H.C. Dhyani & Ors. vs Registrar Of Trade Union & Ors.
2010 Latest Caselaw 1768 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 W.P.(C) No. 13353 of 2009


        H.C. DHYANI & ORS.                             ..... Petitioners
                       Through: Ms. Asha Jain Madan and
                       Mr. Mukesh Jain, Advocates.

                        versus


        REGISTRAR OF TRADE UNION & ORS.                ..... Respondents
                      Through: Mr. L.K. Garg, Advocate for R-2.
                      Mr. Abhinav Vasisht, Advocate for R-3.
                      Mr. B.K. Pal with
                      Ms. Nalini Pal Negi, Advocate for R-4.

        CORAM: JUSTICE S. MURALIDHAR


                1. Whether Reporters of local papers may be
                   allowed to see the order?                               No
                2. To be referred to the Reporter or not?                  Yes
                3. Whether the order should be reported in Digest?         Yes

                                      ORDER

05.04.2010

W.P.(C) No. 13353 of 2009 & CM No. 14682 of 2009

1. Twenty-three Petitioners stated to be employees of the Respondent No.3

Indian Oil Corporation Limited („IOCL‟) and members of the Petroleum

Workers‟ Union („Union‟) have filed this writ petition for seeking a

direction to the Registrar of Trade Unions (Respondent No.1 herein), and the

Deputy Labour Commissioner (South), Government of the National Capital

Territory of Delhi („GNCTD‟) (Respondent No.2 herein) "to immediately

hold the elections of the Working Committee of the delegates of the

Petroleum Workers‟ Union (Indian Oil Unit) under its supervision through

secret ballot." The second prayer is for an order to restrain the Respondent

IOCL from negotiating with and/or issuing welfare funds to the present

W.P.(C) No. 13353 of 2009 page 1 of 12 Working Committee of the Union (Respondent No.4 herein) which "has

already become defunct after the expiry of its tenure on 21st July 2009."

2. Article III of the Constitution of the Union which is registered under the

Trade Unions Act, 1926 („TU Act‟) sets out, inter alia, „the structure of the

Union‟. The management of the Union is vested in the Central Organisation,

Provincial Organisations and the Local Organisation. The Management of

the Central Organisation is to be vested in the following bodies:

(i) The Delegates‟ Conference which "will meet one in two years or may meet more often as and when necessary and shall be the supreme organ of the Union."

(ii) The Working Committee which "will ordinarily meet once in 6 months or may meet more often as and when necessary."

3. Clause V (c) of Article III of the Constitution of the Union provides that

the Delegates‟ Conference will consist of one delegate from every local unit

provided the membership of that unit does not exceed more than 20

members and if there are more than 20 members then one delegate will be

elected for every 20 members or a major fraction thereof. Clause V (d) of

Article III reads as under:

"(d) Delegates would be elected at the General Body Meeting of all the members of the local unit. A Delegate once elected will normally hold his office for two years unless he is recalled by the members of that local unit by a resolution adopted at a meeting."

4. Clause V(e) of Article III of the Constitution of the Union states that the

W.P.(C) No. 13353 of 2009 page 2 of 12 Central Working Committee of the Union shall consist of the President,

Senior Vice-President, Vice-Presidents (minimum of three and maximum of

five), General Secretary, Four Joint Secretaries, the Treasurer, two Joint

Treasurers and one member after every 100 members or a major fraction

thereof provided that "in the case of Provinces, the Working Committee

members from that State will be elected taking into consideration the total

aggregate membership of the State concerned." A further proviso states that

"the Delegates‟ Conference may admit any honorary member as additional

member or Working Committee subject to Section 22 of the Indian Trade

Union Act, 1926, or any additional member may be co-opted as provided in

Article II, Clause II, Sub-Clause (e)."

5. It is not in dispute that the delegates are to be elected at the General Body

Meeting of the members of the local unit. A delegate once elected holds

office for two years unless recalled by the members of that local unit by a

resolution after the meeting. From amongst the delegates are elected the

office bearers of the Working Committee, Respondent No.4 herein.

Consequently, the hierarchy is that the Union has a Delegates‟ Conference

which is the highest organ from which the Working Committee is

constituted. In terms of Article IV Clause 6 (b) (i) of the Constitution of the

Union, the Central Working Committee will implement "all resolutions and

directions of the Delegates‟ Conference."

6. It is obvious that the term of the Central Working Committee has to

necessarily be co-terminus with the term of the Delegates‟ Conference

W.P.(C) No. 13353 of 2009 page 3 of 12 which is comprised of the elected members from a local unit and normally

holds office for two years unless recalled earlier by the members of that

local unit by a Resolution after a meeting. This Court finds on a collective

reading of all the above clauses of the Constitution of the Union that there is

nothing therein which permits the extension of the term of the Working

Committee of the Union beyond what is stipulated therein.

7. What, however, appears to have happened in the present case is that even

before the term of the Respondent No.4 Working Committee came to an end

on 21st July 2009, a meeting was convened of the delegates on 7 th February

2009. The minutes of the said meeting have been enclosed with the counter

affidavit filed on behalf of the Respondent No. 4 Working Committee. 154

delegates are shown to have attended the said meeting. Comrade Vidhur

Bhargava who chaired the meeting informed the meeting that the elections

of the delegates were to be held sometime in April/May 2007 and that "the

time for the delegates election was nearing." Mr. Kanhaiya, Assistant

Secretary stated that since the long term settlement („LTS‟) being negotiated

with the IOCL Management was in progress, "holding the elections at this

juncture shall make the office bearers busy in electioneering and the

management will take the advantage of the situation. As 25 months have

already passed, the management might call the meeting on LTS in near

future." It was suggested that since elections would take 3 to 4 months, it

was not advisable to hold it at that point in time. He accordingly made a

suggestion that "the election of delegates be held after wage revision and

work related allowance settlements were reached and signed." The minutes

show that this suggestion was accepted. It records that no one came forward W.P.(C) No. 13353 of 2009 page 4 of 12 to oppose the proposal. Accordingly the meeting resolved "that the election

of the delegates would be held after the above two settlements are signed."

The explanation for not holding elections to the Delegates Conference and

thereafter to the Working Committee of the Union is justified on the basis of

the decision taken at the above meeting of 7th February 2009.

8. The case of the Petitioners is that failure to hold elections to the Delegates

Conference before the expiry of two years and the perpetuation of the

Delegates Conference and the Respondent No.4 Working Committee beyond

the period of two years is illegal. Annexed to the petition are copies of the

representations made by the Petitioners on 18th June, 1st September, 9th

September and 16th September 2009 to the Respondent No.4 Working

Committee. In addition, representations were made to the Respondent No.2,

Deputy Labour Commissioner, GNCTD and Respondent No.3 IOCL.

9. On 30th September 2009, the Petitioners wrote to the IOCL asking it not to

negotiate with the present Working Committee. They enclosed a list of

around 800 members the Union who according to them had "given their

consent for holding early elections of the union." The Petitioners were

informed by a letter dated 27th October 2009 of Respondent No.2 that "there

is no power conferred upon the Registrar of Trade Unions in relation to

holding the elections." The Petitioners were advised to approach the civil

court for directions. A dispute was raised by the Petitioners before the

Registrar of Trade Unions. Meanwhile, the present writ petition was filed.

10. In its counter affidavit, the Working Committee has not denied the above W.P.(C) No. 13353 of 2009 page 5 of 12 facts. It is further pointed out that some of the Petitioners had attended the

meeting of the Delegates held on 7th February 2009 were therefore party to

the resolution adopted at the said meeting. Consequently, they could not

object to the postponement of the elections. Reliance is placed on the

decision of the Bombay High Court in Telco Kamgar Sangathana v.

Avinash Pandurang Toro (1990) 1 LLN 60 where the prayer for stay of the

election of the working President was refused. It is maintained that no

illegality has been committed by Respondent No.4 and the election of the

Delegates would be held after finalization of the LTS and wage revision

settlement for which negotiations were in progress with the Respondent

No.3 IOCL.

11. On 22nd January 2010 an order was passed by this Court directing

Respondent No.4 to inform the Court about the date of the election of the

Working Committee. However, on 19th February 2010 Respondent No.4 did

not inform the Court of any such decision. On that date the following order

was passed by this Court:

"1. It is a matter of concern that elections which were to be held to the Working Committee of the Respondent No.4 have till date not been held, although the term of the present Committee came to an end sometime in April/May 2009. Learned counsel for the Respondent No.4 has taken the Court through the document dated 7 th February 2009 where it is recorded that the „delegates‟ assembled decided that they will not hold elections till such time a decision is not taken by the management on wage revision.

W.P.(C) No. 13353 of 2009 page 6 of 12

2. Workers who were aggrieved by the non-holding of elections have approached the Registrar of Trade Unions. On the previous date this Court was informed that the hearing would take place before the Registrar of Trade Unions on 17th February 2010. Today counsel appearing for the Registrar informs the Court that the hearing could not take place on that date.

3. This Court expresses its displeasure that the statutory authority has not found time to deal with this issue with any sense of urgency. Counsel now assures this Court that next date fixed before the Registrar of Trade Unions is 9th March 2010, and that the Registrar will, irrespective of whether all the parties are present before him, proceed with the hearing and take a decision within a period of ten days thereafter. A copy of the decision of the Registrar be placed on record in this Court within a period of ten days thereafter.

4. List on 26th March 2010.

5. In the event the Registrar does not take a decision as directed by this Court, he will personally remain present in the Court on the next date of hearing.

6. Order dasti to the parties. A copy of this order be delivered to the Registrar of Trade Union within five days."

12. Two developments took place thereafter. The first was that on 22nd

March 2010 a meeting of the Union was held where, inter alia, the date for

holding the elections of the Delegates was discussed. Although a reference

was made to the resolution dated 7th February 2009 it was decided to finalise W.P.(C) No. 13353 of 2009 page 7 of 12 a date for the election of Delegates since the LTS was likely to be reached

before 30th June 2010. After deliberations it was decided that "the date of

election of the Working Committee will be declared sometime in August

2010 and meanwhile in July 2010 the Delegates Election may be

conducted."

13. On 22nd March 2010, the Registrar of Trade Unions gave his decision

holding that there was no power under the TU Act to issue directions

regarding the holding of elections to a registered trade union.

14. Ms. Asha Jain Madan, learned counsel appearing for the Petitioners

assails the said order dated 23rd March 2010 passed by the Registrar and

submits that in the decision in North Eastern Railway Employees Union v.

IIIrd Additional District Judge, Farukhabad AIR 1988 SC 2117 it was

observed that the Registrar of Trade Unions is the authority charged with the

duty of administering the powers of the TU Act. In that case the elections

were directed to be held under the supervision of the Registrar of Trade

Unions or by an officer designated by him for that purpose. Further reliance

is also placed on the judgment in Indian Explosives Workers Union v. State

of Bihar (C.W.J.C. 1545/1989 (R) dated August 29, 1989) where the

contention that the Registrar of Trade Unions has no jurisdiction to hold

elections, was rejected by the Supreme Court. In B.C. Sharma v. M.L.

Bhalla JT 2006 (8) SC 600 it was held that although technically the

Registrar of Trade Unions may not have the authority to supervise the

holding of elections under the TU Act, he can direct the said authority or an

officer designated by the Registrar to supervise the holding of elections. It is W.P.(C) No. 13353 of 2009 page 8 of 12 accordingly submitted that the Registrar of Trade Unions fell in error in not

acknowledging his power to direct holding of an election.

15. Mr. B.K. Pal, learned counsel appearing for Respondent No.4 on the

other hand contended that no illegality had been committed by the Working

Committee. It had passed a valid resolution on 7 th February 2009 agreeing

to postpone the election. According to him, there is no particular provision

in the Constitution of the Union limiting the tenure of a Working

Committee. In any event, the attempt was not to perpetuate the term of the

present Delegates Conference and Working Committee. It was submitted

that since the Respondent No.4 plans to hold elections to the Delegates

Conference in July 2010 and the subsequent elections to the Central

Working Committee in August 2010, the apprehension of the Petitioners

should be allayed and they should await the completion of the LTS/wage

revision negotiations.

16. On a perusal of the order passed by the Registrar of Trade Unions, this

Court finds that the cases referred to therein hold that the Registrar is not a

quasi-judicial authority under Section 28 of the TU Act to decide an election

dispute between two groups. The decisions that lay down this law are Oil &

Natural Gas Commission Workmen's Association v. State of West Bengal,

1988 I LLN 1052 (Calcutta High Court), Mecon Employees Union v. State

of Jharkhand 2002 (92) FLR 275 (Jharkhand High Court) and Falguni

Chakraborti v. State of West Bengal 2002 LIC 65 (Calcutta High Court).

17. In the considered view of this Court the view taken by the Registrar was W.P.(C) No. 13353 of 2009 page 9 of 12 erroneous. He was not asked to resolve the inter se dispute between the

Petitioners on the one hand and the Respondents on the other. The request

was that since the Delegates Conference has come to a closure, a direction

should be issued for conducting fresh elections.

18. This Court fails to appreciate why such a direction cannot be issued by

the Registrar of Trade Unions. It was explained in North Eastern Railway

Employees Union that the Registrar of Trade Unions is the "authority

charged with the duty of administering the powers under the TU Act. In that

case it was directed that the elections should be held under the supervision of

the Registrar of Trade Unions." The present case is really not an election

dispute as wrongly understood by the Registrar. Also the Registrar has not

been called upon to resolve the dispute between the rival factions of the

union. The request was only for holding an election. In the facts and

circumstances, this Court finds no reason to decline the prayer for holding

the elections to the Central Working Committee at an early date.

19. A further issue that has arisen is that the LTS negotiations are underway

and till such time the freshly elected Delegates Conference and Working

Committee are in place, which may take till end August 2010, if one went by

the affidavit filed on behalf of Respondent No.4 Working Committee, the

Petitioners would be denied participation in the LTS being negotiated with

the IOCL. The explanation offered by Respondent No.4 that no illegality has

been committed by it, ignores the fact that on the contrary there is no

W.P.(C) No. 13353 of 2009 page 10 of 12 provision in the Constitution of the Union that permits the extension of the

tenure of a Working Committee beyond the period of two years. No such

provision was shown except some general provisions which vest the Central

Working Committee with certain powers. It is not possible therefore to

sustain the order dated 23rd March 2010 passed by the Registrar of Trade

Unions. It was his duty to ensure that neither the Delegates Conference nor

the Working Committee of the Union is permitted to prolong their respective

terms in office contrary to the express provisions of the Constitution of the

Union. If so permitted it would be subversive of the very scheme of the TU

Act the object of which is to ensure democratic functioning of trade unions.

20. Since Respondent No.4 has already committed itself to holding

Delegates Election in July 2010 and elections for the Working Committee in

August 2010, this Court binds Respondent No.4 to those statements. It is

directed that the election to the Delegates Conference be completed on or

before 31st July 2010 and the election to the new Working Committee be

completed by 31st August 2010.

21. In the interregnum, this Court finds it appropriate to direct that whenever

hereafter any meeting is held by the IOCL in regard to LTS, two

representatives of the Petitioners will also be permitted to participate in the

meeting. This interim arrangement will continue till such time the elections

are held in accordance with the above time schedule, and new office bearers

take charge. The Petitioners will furnish to the IOCL within a period of ten

days the names of the two persons who will be representing them at the

meetings to be held by the IOCL for working out an LTS.

W.P.(C) No. 13353 of 2009 page 11 of 12

22. The writ petition is accordingly disposed of with the above directions.

S. MURALIDHAR, J.

APRIL 05, 2010
dn




W.P.(C) No. 13353 of 2009                                      page 12 of 12