested vide letter No.GAD/LB(25)/2010/4053 dtd.15.2.2010 for implementing the Secret Ballot System at this Port. Subsequently, we have followed up with the Labour Ministry for implementing the Secret Ballot System at this Port. The Ministry of Labour, vide their letter no. L-52025/9/2010-IR (imp-I). dtd. 23.3.10 have given their concurrence for implementing the Secret Ballot System and have directed the Dy. CLC, Mumbai to conduct the Secret Ballot elections at this Port. Now, re-constitution of the new Board of Trustees is due w.e.f. 1st April, 2010. To nominate the Labour Trustee on the Board, it is necessary to ascertain the union membership strength at this Port. In view of the above, you are requested to kindly apply for a symbol of your Union, by 12.4.2010, to participate in the Secret Ballot elections. The symbol of your Union should not be identical to the symbol of any local or national political party. It is further informed that the Dy. In view of the above, you are requested to kindly apply for a symbol of your Union, by 12.4.2010, to participate in the Secret Ballot elections. The symbol of your Union should not be identical to the symbol of any local or national political party. It is further informed that the Dy. Chief Labour Commissioner (C), Mumbai, desires that all the Registered Trade Unions functioning at this Organization should furnish details pertaining to their respective Union in the prescribed proforma attached hereto, in triplicate, alongwith a copy of the Constitution and latest Annual Returns. Further, you are also requested to furnish your undertaking (proforma enclosed) under your signature and Trade Union seal, in triplicate, for holding the Secret Ballot for the purpose of recognition under the Code of Discipline. This is issued with the approval of Chainnan. Yours faithfully, sd/- Encl : As above (J. B. Dhawale ) Secretary (i/c)” 44. The Petitioner replied to this letter on 8th April, 2010 and stated that the Labour Ministry had sought the stand of the Union on the Secret Ballot System. That stand was duly communicated to the Labour Ministry and it also brought to the notice of the First Respondent that the Union attended the meeting on 21.1.2010 and informed that 6 Unions hold less than 10% of the strength of the employees and both the recognized Unions having 90% membership have opposed and favoured to continue the Check Off System. Further it sought a copy of the letter dated 15.2.2010 addressed to the Ministry of Labour by the First Respondent. The Petitioner pointed out that the Ministry of Shipping has nowhere directed to have Secret Ballot only. 45. By a letter dated 8th April, 20 10, the Chairman of the First Respondent was informed by the Petitioner that the recognized Unions have strongly opposed the management's desire to implement the Secret Ballot. 46. On 12th April, 2010, the First Respondent addressed a letter to the President of the Petitioner straight away on the subject of implementation of Secret Ballot System and referred to the letter of the Asst. Labour Commissioner appointing R. Venkateswarlu, as the Returning Officer to conduct the Secret Ballot Election. The Petitioner was informed that the meeting was convened by the Returning Officer on 16th April, 2010. 47. Labour Commissioner appointing R. Venkateswarlu, as the Returning Officer to conduct the Secret Ballot Election. The Petitioner was informed that the meeting was convened by the Returning Officer on 16th April, 2010. 47. The Petitioner has, thus, contended in paras 21 to 29 of the Petition that it has been pointed out as to how there has been absolutely no consultation and instead the decision has been foisted. The Petitioner has pointed out that it commands 57.10% of the total labour force of Respondent no.1 as against Respondent No.5 commanding about 40% and the remaining Respondents commanding 3%. After setting out the membership, it has been pointed out that the decision is unilateral and, therefore, there has really been no consultation. This is a specific stand taken in the Affidavits filed in Rejoinder, as well. This is in answer to what has been stated in the Affidavit-in-Reply. The Affidavit-in-Reply of Respondent No.1 states in para 10 at page 227, as under: “10. With reference to paragraph 32(z) of the amended Petition, I say that the policy decision conveyed by the Ministry of Shipping vide letter dated 10/11/2009 does not speak of consent but the requirement to have consultation with the unions operating in the respective Port, irrespective of its strength. Further, out of 10 unions, 7 unions have given their consent for implementation of secret ballot system - two unions neither attended the meeting nor communicated their stand on this issue. As such, based on the concurrence of majority of unions and concurrence from Port Administration and directives from MOS, Ministry of Labour and Employment had conveyed vide their letter dated 27/4/20 I 0 that the verification of membership of Unions operating at this Port will be conducted through the Secret Ballot under the Code of Discipline. Thus, as the crux of MOS letter dated 10/11/2009 is adoption of Secret Ballot System, in consultation with the Unions, the views of the majority of the unions was taken before implementing the Secret Ballot Election System at MPT.” This is in respect of para 32(z) of the amended Petition, where the Petitioner has asserted that their consent is necessary. Thus, as the crux of MOS letter dated 10/11/2009 is adoption of Secret Ballot System, in consultation with the Unions, the views of the majority of the unions was taken before implementing the Secret Ballot Election System at MPT.” This is in respect of para 32(z) of the amended Petition, where the Petitioner has asserted that their consent is necessary. While it may be true that there is no warrant to read the word “consent” in the process of consultation, yet, what has been asserted in pan 10 of the Affidavit-in-Reply as filed in this Court, affirmed on 3rd July, 2010 hardly meets the requirement in law. Moreover, the Deponent in para 10 makes a statement that there was concurrence of majority of the Unions and concurrence from the Port Administration and directives from Ministry of Shipping and the Ministry of Labour and Employment. If there is no requirement of consent, but the alleged directive only requires consultation, then, we are not clear as to why the words "concurrence of majority of Unions” have been used in this para. It has been pointed out repeatedly that there is no concurrence of the majority of Unions. This is clear from the Affidavit filed by Respondent No.7 which is also an Union of Employees working in the First Respondent, namely, Transport & Dock Workers Union. They were earlier part of Mormugao Dock Labour Board, which is now merged with Respondent No.1 as one of the Departments. They have stated in their Affidavit that the Union was not even notified about the convening of the meeting and as such, no representative could attend the meeting convened by the Deputy Chief Labour Commissioner. As far as the meeting convened by Respondent No.1 is concerned, it had indicated therein that it is opposed to the Secret Ballot System. The Petitioner filed Rejoinder to the Affidavit-in-Reply of the Respondent No.1 and pointed out that the majority has not concurred for change over from Check Off System to Secret Ballot System. Thus, far from asserting that there was any directive to shift from the process, the Petitioner persisted that this cannot be said to be a process of consultation at all. Thus, far from asserting that there was any directive to shift from the process, the Petitioner persisted that this cannot be said to be a process of consultation at all. The Petitioner has pointed out that in a democratic process if this is the understanding of Respondent No.1, then, least that Nas expected was proper exchange of views and an opportunity to express the same after furnishing of full records. If the records were not furnished and if the decision is taken by the Ministry in November, 2009 in which there is no command or directive to shift to the process of Secret Ballot, but Respondent No.1 undertook that shift without consultation with the Unions of ports, then, one fails to understand as to how the First Respondent implemented the process of Secret Ballot straight away and contrary to para 5 of the letter dated 10th November, 2009. They did it without any effective and meaningful consultation with the Petitioner. This conclusion is irresistible, because, if from 1964 the Code has been adhered to and which Code prescribes the mode for ascertaining the membership and which mode was working through out and until 2009, then, least that was expected was that the shift will be after the views and ideas of all concerned are properly and truly forwarded to the Ministry. That is how the Minutes also read. If from the communication of 10th November, 2009 for the first time the process of ascertaining the views began in January, 2010 and at a meeting an opportunity was given to the Unions to forward their views, in writing, so that they may be placed before the Ministry, then, one fails to understand as to how in the Affidavits filed in this Writ Petition, reliance is placed on the letter dated 10th November, 2009 and a statement is made that the process of consultation with the Unions was complete. Once the stand is taken that the concurrence of the Unions has to be obtained, then, the Affidavit is completely silent as to whether the Petitioner and Respondent No.5 concurred with the shift in process or not. Therefore, on the ground that there is no effective and meaningful consultation before such a major shift was undertaken, affecting the interest of not only the workers and employees, but also of the Port, the decision to implement Secret Ballot must fail. 48. Therefore, on the ground that there is no effective and meaningful consultation before such a major shift was undertaken, affecting the interest of not only the workers and employees, but also of the Port, the decision to implement Secret Ballot must fail. 48. It should also fail on the ground that the letter dated 10th November, 2009 can by no stretch of imagination be construed as directive to shift the process. That was at the most a communication, conveying the views of the Indian Port Association, coupled with the request to implement the recommendations in consultation with the Unions operating in the respective Ports. Even if the language is construed as a directive, yet, its implementation is dependent upon compliance of Para 5 of the letter dated 10th November, 2009. The process of Secret Ballot can be implemented in consultation with the Unions operating in the respective Ports only. That the same is just a request, is clear from the letter dated 12th March, 2010. If there is any doubt, that is cleared by this subsequent letter. The Central Government itself does not say that Secret Ballot should be adopted at all Ports. It does not state that there is any directive to this effect. In such circumstances, it is clear that this letter cannot be construed as a direction, within the meaning of Section 111 of the Act. Further, Section 111 of the MPT Act confers power on the Central Government to issue directions and their binding character is dependent upon compliance with this provision. If it is to be resorted to, the Central Government must comply with the proviso or else the direction may not be binding and effective. Hence, the stand that there was a direction to shift to the Secret Ballot method is not tenable in the given facts and circumstances. The power under Section 111 of the Act, cannot be exercised in a manner contrary to the provision. In (2008)3 see 641, (A. Manoharan and others Vs. Union of India and ors.), the Hon'ble Supreme Court in para 24, held thus : “24. The power of the Central Government to issue directions as contained in Section 111 of the 1963 Act cannot be stretched to amend the Regulations. Power must be exercised by the Central Government only in regard to the administration of the Trust. Union of India and ors.), the Hon'ble Supreme Court in para 24, held thus : “24. The power of the Central Government to issue directions as contained in Section 111 of the 1963 Act cannot be stretched to amend the Regulations. Power must be exercised by the Central Government only in regard to the administration of the Trust. Such a power to issue direction must be construed strictly.” 49. What remains for consideration is whether the Secret Ballot System could have been adopted as a process for ascertaining the views by Respondent No.1. On the own showing of Respondent No.1, they do not dispute that the Check Off System has been in force. That is clear from the statements made in the Petition and the stand in the Affidavits of the Port and the Unions. The Central Government may, now, urge anything to the contrary. The Petitioner has categorically stated in the Petition that the Check Off System was introduced at all Major Ports and Dock Labour Boards in India. Check Off System was proposed by all major Federations at a meeting held on 20th April, 1998. The Check Off System has been implemented and recognized by the Ministry of Surface Transport (Labour Division). The Check Off System has been operating till 31st January, 2009, as is clear from Annexure P-5 collectively. The Petitioner has stated that from 1964 till 2009, this system was being followed and even the nominees of the Writ Petitioner were taken on the Board of Respondent No.1 by adopting the results of Check Off System. It is only in 1999, Respondent No.1 issued Policy on Industrial Relations and Criteria to be adopted for recognition. That the Policy was approved in its meeting held on 29th December, 1999. But a careful perusal of Annexure P-6 would indicate that they are Minutes of Meeting convened on 29th December, 1999 for discussion of Item C-2 of Agenda on Emergence of Trade Unionism at Mormugao Port. What has been set out is history and relative strength of the Unions. “The Check Off System” and “two recognized Unions” has also been the concept referred. In Clause 6 there is a reference about non-availability of Central Legislation. There is need to frame some policy to avoid multiplicity of Unions. The policy for union recognition is in clear terms stated in Clause 10, which reads as under: “10. “The Check Off System” and “two recognized Unions” has also been the concept referred. In Clause 6 there is a reference about non-availability of Central Legislation. There is need to frame some policy to avoid multiplicity of Unions. The policy for union recognition is in clear terms stated in Clause 10, which reads as under: “10. POLICY FOR RECOGNITION: In order to entertain and decide on the claim of any union in future for recognition, the criteria for considering granting of recognition to Unions would be as under: Any Trade Union functioning at this Port claiming recognition should: (i) be functioning for at least a year after its registration under the Indian Trade Unions Act, 1926; (ii) be affiliated to any of the five recognized All India Federations of Port & Dock Workers since any wage revision settlement for all Class III & IV employees of the Port Sector by the Govt. with these recognized Federations is to be accepted by all the Port Workers; (iii) Be representing the interests of labour on the Port Trust Board; (iv) Agree to observe the Code of Discipline in industry (as evolved during the Indian Labour Conference held in May 1958); (v) Have a broad representation in all the departments of the Port since absence of the same will create problems while conducting negotiations with the Unions and entering into settlements wherein there could be likelihood of there being negative or adverse impact on similar categories of employees working in other departments; (vi) Have a minimum membership of at least 30 percent of the total number of employees. This percentage is particularly stipulated to discourage the emergence of the multiplicity of the Unions as well as the formation of craft-wise or sectional unions and also for ensuring that at any given time the Port will not have to deal with more then three Unions. Depending upon the activities of the Unions and perception of the members, it will be considered necessary that the workers should have the right to change the union membership according to their choice. In such circumstances, it would be necessary to ascertain the membership strength of the Unions by either the “Check Off” System or the “Secret Ballot” method. Depending upon the activities of the Unions and perception of the members, it will be considered necessary that the workers should have the right to change the union membership according to their choice. In such circumstances, it would be necessary to ascertain the membership strength of the Unions by either the “Check Off” System or the “Secret Ballot” method. (vii) Due to the imposition of a minimum of percent membership there could be a possibility of more than one small union coming together for the purpose of securing the required number of members. Since such attempts will be considered as being against the spirit of these guidelines, no such coalition will be considered or permitted. (viii) Observe the norms as prescribed by the administration from time to time, by the Trade Union Office bearers by virtue of their being employees of the Mormugao Port Trust including the Code of Discipline the contents of which will be reiterated again.” Therefore, if the recognition is given to the Unions in accordance with the criteria evolved pursuant to the Indian Labour Conference held in 1958 and the Code, then, one fails to understand as to how on the strength of this resolution or the decision at this meeting it could be held that the method of Secret Ballot or the Check Off, both came to be recognized by the First Respondent. On the own showing of the Port, by complying with the Ministry's directives, the Check Off System was conducted at the Port during the period from 8th June to 26th June, 1998 for considering representation on the Port Trust Board, which at the Port, was due for the period from 1st April, 1998 to 31st March, 2000. However, since there were certain constraints in the Check Off System and the method of Secret Ballot was being considered as a most democratic method, the First Respondent Port is aware that some Unions had opposed the utilization of Check Off figures for appointment of the Labour Trustees and demanded conduct of Secret Ballot and holds a view that the Secret Ballot appears to be simple, fair and straightforward manner of determining Unions strength and takes very little time and effort to implement, besides being transparent method, the government has no objection to implement this method, depending upon the willingness of all the Unions in the Port. Therefore, one fails to understand as to how merely because these minutes have been approved or there was further discussion, that the Unions and particularly the Petitioner, can be stated to have consented or agreed to the implementation or shift from Check Off to Secret Ballot. Thus Resolution No.257 and the decision reached on 29th December, 1999 does not enable Respondent No.1 to shift from the Check Off System to Secret Ballot System and more so, when from 1998 till 2009, the said Policy was never implemented. 50. In such circumstances, we are of the view that the Code and the system evolved has never been given a go bye. The Port could not have shifted from the Check Off System to Secret Ballot System merely by relying on the Minutes of the Meeting held in December, 1999, so also the Resolution thereat. 51. Once it is conceded that the Code was applicable and operative at the Port, and all parties were governed thereby, then, in our view the law laid down in the decision of the Full Bench of this Court would be squarely applicable. The reliance placed on the Order passed in Writ Petition (L) No.2644 of 2008 (Petroleum Employees Union Vs. The Chief Labour Commissioner and ors.) is misplaced, because that is merely an interim order and does not decide the controversy. As far as the first Respondent Port is concerned, the Code being followed, the Full Bench decisions in the case of Air India Employees Guild and anr. Vs. Air India Ltd., and ors., reported in 2007(1) Bom.C.R. 529 would apply. In that decision, the principle is summarized thus : “8. Question No.1 may now be considered and answered. In the first instance, we may refer to some aspects of the Code of Discipline. The Code of Discipline lays down criteria for recognition of unions by the Management and is purely voluntary. This was in terms of the resolution adopted by the Indian Labour Conference. This was adopted by all major public sector undertakings and the various labour Federations. A procedure for verification of membership of unions to determine their representative character was also approved by the Standing labour committee. All this has been brought together in the form of a brochure. This was in terms of the resolution adopted by the Indian Labour Conference. This was adopted by all major public sector undertakings and the various labour Federations. A procedure for verification of membership of unions to determine their representative character was also approved by the Standing labour committee. All this has been brought together in the form of a brochure. The Code of Discipline provides for recognition of (1) A Union claiming to be recognized as representative Union for an industry as a whole in the local area or (2) claiming recognition as the majority union in an establishment. The procedure for recognition is set out in Paragraphs 4 to 8 of the said code. It is not necessary to reproduce all those clauses, but we may refer to clauses pertaining to membership. Clause (9) reads as under: “Membership of a union for the purpose of recognition is to be counted only of those workers who had paid subscription for at least 3 months during the period of 6 months immediately preceding the date of reckoning. The ‘date of reckoning’ is the first of the month in which verification work begins, i.e. when the verification officer asks the unions to submit their lists and books for scrutiny. “Clause (II) reads as under: “If more than one union function in an establishment, it is necessary to verify the representative character of the various unions. The verification has to be done either by the concerned Implementation Officer or an officer of the Central or State Industrial Relations Machinery. A procedure to be followed for ascertaining the membership of the unions has been laid down by the Standing Labour Committee; its details are given in Appendix III. The results of the verification are to be intimated to the Management which would accord recognition to the majority union.” Annexure I lays down the criteria for recognition of the unions. Clause II of the said criteria requires that the membership of the union should cover at least 15% of the workers in the establishment concerned. The membership would be counted only of those who had paid their subscription for at least three months during the period of six months immediately preceding the reckoning. Appendix III lays down the procedure for verification of membership of unions for the purpose of recognition under the Code of Discipline. The membership would be counted only of those who had paid their subscription for at least three months during the period of six months immediately preceding the reckoning. Appendix III lays down the procedure for verification of membership of unions for the purpose of recognition under the Code of Discipline. The important highlights of the provision of verification is that the implementation machinery at the Centre will request the Chief Labour Commissioner to arrange verification of membership of unions entitled to recognition 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. The Verification officer has to call on the Unions to produce a list of those members who had paid subscription for at least three months within the period of six months immediately preceding the date of reckoning along with various documents. The date of reckoning would be the month from which the verification begins i.e. when the verification officer asks the unions to submit their lists and books for scrutiny. The procedure which the office must adopt for verification by checking the list of membership is then laid down. Once that is done, the Officer has to intimate to the Unions the list so prepared and call upon them to file objections, if any, more so of claims regarding dual membership. The objection received from the Unions are then to be verified by personal interrogation by the Verification Officer, of the members on the basis of the sampling system which is laid down. If the sample check reveals that certain members interrogated deny membership of a union, its list of members will be modified proportionately in the manner laid own. The finding will thereafter be submitted to the Central/State Implementation Machinery. 9. It is thus clear that the Employer and Unions in the industry which accepts the Code of Discipline have to follow the method of verification of membership as laid down therein. Once the procedure is accepted, is it open to any of the parties who agree to abide by the Code of Discipline to seek a procedure different from the procedure agreed. The Code of Discipline admittedly does not provide for deciding who has the majority of membership, by holding secret ballot. 10. Once the procedure is accepted, is it open to any of the parties who agree to abide by the Code of Discipline to seek a procedure different from the procedure agreed. The Code of Discipline admittedly does not provide for deciding who has the majority of membership, by holding secret ballot. 10. Some aspects on the report of the National Commission of Labour signed on 20.8.1969 may now be adverted to. The report notes that it attaches considerable importance in the matter of recognition of unions, as Industrial democracy implies that the majority unions should have the right to sole representation i.e. the right to speak and act for all workers and to enter into agreements with the employer. The report notes that the need for provision for recognition of Unions was also stressed in the second five year plan. Because of the desire to go slow on legislation, recognition was provided for on a voluntary basis in the Code of Discipline. It was felt that it was desirable to make union recognition compulsory under a Central law, in all undertakings employing 100 or more workers, or where the capital invested is above a stipulated amount. The commission noted that serious differences exist, however, on the manner in which the following of a union is to be determined, whether it should be by (a) verification of the fee paying membership of the unions, or (b) election by secret ballot. The evidence led before the commission was that the support of one or the other procedure was evenly balanced. The contentions of the supporters of the verification or secret ballot were then noted. It was however, felt that whatever may be the method, there will have to be an independent authority to decide the representative character of unions, either by verification of membership or by holding elections by secret ballot. 11. There is then the report of the Second National Commission of Labour, 2002 which has also dealt with the matter of recognition of unions. The commission noted that the first National commission had examined the questions of law. We may gainfully reproduce Paragraphs 6.68, 6.69, 6.70, 6.71, 6.72 and 6.73. “……. 6.72. 11. There is then the report of the Second National Commission of Labour, 2002 which has also dealt with the matter of recognition of unions. The commission noted that the first National commission had examined the questions of law. We may gainfully reproduce Paragraphs 6.68, 6.69, 6.70, 6.71, 6.72 and 6.73. “……. 6.72. We have given consideration to all these arguments and come to the conclusion that the check off system should be the general pattern, and wherever there is legitimate apprehension that the system may not achieve the purpose of verification or may create the possibility of victim is at ion, it should be open to unions to petition the Labour Relations Commission to determine the method that should be adopted in a particular instance. 6.73.It is needless to stress that for the above proposals to be implemented, the check off system in an establishment employing 300 or more workers must be made compulsory for members of all registered trade unions; each of them will have to indicate to the employer the name of the trade union of which he/she is a member and the worker will also have to issue a written authorisation to the employer to deduct his/her subscription from his/her wages and pass it on to his/her trade union.” It is thus clear that for rejecting the check off system of verification of membership as late as 2002, the IInd National Commission for Labour has preferred the check off system to the method of secret ballot. 15. ...The Code of Discipline has emerged from a consensus on the part of Industries and Unions to recognise the union holding majority membership. This need was felt to avoid multiplicity of unions and to act as a sole collective bargaining agent so that as far as possible there would be one union speaking on behalf of the workmen in the industry or establishment as the case may be. Nonetheless, in so far as the Code of Discipline is concerned, it still recognises the representative union in the industry as whole and as majority union in the establishment. We may note that in Food Corporation of India (supra) the Supreme Court had noted that the “Check off system” which once prevailed in this domain has lost its appeal, and so, efforts are on to find out which other system can foot the bill. We may note that in Food Corporation of India (supra) the Supreme Court had noted that the “Check off system” which once prevailed in this domain has lost its appeal, and so, efforts are on to find out which other system can foot the bill. As we have earlier noted the report of the Second Labour Commission which came out in the year 2002, has reiterated the advantages of check off system as set out in Para 6.72 of that report. That the majority union should collectively bargain on behalf of the workmen is to avoid conflicting demands of minority unions; some times totally irrelevant, which could result in hampering the industrial harmony and pivotal for functioning of an industry. Determining the majority character of an union is an important step in identifying the union, who will represent the workmen in the collective bargaining process. A procedure adopted at the Indian Labour conference, representing the collective will of employers and unions and borne our of their experience at the ground level, should not normally be interfered with by courts, not specialised in the intricacies of collective bargaining. 16. The question consider the above discussion, really is, whether the expression “verification of membership" can bring within its fold the procedure of elect ion like secret ballot. Verification of Membership in terms of the Code of Discipline requires that the membership of the Union is considered based on membership for a particular period. The object is to ascertain whether the worker maintains his loyalty to the union. The procedure of election on the other hand would require firstly preparation of a voter's list based on the membership of all the unions in the industry/establishment. The election will only decide who holds the majority of membership on the date the elections are held. An elector who is a member of an Union for the relevant period for whatever reason, could still vote for another union either on account of change of his personal views or other considerations. Secret ballot will only decide as to which union, the workers repose their faith on the date of the election. Secret ballot will not decide the issue as to membership of the union for the relevant period. Secret ballot will only decide as to which union, the workers repose their faith on the date of the election. Secret ballot will not decide the issue as to membership of the union for the relevant period. The method of secret ballot in the context of the procedure provided by the Code of Discipline as a method of determination of the majority of membership of the Union for a particular period would thus be derogatory to the Code of Discipline. Once there be a procedure and by consent, the parties agree to follow that procedure, it is not open to those parties and the authorities to depart from the procedure which has been voluntarily accepted by all the parties. The authorities cannot and impose another method of deciding who enjoys majority support. Once the parties accept the Code of Discipline, the procedure for determining the majority of membership in the industry in the area or the establishment, is the procedure laid down therein alone, and must be followed. Any departure would result in striking down the action. Those who consent to a particular procedural process, must abide by that procedural process and cannot deviate from the same, and if they do must suffer the consequences of their action being struck down. ...” Thus, the First Respondent is bound by these conclusions and findings. Once it is so bound, it is not necessary to deal with any larger controversy. 52. True it is that there is no Central Legislation, and therefore, the Supreme Court decision on the interpretation of Section of Section 11, 12, 14, and 19 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 will not apply, yet, if the Secret Ballot System is derogatory to the Code, then, that cannot be resorted to, is the law laid down by the Full Bench of this Court. We cannot ignore that merely because in some other case a Division Bench of this Court chose not to apply the said law. That law was not applied because of peculiar facts of that case inasmuch as the Union therein gave consent to the Secret Ballot System. That was a stand taken before the High Court by them. Therefore, the Union could not be heard as arguing to the contrary and that is how the Full Bench Judgment is held to be distinguishable. That law was not applied because of peculiar facts of that case inasmuch as the Union therein gave consent to the Secret Ballot System. That was a stand taken before the High Court by them. Therefore, the Union could not be heard as arguing to the contrary and that is how the Full Bench Judgment is held to be distinguishable. Such being not the case before us, an order passed by the Division Bench of this Court on 22nd June, 2009 in Writ Petition No.2856/2008 (Petroleum Employees' Union Vs. The Chief Labour Commissioner and others.) will not apply. All other decisions cited, either have been noticed by the Full Bench or dealt with peculiar factual situations. Hence each one of them need not be referred by us. In the light of the above discussion, any larger controversy and particularly about the exercise of power to issue directions or the ambit and scope of Article 77 of the Constitution of India, need not be decided. 53. In the result, the Petition succeeds. The Secret Ballot System/Procedure adopted for ascertaining the strength of the Union of the First Respondent is not sustainable in law. Consequently, the decision in that behalf will have to be quashed and set aside. All steps taken in furtherance of that decision, including holding of elections, etc., are, therefore, illegal and unsustainable. Thus, the decision and elections are both set aside. Rule is made absolute in these terms, but without any order as to costs. Petition allowed