Shri Sushil Ahuja & Ors vs State Bank Of India Officers ...
2010 Latest Caselaw 1689 Del

                THE HIGH COURT OF DELHI AT NEW DELHI

%                                                     Judgment Reserved on: 18.03.2010
                                                      Judgment delivered on: 26.03.2010

     IA No.150/2010 (under O.39 R.1 & 2 CPC) & IA No. 290/2010 (under O.39 R.4 CPC) in
                                     CS(OS) No.15/2010

SHRI SUSHIL AHUJA & ORS                                                     ..... PLAINTIFFS


                                                 Vs


STATE BANK OF INDIA OFFICERS‟ ASSOCIATION
(DELHI CIRCLE) AND ORS                                                      ..... DEFENDANTS


Advocates who appeared in this case:

For the Plaintiffs : Mr V K Rao, Sr Advocate with Mr Sumer Khanna, Mr Saket Sikri & Mr Vaibhav
                     Kalra
For the Defendant: Mr Sandeep Sethi, Sr Advocate with Mr Saurabh Mehra for defendant nos 1 & 2.
                     Mr Neeraj Kishan Kaul, Sr Advocate with Ms Tara V Ganju & Mr Pratyush Saho for
                     defendant nos 3 to 7.

CORAM :-
HON'BLE MR JUSTICE RAJIV SHAKDHER

1.

Whether the Reporters of local papers may be allowed to see the judgment ? Yes

2. To be referred to Reporters or not ? Yes

3. Whether the judgment should be reported Yes in the Digest ?

RAJIV SHAKDHER, J

IA No.150/2010 (under O.39 R.1 & 2 CPC by plaintiffs) & IA No. 290/2010 (under

O.39 R.4 CPC by defendant nos 1 & 2)

1. By this common order I shall dispose of the interlocutory applications (in short

„IAs‟) filed both by the plaintiffs as well as the defendants. IA No. 150/2010 has been

filed by the plaintiffs under the provisions of Order 39 Rule 1 & 2 of the Code of Civil

Procedure, 1908 (in short the „CPC‟), while IA No. 290/2010 has been filed by

defendant nos 1 and 2.

2. The defendant nos 1 and 2 have moved this application to seek vacation of ad

interim ex-parte order passed by me on 08.01.2010 on the above referred IA being: IA

No. 150/2010 moved by the plaintiffs. In the operative part of the order dated

08.01.2010 I had directed as follows:-

".......In the circumstances, the defendant no.3 while being permitted to continue

with the election process shall refrain from declaring the results till the next date of

hearing......."

3. The circumstances in which the plaintiffs have instituted the present action

require to be noted in order to dispose of the captioned applications.

3.1 The plaintiffs herein who are officers of the State Bank of India (in short „SBI‟)

claim that they have been continuously working with various branches of SBI, in the

Delhi circle. The plaintiffs also assert that they are members of the State Bank of India

Officers‟ Association, Delhi Circle i.e., defendant no.1. Defendant no.1, which is (as

indicated hereinabove) an association of officers of the State Bank of India, Delhi

circle; is a trade union registered under the Trade Unions Act, 1926 (in short the „Trade

Unions Act‟).

3.2 Defendant no.1, it appears, in a meeting convened by its Central Committee on

29.11.2009, amongst various other issues took several decisions including those with

regard to the holding of elections for various posts for the period 2009-2012,

constitution of an Election Committee and Election Tribunal. Consequent thereto, the

Election Committee (pursuant to the decision of the Central Committee dated

29.11.2009 and the circular no.39 of even date i.e., 29.11.2009 issued by defendant

no.2 i.e., General Secretary of defendant no.1) invited nominations for the post of

Circle Office Bearers and Module Committee and Districts vide their notification dated

01.12.2009. The said notification inter alia detailed out the posts for which elections

were to be held, the election schedule and the rules for elections.

3.3 The plaintiffs have impugned before me the actions of the defendants in calling

for elections, constituting the Election Committee as also the Election Tribunal. At this

point it would be relevant to extract the prayers made in the suit because there has been

some amount of argument on the scope of the prayers:-

"(i) grant the permanent injunction thereby restraining the Defendant No.1 and the Defendant No.3 to count the votes cast;

(ii) grant the permanent injunction thereby restraining the Defendant No.1 and the Defendant No.3 from releasing the result of the election malafidely conducted by the Defendant No.3 in violation of all principles of law;

(iii) grant the mandatory injunction that the Defendant No.1 be directed to conduct fresh and fair elections by appointing an Election Committee constituted by the General Council or under the supervision of an independent body;

(iv) declare that all acts done by the Defendant No.2 in capacity of General Secretary of Defendant No.1 for and on behalf of the Defendant No.1 after 5.11.2009 to be null and void;

(v) declare that the nomination of Defendants No.5, 6 and 7 accepted by the Defendant No.3 to be null and void; and/or

(vi) pass such further order(s) and/or give direction(s) as deemed fit and proper in the facts and circumstances of the case."

3.4 It would be important to note at this juncture that both parties have confined

themselves to what is primarily a legal issue as to whether the Central Committee of

defendant no.1could have taken a decision that it took on 29.11.2009 to call for

elections, constitute an Election Committee and the Election Tribunal. Counsels both

for the plaintiffs as well as the defendants addressed arguments before me on this

aspect of the matter. This is so because the only objection principally taken before me

by defendant no.2 in the captioned IA was with regard to the maintainability of the suit

in view of the constitution of an Election Tribunal. Apart from this, the defendants

have also alluded to the fact that the plaintiffs are not entitled to an ad interim relief on

the ground that they have failed to disclose that out of 140 posts for which elections

were held results with respect to 101 posts have been declared and that results are

awaited only with respect to 39 posts. In addition it has also been averred that 99

candidates who support the defendants have been elected unopposed. The fact that

plaintiffs have themselves participated in the elections in as much as they have filed

their nominations, and that elections of defendant nos 6 and 7 have been challenged by

the plaintiffs in a Civil Court in Agra where injunction was declined, which again, is

not disclosed in the instant proceedings --ought to disentitle the plaintiffs from

claiming an equitable relief from this Court.

4. On behalf of the plaintiffs Mr V K Rao, Senior advocate in the background of

these facts has submitted that the objection taken by the defendants as regards the

maintainability of suit is misconceived. He submitted that the present suit has been

filed inter alia for a declaration that the Central Committee which evidently convened

on 29.11.2009 to take the decisions, which it took, with regard to various issues

including those connected with the elections was void abinitio. He contended that the

reason for the same was that under Section 6 (hh) of the Trade Unions Act a Trade

Union (defendant no.1 being one such trade union) is entitled to frame rules, which are

required to provide that the term of the members of its Executive Committee and other

office bearers does not extend beyond a period of three years. It was, thus, submitted

by Mr Rao that there can be no dispute that the term of members of the Executive

Committee and other office bearers cannot exceed three years. It was also contended

that it can also not be disputed that the office bearers which includes the Central

Committee members, were elected to various posts on 05.11.2005 and that their tenure

came to an end in November, 2008. The Central Committee therefore, according to Mr

Rao was denuded of power to take any decision whatsoever in November, 2009. He

further contended that even if this Court were to give the Central Committee, a little

leeway, in accordance with the provisions of Bye-law 45(a) as framed by defendant

no.1 which enables extension of term of office bearers for a period of one year in times

of exigencies-- even then the decision taken on 29.11.2009 was a nullity as the

extended period of one year came to an end on 05.11.2009. Mr Rao has of course made

the said submission without prejudice to his contention that Bye-law 45(a) was beyond

the provisions of Section 6(hh) of the Trade Unions Act. In these circumstances, it

was the contention of Mr Rao that the subsequent notification dated 01.12.2009 issued

by the Election Committee inviting nominations for various posts was also bad in law.

Therefore, it was the submission of Mr Rao that the challenge to the aforesaid actions

of the Central Committee which in a sense is a progenitor of both the Election

Committee and the Election Tribunal; are actions on which the Election Tribunal

cannot adjudicate. The suit, therefore, in his submission was plainly maintainable. Mr

Rao further contented the fact that the plaintiffs had filed their nominations had been

disclosed in the plaint. He also submitted that the other fact, which was that plaintiff

nos 1 and 2, had approached this Court by instituting CS(OS) No. 2337/2009 and

obtained order dated 09.12.2009 permitting them to file their nominations and contest

elections, has also been disclosed in the plaint. These actions, according to Mr Rao,

were triggered because of the misgivings which the plaintiffs have qua the actions of

defendant no.2, who is the General Secretary of defendant no.1. In this connection,

Mr. Rao contended that in the General Council‟s meeting held on 16.11.2008, the

members while approving the new set of Bye-laws of defendant no 1 proposed by the

then Central Committee, had in no uncertain terms indicated that the elections will be

held soon after the new set of Bye-laws were approved by the Registrar of Trade

Unions, New Delhi (in short „Registrar of Trade Unions‟). He stressed that the

defendants had deliberately allowed time to lapse, and called for elections beyond the

maximum time granted under Bye-law 45(a). In support of his submission, the learned

counsel relied upon the judgment of this Court in Surender Pal Singh Chauhan &

Anr. vs Bar Council of India & Ors. : 158(2009) DLT 697 at Page 711 (para 21) for

the proposition that where a statute provides that a particular act has to be done in a

particular manner it can be done only in that manner or not at all.

5. As against this Mr Sandeep Sethi, learned Senior counsel appearing for

defendant nos 1 and 2 and Mr N K Kaul, learned Senior counsel appearing for

defendant nos 3 to 7 supported their case for vacating the interim order on the grounds

primarily articulated in their application preferred under Order 39 Rule 4 of CPC. They

highlighted the fact that the disputes raised in the present suit could only be adjudicated

upon by the duly constituted Election Tribunal. For this proposition they cited the

judgment of the Supreme Court in the case of N P Ponnuswami vs Returning Officer,

Namakkal Constituency , Namakkal, Salem Dist. & four Ors.: 1952 SCR 218. It was

thus submitted that the jurisdiction of a Civil Court (including this Court) in these

circumstances was completely ousted. The suit in their submission was not

maintainable. The learned counsel in support of their submission stated that the

election process had started in February, 2009 when, the amended Bye-laws were

approved by the Registrar of Trade Unions. Therefore, under Bye-law 57 which

provides for constitution of an Election Tribunal, (in regard to which there being no

substantial change both under the unamended and amended Bye-laws) disputes; if any,

could be agitated by the plaintiffs before the Election Tribunal. It was submitted that

the delay in holding elections was caused on account of various factors, which included

the approval of the amended Bye-laws, the restructuring in the bank, and lastly because

of large number of nominations which had been received from persons interested in

participating, in the elections. On the issue of expiry of the term of the Central

Committee, it was the submission of the learned counsel that the resolution of the

General Council passed on 16.11.2008 whereby, amended Bye-laws were approved;

ipso facto extended the term of the Central Committee. Therefore, the acts of the

Central Committee were perfectly within the realm of law. In any event, they

submitted that the law would not permit a vacuum to arise; meaning thereby that the

Central Committee would not dissolve immediately upon completion of its term. It was

submitted that the members elected to various committees including the Central

Committee would continue to function as office bearers till such time fresh elections

were held, and charge was handed over to the newly elected members.

5.1 Emphasis was laid on the conduct of the plaintiffs. It was submitted that not

only had the plaintiffs participated in the elections by filing their nominations but had

also approached this court, in regard to their right to participate, and obtained necessary

interim orders in that regard. It was also contended that the plaintiffs were guilty of

concealment, in as much as, they had not disclosed facts pertaining to proceedings

instituted by plaintiffs against the election of defendant nos 6 and 7. It was further

contended that it had not been disclosed by the plaintiffs that amongst 140 posts results

of 101 posts have been declared, out of which 99 candidates belonging to the

defendants group had been elected unopposed. It was also contended that since Section

6(hh) of the Trade Unions Act does not provide for consequences of failure to hold

elections, within the period of three years, the action of the Central Committee, if at all,

was a mere irregularity, and therefore the elections held could not be set at naught only

on this ground. Reliance in this regard was placed for this purpose on the judgment of

the Supreme Court in the case of Administrator, Municipal Committee, Charkhi Dadri

& Anr vs Ramji Lal Bagla & Ors: AIR 1995 SC 2329. It was also contended that the

declaration of results could not be interdicted by this Court. Reliance was placed on the

judgment of Supreme Court in the case of Boddula Krishnaiah vs State Election

Commissioner, A.P." AIR 1996 SC 1595. It was submitted that the principles

enunciated by the Supreme Court in the Ponnuswami's case (supra) as well as in

Boddula Krishnaiah's case (supra) is applicable even to association such as defendant

no.1. For this purpose, reliance was placed on a Division Bench judgment of this Court

in the case of Narender Kumar Jain vs Govt. of NCT of Delhi : 2008 X AD(Delhi)

105.

6. I have heard the learned counsel for the parties. At an interlocutory stage

defendants have raised an issue in an application under Order 39 Rule 4 of CPC with

regard to the maintainability of the suit, this ground is premised on the Election

Tribunal being validly constituted. It is not in dispute that in the context of the facts of

this case and the peculiarity of the Bye-laws which govern defendant no.1 that the

Election Tribunal is the progeny of the Central Committee if the old unamended Bye-

laws were to apply, and that of the Executive Committee if the amended Bye-laws were

to apply. For the purposes of a decision on this issue, it would really make no

difference if recourse is taken to the amended or unamended Bye-laws, if I were to hold

that on the expiry of term (including the extended term) of the office bearers their

actions lacked legal sanctity or, in other words, were denuded of legal force. As

indicated above, the Election Tribunal in the facts of this case takes its life and breath

from the Central Committee or the Executive Committee. It is not a permanent body

created by a statute or otherwise, to adjudicate upon the disputes pertaining to the

"election process" of defendant no. 1.

6.1 It is not in dispute that the decision to constitute an Election Tribunal was taken

at the meeting of the Central Committee held on 29.11.2009. It is also not in dispute

that the three years term expired on 05.11.2008 and the extended term expired on

05.11.2009. In these circumstances, the question which arises is; can the tribunal

determine the validity of its own constitution. In my view, the answer has to be in the

negative. It is well settled that a body cannot determine the validity of the very

statute/instrument of which it is a creature. In this regard the observations of seven

Judges of the Supreme Court in the case of L Chandra Kumar vs Union of India &

Ors: (1997) 3 SCC 261 made in connection with the Tribunals constituted under

Article 323 A and 323-B of the Constitution, at Page 309 being relevant, are extracted

hereinbelow:-

"....Before moving on to other aspects, we may summarise our conclusions on the jurisdictional powers of these Tribunals. The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional set-up, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires

of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional.

In such cases alone, the High Court concerned may be approached directly...." (emphasis is mine)

6.1.1 In similar vein are the observations of Supreme Court in an earlier judgment of

the court in the case of K. S. Venkataraman vs State of Madras AIR 1966 SC 1089 at

page 1100 para 24 which being apposite, are extracted hereinbelow:

"24 ...........But an authority created by a statute cannot question the vires of that statute or any of the provisions thereof whereunder it functions. It must act under the Act and not outside it. If it acts on the basis of a provision of the statute, which is ultra vires, to that extent it would be acting outside the Act. In that event, a suit to question the validity of such an order made outside the Act would certainly lie in a civil court."

6.1.1.2 Thus the issue of the validity of the resolution passed by the Central

Committee on 29.11.2009 which pertains to the very constitution of the Election

Tribunal, in my opinion, cannot be adjudicated upon by the Election Tribunal.

6.2 In this connection a submission was raised by the learned counsel for the

defendants that the resolution passed at the meeting of the Central Committee on

29.11.2009 has not been challenged by the plaintiffs. In my opinion, this objection of

the defendant misses the wood from the trees. A perusal of the prayers would show

that they have a far greater amplitude, which certainly would bring within its fold, the

challenge to both the resolution of the Central Committee dated 29.11.2009, as also the

notification issued by the Election Committee on 01.12.2009. A "meaningful" reading

of the averments in plaint and prayers would show that the core challenge is to the

decisions of the Central Committee taken on 29.11.2009, and the notification issued by

the Central Committee on 01.12.2009. By way of an example, averments made in

Paragraphs 10, 12, 14, 16, 17, 19 and 20 of the plaint read with relief sought in prayer

clause (iv) which has been extracted in the earlier part of my judgment, bring to fore

the challenge to the decisions of both the Central Committee and Election Committee,

quite emphatically. In the said prayer clause relief of declaration has been sought

against acts carried out by defendant no.2 in his capacity as General Secretary of

defendant no.1 after 05.11.2009. A perusal of the minutes of the meeting dated

29.11.2009, would show that it has been issued under the signatures of defendant no.2

i.e., Mr T N Goel. Therefore, in my view, the objection raised with regard to the reliefs

sought is without merit.

6.2.1 There is another aspect of the matter. The Civil Court‟s jurisdiction is governed

by Section 9 of the CPC. Section 9 mandates that the Civil Courts will have

jurisdiction to try all suits of civil nature except those suits whose cognizance is either

expressly or implicidly barred. The nine Judges of the Supreme Court in the case of

Dhulabhai etc. vs State of Madhya Pradesh & Anr: AIR 1969 SC 78 have stated in

paragraph 32 at Pages 89-90 that an exclusion of the jurisdiction of the Civil Court is

not readily to be inferred unless the conditions enunciated apply. While articulating

various conditions, one of the conditions which the Supreme Court set down was that

the jurisdiction of Civil Court was not excluded where there was challenge to the

provisions of a particular act on the ground of it being ultra vires, which could not be

brought before the tribunal constituted under the act. Therefore, in my opinion, the

challenge to the resolution passed at the meeting the Central Committee on of

29.11.2009; which in a sense is an act, which gives birth to the Election Tribunal, could

be maintained before a Civil Court. Therefore, the submission of the learned counsels

for the defendants that the suit is not maintainable, in my view, deserves to be rejected.

6..3 Based on the undisputed facts there can be no doubt in my opinion; that both the

original term as well as the extended term of the office bearer including that of the

Central Committee came to an end on 05.11.2009. In a manner of speaking the

Central Committee lost its soul on 05.11.2009. Can it then be countenanced that, it

could, on 29.11.2009 take any decision -- what to speak of decisions with regard to

constitution of an Election Committee and an Election Tribunal, I think not.

Acceptance of a submission to the contrary will be in the teeth of Section 6(hh) of the

Trade Unions Act and defendant no. 1‟s own Bye-law 45(a). If the resolution dated

29.11.2009 falls, then the resolution of the Election Committee dated 01.12.2009 will

meet the same fate.

6.4 The submission of the learned counsel for the defendants that the statute does

not contemplate a vacuum or that the actions of the defendants are, if at all, a mere

irregularity in as much as the statute or the Bye-laws did not provide for any

consequences, in not holding elections within the original term of three years, or within

the extended term; is an argument, in my view, which is misconceived in law. Under

the scheme of the Bye-laws which govern defendant no.1, the organizational set up is

provided in Bye-law 13 both under the amended and unamended Bye-laws. For the

purposes of disposal of the present applications, it is only to be noted that the General

Council which comprises of all ordinary & honorary members of defendant no.1 is the

supreme body. Only to be noted that while unamended Bye-law - 13 provides for a

Central Committee, the amended Bye-laws exclude the constitution of a Central

Committee. Therefore, by its very nature the only permanent body is the General

Council. Thus, the submission of the learned counsel for the defendants that a vacuum

would be created as to who would govern the affairs of defendant no.1 is, in my view,

untenable. In the absence of duly constituted committees which have been tasked to

perform various functions under the Bye-laws, the decision with regard to the affairs of

defendant no. 1 can always be taken at a meeting of the General Council convened by

the requisite members provided under the Bye-law 17. There is, therefore, in my view,

no vacuum in the organizational set up of defendant no.1. The judgment of the Supreme

Court in the case of Administrator, Municipal Committee, Charkhi Dadri & Anr

(supra) relied upon by the learned counsel for the defendants for the proposition that

since no consequences had been provided under Section 6(hh) of the Trade Unions Act

with regard to what would happen if the three year term of office bearers were to

expire and therefore in that sense, the actions taken beyond the tenure prescribed are

mere irregularities is, in my view, not the ratio of the said case.

6.4.1 The facts in the Administrator, Municipal Committee, Charkhi Dadri & Anr

(supra) were as follows: A notification under Section 42 of the Punjab Town

Improvement Act, 1922 was issued to acquire a piece of land within the boundary of

Charkhi Dadri Municipality for implementing a scheme prepared by Charkhi Dadri

Improvement Trust (in short „Trust‟). The scheme was duly notified. Pursuant to the

notification of the scheme, steps were initiated for acquiring the requisite parcel of

land. Awards were passed, and compensation was also paid to persons interested in the

land acquired. The possession of the land was also taken over by the Trust. In the

context of these facts an issue arose whether given the provisions of Section 44-A of

the Punjab Town Improvement Act, 1922, the failure to execute the scheme notified by

the Trust, within the stipulated period of five years from the date of notification would

result in reversal of acquisition. Section 44-A of the said Act also contained a proviso

which empowered the State Government to extend the said period if it was satisfied

that, for reasons beyond the control of the Trust, the scheme could not be executed

within the stipulated period. The Supreme Court in this context held that the main part

of the provisions of Section 44-A which contained the word „shall‟ for the purposes of

execution of the scheme within the prescribed period had to be read as "directory" and

the acquisition could not be nullified which had become final, and thereby resulting in a

situation whereby, the Trust was divested of its title. In coming to the conclusion that

„shall‟ used in the context of the said provision was directory, the Court took notice of

the proviso to Section 44-A which enabled the Government to extend the time.

According to me, observations made therein turned on the provisions of that particular

statute. There is no such power conferred on any authority under the Act to extend

time. As noticed hereinabove, Bye-law 45(a) provides for an extension by a period of

one year after the expiry of the term of the elected members. Admittedly in the instant

case even the extended period came to an end. I am not commenting for the moment

on the submission made before me that the provisions of Bye-law 45(a) are ultra vires

the provisions of the Trade Unions Act, in as much as, it is not presently necessary to

do so for the purposes of deciding the captioned applications and the issues raised

before me.

6.5 The submissions of the learned counsel for the plaintiffs based on the principles

enunciated in the judgments of the Supreme Court in the case of N.P Ponnuswami

(supra) and Boddula Krishnaiah (supra) and those in the judgment of the Division

Bench argued that the election process could not be interdicted. In my view, the said

judgments are distinguishable for the reason that they were rendered in the context of

bodies which stood created under the provisions of the Constitution or a Statute. Being

mindful of the general principles enunciated in these cases, at the ex-parte stage,

elections were not interdicted by me. The only protection which the plaintiffs were

given was with regard to declaration of results as otherwise the entire suit would have

been rendered infructuous. In my view, therefore, the judgments cited by the

defendants will not help in finding a solution to the particular problem which has arisen

in the facts of this case. It is equally well settled that judgment is binding for what it

decides and not what logically follows from it. [See Bhavnagar University vs Palitana

Sugar Mill (P) Ltd (2003) 2 SCC 111 at page 130 paragraph 59].

6.6 I shall now deal with the aspect of relief, if any, which ought to be given to the

plaintiffs. This also brings me to the submission of the learned counsels for the

defendants that looking at the conduct of the plaintiffs the interim order granted by me

on 08.01.2010 ought not to be continued. It cannot be disputed that the plaintiffs have

disclosed the fact that they had filed their nominations for participation in the elections.

The plaintiffs have also disclosed the fact that they have instituted a suit in this Court

for that very purpose and obtained orders in that regard from a Single Judge of this

Court. However, the issue as to whether non-disclosure of the fact that, out of 140

posts elections had been declared for 101 posts, and that 99 persons of the defendants

group had been elected unopposed; or that plaintiffs had filed suits against defendant

nos. 6 & 7 in the city civil court at Agra, ought to disentitle plaintiffs to protection of

this court, is pivoted on both knowledge and materiality.

6.7 I find that this very issue has been articulated in the written statement filed by

defendant nos 1 and 2. In response, in paragraph 8 of the replication, the plaintiffs have

stated as follows:-

"....The averments made in para 4 and 5 of the preliminary objections and the instant para clearly demonstrate the extent of manipulations in the election process as out of 140 posts, 101 posts have been elected unopposed.

The contention of the answering defendants that results for 101 posts were declared on 26.12.2009 is totally false and frivolous and the documents supporting the same produced by the defendants no.1 and 2 is totally false and frivolous and fabricated as the same document was never brought to the knowledge of the plaintiffs nor the defendants no.3 and 4 to whom the said documents pertained to, mentioned about the same in their written statement. The extent of rigging and the malafides behind the elections are further borne out from the fact that all the posts of (1) Regional Secretary, Special units Delhi; (2) Meerut Module; (3) Majority of Agra Module; (4) District Conveners and District Secretaries have been declared elected unopposed clearly showing that there was negligible participation of the members in the election process, whose very initiation was illegal and malafide.,..." (emphasis is mine) 6.8 A perusal of the aforesaid paragraph clearly shows that the plaintiffs have

claimed that they have no knowledge of declaration of results on 26.12.2009 with

regard to 101 posts. If this issue has been raised it could only be determined at the trial

as to whether stand taken by the plaintiffs is factually correct. Similarly, with regard to

institution of suit against defendant nos. 6 and 7, a perusal of the written statement

would show that the allegation is qua the colleagues and not the plaintiffs. In paragraph

11 of the replication on the other hand it has been further clarified that apart from lack

of knowledge the challenge is to the nominations of defendant nos. 6 and 7 and not

elections. In any event, in my view, if the core issue raised by the plaintiffs is to be

accepted, which is, that on the completion of the term of the Central Committee, the

Central Committee ipso facto stood dissolved and any actions taken thereafter could

have no legal effect, this aspect of the matter even if it is considered for the sake of

argument was deliberately withheld, in my view would not be material and hence, lead

to a situation that I would disentitle them to a relief which they would be otherwise

entitled to. The observation of the Supreme Court in the case of SJS Business

Enterprises (P) Ltd. vs State of Bihar & Ors: (2004) 7 SCC 166 at page 173 para 13

on what constitutes material information, being apposite, are extracted hereinbelow.

"13. As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But the suppressed fact must be a material one in the sense that it had not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the court, whatever view the court may have taken." (emphasis is mine)

7. In the context of the present case there is no doubt that the original tenure as

well as the extended tenure of the officer bearers came to an end on 05.11.2009; would

it then make a difference as to whether results of elections to posts, pursuant to a non-

est election were disclosed or not. As to the number of candidates elected unopposed

or otherwise, would have no impact on the issue raised before me. Mr Rao in his

submissions, as a matter of fact, referred to the averments by the defendants in their

application filed under Order 7 Rule 11 of CPC in CS(OS) No. 2337/2009 wherein it is

stated that the unamended Bye-laws governed defendant no.1 and its members only till

November, 2008, and thereafter it was governed by the amended Bye-laws. Based on

this, it was argued that the unamended Bye-laws provided for a Central Committee,

whereas after the amendment of the Bye-laws defendant no.1 had done away with the

very existence of a Central Committee. Therefore, any which ways, according to Mr

Rao, there was no Central Committee in existence on the date when evidently, a

decision was taken to hold elections. In my view, as indicated above, it would suffice

for the purposes of disposal of the application if the submission of the plaintiffs that

after 05.11.2009 the Central Committee stood ipso facto dissolved, is accepted.

8. The argument of the learned counsel for the defendants that by virtue of the

resolution of the General Council dated 16.11.2008 the term of the Central Committee

stood extended is also untenable, in my view. A bare reading of the resolution no.12

passed by the General Council on 16.11.2008 would show that the General Council by

an unanimous resolution adopted the amended Bye-laws as proposed by the then

Central Committee. The General Council further resolved that the new Bye-laws shall

take effect from the next general election of the defendant no. 1 which, according to the

resolution were to be held soon after the approval of the amended Bye-laws by the

Registrar, Trade Unions. The defendants have accepted the fact that the amended Bye-

laws were approved by the Registrar Trade Unions, in February, 2009; therefore, even

if the argument of the defendants is to be accepted and the extended term of the Central

Committee under Bye-law 45(a) is made applicable then, the elections necessarily had

to be held before 05.11.2009. The argument of the defendants that the Central

Committee‟s tenure would extend beyond 05.11.2009, is without merit. If I may add a

general foot note to my judgment, which is that this precise argument of the defendants,

unintendedly reflects the malaise which afflicts bodies, such as defendant no.1, which

misuse such like provisions to perpetuate control by causing delay in holding elections

on one pretext or the other. Such a submission is fraught with inherent danger of

turning, what are essentially structured as democratic institutions, into a fiefdom of a

few who control such associations and organizations.

8.1 My discussion hereinabove, would show that the plaintiffs not only have a

strong prima facie case but the balance of convenience is also in their favour.

9. This brings me to the last part of the judgment as to whether in the facts and

circumstances of the present case it would enure to the benefit of either party if the

injunction order is confirmed. There are a few options available with the court: First,

confirm the ad interim order. Second, vacate the interim order and tell the litigant (in

particular, involving challenge to elections) even though you have a good chance of

success at the final stage, at the interlocutory stage no relief can be granted since the

suit and thereafter the parties involved would have to go through the grind of a trial.

The third, is a surgical option which would be to cut the gordion knot and provide

immediate relief to warring parties by enabling the General Council to call for fresh

elections. Issuing mandatory order at an interim stage is rare but not without precedent.

(See Dorab Cawasji Warden vs Coomi Sorab Warden & Ors (1990) 2 SCC 117). An

order such as this always results in a loss of face for those already elected-- but this is

all for a good cause which is strengthening of the institution. Apart from the other

aspects articulated above, what has also weighed with me is the fact that out of 140

posts, 101 posts have been won without opposition. If the defendants are truly as

popular as the statistics suggest, then a re-election would not affect them and if they are

not as invincible as they seem, a wrong would be righted. Either way, the institution,

i.e., would stand to gain.

10. In view of the discussions above, I am of the opinion that the interim order

passed on 08.1.2010 will have to supplanted by calling for fresh elections. It is not

doubted that the General Council of defendant no.1‟s association is in position.

Therefore, in the facts and circumstances of the case it would, in my opinion, be

appropriate if the Registrar of Trade Unions is directed to convene a meeting of the

General Council to enable the General Council to decide as to the date, mode and

manner in which elections be held to the posts provided under the extant Bye-laws.

The Registrar of Trade Unions shall convene a meeting of the General Council of

defendant no. 1 within the shortest possible time keeping in mind the provisions of the

Trade Unions Act and the Bye-laws of defendant no. 1. Both at the convened meeting

of the General Council and the elections held pursuant to it, the Registrar, Trade Union

shall act as the observer. Within one week of the conclusion of the meeting of the

General Council, and similarly within two weeks of the declaration of the results of

election; a report shall be filed by the Registrar, Trade Union. The applications are

disposed of accordingly. IA No. 290/2010 is dismissed.

Dasti.

RAJIV SHAKDHER, J MARCH 26, 2010 mb