Food Corporation Of India Workers ... vs H.P. Singh And Sharif Husain And ...
2006 Latest Caselaw 616 Del

JUDGMENT

A.K. Sikri, J.

Page 1453

1. CS (OS) No. 681/99 is filed by the Food Corporation of India Workers' Union against the defendant Mr. H.P. Singh seeking permanent injunction. It is founded on the allegation that Mr. H.P. Singh was removed as the General Secretary and in spite of the said removal he was interfering with the functioning of the plaintiff-Union. Along with the suit IA No. 3342/99 was also filed under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure in which ex parte order dated 26th March 1999 was passed restraining the defendant from acting or representing as the General Secretary of the plaintiff-Union and from holding any conference or meeting in the name of the plaintiff-Union. On receipt of the summons in the suit and the injunction order, the defendant filed IA No. 3383/99 under Order XXXIX Rule 4 of Page 1454 the CPC for vacation of the stay, which was taken up for arguments on 3rd April 1999. After hearing the parties for some time, following consent order was passed:

On the request of the learned Counsel for the defendant, I.A. No. 3382/99 (Under Order 39 Rule 4) for vacation of stay was taken up for arguments. The learned Counsel for the plaintiff during the course of hearing filed reply to this application. According to the defendant, the Annual General Meeting of the Food Corporation of India Workers Union has been fixed on 4th and 5th April, 1999. It is also submitted by Mr. Singh, learned senior counsel appearing for the defendant that a very large number of members have already arrived in Delhi and in the larger interest of all concerned, it would be desirable that Annual General Meeting be permitted to take place on the dates already fixed.

Mr. Makhija, learned senior counsel appearing for the plaintiff submits that the Annual General Meeting was in fact fixed on 9th to 11th April, 1999 at Hyderabad. This decision was taken in the Executive Committee held on 13th to 15th November, 1998. This is, of course, disputed by the learned Counsel for the defendant. The main dispute between the parties is regarding the dates of the Annual General Meeting and election of office bearers.

After considerable arguments by the consent of parties following order is passed:

1. The Annual General Meeting fixed for 4th and 5th April, 1999 shall now be held on 8th April, 1999.

2. The AGM shall be conducted under supervision of Hon'ble Mr. Justice P.K. Bahri, a retired Judge of this Court and in case Justice Bahri is not available then Hon'ble Mr. Justice J.D. Jain, a retired Judge of this Court shall be the Chairperson of the Meeting.

3. The items on the agenda of the AGM shall be discussed and voted for from 10:00 a.m. to 4:00 p.m. on 8th April, 1999 and thereafter election shall be conducted under the supervision of the Chairperson of the Meeting.

4. The nominations for the various posts shall be filed before the Chairperson by 5:00 p.m. of 7th April, 1999.

5. The voting shall be secret ballot.

6. The Chairperson shall communicate the results of this Court in a sealed cover within a week of the AGM.

7. The Chairperson shall be empowered to take any decision on the spot which may become imperative. The Chairperson shall be given Rs.20,000/- by the plaintiff.

The parties would be at liberty to communicate this order particularly the change of date of the meeting to its members by any mode of communication (such as Radio, Television or advertisement in the newspapers).

To come up on 19th April 1999, the date already fixed.

Copy of this order be given dusty to both sides.

Page 1455

2. This order also records that according to the defendant the AGM of the plaintiff-Union had been fixed on 4th and 5th April 1999 and a very large number of members had already arrived in Delhi for the said purpose. Submission of the plaintiff's counsel, on the other hand, was that the AGM was, in fact, fixed on 9th to 11th April 1999 at Hyderabad and decision to fix the AGM at Hyderabad on the aforesaid dates was taken in the Executive Committee meeting held on 13/15th November 1998. The version of the plaintiff was disputed by the defendant and that of the defendant was disputed by the plaintiff. In these circumstances, ultimately the parties agreed that the AGM would be held on 8th April 1999 and be conducted under the supervision of a retired High Court Judge.

3. Intention clearly was that there should be a fresh election and it is clear from the said order that it was not only the concern of the Court but, presumably the parties as well, that election would be held as soon as possible. Date of election was accordingly fixed for 8th April 1999.

4. Matter was, however, taken up for hearing on 6th April 1999 again on oral request of the parties, as some urgent directions were required. It was because of the order passed by Mr. Justice J.D. Jain under whose supervision the AGM was to be held. In view of large number of voters and large number of candidates contesting the election, some Court officers were required to assist the Chairperson for smooth conduct of the elections and that was the reason that both the parties wanted appointment of officers to assist the Chairperson. Accordingly, again with the consent of the parties six retired Court Officers were appointed to assist the Chairperson.

5. Matter was again taken up for hearing on 8th April 1999 on being mentioned by the parties, as the parties wanted certain further directions. This Court passed an order requesting the learned Chairperson to give necessary directions as and when he deemed it appropriate. However, elections could not take place. Matter was again taken up for hearing on 12th April 1999 when counsel for the parties made a statement that it was not possible to hold the elections immediately and prayer was made that in the larger interest the elections be postponed for the time being. Order was passed accepting this request of the parties. It seems that thereafter applications were taken up for arguments and even arguments were heard. On 26th April 1999 the Court issued notice to the Chief Labour Commissioner (Central), Ministry of Labour, Government of India, Rafi Marg, New Delhi as well as to the Registrar of Trade Unions, West Bengal and the Managing Director of the FCI directing them to appear through counsel or representative. The tenor of this order would show that the purpose was to explore the possibility of holding smooth and fair elections.

6. In the meantime, injunction order was extended. While the matter was pending at that stage, it seems that some Annual General Meeting and election was purportedly held on 17th June 2000 by Sharif Hussain and others. The plaintiff, in these circumstances, filed another suit being CS (OS) No. 2349/2000 for permanent injunction. Declaration was sought to the effect that elections allegedly held on 17th June 2000 be declared as void ab initio and the defendants in the said suit be restrained from acting and/or representing Page 1456 themselves as the office bearers/Executive Committee Members of the Union. Order dated 23rd October 2000 was passed appointing Mr. Justice J.K. Mehra (Retd.) as the Court Commissioner to hold elections of the Union in accordance with the constitution of the Union. It is a detailed order passed after hearing the counsel for the parties in the said suit and recording a prima facie opinion that there appears to be a violation of the constitution of the Union in conducting the alleged elections. The defendants were accordingly restrained from representing themselves or acting as office bearers or members of the Executive Committee of the Union. At that stage, for conducting fresh elections Mr. Justice J.K. Mehra was appointed as the Court Commissioner and this was again with the consent of the parties. Relevant portion of the said order is reproduced below:

Till the next date of hearing, the defendants are restrained from representing themselves or acting as office bearers or members of the Executive Committee of the Food Corporation of India's Workers Union by virtue of the elections of the union alleged to have been held on 17th June, 2000.

At this stage, parties are agreeable that fresh election of the office bearers and members of the Executive Committee of the union be held on a date to be fixed by the Court under the supervision of an observer to be appointed by the Court. I, accordingly, appoint Justice J.K. Mehra (Retd.) as the Court Commissioner to hold elections of the Union in accordance with the constitution of the union, As there is no dispute about the membership of the union, the Court Commissioner should make an endeavor to hold elections of the union within eight weeks from today. The Court Commissioner will call a meeting of the Annual General body of the union at any of the centres which he deem proper and hold the elections at that centre on that particular date. The Court Commissioner shall, in the first instance, be paid a fee of Rs.25,000/- besides actual expenses to be paid from the funds of the union. The counsel appearing today in Court are directed to contact the Court Commissioner on 29th October, 2000 at 11.00 a.m. at his residence.

7. After the aforesaid order was passed, Mr. Justice J.K. Mehra held various sitting so that elections could be held pursuant to the directions in the aforesaid order. In the proceedings of the 6th Meeting held on 15th March 2001, two difficulties were pointed out by the learned Court Commissioner, namely:

(i)Though the Union had membership of about 65,000, many members had not paid their subscriptions and the stand of the plaintiff was that they had ceased to be the members and they were not entitled cast their votes, which was disputed by the defendants; and

(ii)In view of large membership, the parties were not able to agree on the modalities of holding the elections.

8. The plaintiffs represented before the Court Commissioner that it was not possible for all members to Delhi on one day for the purpose of casting their votes, which would paralyse working of the employer, i.e. Food Corporation of India as well and, therefore, the Court Commissioner had given the suggestion Page 1457 that the only feasible way to conduct the elections was to prepare the list of the voters region-wise and send such voters' list to the Regional Labour Commissioner with a request to conduct the elections by themselves or through one of their colleagues with the assistance from the staff of the FCI and result of each region could be compiled and final result could be announced by the Court Commissioner in Delhi. On both the aspects the learned Court Commissioner observed that appropriate directions could be obtained from this Court. In view of these proceedings, the plaintiff filed IA No. 438/2002 seeking directions on the aforesaid two aspects.

9. When the matter is viewed in the aforesaid perspective and the manner in which it has progressed, it is clear that fresh elections of the Union are to be held. This is otherwise also in public interest and in the interest of the Union itself in as much as last elections were held in the year 1998. No doubt, first suit, i.e. CS (OS) No. 681/99 is a suit seeking injunction against the defendant Mr. H.P. Singh restraining him from representing himself as the General Secretary of the Union. However, fact remains that in that very suit he had also agreed that fresh elections be held. I may note at this stage the submission of Mr. Rajiv Sawhney, learned senior counsel appearing for Mr. H.P. Singh that the consent was given for limited purpose, i.e. holding of AGM and elections on 8th April 1999 and when those elections were not held on 12th April 1999 the concession was withdrawn. He also submitted that thereafter the application for injunction as well as defendant's application for vacation of injunction were argued on merits. He also referred to order dated 26th March 2001 passed by the Division Bench in the appeal filed against the ex parte injunction order dated 26th March 1999 wherein the Division Bench had recorded that the injunction application shall be decided by the learned single Judge expeditiously. His, submission, therefore, was that it was imperative to decide the application filed by the plaintiff under Order XXXIX Rules 1 and 2 as well as application under Order XXXIX Rule 4 of the Code of Civil Procedure, as there was an injunction operating against the defendant to his prejudice and, therefore, decision on merits of these application was required. I am, however, of the view that in both the suits, all the parties had agreed for conduct of fresh election. Orders have been passed in these suits for conduct of fresh elections.

10. It is to be kept in mind that the matter relates to the election of a union. The parties agreed that the lasting solution would be to hold fresh elections. Even in second suit, with the consent of the parties, Mr. Justice J.K. Mehra (Retd.) was appointed as the Court Commissioner to hold elections of the union in accordance with the constitution of the union. Therefore, notwithstanding the pendency of this application in the first suit, the parties agreed even in the second suit that fresh elections should be held to clear the impasse. Normally such an election would have been held, but for the two difficulties faced by the learned Court Commissioner, which are mentioned in the sixth meeting held on 15th March 2001. Therefore, he desired that the Court should decide on the said two aspects before the election is held. Matter came back before the Court to take a decision on the said issues, namely, about the membership of those who had not paid their subscriptions and the modalities of holding the elections.

Page 1458

11. During the course of arguments Ms. Indira Jaisingh, learned senior counsel for the plaintiff, submitted that the plaintiff shall have no objection if the members whose names are on the register of membership, are allowed to vote even when they had not paid their subscription earlier with the condition that these members would clear their dues qua the arrears of subscription. Since the plaintiff had taken the stand before the learned Court Commissioner that those who had not paid their subscription had ceased to be the members and were not entitled to cast their votes and the plaintiff is not pressing this objection in view of the aforesaid concession, in so far as the first difficulty is concerned, it stands resolved.

12. As far as the modalities of holding the elections are concerned, I am in agreement with the observations made by the learned Court Commissioner for getting the elections conducted region wise through the Regional Labour Commissioners or their officers/colleagues with the assistance of the staff of FCI and compilation of the result in Delhi to be announced by the learned Court Commissioner in Delhi. It is the only practical solution having regard to the fact that the members are spread out in the nook and corner of the country and it would not be possible for all the members to assemble in Delhi at one time which may also put the entire functioning of their employers, namely, Food Corporation of India into jeopardy. In the case of FCI Staff Union itself, direction to conduct the election in this manner was given by the Supreme Court in the case of Food Corporation of India Staff Union v. Food Corporation of India and Ors. 1995 (Suppl. I) SCC 678. Though that was a case where representative character of trade unions was to be ascertained, the process was that of an election for ascertaining the representative character and, therefore, same procedure can be followed in the instant case with suitable modifications wherever necessary.

13. It was submitted by Mr. Sawhney, learned senior counsel for the defendant, that the defendant's so-called expulsion from the union was not acceptable to the defendant and it was necessary to adjudicate this aspect. Since this issue need not be decided for the reason pointed out above, it is made clear that the so-called stigma of expulsion would not come in the way of the defendant Mr. H.P. Singh and the defendant shall be free to contest the election. In view of peculiar situation prevailing, it is also made clear that all steps for the purpose of holding the elections shall be taken by the learned Court Commissioner and the concerned Regional Labour Commissioners/their colleagues as the case may be, so that no mileage is drawn by other side as well. However, the defendants shall not project themselves as the General Secretary/office bearers of the union in the meantime. 14. These suits, CCP No.61/99 as well the applications are accordingly disposed of with the following directions:

1. Mr. Justice J.K. Mehra (Retd.), who was appointed as the Court Commissioner vide order dated 23rd October 2000, shall hold the elections of the union in accordance with the constitution of the union;

Page 1459

2. All the members who had not paid their subscriptions shall be allowed to clear the arrears of subscription within two months from the date of notice to be given by the learned Court Commissioner. Those who clear the arrears of subscription shall be entitled to contest the election as well as cast their votes;

3. List of voters shall be prepared region wise and it would be sent to the respective Regional Labour Commissioners with request to conduct the elections by themselves or through one of their colleagues with the assistance from the staff of FCI.

4. In conduct of the elections, which shall be through secret ballot, procedure as laid down in Food Corporation of India Staff Union's case (supra) as applicable mutates mutandi shall be followed.

5. If any clarification is required in this behalf, the learned Court Commissioner shall have right to issue the clarifications.

6. Result of each region shall be compiled and final result announced by the learned Court Commissioner in Delhi.

No costs.