JUDGMENT 1. - Petitioner, a trade union registered under the Trade Unions Act, 1926 (for short, 'Act of 1926'), has laid this writ petition praying therein under-mentioned reliefs: "It is, therefore, most respectfully prayed that this writ petition may kindly be allowed with costs and by issuance of an appropriate writ, direction or order the impugned letters dated 19.05.15 (annex. 5) and dated 12.06.15 (annex.6) may kindly be quashed and set aside. It is further prayed that the respondent bank may please be directed to permit participation of the honorary members office bearers of the petitioner union in the negotiations with the management of the respondent bank including before Zonal Management. Any other order may also kindly be passed which appears to be just in favour of the petitioner." 2. Succinctly stated facts of the case are that petitioner-Union is duly recognised by respondent-State Bank of Bikaner & Jaipur (for short, 'Bank') having its affiliation to All India Bank Employees Association (AIBEA). Ventilating its grievances against impugned action of the respondent-Bank, it is averred in the writ petition that the management of the Bank has invited only serving employee members of the petitioner-union to participate in discussions/negotiations before initiation of strike. As per the petitioner-union, at its behest, a notice of strike was served on the management of the Bank in advance whereupon the Bank had invited representatives of the petitioner-union for discussions/negotiations by restricting the representation of the petitioner-union through serving employee office bearers only and putting an embargo vis-a-vis retired employees, who are members/office bearers of the petitioner-union. While referring to constitution/bye-laws of the petitioner-union, it is submitted that the same is in consonance and conformity with Section 22 of the Act of 1926. 3. Laying emphasis on Clause 5 of the bye-laws, it is averred in the writ petition that anyone can be honorary member of the union even if he is not an employee of the Bank and the only requirement for induction of someone as honorary member is his true allegiance with the aims and objects of the union. It is further averred that Honorary member is eligible to be elected or appointed as office bearer of the union subject to provisions of the constitution and Section 22 of the Act of 1926. The elected delegates coming from the affiliate units to the conference shall constitute "General Council" of the Coordination Committee. It is further averred that Honorary member is eligible to be elected or appointed as office bearer of the union subject to provisions of the constitution and Section 22 of the Act of 1926. The elected delegates coming from the affiliate units to the conference shall constitute "General Council" of the Coordination Committee. Romping in Clause-11 of the bye-laws, the petitioner-union has submitted in the writ petition that these delegates are also eligible for being elected as office bearers of the working committee. Pointing out numerical strength of the union amongst employees of the Bank, it is stated that union is having membership of 98% of the employees of the Bank in workmen cadre so as to stake claim as sole bargaining agent. Questioning the action of the respondent-Bank, it is stated by the petitioner that since 2012 respondent-Bank has adopted a policy of calling only serving employees office bearers for discussions/negotiations with complete denial for honorary members (retired employees of the Bank). 4. For castigating impugned action of the respondent-Bank as arbitrary and unreasonable, petitioner-union has placed reliance on a Division Bench decision of Madras High Court in case of L. Balasubramanian & Anr. v. Indian Overseas Bank & Ors. - Writ Appeal No.2137/2013 decided on 9th January, 2014. 5. A meaningful consideration of the pleadings makes it amply clear that union has essentially espoused the cause of one honorary member, Mr. L.N. Jalani, who is a retired employee of the Bank but duly elected secretary of the union. Highlighting the credentials of Mr. L.N. Jalani, it is submitted in the writ petition that he has been participating actively in negotiations with the management of the Bank for last almost three decades on various issues involving interest of the employees. 6. In order to justify call for strike, it is submitted in the writ petition that the employees of the Bank have raised many demands and on account of non-fulfillment of such demands, the union has decided to call for the strike duly supported by all other bank employees unions as well as coordination committees. After serving notice of strike, a meeting was held with Chief Labour Commissioner (C) on 1st of June, 2015, where an issue was raised by the union to allow its honorary member, who is office bearer of the union, to participate in the discussions/negotiations. After serving notice of strike, a meeting was held with Chief Labour Commissioner (C) on 1st of June, 2015, where an issue was raised by the union to allow its honorary member, who is office bearer of the union, to participate in the discussions/negotiations. However, the stalemate continued and nothing turned out during meeting dated 1st of June, 2015 called by Chief Labour Commissioner (C). 7. In substance, Chief Labour Commissioner asked the management of the Bank to call representatives of the union/association for mutual discussion. Be that as it may, the management of the Bank issued a letter dated 12th of June, 2015 asking the union to participate in discussions/negotiations through one serving office bearer on 13th June, 2015. In that background, the petitioner-union has assailed the letters dated 12th of June, 2015 and earlier letter dated 19th of May, 2015 with similar recitals. 8. For strengthening its case, the petitioner-union has also placed on record legal opinion tendered by former Chief Justice of India dated 21st of January, 2004 and two former Judges of this Court as Annexs. 7 to 9 respectively. Attacking both these impugned communications, the petitioner-union has submitted that the said action of the respondent-Bank is bad in law and dehors the bye-laws of union. The impugned communications are also questioned on the ground that no specific directions have been issued by the Central Government in this behalf debarring the office bearers to participate in discussions/negotiations with the management on the issues relating to employees of the Bank. 9. The impugned communications are also challenged by the petitioner-union by referring to Indian Bankers Association (IBA), which is the controlling agency regarding formation of rules and regulations for the banking services and consists of different serving Government officers as well as Chairmen/Managing Directors of various banks, who undertake discussions with the trade unions to sort out the issues regarding employees of various banks. It is further clarified that IBA is permitting honorary members of the union as office bearers to participate in negotiations and, therefore, the action of the respondent-bank in depriving the duly elected office bearer of the union from participating in discussions/negotiations is not tenable. Lastly, it is urged by the petitioner-union that by not allowing honorary member office bearer to participate in discussions/negotiations, the respondent-Bank has made an affirmative attempt to jeopardise the cause of employees. 10. Lastly, it is urged by the petitioner-union that by not allowing honorary member office bearer to participate in discussions/negotiations, the respondent-Bank has made an affirmative attempt to jeopardise the cause of employees. 10. The respondent-Bank has submitted its preliminary objection to the writ petition. At the outset, it is submitted by respondent-Bank that the cause of action of the union pertaining to notice for strike dated 13th of May, 2015 and letters dated 19th May, 2015 and 12th June, 2015 no more survive and therefore, the petition has gone infructuous. A specific preliminary objection is also incorporated in the reply that petitioner-union is seeking a writ of mandamus but the same was not preceded by a notice for demand of justice. Therefore, on this count alone, the respondent-Bank sought rejection of the writ petition. An objection is also raised questioning the authority of Mr. L.N. Jalani to file this writ petition by urging that no authorisation of the union has been submitted in this behalf. 11. Adverting to parawise reply, the respondent-Bank has submitted that petitioner-union can very well avail alternative efficacious remedy by agitating the dispute before Chief Labour Commissioner(C), before whom conciliation proceedings were earlier held. That apart, right and locus of the petitioner-union is also questioned by the respondent-Bank. 12. Joining issue with the petitioner-union on restricting participation of serving members of the union in discussions/negotiations before initiation of strike, it is submitted by the respondent-Bank that it has rationale behind it, inasmuch as the said issue is having direct nexus with the serving employees of the Bank, who can appropriately and effectively represent the cause of the union before the management. The stand of the Bank, in this behalf, is that sending of retired employees for negotiations by the union is nothing but a force tactics on management for deriving undue advantage. 13. The respondent-Bank has specifically pleaded in the reply that the bye-laws of the union are in the nature of articles of association and do not have any force of law. Therefore, according to respondent-Bank, bye-laws of the union cannot be enforced. In respect of clause 5 of the bye-laws, the respondent-Bank has submitted that it is an internal matter of the union, however, it is also emphasised that mere honorary membership as per clause 5 of the bye-laws cannot equip such retired employee with omnipotent right to participate in negotiations invariably. 14. In respect of clause 5 of the bye-laws, the respondent-Bank has submitted that it is an internal matter of the union, however, it is also emphasised that mere honorary membership as per clause 5 of the bye-laws cannot equip such retired employee with omnipotent right to participate in negotiations invariably. 14. As regards Section 22 of the Act of 1926, it is submitted by the respondent-Bank that it nowhere imposes a condition or obligation on the employer that a particular member should be called for negotiations. Asserting its right as an employer, respondent-Bank has urged in the reply that it is the discretion and prerogative of the Bank to call serving member office bearer of the union for negotiations. 15. Taking a dig at the admission of petitioner-union that since 2012 respondent-Bank is inviting only serving member for discussions/negotiations and debarring representative by the honorary members (retired from bank employment), the respondent-Bank has submitted that if the union has not raised its voice on this consistent practice, which is prevalent since last more than three years, the present petition merits dismissal solely on the ground of delay and laches. 16. While referring to Section 6(e) of the Act of 1926, which provides for admission of ordinary members, it is submitted by the respondent-Bank that aforesaid section read with Section 22 of the Act of 1926 makes it amply clear that respondent-Bank is not under an obligation to call a member for discussions/negotiations, who has already attained the age of superannuation. 17. As regards the Division Bench decision of Madras High Court, it is submitted by respondent-Bank that the same is factually distinguishable. It is further submitted by the respondent-Bank that the Division Bench of Madras High Court while rendering the said judgment has enforced the bye-laws of the trade union whereas Hon'ble Apex Court in many judgments has held that bye-laws of a society cannot be enforced in the court of law. It is also urged by the respondent-Bank that the Division Bench judgment of Madras High Court has not considered a vital fact that there is no legally enforceable right in any trade union to have any of its office bearer nominated for the purpose of negotiation or conciliation with the management. It is also urged by the respondent-Bank that the Division Bench judgment of Madras High Court has not considered a vital fact that there is no legally enforceable right in any trade union to have any of its office bearer nominated for the purpose of negotiation or conciliation with the management. Thus, in substance, the stand of the respondent-Bank is that neither there is any legally enforceable right of the petitioner-union nor any corresponding legal obligation or duty casted on the respondent-Bank to permit a non-employee member of the union either during conciliation or negotiation with the management. 18. On the issue of framing of rules/bye-laws for eligibility of members or honorary members by the coordination committee of Rajasthan State Bank of Bikaner & Jaipur Employees Association, it is submitted by the respondent-Bank that if it is prerogative of the coordination committee, then obviously calling someone for negotiation with the management of the Bank with restriction vis-a-vis honorary/retired employees and confining that right for serving employees, is the prerogative and repository of the management of the Bank. 19. On the issue of participation of Mr. L.N. Jalani, who is Secretary of the union, the respondent-Bank has reiterated its stand that being a retired employee he is not eligible to participate in the discussions/negotiations in terms of Section 6(e) of the Act of 1926. 20. The respondent-Bank has further reiterated that cause of action to the petitioner-union in the present matter no more survives as the petition has gone infructuous. 21. The respondent-Bank has also placed on record the notice of strike dated 13th of May, 2015 (Annex. R/3/1) wherein petitioner-union has nominated six elected representatives for discussions/negotiations without naming any honorary member (retired employee of the Bank). By placing on record Annex.R/3/1, the respondent-Bank has urged that petitioner-union having nominated its elected representatives, who are serving employees of the Bank, now cannot be permitted to agitate the said cause as the same is an afterthought. The proceedings undertaken by Chief Labour Commissioner(C) are also stoutly defended by the respondent-Bank. 22. While referring to the legal opinions tendered by the former Chief Justice of India and two retired Judges of this Court, the respondent-Bank has pleaded in the return that such legal opinions cannot be made a basis for cause of action or ground of challenge for seeking relief. 22. While referring to the legal opinions tendered by the former Chief Justice of India and two retired Judges of this Court, the respondent-Bank has pleaded in the return that such legal opinions cannot be made a basis for cause of action or ground of challenge for seeking relief. Categorizing the legal opinions in the nature of professional communications, it is submitted by the respondent-Bank that the same cannot be tendered in evidence by virtue of Sections 126 and 129 of the Indian Evidence Act, 1872 (for short, 'Act of 1872'). It is further submitted by respondent-Bank that the petitioner cannot edifice its entire claim on the basis of these legal opinions so as to seek writ of mandamus against the respondent-Bank for the purpose of participation in discussions/negotiations of the retired employees office bearers of the union. 23. The respondent-Bank has specifically pleaded that at no point of time it has denied the union its right of representation but has simply put a restriction vis-a-vis retired employees by permitting only serving employees for negotiations in the interest of working employees. The Bank has also pleaded that it is a subsidiary bank of SBI and therefore, is trying to follow the same pattern. The respondent-Bank has specifically denied the averments contained in para 14 of the writ petition by pleading that its stand was clear in recent meeting of SBI management with the State Sector Banks Employees Association (SSBEA), which is an apex body with which AISBBJECC and all Rajasthan Bank Employees Association are affiliated, inasmuch as in the said meeting also respective unions have sent only serving office bearers for negotiations. With this plea, it is submitted by the respondent-Bank that the issue raised by the petitioner-Union is a non-est issue. 24. Lastly, it is urged by the respondent-Bank that the petitioner-union has miserably failed to make out a case for any legally enforceable right to maintain this writ petition and as such no indulgence can be granted to the petitioner-union in the matter. 25. After filing of the reply, petitioner submitted a rejoinder wherein the facts averred in the writ petition are reiterated. In the rejoinder, petitioner-union has questioned the stand of the respondent-Bank in putting restriction of calling serving employee office bearers for negotiations. 25. After filing of the reply, petitioner submitted a rejoinder wherein the facts averred in the writ petition are reiterated. In the rejoinder, petitioner-union has questioned the stand of the respondent-Bank in putting restriction of calling serving employee office bearers for negotiations. The petitioner has further referred to the amendment made in sub-section (2) of Section 22 of the Act of 1926 in the year 2001, whereby an explanation was added. 26. According to the petitioner-union, an employee who has retired or has been retrenched cannot be construed as an outsider for the purpose of holding any office in the trade union and if he cannot be said to be an outsider, he can very well participate in the process of negotiations with the management. On the issue of delay, the petitioner-union has submitted that it is a continuous/subsisting cause of action and, therefore, the petitioner-union cannot be nonsuited on the ground of delay and laches. Projecting an embellished version of the retired employees, who are office bearers of the petitioner-union, it is submitted by the petitioner-union that they are of great repute and have been espousing the cause of the employees with the management of the Bank since ages. 27. After filing of the rejoinder, arguments were heard on 21st of September, 2015 and order was reserved. Subsequently, at the request of learned counsel for the petitioner and considering the application submitted on behalf of petitioner-union on 22nd of September, 2015, with which a letter dated 8th of September, 2015 (Annex.P/1) was filed whereby the management of the Bank has reiterated its stand to call only serving employee office bearers of the union for negotiations, further arguments were heard on 26th of October, 2015 and order was reserved. 28. It may be noticed here that, after conclusion of the arguments when the matter was posted for pronouncement of judgment there was no occasion for the petitioner to file an application for taking additional document on record. The practice adopted by the petitioner is per-se unusual inasmuch as there is no hiatus between closure of case for judgment and pronouncement of judgment. This Court in Rajasthan Financial Corporation v. Pukhraj Jain & Ors. [2001 (1) WLC (Raj) 308] , while deprecating such practice and relying on a decision of Hon'ble Apex Court has held: "... The practice adopted by the petitioner is per-se unusual inasmuch as there is no hiatus between closure of case for judgment and pronouncement of judgment. This Court in Rajasthan Financial Corporation v. Pukhraj Jain & Ors. [2001 (1) WLC (Raj) 308] , while deprecating such practice and relying on a decision of Hon'ble Apex Court has held: "... But the decision of the Supreme Court in Arjun Singh's case (supra) clearly lays down that for the parties, there is no hiatus between closure of the case for judgment and pronouncement of the judgment and therefore, the parties cannot move any application as there is no stage in between closure of the case for pronouncement of the judgment and actual pronouncement of the judgment." 29. Although, in view of settled position of law, it was not desirable for this Court to hear supplementary arguments and to consider the document sought to be placed on record by the petitioner-Union, but, in all fairness and for doing substantial justice in the matter, a benevolent view was taken and the learned counsel for the parties were allowed to supplement their arguments. 30. Mr. K.K. Shah, learned counsel for the petitioner-union has reiterated all the arguments urged in the writ petition with full emphasis. In substance, learned counsel for the petitioner has castigated impugned action of the respondent-Bank as violative of bye-laws of the union in complete derogation to Section 22 of the Act of 1926. In support of his contentions, learned counsel for the petitioner has placed reliance on the Division Bench judgment of Madras High court in case of L. Balasubramanian & Anr. (supra). 31. In this verdict, while construing amended provision of Section 22 of the Act of 1926 in conjunction with bye-laws 4(b) of the union, the Court held: 19. In the considered opinion of the Court, the said findings are unsustainable for the reason that Section 22 of the Trade Unions Act as well as amended Byelaw 4(b) enable the appellants, who are Honorary members/Office Bearers, to represent the Union in the negotiation/settlement. 20. In the considered opinion of the Court, the said findings are unsustainable for the reason that Section 22 of the Trade Unions Act as well as amended Byelaw 4(b) enable the appellants, who are Honorary members/Office Bearers, to represent the Union in the negotiation/settlement. 20. Rule 58 of the Industrial Disputes (Central) Rules, 1957, and Rule 25 of the Tamil Nadu Industrial Disputes Rules, 1958, provide for the signing of settlement in the case of workmen, either by the President or Secretary of a registered Trade Union of workmen or by two Office Bearers of the Union authorised by the President or Secretary of five representatives of workmen duly authorised in this behalf at a meeting of the workmen held for the purpose. 21. Therefore, the appellants/respondents 3 and 4, who are elected as Honorary Members in the General Council Meeting held on 17.7.2010 and 18.7.2010, with effect from the respective date of superannuation, and acting as Office Bearers of the Union, can represent the Union, which is a majority Union, and as such, they are entitled to participate in the negotiations and discussions with the management of the first respondent-Bank, pertaining to employer-employee relationship. 32. Learned counsel for the petitioner has made an attempt to authenticate his supplementary submissions by placing on record letter dated 8th of September, 2015 wherein Bank management has invited serving employee office bearers for negotiations. Emphasizing the recitals of letter dated 8th September, 2015, Mr. Shah has urged that Bank management has adopted a consistent practice of not inviting honorary member office bearers without any justifiable reason, in an absolutely arbitrary and unreasonable manner. 33. That apart, the petitioner-union has also taken shelter of the legal opinions tendered by the luminaries on the subject. 34. Per contra, Mr. M.S. Singhvi, Senior Advocate assisted by Dr. Sachin Acharya, submits that petitioner has craved for issuance of writ of mandamus without giving notice for demand of justice, and therefore, petition is wholly untenable. Learned counsel would contend that cause of action allegedly accrued to the petitioner has come to an end inasmuch as pursuant to Annex. 5 & 6 negotiations have completed in the presence of serving employees office bearers of the union and therefore, the petition has gone infructuous. Mr. Learned counsel would contend that cause of action allegedly accrued to the petitioner has come to an end inasmuch as pursuant to Annex. 5 & 6 negotiations have completed in the presence of serving employees office bearers of the union and therefore, the petition has gone infructuous. Mr. Singhvi further submits that for issuance of a writ of mandamus mere allegation of violation of legal right is not sufficient but a corresponding legal obligation of the respondent is also necessary, which is conspicuously missing in the instant case inasmuch as no rule of the Bank is under challenge in the petition. Learned counsel for the respondent-Bank has urged that bye-laws of the union are not legally enforceable and as such prayer for issuance of a writ of mandamus for its enforcement is wholly untenable. Distinguishing judgment of the Division Bench of Madras High Court, Mr. Singhvi would urge that the verdict is based on the bye-laws of union and as such its ratio decidendi is contrary to many verdicts of the Hon'ble Apex Court. He, therefore, submits that the said judgment cannot render any assistance to the cause of the petitioner-union. Mr. Singhvi has strenuously urged that issue relating to strike cannot be negotiated with a retired employee, may it be that he is honorary member of the union and as the said issue is having direct nexus with the serving employee, the Bank administration has rightly invited serving employee office bearer of the union for discussions/negotiations. In substance, submission of the learned counsel for the respondent-Bank is that no primacy can be claimed by a retired employee who is honorary member of the Union to negotiate on the issue having direct nexus with the serving employees. Lastly, Mr. Singhvi submits that well it is true that Section 22 of the Act of 1926 has been amended by adding explanation to sub-section (2) of Section 22 of the Act of 1926 wherein legislation has provided that an employee, who has retired or has been retrenched shall not be construed as outsider for the purpose of holding office in a trade union, but then this amendment itself cannot confer any omnipotent right on the retired employee office bearer of the union to participate in the negotiations with the management. Learned counsel would urge that the concept of collective bargaining emanates from Industrial Disputes Act, 1947 (for short, 'Act of 1947') and as there is no corresponding amendment under the said Act, the insistent argument of the learned counsel for the petitioner that a retired employee office bearer be permitted to participate in negotiations with management is wholly untenable. 35. Lastly, while countering the supplementary arguments of learned counsel for the petitioner, learned counsel for the respondent would submit that attempt made by the petitioner to place on record letter dated 8th of September, 2015, after conclusion of the arguments, is a blatant attempt to abuse the process of the Court. Learned counsel has further argued that the letter is having no ramification whatsoever on the controversy involved in the present matter, and therefore, supplementary arguments of learned counsel for the petitioner are not worth any credence whatsoever. 36. In support of his contentions, learned counsel for the respondent has placed reliance on following legal precedents: Saraswati Industrial Syndicate Ltd. etc. v. Union of India, AIR 1975 SC 460 . Co-operative Central Bank Ltd. & Ors. v. The Additional Industrial Tribunal, Andhra Pradesh & Ors. [ 1969 (2) SCC 43 ]. Babaji Kondaji Garad v. Nasik Merchants Cooperative Bank Ltd. Nasik & Ors. [ (1984) 2 SCC 50 ]. State Bank of India Staff Association & Anr. v. State Bank of India & Ors. [ (1996) 4 SCC 378 ]. 37. In Saraswati Industrial Syndicate Ltd. (supra), the Hon'ble Apex Court, while considering the essentials of a writ of mandamus, held: "....The powers of the High Court under Article 226 are not strictly confined to the limits to which proceeding for prerogative writs are subject in English practice. Nevertheless, the well-recognised rule that no writ or order in the nature of a Mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Nevertheless, the well-recognised rule that no writ or order in the nature of a Mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary general role, which is subject to certain exceptions, applied by us, as it is in England, when a writ of Mandamus is asked for, could be stated as we find it set out in Halsbury's Laws of England (3rd edition, Vol.13 p.106): "As a general rule the order will not be granted unless the party complaint of has known what it was he required to do, so that he had the means of considering whether or not he should comply and it must be shown by evidence that there was a distinct demand of that which the party seeking the: mandamus desires to enforce, and that that demand was met by a refusal." 38. In the cases before us there was no such demand or refusal. Thus, no ground whatsoever is shown here for the issue of any writ, order, or direction under Article 226 of the Constitution. These appeals must be and are, hereby, dismissed but in the circumstances of the case we make no order as to costs. 39. In case of Co-operative Central Bank Ltd. (supra), the Hon'ble Apex Court had the occasion to examine the true nature and purport of bye-laws framed by a society under the Andhra Pradesh Co-operative Societies Act, 1964. The Court, while considering these bye-laws akin to Articles of Association of a company incorporated under the Companies Act, held that these bye-laws are having no force of law. Speaking for the Court, Justice Bhargava observed: "We are unable to accept the submission that the bye-laws of a co-operative society framed in pursuance of the provisions of the Act can be held to be law or to have the force of law. It has no doubt been held that, if a statute gives power to a Government or other authority to make rules, the rules so framed have the force of statute and are to be deemed to be incorporated as a part of the statute. That principle, however, does not apply to bye-laws of the nature that a co-operative society is empowered by the Act to make. That principle, however, does not apply to bye-laws of the nature that a co-operative society is empowered by the Act to make. The bye-laws that are contemplated by the Act can be merely those which govern the internal management, business or administration of a society. They may be binding between the persons affected by them, but they do not have the force of a statute. In respect of bye-laws laying down conditions of service of the employees of a society, the bye-laws would be binding between the society and the employees just in the same manner as conditions of service laid down by contract between the parties. In fact, after such bye-laws laying down the conditions of service are made and any person enters the employment of a society, those conditions of service will have to be treated as conditions accepted by the employee when entering the service and will thus bind him like conditions of service specifically forming part of the contract of service. The bye-laws that can be framed by a society under the Act are similar in nature to the Articles of Association of a Company incorporated under the Companies Act and such Articles of Association have never been held to have the force of law. In a number of cases, conditions of service for industries are laid down by Standing Orders certified under the Industrial Employment (Standing Orders) Act, 1946, and it has been held that, though such Standing Orders are binding between the employers and the employees of the industry governed by those Standing Orders, they do not have such force of law as to be binding on industrial Tribunal adjudicating an industrial dispute. The jurisdiction which is granted to Industrial Tribunals by the Industrial Disputes Act is not the jurisdiction of merely administering the existing laws and enforcing existing contracts. Industrial Tribunals have the right even to vary contracts of service between the employer and the employees which jurisdiction can never be exercised by a civil court or a Registrar acting under the Co-operative Societies Act, so that the circumstance that, in granting relief on issue No. 1, the Tribunal will have to vary the special bye-laws framed by the Cooperative Bank does not lead to the inference that the Tribunal would be incompetent to grant the reliefs sought in this reference. In fact, the reliefs could only be granted by the Industrial Tribunal and could not fall within the scope of the powers of the Registrar dealing with a dispute under Section 61 of the Act. 40. In Babaji Kondaji Garad (supra), Hon'ble Apex Court while reiterating the principles laid down in the case of Co-operative Central Bank Ltd. & Ors. (supra), held: Section 73-B provides a legislative mandate. Rule 61 has a status of subsidiary legislation or delegated legislation. Bye-law of a co-operative society can at best have the status of an Article of Association of a company governed by the Companies Act, 1956 and as held by this Court in Co-operative Central Bank Ltd. v. Additional Industrial Tribunal , Andhra Pradesh the bye-laws of a co-operative society framed in pursuance of the provision of the relevant Act cannot be held to be law or to have the force of law. They are neither statutory in character nor they have statutory flavour so as to be raised to the status of law. Now if there is any conflict between a statute and the subordinate legislation, it does not require elaborate reasoning to firmly state that the statute prevails over subordinate legislation and the bye-law if not in conformity with the statute in order to give effect to the statutory provision the rule or bye-law has to be ignored. The statutory provision has precedence and must be complied with. Further the opinion of the Deputy Registrar as expressed in his circular dated February 1, 1979 and his letter dated June 4, 1979 has no relevance because his lake of knowledge or misunderstanding of law as expressed in his opinion has no relevance. The High Court relying upon the aforementioned two documents observed as under: "There is no inconsistency between Section 73-B and the bye-laws because even Government has construed Section 73-B in such manner that even though the bye- laws are not amended and reserved seats remain unfilled by election the same can be filled up by co-option." 41. With respect, we find it difficult to subscribe to this untenable approach that a view of law or a legal provision expressed by a Government Officer can afford reliable basis or even guidance in the matter of construction of a legislative measure. With respect, we find it difficult to subscribe to this untenable approach that a view of law or a legal provision expressed by a Government Officer can afford reliable basis or even guidance in the matter of construction of a legislative measure. It is the function of the court to construe legislative measures and in reaching the correct meaning of a statutory provision, opinion of executive branch is hardly relevant. Nor can the court abdicate in favour of such opinion. 42. In State Bank of India Staff Association & Anr. (supra), Hon'ble Apex Court, while considering Sections 6(e) and unamended Section 22 of the Act of 1926 in conjunction with Section 36 read with Section 3 of the Act of 1947, declined to accept bargaining power of honorary/temporary member to represent the workmen during discussions/negotiations with the management. The Court held: 9. Now coming to the contention that the scheme of Section 6 read with Section 22 of the Act is similar to that of Section 36 of the Industrial Disputes Act, 1947 in terms of which a workman is entitled to be represented in any proceedings under the Act by any member of the executive or other office bearers of a registered Trade Union, even though he is no longer in the employment of the industry, it may be pointed that Section 3 is a complete answer to this submission. It may be seen that Section 3 of the Industrial Disputes Act provides for the constitution of Works Committee consisting of the representatives of the employers and workmen engaged in the establishment. It is significant to note that it clearly provides that the representatives of workmen shall be chosen in the prescribed manner from amongst the workmen engaged in the establishment and in consultation with the Trade Union, if any, registered under the Indian Trade Unions Act. 1926. Under the Industrial Disputes Act, the Works Committee so constituted is enjoined with the duty to promote measure for securing and preserving amity and good relations between the employer and workmen and, to that end, to comment upon the matters of their common interest or concern and endeavor to compose any material difference of opinion in respect of such matters. Under the Industrial Disputes Act, the Works Committee so constituted is enjoined with the duty to promote measure for securing and preserving amity and good relations between the employer and workmen and, to that end, to comment upon the matters of their common interest or concern and endeavor to compose any material difference of opinion in respect of such matters. It, therefore, becomes clear that under the Industrial Disputes Act the representatives of the workmen have to be chosen only from amongst the workmen already engaged in the establishment and not an outsider or an ex-workman of the establishment concerned or any other person. It would, therefore, not be correct to contend that having regard to the provisions of Section 36 read with Section 3 of the Industrial Disputes Act an honorary/temporary member or a private individual is entitled to represent the workmen in the matters aforesaid. While referring to the provisions of Section 36 of the Industrial Disputes Act, the provisions of Section 3 of the said Act cannot be over- looked or ignored. The provisions of the Trade Union Act, 1926 have to be harmonised with the relevant provisions of the Industrial Disputes Act, 1947. It has also to be kept in view that the industrial Disputes Act is a much later Act, which besides other matters, specifically concentrates on harmonious relations between the employer and workmen, the disputes between the two and settlement thereof by negotiations with the assistance of their respective representatives. It is for all these reasons and as stated in their counter-affidavit by the respondents, that a practice and usage is followed by the respondent-Bank since decades whereby only serving employees represent the Union in bilateral discussions with the Bank and that this practice has been recognised by the "Staff Federation" also which is a body to coordinate the activities of various Unions/Associations of the employees of the State Bank of India and its associate Banks. This stand of the respondents has been fully supported by the Staff Federation- intervenor. 10. Here it would be advantageous to look into the relevant rules and constitution of the State Bank of India Staff Association. Rules 5, 6 and 9 and 14 of the Staff Association Rules are relevant for the purposes of the case before use. This stand of the respondents has been fully supported by the Staff Federation- intervenor. 10. Here it would be advantageous to look into the relevant rules and constitution of the State Bank of India Staff Association. Rules 5, 6 and 9 and 14 of the Staff Association Rules are relevant for the purposes of the case before use. Rule (5) (6) and (9) relate to the membership of the Union while Rule (14) relates to the Management and Officers of the Union. The relevant parts of said rules read as under:- 5. None but a permanent employee of the State Bank of India who is not below the age of 18 shall be enrolled as ordinary member of the Association provided, however, a member-employee promoted to Supervisory Cadre shall have to apply for retaining his membership in the usual manner. 6. Honorary Member-Persons who are not eligible as members under rule 5 but are in sympathy with the objects and spirits of the Union may be elected Honorary Members at the Triennial or Special Meeting of the General Council/Central Committee/Central Working Committee convened for the purpose. Besides, considering the cases of Honorary Membership directly, the General Council/Central Committee/Central Working Committee shall consider all the individual cases as proposed by the Circle representatives. 9. Ordinary members after retirement from the Bank's service shall not continue to be such members. (a) None but an Ordinary/Honorary Member of the Association will be eligible to occupy or continue in any post in the Central Committee/Central Working Committee/Circle Committee/Unit Committee. Notwithstanding anything contained elsewhere in these rules, a member of the Central Committee/Central Working Committee/Circle Committee/Unit Committee will forthwith cease to be such member if he ceases to be an Ordinary/Honorary Member. 14. The management of the Union shall be vested in the Central Committee which consists of:- (a) (i)-(viii) * * * (ix) One General Secretary elected by the Circle General Council for each administrative Circle of the State Bank of India who shall belong to any Branch/Office of the Bank of the Circle for which he is elected by one Dy. General Secretary elected by the Circle General Council for each Zonal Office of the State Bank of India. (x) * * * 43. General Secretary elected by the Circle General Council for each Zonal Office of the State Bank of India. (x) * * * 43. A cursory look at Rule 5 will make it clear that to become an ordinary member of the Association one has to be a permanent employee of the State Bank of India and at the same time not below the age of 18 years whereas Rule 6 provides that a person who is not a permanent employee of the Bank as contemplated under Rule 5 but has some sympathy with the objects and spirits of the Union he may be elected honorary member at the triennial or special meeting of the General Council etc......convened for the purpose. Further, according to Rule 9 ordinary members after retirement from the Bank's service shall not continue to be such members while clause (a) of Rule 9 provides that an ordinary/honorary member of the Association will be eligible to occupy or continue in any post in the Central Committee/Central Working Committee/Circle Committee/Unit Committee but such ordinary/honorary member of the aforesaid committees will forthwith cease to be such member if he ceases to be an ordinary/honorary member, notwithstanding contained to the contrary in the Rules. 11. It may be noticed that M.R. Awasthy, appellant No. 2 was an ordinary member of the Staff Association within the meaning of Rule 5 of the Staff Association Rules. Being such an ordinary member he was elected as General Secretary of the Staff Association in the triennial meeting held on 16.10.1994. Admittedly, M.R. Awasthy retired from the service of the respondent-Bank on 31.1.1995 on attaining the age of superannuation. He was not elected as an honorary or a temporary member in any Special Meeting of the General Council or of the Committees referred to above convened for that purpose any time after his retirement. Consequently, in view of Rule 9 M.R. Awasthy appellant No. 2 cannot legitimately claim his continuance as an ordinary member and General Secretary of the Union after his retirement from the service of the Bank. Clause (a) of Rule 9 further reinforces this position which contemplates that notwithstanding anything contained elsewhere in the Rules, a member of the Central Committee/Central Working Committee/Circle Committee/Unit Committee will forthwith cease to be such member if he ceased to be an ordinary/honorary member. Clause (a) of Rule 9 further reinforces this position which contemplates that notwithstanding anything contained elsewhere in the Rules, a member of the Central Committee/Central Working Committee/Circle Committee/Unit Committee will forthwith cease to be such member if he ceased to be an ordinary/honorary member. Since M.R. Awasthy ceased to be an ordinary member on his retirement on 31.1.1995 and since he was not elected as honorary member at the triennial or a Special Meeting of the General Council, etc. as contemplated in Rule 6, he neither remained as ordinary member or as honorary member of the Association. He therefore, cannot claim a right to negotiate with the management as a representative of the Union. Even otherwise he cannot claim such a right in view of the provisions contained in clause (ix) of Rule 14 (a) which provide that the General Secretary elected by the Circle General Council for each administrative circle of the said Bank should belong to any Branch/Office of the Bank of the Circle for which he is elected. M.R. Awasthy can be said to belong either to any Branch/Office of the Bank only if he is in the employment of the Bank. After the retirement he no longer belongs to any Branch/Office of the Bank of the Circle as he would be deemed to have ceased to belong to any Branch/Office of the Bank. In these facts and circumstances no case is made out for any interference in the decision taken by the respondents and conveyed to the appellants through the impugned letter dated 3.5.1995. 44. I have heard learned counsel for the parties and bestowed my consideration to the legal precedents cited at Bar. 45. Trade Unionism had made its headway owing to growth of industrialization and capitalism. In India, in March 1921, then General Secretary of All India Trade Union Congress moved a resolution in the Central Legislative Assembly recommending that Government should introduce legislation for the registration and protection of trade unions. Employers resisted adoption of such a measure but on resolution being passed by the Central Legislative Assembly in March 1924, the Indian Trade Unions Bill was introduced in the Central Legislative Assembly to provide for the registration of trade unions and in certain respects to define the law relating to registered trade unions in provinces of India. Eventually, the Act of 1926 came into offing. Eventually, the Act of 1926 came into offing. Therefore, essentially the Act of 1926 is a comprehensive legislation, which provides for registration of trade unions and in certain respect to define the law relating to registered trade unions. 46. The concept of collective bargaining was duly recognised vis-a-vis industrial establishments after the enactment of Act of 1947. The Act of 1947 is a comprehensive legislation which provides the machinery and procedure for investigation and settlement of industrial disputes. The National Commission on Labour (1969) which made an in-depth study of the industrial relations and procedures had identified a number of areas in which the Act needed to be amended to promote industrial harmony. 47. Section 3 of the Act of 1947 provides for the constitution of works committee in case of an industrial establishment having 100 or more workmen. The object of works committee is to promote measures for securing and preserving amity and good relations between the employer and workmen. Thus, the concept of collective bargaining by efflux of time mushroomed in its full growth. 48. Hon'ble Apex Court in Karnal Leather Karamchari Sanghatan (Regd.) v. Liberty Footwear Company (Regd.) & Ors. [ (1989) 4 SCC 448 ] defined the term in following words: "Collective bargaining is a technique by which dispute as to conditions of employment is resolved amicably by agreement rather than coercion. The dispute is settled peacefully and voluntarily although reluctantly between labour and management." 49. Benjamin J. Taylor & Fred Whitney, Labour Relations Law 3 (1971), defined collective bargaining as follows: "Collective bargaining means the joint determination by employees and employers of the problems of the employment relationship. Such problems include wage rates and wage systems, hours and overtime, vacations, discipline, work loads, classification of employees, layoffs, and worker retirement. The advent of collective bargaining does not give rise to these problems. Rather they are germane to the industrial relations environment, and exist with or without unionization." 50. Section 36 of the Act of 1947 further recognizes the right of a trade union through its executive member or other office bearer to participate in any conciliation proceedings under this Act including right to participate in the proceedings before the court for compulsory adjudication of the disputes. Section 36 of the Act of 1947 further recognizes the right of a trade union through its executive member or other office bearer to participate in any conciliation proceedings under this Act including right to participate in the proceedings before the court for compulsory adjudication of the disputes. Therefore, right of a trade union or its office bearer to participate in discussions/negotiations with the management is essentially to harmonise the relations and not to vitiate the industrial atmosphere. The concept of collective bargaining pre-supposes that parties deal with each other with open and fair minds and sincerely endeavour to overcome obstacles existing between them to the end that employment relations may be stabilised and obstruction to free flow of commerce prevented. 51. Well it is true that after amendment in Section 22 of the Act of 1926, a retired or retrenched employee cannot be construed as an outsider for the purpose of holding an office in trade union but then the said amendment has not ipso facto conferred any right on a retired or retrenched employee office bearer to participate in the negotiations with the management in complete derogation to Sections 3 and 36 of the Act of 1947. As observed supra, participation in discussions/negotiations by the union is with laudable object of keeping peace and harmony in the industrial establishment, it is rather difficult to fathom that such right of a union is meant for demonstrating its power to destabilize the industry or to create hindrance in keeping a congenial atmosphere within establishment lest to encourage unrest. If the respondent Bank has put a restriction for participation of a retired (honorary member) as office bearer to participate in discussions/negotiations, it cannot be said that the Bank has made an attempt to circumvent the provisions of Section 22 of the Act of 1926. In the considered opinion of this Court, the respondent-Bank has duly recognised the right of a trade union to participate in discussions/negotiations involving the issues which are concerning with the conditions of the employment but for putting a reasonable restriction that only serving office bearers of the union can participate in the process of collective bargaining. 52. In the considered opinion of this Court, the respondent-Bank has duly recognised the right of a trade union to participate in discussions/negotiations involving the issues which are concerning with the conditions of the employment but for putting a reasonable restriction that only serving office bearers of the union can participate in the process of collective bargaining. 52. Judgment of Madras High Court in the case of L. Balasubramanian (supra) is essentially based on bye-law 4(b) of All India Overseas Banking Associations' union, which, I am afraid, is not enforceable in a court of law by issuing a writ of mandamus. Therefore, with due respect, I am unable to concur with the view of Division Bench of Madras High Court. My this view is fortified by two authoritative pronouncements of Hon'ble Apex Court in case of Co-operative Central Bank Ltd. (supra)and Babaji Kondaji Garad (supra). 53. There is yet another aspect of the matter that amended Section 22 cannot be read in isolation to Section 6(e) of the Act of 1926. Section 6(e) of the Act of 1926 reads as under: "the admission of ordinary members who shall be persons actually engaged or employed in an industry with which the Trade Union is connected, and also the admission of the number of honorary or temporary members as [office-bearers] required under section 22 to form the executive of the Trade Union;" 54. Therefore, even under the Act of 1926, a distinction is sought to be made between an ordinary member admitted in a trade union and an honorary member or a temporary member, who can be included by virtue of Section 22 of the Act of 1926, as such upon harmonious construction of Sections 6(e) and 22 of the Act of 1926 also make things clear that the petitioner-union has not been able to make out a case of violation of its legal right much less corresponding legal obligation of the employer to invite an honorary member for discussions/negotiations. 55. The legal opinions tendered by some luminaries, in my unhesitant opinion, do not carry any presidential value. These are in the nature of professional communications and can also be categorized as confidential communications within the four corners of Sections 126 and 129 of the Act of 1872. 55. The legal opinions tendered by some luminaries, in my unhesitant opinion, do not carry any presidential value. These are in the nature of professional communications and can also be categorized as confidential communications within the four corners of Sections 126 and 129 of the Act of 1872. Therefore, even assuming that these are not the privileged communications, opinions tendered by the legal luminaries cannot render any assistance to the cause of the petitioner-union. 56. The judgment of Hon'ble Apex Court in State Bank of India Staff Association & Anr. (supra) was of course rendered while considering the unamended provisions of Section 22 of the Act of 1926, but then Hon'ble Apex Court has also examined the right of an honorary member to participate in negotiations on the touchstone of Sections 3 and 36 of the Act of 1947 while dilating on the concept of collective bargaining, which is edificed on maintaining harmony and cordial relation between employers and workmen. As such, ratio decidendi of that judgment is of great significance in the backdrop of facts and circumstances of the instant case and can be given due credence to thwart the challenge of the petitioner-union. 57. Thus, in substance, the so-called afflictions of the petitioner-union are having no legal foothold and as such on merits no indulgence can be granted to the petitioner-union. 58. Even otherwise on examining the technical aspect of the matter, more particularly, the objection of respondent-Bank that the petitioner-union has rushed to this Court for seeking a writ of mandamus without raising a demand and waiting for its refusal, I feel persuaded not to interfere in the matter on this count also. 59. The upshot of above discussion is that I find no merit in this writ petition and the same is, hereby, dismissed.Costs are made easy.Petition Dismissed. *******