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2014 DIGILAW 129 (ALL)

PURVOTTAR RAILWAY SRAMIK SANGH v. UNION OF INDIA

2014-01-13

ANIL KUMAR SHARMA, TARUN AGARWALA

body2014
JUDGMENT Hon’ble Anil Kumar Sharma, J.—We have heard learned counsel for the parties at length and perused the record of the case carefully. 2. The petitioner has invoked the extra-ordinary jurisdiction of the Court under Article 226 of the Constitution praying for following reliefs: I. Issue an appropriate writ, order or direction quashing the word, ‘TOTAL ELECTORATE’ in para 4(1) of the Final Modalities and in its place, the word ‘VALID VOTE POLLED’ be replaced; II. Issue an appropriate writ, order or direction quashing the words, ‘GETS ATLEAST 35% OF THE VALID VOTES POLLED’ be quashed, in para 4.ii and 4.iii and in its place, 30% may be directed to be kept; III. Issue an appropriate writ, order or direction quashing the proceedings of Secret Ballot Election for recognition of Trade Unions, 2013 and declaration of result dated 2.5.2013 issued by respondent No. 4; IV. Issue an appropriate writ, order or direction to the respondent No. 1 to 4, not to force the petitioner’s Sangh to vacate the office premises and other facilities, provided to other recognized/non-recognized trader unions and similar treatment be made, with unions, having effective membership in the North-Eastern Railway; V. Issue any other writ order direction, which this Hon’ble Court may deem fit and proper under the facts and circumstances of the present case. VI. Award cost of the petition to the petitioner. 3. The petitioner has approached the Court alleging that it is a Union of Class III and IV Railway employees registered under the Trade Union Act and is a body corporate under Section 13 of the said Act. In the year 2007 Secret Ballot Election for recognition of trade union was held by respondent No. 1 and the petitioner having secured 48% votes and recognized trade union of the railwaymen. In the 2013 election the respondent Nos. 3 to 4 adopted partial attitude and permitted the respondent No. 5 to violate the provisions of the Code of Conduct and Code of Discipline of Final Modalities for Secret Ballot Election and did not take action against respondent No. 5. In the 2013 election the respondent Nos. 3 to 4 adopted partial attitude and permitted the respondent No. 5 to violate the provisions of the Code of Conduct and Code of Discipline of Final Modalities for Secret Ballot Election and did not take action against respondent No. 5. The petitioner had challenged the proceedings of secret ballot election mainly only on the following grounds: (a) that the symbol ‘red colour flag’ was illegally allotted to respondent No. 5 inspite of objection of the petitioner as it is being frequently used by the railwaymen during course of their duties in operation of trains; (b) that against the provisions of clause 3(e) of Final Modalities the names of the employees who were not in service from 1.2.2013 till March, 2013 were not deleted from the voters list provided by respondent No. 4, due to which thousands of such employees cast their votes with the help of Polling Officers; (c) that the polling agents of the unions were kept out of polling booths due to which mal practices were done by the Polling Officers; (d) that the postal ballot papers were sent by courier service violating the terms of the Modalities which provide for sending the same by registered post or speed post, resultantly they did not reach the voters stationed at remote areas; (e) that exercising grudge against the petitioner the Assistant Presiding Officer/DRM (Personnel), Izzatnagar vide letter dated 19.3.2013 had directed the petitioner union to vacate the premises and return the facilities of office, telephone etc., while the respondent No. 5 enjoyed these facilities even after losing election in 2007; (f) that the respondent No. 5 used corrupt practice during election as it managed to get support from caste, community based Associations and the General Secretary of respondent No. 5 issued press release in the Media on 24.4.2013 in violation of Modalities and against code of conduct; (g) that the respondent No. 5 was allotted official premises in Mechanical Workshop, Gorakhpur and Railway Stations through the zone free of cost by railway which had been used during the course of election converting them at election office in connivance of respondents No. 3 and 4 inspite of the complaint of petitioner dated 24.4.2013; (h) that the staff of Engineering Department was deployed on election duty, which was objected by the petitioner and they have pressurized, intimidated and threatened their subordinate voters to vote in favour of their union which affected the free and fair election; (i) that the respondents No. 3 and 4 did not finalize the voters’ list till 19.3.2013 and material alterations and additions were made therein till the date of election; (j) that clause 4 (i), (ii) and (iii) of the Final Modalities providing 30% of the single vote of the total electorate and compulsion of getting 35% of the valid votes polled is conflicting and defeating the very purpose of these clauses and have no rational and purpose for laying down such conditions for recognition of Union as it violative of Article 14 of the Constitution. 4. In their separate counter-affidavits the respondents No. 1 to 4 and 5 have denied all the allegations levelled by the petitioner about the transparency of the election process as also the Modalities and they have in unison have stated that election has been conducted in accordance with the provisions of the Modalities impartially without showing favour to any union. The respondent No. 5 has further contended that in the election of 2007, same election symbol ‘red flag with pole’ having the name of the union ‘NERMU’ printed thereon, but the petitioner did not raise any objection and there option for the union to chose its election which was used in the earlier election. Any appeal by the respondent No. 5 for any union based on caste or community was made during the election and if any union has extended any support, the same cannot be attributed to them and it does not violate any provisions of the Modalities. It has been further contended that the petitioner did not file any objections about any irregularities or illegalities having been committed by any of the respondent by 28.4.2013, which was mandatory as per the guidelines and having been participated in the election process the petitioner cannot challenge the Modalities. Lastly it has been submitted that the questions raised by the petitioner in the petition are factual and cannot be decided in the writ petition under Article 226 of the Constitution as it requires collection of evidence and its appreciation by the Court, which can only be done in a regular civil suit. 5. Upon hearing counsel for the parties and on perusal of the record it is found that the Railway Board vide order ERB-I/2012/23/49 dated 9.11.2012 constituted a committee to supervise and conduct Secret Ballot Elections for granting recognition to unions and federations on Indian Railways. The Committee prepared the draft of the Modalities and uploaded the same on website on 11.3.2013 calling for views/suggestions upto 5.30 p.m. on 15.3.2013 and after considering the same, the Committee framed the Final Modalities and uploaded on the website of the Railway Board on 18.3.2013. It appears that none of the contesting unions in the election raised any objection or challenged the same any where till conclusion of the election on 27.4.2013. It appears that none of the contesting unions in the election raised any objection or challenged the same any where till conclusion of the election on 27.4.2013. It is not disputed that in the election of 2007, the petitioner union was recognized and respondent No. 5 lost the election. They raised election dispute before the Competent Authority which was not found tenable and the impugned order dated 10.12.2007 in this regard was challenged by the respondent No. 5 in Civil Misc. Writ Petition No. 9008 of 2008, which was dismissed by learned Single Judge of this Court on 23.5.2008. The respondent No. 5 carried Special Appeal No. 780 of 2008, but it was dismissed observing that it is open for the appellants (present respondent No. 5) to file a suit in competent Court challenging the election in accordance with law. Clause 31 (para-2) of the Modalities provides as under: “Any dispute regarding elections/counting of votes shall be raised before the Returning Officer on the last day of the election/before declaration of result. After expiry of this period, the result declared by the Returning Officer of the Zonal Railway shall be treated as final.” 6. The petitioner has no where contended that any election dispute was raised on their behalf before the Returning Officer as provided above, rather they have brought the irregularities/illegalities allegedly committed by the railway administration to the notice of respondent No. 2 by way of representation dated 3.5.2013 (Annexure-29). Thus, not following the mandate of the Modalities with regard to the election process would naturally show that the petitioner has acquiesced with the fair and impartial election process. In these circumstances, it would be difficult for this Court to believe the bona fides of the petitioner union. 7. The petitioner has raised many disputed questions of fact in the writ petition without giving material facts or any cogent evidence in support thereof, which have been emphatically denied by the respondents. We are afraid whether the disputed questions of fact which require collection of evidence and its appreciation on the touchstone of probabilities and proof can be adjudicated by this Court in exercise of extra-ordinary jurisdiction under Article 226 of the Constitution. We are reminded by the observations of the Hon’ble Supreme Court given in the case of Mangani Lal Mandal v. Bishnu Deo Bhandari, (2012) 3 SCC 314 . We are reminded by the observations of the Hon’ble Supreme Court given in the case of Mangani Lal Mandal v. Bishnu Deo Bhandari, (2012) 3 SCC 314 . While dealing with election petition challenging the election of the appellant to the Parliament under Section 100 (1) (d) (iv) of Representation of the People Act, 1951 for non-compliance with the provisions of the Constitution of the Act or any rules or orders made under the Act, in para-11 has observed as under: “A mere non-compliance or breach of the Constitution or the statutory provisions noticed above, by itself, does not result in invalidating the election of a returned candidate under Section 100 (1) (d) (iv). The sine qua non for declaring the election of a returned candidate to be void on the ground under clause (iv) of Section 100 (1)(d) is further proof of the fact that such breach or non-observance has resulted in materially affecting the result of the returned candidate. In other words, the violation or breach or non-observation or non-compliance with the provisions of the Constitution or the 1951 Act or the rules or the orders made thereunder, by itself, does not render the election of a returned candidate void under Section 100(1)(d)(iv). For the election petitioner to succeed on such ground viz. Section 100(1)(d)(iv), he has not only to plead and prove the ground but also that the result insofar as it concerned the returned candidate has been materially affected.....” In the instant case the petitioner has simply pleaded certain alleged irregularities in the election process, which have been seriously disputed by the respondents. 8. It is not res integra that while under Article 19 (1) (c) of the Constitution of India there does exist a fundamental right to form a union, the imposition of conditions for recognition would not per se be viewed as an unreasonable restriction within the meaning of Article 19 (4). [Vide Kulkarni Raja v. State of Bombay, AIR 1954 SC 73 , Raghubar Dayal Jai Prakash v. Union of India, AIR 1962 SC 263 and Delhi Police NGK Sangh v. Union of India, AIR 1987 SC 379 ] 9. A division bench of the Delhi High Court in the case of Union of India v. Rail Coach Factory Men’s Union, LPA No. (550 of 2010) decided on 30.1.2012 has observed - “No doubt, recognition of union is not a right. A division bench of the Delhi High Court in the case of Union of India v. Rail Coach Factory Men’s Union, LPA No. (550 of 2010) decided on 30.1.2012 has observed - “No doubt, recognition of union is not a right. It is the prerogative of the employer to recognize a union or not. In the Trade Union Act also there is no provision for recognition. It is also well established law that when the Government introduced the system of recognition, it was well within the rights of the Government to impose conditions for recognition. Such conditions are not to be treated as unreasonable restriction within the meaning of Article 19(4) of the Constitution.” 10. Learned counsel for respondents No. 1 to 4 has contended that the above judgment of the Delhi High Court has been affirmed by the Supreme Court in SLP (Civil) No. 23523 of 2012. 11. It is important to note that in the election by secret ballot for recognition of the trade union held by respondents No. 1 to 4 in 2007 almost similar clause existed for recognition of the trade union and in that election the petitioner was recognized after having secured the votes as stipulated in the clause under the head ‘Norms for Recognition’, so now they cannot turn around and challenge the same. Clause-4 of the Modalities reads as under: 4. Norms for recognition: (i) All unions getting 30% or more of the single vote of the total electorate shall be considered recognized. (ii) If only one union gets 30% or more of the single vote of the total electorate and some other union polling next maximum number of votes, gets at least 35% of the valid votes polled, then both these unions will get recognition. (This is on the premise that 35% of votes polled is less than 30% of the total electorate). (iii) If situation as stipulated in (i) and (ii) above does not arise, then the two unions getting maximum number of votes will be recognized provided each one individually gets more than 35% of the valid votes polled. (iv) In case there is no union fulfilling the conditions laid down in (i), (ii) and (iii) above, then union which gets maximum number of valid votes polled will be recognized provided it gets at least 20% of the valid votes polled. In this case only one union will get recognized. (iv) In case there is no union fulfilling the conditions laid down in (i), (ii) and (iii) above, then union which gets maximum number of valid votes polled will be recognized provided it gets at least 20% of the valid votes polled. In this case only one union will get recognized. (v) If no union gets even 20% of valid votes polled, then no union will stand recognized. (vi) Once a Union is recognized, it shall continue to remain recognized till its recognition is withdrawn/suspended by the competent authority for some special reason after following the due process.’ 12. Further we do not any illegality or any contradiction, as argued by the learned counsel in the norms for recognition. It has taken care of all eventualities in the matter of recognition of the representative trade union and so it cannot be called arbitrary in any manner. The underlying idea is to have maximum three recognized trade unions at a time, which can fairly be achieved with conditions as enumerated in clause-4 of the Final Modalities. 13. The election results (Annexure-1) have not been challenged in the instant writ petition, which show that in all four trade unions participated in the election wherein the respondent No. 5 got 33.33% of the total electorate and 39.30% of the total votes polled while the petitioner secured only 30.28% of the votes polled and 25.68% of the total electorate. No other Union has challenged the norms for recognition or the election process of the instant election so far. Thus, as per the norms for recognition, the respondent No. 5 was recognized by the respondents No. 1 to 4 as the representative trade union for the railwaymen of the Zone. 14. As noted earlier in the secret ballot elections of 2007, the petitioner union was recognized and unsuccessful respondent No. 5 filed a representation raising election dispute which was rejected by the competent authority. The respondent No. 5 had challenged the impugned order in Writ Petition No. 9008 of 2008, which was dismissed by other Bench of this Court on 23.5.2008 and the Special Appeal No. 780 of 2008 carried by respondent No. 5 too was dismissed on 1.7.2008. In this litigation, the petitioner did not challenge the norms for recognition as formulated in the final modalities. 15. In this litigation, the petitioner did not challenge the norms for recognition as formulated in the final modalities. 15. The allotment of election symbol ‘red flag with logo NERMU’ printed thereon does not contravene the provisions of Modalities in this behalf. The petitioner’s counsel could not dispute the claim of respondent No. 5 that in the election of 2007, same symbol was allot to them and at that time no objection was raised by the petitioner. We have also examined the contention of the petitioner in this behalf and find that there is substantial difference in red flag prescribed for use by the railwaymen during day time in shunting etc. Nowadays with the provision of electronic/electric signals the use of red flag in operational activities of the trains has been considerably minimized. Further, the election symbol allotted to the respondent No. 5 is quite distinct with the red flag prescribed by the railways, as it is a small red flag without any inscription thereon. The election symbol allotted to the respondent No. 5 is large red flag flying horizontally having big a pole and ‘NERMU’ is printed in bold letter on the flag. The voters are by and large literate, so the question of their being misled by election symbol allotted to respondent No. 5 does not arise. Clause-10 of the Modalities ‘Allotment of Election Symbol’ provides for choice of election symbol by the contesting trade unions which should conform to the following principle: (i) A union may use its established logo as its symbol, irrespective of the same bearing pictures of any object concerning railways. (ii) The symbol may carry the name of the union/federation. (iii) The symbol that was used by the union in the last election, may be used, provided it does not have any connection with railways. Thus, a ‘bogie’ used as a symbol would not be permissible even if the same was used in last election by them.’ We have already seen that the big red flag with pole and having ‘NERMU’ printed on the flag is quite distinct has no resemblence with the red flag (lal jhandi), which is used by the railwaymen in their operational duties. Thus, there is no illegality or material irregularity in allotment of election symbol to respondent No. 5 and it does not contravene the provisions of the Modalities. 16. Thus, there is no illegality or material irregularity in allotment of election symbol to respondent No. 5 and it does not contravene the provisions of the Modalities. 16. It appears to be a policy of the Railway administration to provide accommodation and other facilities like electricity, telephone charges, faxes, card passes for rail travel etc. to the recognized trade unions which represent the members of the recognized trade unions. It is well-settled principle of law that unless the policy is capricious and not being informed by any reason whatsoever, the Court should not interfere with the policy decision of the Government. In absence of constitutional, statutory or other rights, the writ proceedings would not lie to enforce other obligations. In the case on hand, nothing has been shown that any statutory, legal or constitutional right has accrued in favour of the petitioner-Union which was registered for a long period as trade union particularly when on instant election, the petitioner-Union failed to secure the minimum votes for recognition, and as such was derecognized. It is pertinent to note here that the counter-affidavit filed by respondent No. 4 contains the memo of appeal under Section 9 of Public Premises Act filed by the petitioner in the Court of the District Judge, Bareilly against the order of eviction passed by the competent authority on 18.7.2013 and their application for staying the operation of the impugned order is pending consideration before the appellate Court. 17. The other disputed issues raised in the petition require collection of evidence and its appreciation by the Court, and such exercise cannot be conducted in the instant writ petition. If the factual matrix can be adjudicated only after an intricate and detailed consideration of rival stands after full fledged opportunity is given to them to adduce their oral and documentary evidence, then exercise of the writ jurisdiction would be misplaced and inexpedient. It is not possible for this Court in exercise of writ jurisdiction to decide such questions, only on the basis of the affidavits. 18. In view of what has been said and done above, we do not find any merits in the writ petition, which is hereby dismissed. However, it would be open for the petitioner, if so advised, to file a regular suit in a competent Court challenging the election in accordance with law.