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2012 DIGILAW 750 (JHR)

Ramesh Chandra Jha v. Bhagwan Singh

2012-05-15

APARESH KUMAR SINGH, PRAKASH TATIA

body2012
Order 1. Heard learned counsel for the parties. 2. There is a delay of 14 days in preferring this L.P.A. It will be relevant to mention here that the present appellants were not the parties in W.P (L) No.5452/2011, wherein the impugned order was passed. Looking to the facts of the case and the impugned order, which is in relation to the election of Tata Workers' Union and to the fact that the present appellants are since interested in the subject of dispute, we are of the considered opinion that delay may be condoned. In view of the above, I.A No.1663/2012 is allowed and the delay in preferring this L.P.A is condoned. 3. An application has been submitted for impleading Lachman Singh as party in this L.P.A, who was impleaded as party in the writ petition as intervenerrespondent no.6 by the order dated 19.12.2011 by the learned Single Judge. The said application is also allowed. 4. Learned counsel for the appellants submitted that they are members of the Tata Workers' Union and one Bhagwan Singh preferred the present writ petition, wherein a consent order has been obtained, which may be interpreted to mean that instead of conducting the election according to the constitution of the Tata Workers' Union, the election may be conducted according to the precedence and therefore, the appellants, being affected persons have preferred this L.P.A. After going through the order impugned dated 26.3.2012 and after hearing the learned counsel for the appellants and respondents and also learned counsel for nonpetitioner no.6 (respondent no.7 in this L.P.A), who was added as party in W.P (L) No.5452/2011 by the learned Single Judge by order dated 19.12.2011, we are of the considered opinion that the appellants may be given permission to challenge the order dated 26.3.2012 for the reason that prima facie it appears from the order that by consent, an order had been obtained by the parties for conducting the election according to “precedence” and the apprehension of the appellants is that by this order, the constitution of the Tata Workers' Union may be violated and the election may be held according to so called precedence and alleged practice. The Tata Workers' Union, according to the appellants, is a registered Union and since the order has been passed on the basis of concession, the matter requires consideration. The Tata Workers' Union, according to the appellants, is a registered Union and since the order has been passed on the basis of concession, the matter requires consideration. Not only this, according to the learned counsel for respondent no.6, two writ petitions, W.P (C) Nos.2338/2012 and 2288/2012, also have been filed before Single Bench of this Court for seeking clarification with respect to the impugned order dated 26.3.2012 itself or for seeking relief in relation to the same election. Therefore, it will also be appropriate to examine the impugned order dated 26.3.2012 and thus, leave is granted to the appellants to challenge the order dated 26.3.2012. 5. At the request of learned counsel for the parties, L.P.A is heard for final decision. 6. Learned counsel for the appellants submitted that the Registrar, Trade Unions, passed an order on 12th June, 2009, in view of the order passed by this Court in W.P (L) No.2099/2009 dated 7th May, 2009, wherein issue with respect to election in question for a total seat of 214 wa considered and while considering the said issue, another issue was considered with respect to the election of Supervisors and Technicians Unit (Association), for which 92 seats have been shown by the General Secretary of the Union and thereafter, it has been observed by the Registrar, Trade Unions, that in the constitution, there can be election for 214 seats, so far as Tata Workers' Union is concerned, and for these posts, election can be held. So far as election of 92 seats of Supervisors and Technicians s Unit (Association) is concerned, it is not provided in the constitution of the Tata Workers Union. The learned Single Judge has passed the consent order allowing conduct of election of the Tata Workers' Union “as per precedence under supervision of the Deputy Commissioner and Superintendent of Police, Singhbhum East, Jamshedpur” and has not passed any order for election of “Supervisors and Technicians s Unit”. The order of the Registrar, Trade Unions, dated 12th June, 2009 has not been set aside, nor any prayer was made before the learned Single Judge, when W.P (L) No.5452/2011 was decided, to set aside the order of the Registrar, Trade Unions, dated 12th June, 2009. The order of the Registrar, Trade Unions, dated 12th June, 2009 has not been set aside, nor any prayer was made before the learned Single Judge, when W.P (L) No.5452/2011 was decided, to set aside the order of the Registrar, Trade Unions, dated 12th June, 2009. Thus, the order dated 26.3.2012 has been apprehended to be misinterpreted and therefore, the appellants have preferred this L.P.A and learned counsel for the appellants as well as learned counsel for the writ petitioner jointly submitted that they intended to obtain order for free and fair election of the Tata Workers' Union; however, for that purpose in view of the order passed on earlier occasion by this Court in W.P (L) No.3965/2001 decided on 22.2.2002 and W.P (L) No.2099/2009, only it was expected that the election would be conducted under the supervision of the Superintendent of Police and the Deputy Commissioner of the area, whereas there is reasonable reason to believe that this order, which has been passed by the learned Single Judge and is under consideration in this L.P.A, is sought to be interpreted so as to get the recognition of the election of the Supervisors and Technicians Unit Association. It is submitted that, that was not the prayer in the writ petition, nor it was the case of the respondent no.5, Tata Workers' Union, of the writ petition. 7. Learned counsel for the respondentTata Workers' Union submitted before us that Tata Workers' Union is interested to hold election according to the constitution. Learned counsel for the appellants submitted that in view of the above facts, the order saying, “this writ petition is disposed of giving liberty to hold election of the Executive Committee and the office bearers of the Tata Workers' Union according to the practice and precedence of the earlier election of the said Union”, may be declared to be with respect to the precedence of taking help of the Superintendent of Police and Deputy Commissioner only to ensure free and fair election according to the constitution of the Tata Workers' Union. 8. 8. Learned counsel for the nonpetition no.6 (respondent no.7 in this L.P.A), who was intervenerrespondent in the writ petition by the order dated 19.12.2011, drew our attention to the counteraffidavit filed by the respondent no.5, Tata Workers' Union, specifically to the paragraph 35, 36, 37, 38, 39, 40 and 41 and submitted that since 1947 this was the practice and procedure of the Tata Workers' Union to assist another Association of Supervisors and Technicians Unit in conducting the election of their Association but the present appellants, who were office bearers of the of the Association of the Supervisors and Technicians Unit, want to put hurdle in holding of free and fair election of either Tata Workers' Union or in the election of the office bearers of the Association of the Supervisors and Technicians Unit. 9. In addition to the above, learned counsel for the nonpetitioner no.6 vehemently submitted that this L.P.A itself is not maintainable as it has been preferred by the parties who were not petitioner in the writ petition and further it is not maintainable in view of fact that the order impugned is a consent order, for which the present appellants, if would have raised any objection, should first have gone before the learned Single Judge by moving appropriate application for recalling of the order and thirdly, the order is not affecting any body and is an innocuous order making the process of election to be under the supervision of the right person. Learned counsel for the nonpetitioner no.6 also drew our attention to the judgment of a Division Bench of the Patna High Court delivered in the case of Bokaro Steel Workers Union & Ano. Vs. The State of Bihar & Ors. reported in 1995(1) PLJR 400 and submitted that appropriate remedy for appellants is to file civil suit as has been held by the Division Bench of Patna High Court specifically in paragraph 22 therein. 10. We considered the submissions of the learned counsel for the parties and perused the facts of the present case and earlier orders passed by this Court providing police and administrative help to Union in conducting election. 10. We considered the submissions of the learned counsel for the parties and perused the facts of the present case and earlier orders passed by this Court providing police and administrative help to Union in conducting election. The judgment of Bokaro Steel Workers Union & Ano., which has been relied by the learned counsel for nonpetitioner no.6, wherein after observing that some of the disputes of election of trade union, for which there is no remedy provided under the Act and the appropriate remedy is to file a suit and thereafter it has been observed that suit is virtually no remedy, the Division Bench, in the same judgment and in the same paragraph held that “(vi) The adjudication in a suit at least in this State is normally a slow and time consuming process and does not constitute a wholly satisfactory remedy for resolving the dispute”. The aforesaid judgment clearly indicates that the dispute relating to election can be resolved through civil suit and the remedy of civil suit is lengthy and virtually no remedy and therefore, it suggested the State Government to address on this issue by making provision in the Act so as to resolve election dispute or the dispute relating to election. However, the said judgment has no application to the facts of the present case because, the relief has been granted by order under consideration, is only against the State and it is not a dispute between two unions or rival unions or between the members of the union and union or an election dispute. The relief has been granted by the impugned order against the State and the State functionaries and for that, in our opinion, the appropriate remedy is by approaching the High Court for obtaining direction in writ jurisdiction for effective implementation of the order in the matter of securing free and fair election with the help of the State administration so that in election, if needed, law and order can be maintained by the State without interfering in the process of election in any manner. Therefore, we are not inclined to entertain the objection of the learned counsel for nonpetitioner no.6 that the appellants had remedy of filing suit. 11. Therefore, we are not inclined to entertain the objection of the learned counsel for nonpetitioner no.6 that the appellants had remedy of filing suit. 11. Otherwise also, after the decision of the High Court, that is after order dated 26.3.2012 passed in W.P (L) No. 5452/2011, no suit can be filed so as to challenge the said order or to obtain any clarification with respect to the order passed by the High Court. Therefore, also suit was not the remedy. Even if the argument of the learned counsel for the nonpetitioner no.6, that the remedy of suit was the appropriate remedy is accepted, then in that situation also, the writ petition, in which concession order has been passed, was liable to be dismissed, resulting into setting aside of the order, which is under consideration in this L.P.A and impugned by the appellants. Therefore, on this ground also, we do not find any merit in the argument of the learned counsel for nonpetitioner no.6. 12. It appears from the totality of facts and from the pleadings referred above of the respondent no.5 placed before the learned Single Judge that in fact, for a nonissue, an issue has been created because of the language of the impugned order. In the writ petition, there is no prayer for setting aside of the order of the Registrar, Trade Unions, nor learned Single Judge set aside that order. In the writ petition, detailed pleadings may be of both the parties but both parties agreed only for the relief that the precedence (election under supervision of Deputy Commissioner of the area and Superintendent of Police) for conduct of the election may be followed and the precedence was already on record in the form of the order passed by this Court in the earlier round of litigation to hold election under the supervision of Deputy Commissioner and without interference by the Registrar, Trade Unions, in the process of election. Therefore, that was the precedence, for which the learned counsel for the writ petitioner and Tata Workers' Union both agreed before the learned Single Judge. So for the precedence, in that situation, nothing more can be taken out from the order and which was never intended and never made by the court. Therefore, that was the precedence, for which the learned counsel for the writ petitioner and Tata Workers' Union both agreed before the learned Single Judge. So for the precedence, in that situation, nothing more can be taken out from the order and which was never intended and never made by the court. Therefore, in fact, if the appellants were instigated to approach this Court for obtaining some order with respect to the order impugned, that appears to be justified because of the stand taken by the nonpetitioner no.6, who tried to justify that Tata Workers' Union is helping in the election of the Association of Supervisors and Technicians s Unit also. However, learned counsel for nonpetitioner no.6 fairly and very frankly stated that so far as holding election of Tata Workers' Union is concerned, nonpetitioner no.6 is also interested that the election of Tata Workers' Union be conducted according to the constitution of the Tata Workers' Union only but his contention is that Tata Workers Union's president is the exofficio president of the Association of the Supervisors and Technicians Unit. The issue, i.e. what is the status of the Tata Workers' Union in the Association of the Supervisors and Technicians s Unit, is concerned, that was not the subject matter, nor such Association was before the learned Single Judge and no order was passed by the learned Single Judge with respect to any of he affairs of the Association of Supervisors and Technicians s Unit, which is very clear from the impugned order, wherein only reference is with respect to election of Tata Workers' Union and there is no reference of any election of the Association of Supervisors and Technicians Unit. Any constitution or byelaws of that Association was not on record is the admitted position and therefore, also that was not even the subjectmatter but from the stand taken by the nonpetitioner no.6, it appears that there was legitimate ground for the appellants to approach this Court for obtaining clarification. 13. Any constitution or byelaws of that Association was not on record is the admitted position and therefore, also that was not even the subjectmatter but from the stand taken by the nonpetitioner no.6, it appears that there was legitimate ground for the appellants to approach this Court for obtaining clarification. 13. It is true that when some ambiguity is sought to be clarified by moving an application, normally the party is to approach the Judge concerned so that the order may be clarified and if the order is required to be reviewed, then for that purpose also, the parties or the persons, who are aggrieved, can approach the Judge concerned for review of the order and in that situation, normally appeal or L.P.A is not entertained. We are making exception because of the reason that it is a matter of election and according to nonpetitioner no.6 himself, election is going to take place within six days from today, i.e. on 21st May, 2012. Sending the appellants to the learned Single Judge for obtaining clarification is not needed, when, in fact, there is no dispute with respect to the effect of the order and about what has been held by the order under consideration and clarification has been sought because of confusion, which may arise because of the wrong interpretation, which, according to us, created by the stand of respondent no.6 and there is no confusion because of impugned order as it specifically dealt with the issue of election of Tata Workers' Union alone and has not dealt with the issue of the Association of the Supervisors and Technicians Unit, nor the impugned order has dealt with the order passed by the Registrar, Trade Unions. The impugned order is very clear and it also has been passed only to ensure free and fair election of the Tata Workers' Union according to the constitution of the Tata Workers' Union. 14. We do not find any force in the apprehension of the learned counsel for nonpetitioner no.6 that the election may not be held on the scheduled date, since we have not made any observation so as to interfere with the process of election in any manner.